Evelyn v. Com.

Citation46 Va. App. 618,621 S.E.2d 130
Decision Date25 October 2005
Docket NumberRecord No. 2945-04-2.
CourtSupreme Court of Virginia
PartiesThomas C. EVELYN v. COMMONWEALTH of Virginia Marine Resources Commission.
621 S.E.2d 130
46 Va. App. 618
Thomas C. EVELYN
v.
COMMONWEALTH of Virginia Marine Resources Commission.
Record No. 2945-04-2.
Court of Appeals of Virginia, Richmond.
October 25, 2005.

Page 131

COPYRIGHT MATERIAL OMITTED

Page 132

Bruce E. Arkema (Cantor Arkema, P.C., on briefs), Richmond, for appellant.

Carl Josephson, Senior Assistant Attorney General (Judith Williams Jagdmann, Attorney General, on brief), for appellee.

Present: ELDER, BUMGARDNER and FRANK, JJ.

ELDER, Judge.


Thomas C. Evelyn (appellant) appeals a circuit court decision holding that the Virginia Marine Resources Commission (VMRC) had the authority to order the removal of a portion of his private pier, located along the Pamunkey River. We hold the governing statutes limit the riparian owner's rights such that he may build, without a permit, only those structures "necessary" or essential to the placement of a private pier for the limited purpose of accessing navigable waters or vessels moored in those waters. The riparian landowner may not build, without a permit, incidental appendages designed merely to enhance the primary purpose of the pier. Thus, we affirm the circuit court's decision affirming the VMRC's order to appellant to remove the roof and second-story deck structure he added to his pier without VMRC approval.1

I.
BACKGROUND

On March 24, 2000, appellant submitted an application to the VMRC for permission to construct a pier and boat ramp on his property along the Pamunkey River. The application sought permission to construct on appellant's property "a six (6) foot wide[, 80-foot long] private pier extending 45 feet beyond the mean high water shoreline with an 18-foot long T-end and a 15-foot wide boat ramp extending 15 feet channelward of the mean low water line." The VMRC responded as follows:

The proposed boat ramp will require a permit from our agency. However, based upon your application and drawings, which assert that you are a riparian property owner, please be advised that no authorization is required from the [VMRC] or your local wetlands board for your pier with T-end, provided it will be used exclusively for your private, noncommercial use, is located within your riparian area, and will not extend beyond the established navigation line.

On August 7, 2000, the VMRC issued a permit for construction of the boat ramp that granted appellant "permission to . . . [e]ncroach in, on, or over State-owned subaqueous bottoms pursuant to Chapter 12, Subtitle III, of Title 28.2 of the Code of Virginia."

On May 8, 2002, VMRC staff conducted a "routine compliance check" of the boat ramp. The ramp constructed was longer than authorized by the permit, but "the additional length over the original request was landward of mean low water[,] and the subaqueous encroachment was consistent with the permit." Appellant applied for and received an after-the-fact approval for the boat ramp extension.

Also at the May 8, 2002 compliance check, VMRC staff determined that the pier constructed was longer than proposed, that the T-head was larger than proposed, and that a "roof/deck with stair access," not mentioned in the request for authorization, "had been constructed over a portion of the pier T-head." At a follow-up visit on May 16, 2002, appellant's agent indicated that the changes in the design of the pier were made after receipt of the VMRC's letter of April 18, 2000, indicating that no authorization was required for the pier. The agent indicated his belief, based on the VMRC's letter, that no additional authorization was required for

Page 133

the changes to the pier to include the roof/deck structure.

On May 21, 2002, the VMRC issued a notice of violation based on the unauthorized roof structure and ordered that the structure be removed. However, it also acknowledged appellant's desire to submit "an after-the-fact request to modify [the] existing permit to retain the existing roof structure" and agreed to hold "further enforcement in abeyance" pending the VMRC's ruling on the request. Appellant submitted that request, which included "adjoining property forms" indicating no opposition to the structure and a letter from the applicant's sister indicating that several family members were elderly and handicapped and required the shade provided by the structure's second story in order to enjoy family gatherings on the pier.

On September 24, 2002, the VMRC held a hearing on appellant's request. The "[r]ecommendation from [VMRC] staff" was to deny the after-the-fact request, based in part on the following rationale:

The applicant and/or agent were well aware that permits for encroachment over State-owned subaqueous lands are required since a permit was issued for the boat ramp. Additionally, the structures, as built, do not conform to the original drawings and contain larger and additional structures than . . . originally requested. In this case, the covered roof/deck structure represents an unauthorized encroachment over State-owned submerged lands and is not necessary for use of the pier or access to the river.

The VMRC voted seven to one to deny the request for after-the-fact authorization for the roof/deck structure and to require its removal within 60 days.

Appellant noted his appeal to the New Kent County Circuit Court. Appellant's primary argument was that the roof/deck structure was allowed as part of the pier that Code § 28.2-1203(A)(5) authorized him to construct without a permit. Appellant argued in the alternative that the VMRC acted arbitrarily and capriciously in rejecting his after-the-fact request for a permit. The court affirmed the VMRC's ruling. On appeal to this Court, appellant contends only that the pier and roof/deck structure are exempt from the VMRC's control based on the language of existing statutes and the absence of any applicable regulations. He does not contend that, if the VMRC had such permitting authority, it acted arbitrarily and capriciously in rejecting his application for approval after-the-fact.

II.
ANALYSIS

On appeal of an agency's determination on issues of law, "`[i]f the issue falls outside the area generally entrusted to the agency, and is one in which the courts have special competence, i.e., the common law or constitutional law,'" the court need not defer to the agency's interpretation. Johnston-Willis, Ltd. v. Kenley, 6 Va.App. 231, 243-44, 369 S.E.2d 1, 8 (1988) (quoting Hi-Craft Clothing Co. v. NLRB, 660 F.2d 910, 914-15 (3d Cir.1981)).

However, where the question involves an interpretation which is within the specialized competence of the agency and the agency has been entrusted with wide discretion by the General Assembly, the agency's decision is entitled to special weight in the courts[, and] . . . "`judicial interference is permissible only for relief against the arbitrary or capricious action that constitutes a clear abuse of delegated discretion.'"

Id. at 244, 369 S.E.2d at 8 (quoting Va. Alcoholic Beverage Control Comm'n v. York St. Inn, Inc., 220 Va. 310, 315, 257 S.E.2d 851, 855 (1979) (quoting Schmidt v. Bd. of Adjustment, 9 N.J. 405, 88 A.2d 607, 615-16 (1952)). Although the outcome of this appeal turns to some extent on an interpretation of the common law, that law has been codified by the General Assembly in statutes it has entrusted the VMRC to apply. Thus, we give the agency's interpretation "special weight." Id.

State law specifies that, unless otherwise provided "by special grant or compact according to law," "the limits or bounds of the tracts of land lying on the bays, rivers, creeks and shores within the jurisdiction of

Page 134

the Commonwealth, and the rights and privileges of the owners of such lands, shall extend to the mean low-water mark but no farther." Code §§ 28.2-1200, -1202. "`[T]itle to the land between low water mark and the line of navigability is in the Commonwealth. . . .'" Avery v. Beale, 195 Va. 690, 702, 80 S.E.2d 584, 591 (1954) (quoting Grinels v. Daniel, 110 Va. 874, 877, 67 S.E. 534, 535-36 (1910)); see Code § 28.2-1200. This "property of the Commonwealth . . . may be used as a common by all the people of the Commonwealth for the purpose of fishing, fowling, hunting, and taking and catching oysters and other shellfish." Code § 28.2-1200; see Taylor v. Commonwealth, 102 Va. 759, 765-70, 47 S.E. 875, 877-79 (1904) (recognizing that predecessor to this code section was merely declaratory of common law and did not represent "an arbitrary assumption of right upon the part of the State").

At common law,

A riparian owner has the right to [use of] the water frontage belonging by nature to his land. This right includes, inter alia, the right of access from the front of his property [past the low water mark] to the navigable part of the waterway, and also the right to the soil under the water between his land and the navigable line of the watercourse. Upon this soil, the owner may erect wharves, piers, or bulkheads for his own use, or the use of the public. . . .

Langley v. Meredith, 237 Va. 55, 62, 376 S.E.2d 519, 523 (1989). This common law principle "was generally interpreted as having as its main purpose `to induce the erection of wharves for the benefit of commerce'" "without depleting the public treasury." Jose L. Fernandez, Untwisting the Common Law: Public Trust and the Massachusetts Colonial Ordinance, 62 Alb. L.Rev. 623, 624, 633 (1998) (quoting Commonwealth v. City of Roxbury, 75 Mass. (9 Gray) 451, 515 n. 13 (1857)); see also Joseph K. Angell, A Treatise on the Right of Property in Tide Waters and in the Soil and Shores Thereof 234 (2d ed. 1847). "Thus, for a particular public purpose, private rights over a public resource were extended at the expense of public rights," "subject to a limitation not to `materially impair[]' [the public's right to] navigation" or "to fish and hunt." Fernandez, supra, at 632-33 (quoting Kean v. Stetson, 22 Mass. 492, 495 (1827)); see also Ill. Cent. R.R. v. Illinois, 146 U.S. 387, 452-53, 13...

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