City of Danville v. Virginia State Water Control Bd.

• Decision Date: 05 July 1994
• Docket Number: No. 1370-93-2,1370-93-2
• Citation: 18 Va.App. 594,446 S.E.2d 466
• Parties: CITY OF DANVILLE, Hampton Roads Sanitation District Commission, City of Lynchburg, City of Martinsville, City of Richmond, and Upper Occoquan Sewage Authority v. VIRGINIA STATE WATER CONTROL BOARD and Richard N. Burton, Executive Director, Department of Environmental Quality. Record
• Court: Virginia Court of Appeals

Page 466

446 S.E.2d 466

18 Va.App. 594

CITY OF DANVILLE, Hampton Roads Sanitation District Commission, City of Lynchburg, City of Martinsville, City of Richmond, and Upper Occoquan Sewage Authority v. VIRGINIA STATE WATER CONTROL BOARD and Richard N. Burton, Executive Director, Department of Environmental Quality.

Record No. 1370-93-2.

Court of Appeals of Virginia.

July 5, 1994.

David E. Evans, Richmond (Richard H. Sedgley; McGuire, Woods, Battle & Boothe, on briefs), for appellants.

John R. Butcher, Asst. Atty. Gen. (Stephen D. Rosenthal, Atty. Gen., Dennis H. Treacy, Asst. Atty. Gen., on brief), for appellees.

Present: BARROW and BENTON, JJ., and COLE, Senior Judge.

COLE, Senior Judge.

The appellants, City of Danville, Hampton Roads Sanitation District Commission, City of Lynchburg, City of Martinsville, City of Richmond, and Upper Occoquan Sewage Authority, are political jurisdictions and subdivisions organized and existing pursuant to the laws of the Commonwealth of Virginia. Appellee, Virginia State Water Control Board (Board), is an agency of the Commonwealth of Virginia and is charged with the supervision and control of water quality in the Commonwealth, and with the establishment of policies and regulations relating thereto, including the establishment of water quality standards. On March 30, 1992, the Board adopted amendments to the Virginia Water Quality Standards Regulation. In adopting the amendments, the appellants allege that the Board failed to comply with its water quality standards adoption authority pursuant to the State Water Control Law, Code §§ 62.1-44.2 through 62.1-44.33. The appellants filed in the Circuit Court of the City of Lynchburg their petition for appeal from the decision of the State Water Control Board pursuant to Supreme Court Rule 2A:4. Thereafter, the appellees filed their answer to the petition and a motion to transfer venue to the Circuit Court of the City of Richmond. Following the submission of briefs and oral argument on the motion to transfer, the circuit court transferred the petition to the Circuit Court of the City of Richmond.

After the transfer to the Richmond Circuit Court, the appropriate portions of the Board's file were lodged in the circuit court, and the merits of the case were briefed and argued. The trial judge entered an order finding that the Board had acted within the scope of its authority, had based its actions on substantial evidence, and had acted reasonably. Based upon these findings, the trial judge dismissed appellants' petition. The appellants appealed from the order dismissing the petition and the order transferring the case to the Circuit Court of the City of Richmond.

Although the appellants have assigned a number of errors, we need address but one: whether the Circuit Court of the City of Lynchburg erred in transferring the case to the Circuit Court of the City of Richmond under Code § 8.01-265.

In their motion to transfer venue, the appellees admitted that Lynchburg was a Category A or preferred venue under Code § 8.01-261, but they contended that it was a forum non conveniens. In support of this allegation, they asserted that the Board's voluminous file regarding this rules-making procedure was lodged at its office in Henrico County, adjacent to the City of Richmond, and the offices of both the Board's counsel and appellants' counsel are located in Richmond. They further alleged that Richmond would be more convenient for the Board's witnesses coming from the Washington, Philadelphia, or Duluth offices of the Environmental Protection Agency. They asserted that because the Richmond Circuit Court is located at the seat of government in Richmond and has decided a number of cases under the Administrative Process Act, it was familiar with the procedural and substantive law applicable to this appeal. Upon the pleadings and argument of counsel, the Lynchburg Circuit Court found that Richmond is a fair and substantially more convenient venue and that the above-stated circumstances constituted good cause to transfer this case to the Circuit Court of the City of Richmond.

The matter of venue is regulated by statute in Virginia. The purpose of the venue statute is to assure "that every action shall be commenced and tried in a forum convenient to the parties and witnesses, where justice can be administered without prejudice or delay." Code § 8.01-257. The Board's motion to transfer was addressed to the sound discretion of the Lynchburg Circuit Court judge, and his action in granting the transfer motion cannot be reversed unless the record affirmatively reflects an abuse of discretion. Code § 8.01-267. However, the right to assign as error a court's decision concerning venue is retained. Id.

Code § 8.01-261 enumerates the forums deemed preferred places of venue. Venue laid in any other forum shall be subject to objection; however, if more than one preferred place of venue applies, any such place shall be a proper forum. The parties admit that Lynchburg and Richmond are both preferred places of venue in this case because it is an action for review of a state administration regulation, decision, or order. See Code § 8.01-261(1).

A case properly filed in one court may be transferred to another "fair and convenient forum having jurisdiction within the Commonwealth" for good cause shown. Code § 8.01-265. "Good cause shall be deemed to include, but not be limited to, the agreement of the parties or the avoidance of substantial inconvenience to the parties or the witnesses." Id.

Circumstances considered in motions to transfer include:

"relative ease of access to sources of proof; availability of compulsory process for attendance of nonwilling, and the cost of obtaining attendance of willing...