THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH A. Bonwill
L. Harris, Associate City Attorney (Mark D. Stiles, City
Attorney; Christopher S. Boynton, Deputy City Attorney;
Joseph M. Kurt, Assistant City Attorney, on briefs), for
A. Block, Assistant Attorney General (Mark R. Herring,
Attorney General; Stephen A. Cobb, Deputy Attorney General;
Donald D. Anderson, Senior Assistant Attorney General &
Section Chief, on brief), for appellee.
Present: Judges Petty, Chafin and O'Brien Argued at
GRACE O'BRIEN, JUDGE
City of Virginia Beach ("the City") appeals a
circuit court order affirming a decision by the Virginia
Marine Resources Commission ("VMRC") rejecting the
City's application to receive a transfer of an
oyster-planting ground lease under Code § 28.2-625. The
City contends that the court misinterpreted the statute
because "Virginia law plainly authorizes the City to
occupy and hold oyster-planting ground leases by transfer or
assignment." It also asserts that the court erred in
relying on the principle of expressio unius est exclusio
alterius to conclude that the General Assembly intended
to make municipalities ineligible to receive these leases by
transfer. For the following reasons, we reverse the
January 2015, the City enacted an ordinance establishing a
Neighborhood Dredging Special Service District
("NDSSD") for Hurd's Cove, a branch of the
Lynnhaven River. See Municipal Code 35.3-13(a).
See also Code § 15.2-2403 (authorizing
governing bodies to create service districts for the
"dredging of creeks and rivers to maintain existing
path for the Hurd's Cove NDSSD extends through an
oyster-planting ground lease held by the Zipperer family
("Zipperer Lease"). After the NDSSD took effect,
Philip Hightower, a waterfront property owner who opposed the
dredging project, applied to VMRC for an oyster-planting
riparian lease pursuant to Code § 28.2-600
("Hightower Lease"). The proposed Hightower Lease
abutted the Zipperer Lease and would be within the path of
the dredging project.
City objected to the application, arguing that Hightower only
sought the lease to prevent the dredging
project. VMRC granted the application, and the
circuit court affirmed its decision. Upon appeal, this Court
also affirmed. City of Virginia Beach v. Va. Marine Res.
Comm'n and Philip G. Hightower, No. 1648-17-1 (Va.
Ct. App. Aug. 21, 2018).
litigating the Hightower Lease, the City also pursued
non-judicial means to advance the dredging project. It
negotiated an agreement to acquire a portion of the Zipperer
Lease pursuant to Code § 28.2-625. The transfer would
enable the City to dredge slightly outside the Hightower
Lease. After the City and Zipperer leaseholders signed the
agreement, the City submitted it to VMRC with an
"Application for Transfer of Oyster Planting
Ground" requesting transfer of two areas within the
rejected the transfer application. In its refusal letter,
Pursuant to [Code § 28.2-625], oyster planting grounds
can only be transferred "to a resident of the
Commonwealth, or a firm or corporation authorized by Virginia
laws to occupy and hold oyster planting ground." We do
not believe the City of Virginia Beach qualifies for a
transfer pursuant to this Code section.
City appealed to circuit court. The parties agreed that the
facts were undisputed and the only issue was statutory
interpretation, which the court reviewed de novo.
The City argued that municipalities are corporations
authorized to hold or occupy oyster-planting ground leases
under Code § 28.2-604 and therefore are eligible to
receive lease transfers under Code § 28.2-625. VMRC
responded that because the General Assembly included the term
"municipality" in Code § 28.2-604 but omitted
it from Code § 28.2-625, the City was not eligible to
receive the transfer.
court affirmed VMRC's denial and held,
The City's argument . . . runs contrary to the plain
language of [Code §] 28.2-625 and the statutory scheme.
The fact that the General Assembly expressly excluded
municipalities for transfers and expressly included them [in
Code § 28.2-604] governing applications, we have to
assume that ...