Scott Ayers v. Virginia Marine Resource Commn, etal

• Court: Court of Appeals of Virginia
• Decided: April 22, 2003
• Docket: 2630021
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bumgardner, Felton and Senior Judge Overton Argued at Chesapeake, Virginia

CITY OF VIRGINIA BEACH AND SCOTT AYERS

v. Record No. 2549-02-1

VIRGINIA MARINE RESOURCES COMMISSION, GEORGE WILKIE AND ELTON TURPIN MEMORANDUM OPINION * BY JUDGE WALTER S. FELTON, JR. APRIL 22, 2003 SCOTT AYERS AND CITY OF VIRGINIA BEACH

v. Record No. 2630-02-1

VIRGINIA MARINE RESOURCES COMMISSION, GEORGE WILKIE AND ELTON TURPIN

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Edward W. Hanson, Jr., Judge

Richard H. Matthews (Mary M. Kellam; Pender & Coward, P.C., on briefs), for appellants.

John K. Byrum, Jr., Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee Virginia Marine Resources Commission.

Glenn R. Croshaw (Kimberly L. Stegall; Wilcox & Savage, P.C., on brief), for appellees George Wilkie and Elton Turpin.

Scott Ayers, representative of forty-four freeholders, and

the City of Virginia Beach (collectively "Ayers") appeal the

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. judgment of the Circuit Court of the City of Virginia Beach

affirming the decisions of the Virginia Marine Resources

Commission ("VMRC") and the Virginia Beach Wetlands Board

("Wetlands Board") granting applications of George Wilkie and

Elton Turpin to construct a total of three duplex residences

affecting a coastal primary sand dune. The circuit court

consolidated the review of the applications of Wilkie and Turpin

prior to this appeal.

Ayers contends that the trial court erred in affirming the

decisions granting these applications because (1) the Wetlands

Board and VMRC failed to properly interpret Code §§ 28.2-1403

and 28.2-1408, which define "coastal primary sand dune" and to

establish standards for the disturbance of coastal primary sand

dunes, and (2) the evidence on the record as a whole did not

adequately support Wetlands Board's and VMRC's granting of the

permits and their decisions were arbitrary, capricious, or an

abuse of discretion. For the following reasons, we affirm the

judgment of the trial court.

I. BACKGROUND

Wilkie and Turpin own three adjacent, undeveloped

waterfront lots on the Chesapeake Bay in Virginia Beach. Each

of the three lots contains both natural sand dunes and dunes

developed as a result of beach replenishment efforts. Both

Wilkie and Turpin have owned their respective properties for

- 2 - over thirty years, and the properties are immediately seaward of

both Wilkie's and Turpin's residences.

Pursuant to Title 28.2 of the Code of Virginia, Wilkie and

Turpin applied for dune disturbance permits from the City of

Virginia Beach Wetlands Board in order to develop a total of

three duplex residences with decks, paved parking and utilities

on the properties. In its June 18, 2001 meeting, the Wetlands

Board considered reports from the City of Virginia Beach

Planning Department and the Virginia Institute of Marine Science

recommending against the approval of Wilkie's and Turpin's

applications. Both reports expressed that the proposed

construction would encroach upon and destroy portions of the

coastal primary sand dune in violation of Code §§ 28.2-1403

through 28.2-1408. The Wetlands Board also considered exhibits

presented by applicants Wilkie and Turpin, neighboring landowner

Scott Ayers, and VIMS, including photographs of the properties

and surrounding areas, detailed plans of the proposed

construction on the property, and letters from interested

parties.

The properties in questions involved two sets of dunes, a

natural sand dune ("landward dune") and a second dune ("seaward

dune"), the latter being the result of beach replenishment

efforts over the prior fifteen years. Ayers argued that the

landward dune was the primary sand dune for the purposes of

Title 28.2 and that, because the proposed construction would

- 3 - directly impact the primary sand dune, the construction permits

were subject to the requirements of Code § 28.2-1408. Ayers

argues that there is no credible evidence in the record to

support a finding that either (1) no significant adverse

ecological impact would result from the proposed construction or

(2) that granting the permits was necessary and consistent with

the public interest. Wilkie and Turpin argued that the seaward

dune was actually the coastal primary sand dune and, thus,

because the proposed construction did not directly impact the

coastal primary sand dune, approval of their applications did

not require findings under Code § 28.2-1408. After imposing

seven conditions, 1 the Wetlands Board found the permits met the

requirements of Code § 28.2-1408, and approved both applications

by 4-3 votes.

Ayers appealed the decisions of the Wetlands Board to the

VMRC pursuant to the Administrative Process Act, Code

§§ 2.2-4000 through 2.2-4033, and Part 2A of the Rules of the

Supreme Court of Virginia. The VMRC reviewed the decisions on

August 28, 2001. At the hearing, the Habitat Management

Division of VMRC presented a report advising that the evidence

1 The Wetlands Board required (1) cantilevered decks, (2) replanting for any part of the dune that is disturbed and bonding for two growing seasons, (3) the minimum parking required by the Zoning Ordinance, (4) that materials used for parking or driveways be approved by the Coastal Zone Administrator, (5) that no sand leave the site, (6) a new site plan submitted prior to the issuance of any permits, and (7) the only access-way will be an exterior stairway.

- 4 - in the record, considered as a whole, did not support the

issuance of the permits by the Wetlands Board. Notwithstanding

this recommendation, VMRC affirmed the decisions of the Wetlands

Board by a 7-0 vote.

On appeal to the circuit court, Ayers contended that VMRC

lacked substantial evidence upon which to affirm the issuance of

the permits and that in issuing the permits, the Wetlands Board

exceeded its statutory authority, failed to follow lawful

procedure, committed errors of law, lacked supportive evidence,

and abused its discretion. Finding that the Wetlands Board and

VMRC had carefully considered the record before them, and noting

that the Wetlands Board had attached conditions to Wilkie's and

Turpin's original proposed construction permits, the court

upheld the lower decisions in their entirety. This appeal

followed.

II. STATUTORY INTERPRETATION

Ayers first contends that the Wetlands Board and VMRC

failed to properly interpret Code §§ 28.2-1403 and 28.2-1408,

which define "coastal primary sand dune" and establish standards

for determining when construction may disturb coastal primary

sand dunes.

A. STANDARD OF REVIEW

"Where . . . the issue concerns an agency decision based on

the proper application of its expert discretion, the reviewing

court will not substitute its own independent judgment for that

- 5 - of the agency but rather will reverse the agency decision only

if that decision was arbitrary and capricious."

Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 246, 369 S.E.2d

1, 9 (1988). A decision is arbitrary and capricious only if

there is no credible evidence in the record to support the

finding and the Wetlands Board and VMRC "'arbitrarily

disregard[ed] uncontradicted evidence.'" City of Bristol Police

Department v. Broome, 7 Va. App. 161, 167, 372 S.E.2d 204, 207

(1988) (quoting Morris v. Badger Powhatan/Figgie Int’l, Inc., 3

Va. App. 276, 279, 348 S.E.2d 876, 877 (1986)).

Local wetlands boards are the primary authority for

regulating the use and development of coastal primary sand dunes

in Virginia. See Code § 28.2-1403. Under the Coastal Primary

Sand Dune Ordinance, the Wetlands Board has the authority to

review permit applications for the use or alteration of sand

dunes. Id. Determinations of what constitutes the "coastal

primary sand dune" and whether proposed construction plans meet

the requirements of Code § 28.2-1408 are within the specialized

competency of the Wetlands Board and VMRC. On review, those

decisions are entitled to deference and should only be reversed

if arbitrary, capricious, or an abuse of discretion. "We accord

great deference to an administrative agency's interpretation of

the regulations it is responsible for enforcing." Holtzman Oil

Corp. v. Commonwealth, 32 Va. App. 532, 544, 529 S.E.2d 333, 339

(2000).

- 6 - B. ANALYSIS

Code § 28.2-1403 defines a "coastal primary sand dune" as

a mound of unconsolidated sandy soil which is contiguous to mean high water, whose landward and lateral limits are marked by a change in grade from ten percent or greater to less than ten percent . . . [but] shall not include any mound of sand, [or] sandy soil . . . deposited by any person for the purpose of temporary storage, beach replenishment or beach nourishment . . . .

Under Code § 28.2-1408,

[n]o permanent alteration of or construction upon any coastal primary sand dune shall take place which would (i) impair the natural functions of the dune, (ii) physically alter the contour of the dune, or (iii) destroy vegetation growing thereon unless the wetlands board or the Commission, whichever is applicable, determines that there will be no significant adverse ecological impact, or that the granting of a permit is clearly necessary and consistent with the public interest, considering all material factors.

Before the Wetlands Board, Ayers argued that the landward

dune was the coastal primary sand dune and, therefore, the

restrictions of Code § 28.2-1408 applied. Wilkie and Turpin,

conversely, argued that the seaward dune was the coastal primary

sand dune. The record does not reflect a finding by the

Wetlands Board or the VMRC regarding which dune is the coastal

primary dune. Regardless of which dune was the primary coastal

dune, the Wetlands Board found that the proposed construction

plans with the imposed conditions met the requirements of Code

§ 28.2-1408 with respect to the landward dune, the dune directly

- 7 - impacted by the proposed construction. Accordingly, the

Wetlands Board did not err in interpreting Code §§ 28.2-1403 and

28.2-1408.

III. SUFFICIENCY OF THE EVIDENCE

Accordingly, we turn to the dispositive issue of whether

there was credible evidence on the record to support the

Wetlands Board's finding that the requirements of Code

§ 28.2-1408 were met. Ayers contends that the trial court erred

in affirming the decisions of the Wetlands Board and VMRC

because the evidence on the record as a whole did not support

the granting of the permits and the decisions were arbitrary,

capricious, or an abuse of discretion.

"Where the issue is whether there is substantial evidence

to support findings of fact, great deference is to be accorded

the agency decision." Johnston-Willis, Ltd., 6 Va. App. at 246,

369 S.E.2d at 9. Findings of fact will be upheld if supported

by credible evidence. See James v. Capitol Steel Constr. Co., 8

Va. App. 512, 515, 382 S.E.2d 487, 488 (1989); Ingersoll-Rand

Co. v. Musick, 7 Va. App. 684, 688, 376 S.E.2d 814, 817 (1989);

City of Bristol Police Dept., 7 Va. App. at 167, 372 S.E.2d at

207. "In determining whether credible evidence exists, the

appellate court does not retry the facts, reweigh the

preponderance of the evidence, or make its own determination of

- 8 - the credibility of the witnesses." Wagner Enterprises, Inc. v.

Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).

B. ANALYSIS

The record reflects credible evidence to support the

§ 28.2-1408 were met. The Wetlands Board considered comments

from the Virginia Institute of Marine Science ("VIMS") and the

Planning Department of the City of Virginia Beach ("Planning

Department") advising against approval of Wilkie's and Turpin's

proposed construction plans. VIMS specifically noted that the

proposed plans would "tend to destabilize their immediate

environs by shading vegetation and altering wind patterns that

cause wind scour of the un-vegetated areas around the duplex.

The proposed paving for access and parking will isolate these

areas from normal dune system processes." The Planning

Department indicated that

[a]s proposed, alterations to the dune resource will influence the natural functions of the dune, alter dune contours and destroy vegetation growing thereon. . . . The project may result in a significant loss of the resource's ability to protect life and property from coastal storm events. Displacement of dune vegetation and hardening of dune contours will further diminish the resource's protective capabilities. In order for this reach of shoreline to provide maximum flood and erosion protection, the dune should remain relatively uniform and uninterrupted.

- 9 - After considering these reports, the Wetlands Board

conditionally approved Wilkie's and Turpin's applications. The

seven conditions imposed by the Wetlands Board specifically

addressed VIMS's and the Planning Department's concerns with the

proposed construction. Accordingly, the Wetlands Board did not

act arbitrarly and capriciously in finding that Wilkie's and

Turpin's proposed construction plans, with the added conditions,

met the requirements of Code § 28.2-1408.

On review, the VMRC Habitat Management Division presented

an additional report to VMRC. The report advised against

approval of the construction permits. It, however, did not

address what effects the seven conditions imposed by the

Wetlands Board would have on the environmental impact concerns

raised by the VIMS and Planning Department reports. VMRC

reasonably considered the mitigating effects of those conditions

on the contradictory reports and unanimously affirmed the

Wetlands Board's decision.

Overall, the three reports were concerned with preserving

the dune's protective capabilities and identifying the

potentially harmful impacts that could result from Wilkie's and

Turpin's proposed construction plans. The reports addressed

such harmful impacts as shading, alteration of wind patterns,

and alterations to the dune's natural contours. The Wetlands

Board's decision addressed these potentially harmful impacts by

imposing conditions on the approval of the permits. As a

- 10 - result, the Wetlands Board and VMRC acted within the scope of

their authority in issuing permits to Wilkie and Turpin.

Furthermore, their decisions are supported by credible evidence

in the record. The trial court did not err in affirming the

decisions of the Wetlands Board and VMRC.

Accordingly, we affirm the judgments below.

Affirmed.

- 11 -