Va. Marine Res. Comm'n v. Clark

• Decision Date: 21 April 2011
• Docket Number: Record Nos. 100034,100043.
• Citation: 709 S.E.2d 150,281 Va. 679
• Parties: VIRGINIA MARINE RESOURCES COMMISSIONv.Charles CLARK, et al.City of Virginia Beachv.Charles Clark, et al.
• Court: Virginia Supreme Court

281 Va. 679

709 S.E.2d 150

VIRGINIA MARINE RESOURCES COMMISSION

v.Charles CLARK, et al.City of Virginia Beach

v.Charles Clark, et al.

Record Nos. 100034

100043.

Supreme Court of Virginia.

April 21, 2011.

David C. Grandis, Assistant Attorney General (Kenneth T. Cuccinelli II, Attorney General; Elizabeth A. Andrews, Assistant Attorney General, on briefs), for appellant in No. 100034.Christopher S. Boynton, Deputy City Attorney (Mark D. Stiles, City Attorney; Natalie P. Mann, Assistant City Attorney, on briefs), for appellant in No. 100043.Kevin E. Martingayle (Stallings & Bischoff, on brief), Virginia Beach, for appellees.Present: KINSER, C.J., LEMONS, GOODWYN, and MILLETTE, JJ., and LACY and KOONTZ, S.JJ.OPINION BY Senior Justice ELIZABETH B. LACY.

In these combined appeals, we consider whether the Court of Appeals erred in reversing the judgment of the Circuit Court of the City of Virginia Beach dismissing a petition for appeal from a decision of the Virginia Marine Resources Commission (VMRC) because the petition did not contain allegations sufficient to demonstrate standing.

BACKGROUND

The City of Virginia Beach filed an application with the VMRC to install a stormwater outfall pipeline (the pipeline project) in, on and over state-owned bottomlands located ocean-ward of 61st Street in Virginia Beach. The proposed pipeline project consisted of a 48–inch concrete outtake pipe that would be installed in the subaqueous ocean bottom for a distance of 940 feet from the mean low-water mark for the discharge of storm water. The pipe would be buried 10 feet below the mean low-water mark.¹

On May 27, 2008, the VMRC conducted a public hearing pursuant to Code § 28.2–1205 to consider the City's application. At the hearing, a number of persons who resided at or owned property located on or near 61st Street and the Virginia Beach ocean front (collectively “the Residents”) appeared in opposition to the pipeline project arguing that the pipeline project was not needed, posed environmental and water quality concerns, and was not consistent with other discharge pipelines that extended 2000 feet into the ocean. After reviewing the VMRC staff recommendations, testimony presented on behalf of the City, project supporters, and project protesters, and the documents and correspondence produced at the hearing, the VMRC unanimously voted to approve the pipeline project on the condition that the pipeline be extended from 940 feet to 2000 feet.

The Residents appealed the VMRC's decision to the Circuit Court of the City of Virginia Beach pursuant to Code § 28.2–1205(F).² In their petition for appeal, the Residents alleged, in part, that “the VMRC made decisions adverse and/or objectionable to appellants, giving rise to this appeal.” The VMRC filed a motion to dismiss the appeal challenging the sufficiency of the Residents' pleading arguing that, pursuant to Code § 28.2–1205(F), only persons aggrieved by a decision of the VMRC are entitled to judicial review of the decision and the Residents here failed to allege how they may be aggrieved. The City, in its answer and affirmative defenses, also asked the circuit court to dismiss the petition for appeal arguing that the Residents did not allege a “proper jurisdictional basis” for the appeal because they “fail [ed] to allege how they are aggrieved” by the VMRC's decision.

The circuit court heard arguments on the standing issue raised by the VMRC and the City and concluded that the Residents' petition alleged only “non-particularized claims of harm” which did not establish standing. In response to the circuit court's inquiry asking the Residents' counsel what he “would do” if granted leave to amend the pleadings, counsel for the Residents responded that, although he believed the petition was sufficiently pled, he could “beef up the statements relating to how and why the various appellants have standing as aggrieved parties” and he would add “the pollution and health concerns ... explained to the VMRC.” The circuit court entered an order dismissing the Residents' petition for appeal and denied the Residents' motion to amend the petition for appeal.

The Residents appealed to the Court of Appeals arguing, as relevant here, that their petition for appeal of the VMRC decision contained allegations sufficient to establish legal standing and the circuit court erred in dismissing the petition. The Residents also assigned error to the circuit court's denial of their request to amend the petition. The Court of Appeals held that Rule 2A:4 which governs the petitions for appeal from agency decisions did not require the petition to contain allegations to establish standing and therefore the circuit court “improperly expanded the requirements of the rule” and erred in dismissing the Residents' appeal for failure to allege standing. Clark v. Virginia Marine Res. Comm'n, 55 Va.App. 328, 336–37, 685 S.E.2d 863, 867 (2009). The Court of Appeals remanded the case for an evidentiary hearing on the standing issue. Id. at 337–38, 685 S.E.2d at 867–68.

The VMRC and the City each filed an appeal to this Court assigning error to the Court of Appeals' judgment. The Residents filed an assignment of cross-error in both appeals, in which they asserted that the Court of Appeals erred in remanding the case for an evidentiary hearing and argued such hearing was unnecessary because the record demonstrated that the Residents were aggrieved parties with standing to maintain the appeal. Having determined that the decision of the Court of Appeals involves matters of significant precedential value, Code § 17.1–410(B), we granted the appeals filed by the VMRC and the City and the cross-error assigned by the Residents and combined the appeals for consideration here.

DISCUSSION

The Court of Appeals based its decision reversing the judgment of the circuit court on its application of Rule 2A:4. Subsection (b) of that Rule states that a petition for appeal

shall designate the regulation or case decision appealed from, specify the errors assigned, state the reasons why the regulation or case decision is deemed to be unlawful and conclude with a specific statement of the relief requested.

Because the Rule does not specifically state that a petition for appeal must contain facts supporting a petitioner's standing to prosecute the appeal, the Court of Appeals concluded that such allegations are not necessary and the Residents' petition was sufficient to withstand the motion to dismiss challenging the Residents' standing. This construction and application of the Rule misconstrues the role of the rules in such appeals and is inconsistent with established relevant principles of jurisprudence.

The Court of Appeals' opinion states that Rule 2A:4 sets out the “only requirements” for a legally sufficient petition for appeal and because the petition for appeal contained allegations regarding those required items, it was sufficient. 55 Va.App. at 334, 685 S.E.2d at 866. In concluding that the Residents' petition for appeal was sufficient, the Court of Appeals effectively eliminated consideration of dispositive motions based on issues other than compliance with the pleading requirements contained in Rule 2A:4.³ The Rule has never been applied in this manner.

Rule 2A:4 was enacted to address the manner of conducting a direct review of agency regulations and case decisions. See Code § 2.2–4026. The Rule cannot supersede or displace other statutes relevant to the appeal. See Code § 2.2–4000. Code § 28.2–1205(F) provides that only a “person aggrieved” by a decision of the VMRC is entitled to judicial review of that decision. Thus, compliance with Rule 2A:4 does not insulate a petition from a dispositive motion based on the failure to include allegations to show that the petitioner had the requisite standing to pursue the appeal. See e.g., Philip Morris USA Inc. v. Chesapeake Bay Found., Inc., 273 Va. 564, 577, 643 S.E.2d 219, 226 (2007); Mattaponi Indian Tribe v. Commonwealth, 261 Va. 366, 375–76, 541 S.E.2d 920, 924–25 (2001).

In this case, the VMRC filed a motion to dismiss asserting that the petition only alleged that the VMRC decision was “adverse and/or objectionable to appellants” and that this statement was insufficient to qualify the Residents as “aggrieved.” The Residents' petition for appeal was not insulated from consideration of the motion to dismiss simply because the petition for appeal satisfied the four elements set out in Rule 2A:4(b) and, in resolving the matter solely by reference to the Rule, the Court of Appeals erred.

The Court of Appeals' decision was also inconsistent with long standing case law. It is beyond debate that “[n]o court can base its decree upon facts not alleged, nor render its judgment upon a right, however meritorious, which has not been pleaded and claimed. Pleadings are as essential as proof, the one being unavailing without the other.” Potts v. Mathieson Alkali Works, 165 Va. 196, 207, 181 S.E. 521, 525 (1935) (citation omitted); Ted Lansing Supply Co. v. Royal Aluminum & Const. Corp., 221 Va. 1139, 1141, 277 S.E.2d 228, 229 (1981). Inherent in these principles is the premise that the “right” which the litigant seeks to assert is a right which the litigant is entitled to assert against the defendant. Indeed, no one would suggest that a person can be awarded relief against a defendant based on a complaint asserting a claim belonging to another. Thus our cases, including cases considering appeals from agency decisions decided on demurrer, have consistently looked to the pleadings to determine whether the petitioner has pled sufficient facts to establish the petitioner's right or standing to advance the appeal. See e.g., Philip Morris, 273 Va. at 577, 643 S.E.2d at 226; Barber v. VistaRMS, Inc., 272 Va. 319, 327–28, 634 S.E.2d 706, 711 (2006); Mattaponi Indian Tribe, 261 Va. at 375–76, 541 S.E.2d at 924–25; Keepe v. Shell Oil Co., 220 Va. 587, 589–90, 260 S.E.2d 722, 723–24 (1979); ...