VIRGINIA MARINE RESOURCES COMMISSION v. CHARLES CLARK, ET AL.; CITY OF VIRGINIA BEACH v. CHARLES CLARK, ET AL.
Record
SUPREME COURT OF VIRGINIA
APRIL 21, 2011
SENIOR JUSTICE ELIZABETH B. LACY
Prеsent: Kinser, C.J., Lemons, Goodwyn, and Millette, JJ., and Lacy and Koontz, S.JJ.
FROM THE COURT OF APPEALS OF VIRGINIA
In these combined appeals, we consider whether the Court of Appeals erred in reversing the judgment of the Circuit Court of the City of Virginia Beach dismissing a petition for appeal from a decision of the Virginia Marine Resources Commission (VMRC) becаuse the petition did not contain allegations sufficient to demonstrate standing.
BACKGROUND
The City of Virginia Beach filed an application with the VMRC to install a stormwater outfall pipeline (the pipeline project) in, on and over state-owned bottomlands located oceanward of 61st Street in Virginia Beach. The proposed pipeline project consisted of a 48-inch concrete outtake pipe that would be installed in the subaqueous ocean bottom for a distance of 940 feet from the mean low-water mark for the discharge of storm water. The pipe would be buried 10 feet below the mеan low-water mark.1
On May 27, 2008, the VMRC conducted a public hearing pursuant to
The Residents appealed the VMRC‘s decision to the Circuit Court of the City of Virginia Beach pursuant to
The circuit court heard arguments on the standing issue raised by the VMRC and the City and concluded that the Residents’ petition alleged only “non-particularized claims of harm” which did not establish standing. In response to the circuit court‘s inquiry asking the Residents’ counsel what he “would do” if granted leave to amend the pleadings, counsel for the Residents responded that, although he bеlieved the petition was sufficiently pled, he could “beef up the statements relating to how and why the various appellants have standing as aggrieved parties” and he would add “the pollution and health concerns . . . explained to the VMRC.” The circuit court entered an order dismissing the Residents’ petition for аppeal and denied the Residents’ motion to amend the petition for appeal.
The Residents appealed to the Court of Appeals arguing, as relevant here, that their petition for appeal of the VMRC decision contained allegations sufficient to establish legal standing and the сircuit court erred in dismissing the petition. The Residents also assigned error to the circuit court‘s denial of their request to amend the petition. The Court of Appeals held that Rule 2A:4 which governs the petitions for appeal from agency decisions did not require the petition to contain allegations to еstablish standing and therefore the circuit court “improperly expanded the requirements of the rule” and erred in dismissing the Residents’ appeal for failure to allege standing. Clark v. Virginia Marine Res. Comm‘n, 55 Va. App. 328, 336-37, 685 S.E.2d 863, 867 (2009). The Court of Appeals remanded the case for an evidentiary hearing on the standing issue. Id. at 337-38, 685 S.E.2d at 867-68.
The VMRC and the City each filed an appeal to this Court assigning error to the Court of Appeals’ judgment. The Residents filed an assignment of cross-error in both appeals, in which they asserted that the Court of Appeals erred in remanding the case for an evidentiary hearing and argued such hearing was unnecessary because the record demonstrated that the Residents were aggrieved parties with standing to maintain the appeal. Having determined that the decision of the Court of Appeals involves matters of significant precedential value,
DISCUSSION
The Court of Appeals based its decision reversing the judgment of the circuit court on its application of Rule 2A:4. Subsection (b) of that Rule states that a petition for appeal
shall designate the regulation or case decision appealed from, sрecify the errors assigned, state the reasons why the regulation or case decision is deemed to be unlawful and conclude with a specific statement of the relief requested.
Because the Rule does not specifically state that a petition for appeal must contain facts supрorting a petitioner‘s standing to prosecute the appeal, the Court of Appeals concluded that such allegations are not necessary and the Residents’ petition was sufficient to withstand the motion to dismiss challenging the Residents’ standing. This construction and application of the Rule misconstrues the role of the rules in such appeals and is inconsistent with established relevant principles of jurisprudence.
The Court of Appeals’ opinion states that Rule 2A:4 sets out the “only requirements” for a legally sufficient petition for appeal and because the petition for appeal contаined allegations regarding those required items, it was sufficient. 55 Va. App. at 334, 685 S.E.2d at 866. In concluding that the Residents’ petition for appeal was sufficient, the Court of Appeals effectively eliminated consideration
Rule 2A:4 was enacted to address the manner of conducting a direct review of agency regulations and case decisions. See
In this case, the VMRC filed a motion to dismiss asserting that the petition only alleged that the VMRC decision was “adverse and/or objectionable to appellants” and that this statement was insufficient to qualify the Residents as “aggrieved.” The Residents’ petition for appeal was not insulated from consideration of the motion to dismiss simply because the petition for appeal satisfied the four elements set out in Rule 2A:4(b) and, in resolving the matter solely by reference to the Rule, the Court of Appeals erred.
The Court of Appeals’ decision was also inconsistent with long standing case law. It is beyond debate that “[n]o court can base its decree upon facts not alleged, nor render its judgment upon a right, however meritorious, which has not been pleaded and claimed. Pleadings are as essential as proof, the one being unavailing without the other.” Potts v. Mathieson Alkali Works, 165 Va. 196, 207, 181 S.E. 521, 525 (1935) (citation omitted); Ted Lansing Supply Co. v. Royal Aluminum & Const. Corp., 221 Va. 1139, 1141, 277 S.E.2d 228, 229 (1981). Inherent in these principles is the premise that the “right” which the litigant seeks to assert is a right which the litigant is entitled to аssert against the defendant. Indeed, no one would suggest that a person can be awarded relief against a defendant based on a complaint asserting a claim belonging to another. Thus our cases, including cases considering appeals from agency decisions decided on demurrer, have consistently looked to the pleadings to determine whether the petitioner has pled sufficient facts to establish the petitioner‘s right or standing to advance the appeal. See e.g., Philip Morris, 273 Va. at 577, 643 S.E.2d at 226; Barber v. VistaRMS, Inc., 272 Va. 319, 327-28, 634 S.E.2d 706, 711 (2006); Mattaponi Indian Tribe, 261 Va. at 375-76, 541 S.E.2d at 924-25; Keepe v. Shell Oil Co., 220 Va. 587, 589-90, 260 S.E.2d 722, 723-24 (1979); Strader v. Metropolitan Life Ins. Co., 128 Va. 238, 245, 105 S.E. 74, 76 (1920).
The judgment of the Court of Appeals directly contradicts these cases and principles. The Court of Appеals determined that the petition was sufficient without allegations that the Residents were “aggrieved” by the VMRC decision and that the Residents could comply with the standing requirement through an evidentiary hearing. The Court of Appeals did not suggest that any amendment to the pleadings would be necessary if standing was established. The Court of Appeals’ judgment, therefore, allows recovery based on facts not pled which is in direct contradiction to the principles set out above.
We now turn to the assertions by the VMRC and the City that the Court of Appeals erred in reversing the circuit court‘s determination that the Residents’ pleadings were insufficient to show that they were persons aggrieved by the VMRC decision.
Because no evidence was taken with regard to the motion to dismiss we treat the factual allegations in the petition as we do on review of a demurrer. Glisson v. Loxley, 235 Va. 62, 64, 366 S.E.2d 68, 69 (1988). Whether those factual pleadings are sufficient to establish standing, that is whether the Rеsidents
As discussed above, a person seeking to appeal a decision of the VMRC must be a person aggrieved by the decision. Our cases have established the parameters for demonstrating that one is “aggrieved” when used in this cоntext.
[I]t must affirmatively appear that such person had some direct interest in the subject matter of the proceeding that he seeks to attack. Nicholas v. Lawrence, 161 Va. 589, 592, 171 S.E. 673, 674 (1933). The petitioner “must show that he has an immediate, pecuniary and substantial interest in the litigation, and not a remote or indirect interest.” Id. at 593, 171 S.E. at 674. Thus, it is not sufficient that the solе interest of the petitioner is to advance some perceived public right or to redress some anticipated public injury when the only wrong he has suffered is in common with other persons similarly situated. The word “aggrieved” in a statute contemplates a substantial grievance and means a denial of some personal or property right, legal or equitable, or imposition of a burden or obligation upon the petitioner different from that suffered by the public generally. Insurance Ass‘n v. Commonwealth, 201 Va. 249, 253, 110 S.E.2d 223, 226 (1959).
In their petition the Residents alleged that “the VMRC made decisions adverse and/or objectionable to appellants, giving rise to this appeal.” The petition and its attachments contain no other allegations or demonstration of direct injury, of an immediate pecuniary and substantial interest that would be affected, or that a personal or property right was denied or that a burden was imposed on the Residents different from that imposed on the public generally. The record of the VMRC hearing which the circuit court considered included claims of various Residents that the pipeline project was not necessary and the need for it exaggerated, that the Residents had еnvironmental concerns regarding the outflow of the water into the ocean, that the expense was too high, and that the length of the pipeline ultimately approved was longer than requested in the application. These claims do not come within the meaning of “aggrieved” as set out above. They are either disagreements with the pipeline project itself or, as the circuit court observed, concerns shared generally with the public.
The Residents also posit that, as inhabitants or owners of property adjacent to or nearby the pipeline project, they have the requisite standing because
Finally, the Residents, in their brief in this Court, argue that if their petition is deficient, we should address whether they should have been granted leave to amend their pleading. We decline this invitation
In summary, we hold that the circuit court did not err in dismissing the Residents’ petition for appeal for failure to allege facts sufficient to demonstrаte that the Residents were “person[s] aggrieved” by the decision of the VMRC within the intendment of
Record No. 100034 – Reversed and final judgment.
Record No. 100043 – Reversed and final judgment.