French v. Va. Marine Res. Comm'n

• Decision Date: 20 January 2015
• Docket Number: Record No. 0498–14–4.
• Citation: 767 S.E.2d 245,64 Va.App. 226
• Court: Virginia Court of Appeals
• Parties: Susan L. FRENCH v. VIRGINIA MARINE RESOURCES COMMISSION.

64 Va.App. 226

767 S.E.2d 245

Susan L. FRENCH

v.VIRGINIA MARINE RESOURCES COMMISSION.

Record No. 0498–14–4.

Court of Appeals of Virginia, Alexandria.

Jan. 20, 2015.

Richard M. Cornelius for appellant.

Matthew L. Gooch, Assistant Attorney General (Mark R. Herring, Attorney General; Lynne C. Rhode, Senior Assistant Attorney General; Paul Kugelman, Jr., Senior Assistant Attorney General, on brief), for appellee.

Present: KELSEY and ALSTON, JJ., and BUMGARDNER, S.J.

Opinion

KELSEY, Judge.

The Virginia Marine Resources Commission (VMRC) granted an after-the-fact permit to a landowner to build an access bridge across a shallow mountain creek. Susan L. French, a neighbor of the permitee, unsuccessfully contested the issuance of the permit during the administrative process and on appeal to the circuit court. French now appeals to us, claiming that the VMRC violated her procedural due process rights and failed to exercise properly its discretion in issuing the permit. We disagree and affirm.

I.

This case comes to us, as it did to the circuit court, pursuant to judicial review provisions of the Virginia Administrative Process Act (VAPA), Code §§ 2.2–4025 to –4030. We thus review “the facts in the light most favorable to sustaining the agency's action.” Comm'r, Va. Dep't of Soc. Servs. v. Fulton, 55 Va.App. 69, 79, 683 S.E.2d 837, 841–42 (2009) (internal quotation marks and alteration omitted); see also Mattaponi Indian Tribe v. Dep't of Envtl. Quality, 43 Va.App. 690, 713, 601 S.E.2d 667, 679 (2004), aff'd in relevant part sub nom. Alliance to Save the Mattaponi v. Dep't of Envtl. Quality, 270 Va. 423, 621 S.E.2d 78 (2005).

This case involves a dispute between two neighbors in Frederick County. In 2011, Donald Foor bought property abutting Hogue Creek. As part of the purchase agreement, the seller constructed a bridge across the creek so that Foor could access the property through a private right of way connecting the property to a public road. The “low water bridge” is little more than concrete slab over corrugated steel drainage pipes. App. at 374, 417. The creek typically is “only a few inches deep” and thus, the bridge does not implicate “any navigation issues.” Id. at 486.

The seller built the bridge believing that he did not need a VMRC permit. He did so because he had applied for a permit to construct a similar bridge across Hogue Creek in 2003 and had been “notified from VMRC that a permit was not required”¹ because VMRC typically did not “exert jurisdiction on non-tidal streams where the drainage area upstream of the impact area is less than five square miles, which was what was thought to be in this situation.” Id. at 485 (background summary by VMRC staffer); see also id. at 492.

French, one of Foor's neighbors, became aware of the bridge and notified the VMRC of her objections to it. Reconsidering their earlier position, VMRC staff concluded that “the drainage area upstream of the bridge location was greater than five square miles,” id. at 485, and advised Foor to apply for an after-the-fact permit. During the administrative process, VMRC staff received from French detailed written objections to the application.

In response to her environmental concerns, VMRC staff contacted the Virginia Department of Game and Inland Fisheries and the Virginia Department of Conservation and Recreation. These agencies “did not see any major environmental impact upon protected species and other resources in the area.” Id. Addressing French's worries about the possibility that “the bridge would exacerbate flooding conditions upon her property,” VMRC staff reviewed a flood plain study for the area and “determined that a 100–year flood event would not raise flood levels significantly on the upstream areas of the bridge.” Id. French also suggested that the bridge might interfere with the possibility that she would build a “low water bridge” across the creek to her property sometime in the future.Id. at 486. VMRC staff concluded that the presence of Foor's bridge “would not necessarily affect [French's] application” for her own bridge. Id.

VMRC staff presented their findings to the full commission at a public hearing. The written recommendation concluded:

Staff understands the need for the applicant to have access to his property and feels that a low water bridge crossing is an appropriate structure to provide such access. Staff also understands the confusion created by a previous inaccurate determination that a similar project did not require permits from VMRC. In light of this error, staff feels that the assessment of any civil charges or additional fees would be inappropriate.

Accordingly, after evaluating the merits of the project, and after considering all of the factors contained in § 28.2–1205(A) of the Code of Virginia, staff recommends approval of the project without any civil charges or additional permit fees.

Id. at 517 (“Habitat Management Division Evaluation”).

French appeared at the VMRC hearing to voice her objections to the proposed permit. In her opening remarks, she informed the VMRC that Hogue Creek “may be a small stream,” but “it's sort of my stream, and it matters to me.” Id. at 486. The first thing that mattered to her, French asserted, was that “the lawful right of way across Hogue Creek was not where this bridge was constructed.” Id.; see also id. at 503. The properly located right of way, she alleged, was in a location “shared” by her. Id. at 487; see also Oral Argument Audio at 18:00–18:15. She went on to assert, among other things, that the public did not benefit from the bridge, the bridge adversely affected the environment, the “concrete bunker in the middle of the stream” unfairly “increases” the value of Foor's land, id. at 489, and the bridge might negatively affect her future ability to construct a bridge across the creek to access her mountain property, id. at 490–91.

An engineer hired by Foor testified at the VMRC hearing. His firm conducted a flood plain study, designed the drain field for the bridge, and produced information required by the VMRC staff. He pointed out that, without the bridge, the landowners would be fording the creek with vehicular traffic creating “disturbance from an environmental standpoint.” Id. at 491. The bridge ameliorated this concern by connecting the dirt and gravel right of way, which was “the only means of ingress and egress” to Foor's landlocked parcel. Id. The bridge thus benefitted the public, he testified, because the landowners “don't have to [ford] the creek any more”—thus reducing “pollutants in the water” inevitably left by vehicular traffic. Id. at 492. He added that French misunderstood the risk of flooding and explained that the bridge “has no impact [on] the flood zone whatsoever.” Id.

After reviewing the staff's recommendation and the evidence received during the public meeting, the VMRC issued the permit. In a letter to French, the VMRC explained:

The Commission reviewed slides of the proposal, all documents in the official record and carefully considered the supporting testimony [Foor's engineer] presented, as well as your opposing testimony and exhibits. After careful deliberation and after considering all of the factors contained in § 28.2–1205 of the Code of Virginia, the Commission voted five to three [to] approve the project as presented.

Id. at 343. French appealed to the circuit court pursuant to Code § 28.2–219, VAPA's judicial review provision. The circuit court affirmed the VMRC decision, and French appealed to us.

II.

On appeal, French claims that the VMRC decision violated her procedural due process rights and that the VMRC acted arbitrarily in granting the after-the-fact permit. The circuit court rejected these arguments, as do we.

A. Procedural Due Process Claim

French argues on appeal that she has “constitutionally protected property rights as an adjacent riparian landowner” and that VMRC's “sham” public hearing, resulting in the issuance of Foor's permit, violated these rights. Appellant's Br. at 28–29.² We find fault with the assumptions underlying this argument.

“The democratic process presumes a constant interchange of voices.” Nev. Comm'n on Ethics v. Carrigan, ––– U.S. ––––, ––––, 131 S.Ct. 2343, 2352, 180 L.Ed.2d 150 (2011) (Kennedy, J., concurring). If a governmental body conducts a public hearing and invites the participation of those in attendance,participants may offer their opinions if they are germane to the subject and presented in an orderly manner. See, e.g., Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46, 103 S.Ct. 948, 955–56, 74 L.Ed.2d 794 (1983) (approving “time, place, and manner regulations” if reasonable and viewpoint neutral); Steinburg v. Chesterfield Cnty. Planning Comm'n, 527 F.3d 377, 380 (4th Cir.2008).

We would not, however, characterize the general right to be heard in a participatory democracy as a constitutional attribute of procedural due process principles. “The point of due process is to ensure that the government does not deprive anyone of ‘life, liberty, or property’ arbitrarily and capriciously—that is, ‘without due process of law.’ ” Va. Dep't of Alcoholic Bev. Control v. Tyson, 63 Va.App. 417, 426, 758 S.E.2d 89, 93 (2014) (quoting U.S. Const. amend. XIV, § 1 ). “The first inquiry in every due process challenge is whether the plaintiff has been deprived of a protected interest in ‘property’ or ‘liberty.’ Only after finding the deprivation of a protected interest do we look to see if the State's procedures comport with due process.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59, 119 S.Ct. 977, 989–90, 143 L.Ed.2d 130 (1999) ; see also McManama v. Plunk, 250 Va. 27, 34, 458 S.E.2d 759, 763 (1995). This principle applies to administrative agency hearings no less than it does to any other governmental proceeding. See Richard J. Pierce, Jr., II Administrative Law Treatise § 9.4, at 578 (4th ed.2002).³

French does not claim that the permit deprived her of life or personal liberty. Instead, she...