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French v. Virginia Marine Resources Commission

Court of Appeals of Virginia

January 20, 2015

SUSAN L. FRENCH
v.
VIRGINIA MARINE RESOURCES COMMISSION

Page 246

FROM THE CIRCUIT COURT OF FREDERICK COUNTY. Clifford L. Athey, Jr., Judge.

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: Judges Kelsey, Alston and Senior Judge Bumgardner.

OPINION

Page 247

[64 Va.App. 228] D. ARTHUR 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.

[64 Va.App. 229] 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.

[64 Va.App. 230] 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

Page 248

not necessarily affect [French's] application" for her own ...


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