COURT OF APPEALS OF VIRGINIA

Present: Judges Humphr eys, Petty and Alston Argued at Richmond, Virginia

ALAN BIDDISON AND LOIS BIDDISON OPINION BY v. Record No. 2940-08-2 J UDGE ROBERT J. HUMPHREYS AUGUST 11, 2009 VIRGINIA MARINE RES OURCES COMMISSION AND MORNINGSTAR MARINAS /GWYNN’S IS LAND, LLC

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Theodore J. Markow, Judge John B. Thompson (Sherry A. Fox; Thomps onMcMullen, P.C., on briefs), for appellants. David C. Grandis, Assistant At torney General (W illiam C. Mims, Attorney General; Roger L. Cha ffe, Senior Assistant Attorney General; Carl Josephson, Senior Assistant Attorney General; James C. Breeden; John H. Capitano; Breeden & Breeden; K&L Gates, on brief), for appellees.

Alan and Lois Biddison (“appell ants”) appeal a ruling of the Circuit Court of the City of Richmond dismissing their appeal of a decision of the Virginia Marine Resources Commission (“VRMC”) on the ground that appellants failed to establish standing to c ontest the decision. On appeal, appellants contend that the circuit court erred in finding that (1) appellants failed to present facts sufficient to establish injury in fact and (2) appellants failed to establish a causal connection between the permitted activities and any a lleged harm. In the alternative, appellants argue that they suffered a procedural injury su fficient to confer standi ng when VMRC “abdicated its responsibility to address the impact of th e Boatel’s upland expans ion.” For the following reasons, we reverse the decision of the circuit court.- 2 - I. Background The facts relevant to this appeal are as fo llows. Appellants own approximately five acres of waterfront property on Milford Haven in Math ews County. Appellants’ family has owned this property for many generations. Appellants’ property is adja cent to a marina owned by Morningstar Marinas/Gwynn’s Is land LLC (“the Boatel”). At its regularly scheduled meeting on January 23, 2007, VMRC considered a permit application submitted by the Boatel’s owner at the time, David Fitch. 1 The Boatel sought permission from VMRC to use state-owned bottomlands pursuant to Code § 28.2-1205. Specifically, the Boatel requested authorizati on to (1) remove all ex isting fixed piers and construct four new floating pier s of various lengths to support the dry stack storage operation, fueling, and sewage pump-out, (2) create eight een wetslips and seven staging slips, and (3) dredge thirty-seven hundred cubic yards of subaqueous bottom material. 2 Appellants opposed the permit application. As part of its review of the Boatel’s permit application, VMRC was presented with evidence by both those in support of and opposed to the proposed project. The evidence before VMRC included testimony, exhibits, and public co mments from both the Department of Health and the Virginia Institute of Marine Science. After considering all this evidence, VMRC voted to approve the Boatel’s permit application. Ap pellants then appealed VMRC’s decision to the Circuit Court for the City of Richmond.

1 Gwynn’s Island Boatel, L.L.C. conveyed the property affected by the VMRC’s decision to Morningstar Marinas/Gwynn’s Island LLC on October 23, 2007.

2 At the meeting an environmental engin eer explained to VMRC that the dredged material would be “pumped into a 150 foot by 300 foot bermed upland disposal area” and the return water from that disposal area will be rout ed along a drainage ditch on the east side of the property. This drainage ditch runs between appellants’ property a nd the Boatel’s.- 3 - Before hearing the merits of appellants’ a ppeal, the circuit court held an evidentiary hearing on November 10, 2008, to determine whether or not appellants ha d standing to appeal VMRC’s decision. Lois Biddison (“ Biddison”) testified that her fa mily has owned their property on Milford Haven for “as long as re cords have been kept in Mathew s.” Biddison further testified that because of the dredging, “boats leaving the boat el . . . tend[] to cut closer to our shore when they’re going east to go out into the Bay, and they come closer to our shore and closer to the pier.” As a result, appellants have “experienced two to three f eet of wash on [their] shoreline since last year.” Biddison also noted that the increase in shorelin e wash affected both appellants’ picnic area as well as the area where appellan ts launch their kayak. In addition, Biddison testified that appellants use their pier for sw imming, crabbing, and fishing and indicated that because of the marina’s expansion and the increa se in boat activity in the water, she would not want her family swimming from the pier. 3 Biddison also testified that muddy wa ter from the Boatel’s “spoil site” 4 ran down a drainage ditch separating the two properties a nd created a “big flume of muddy water” into

Milford Haven. Biddison further testified that the drainage ditch had been on the property for over sixty years and that she had never seen this amount of muddy water travel through the ditch. Robert C. Neikirk (“Neikirk”) was the environmental engineer who processed the Boatel’s permit application and briefed VMRC on it. Neikirk testified on cross-examination that he assumed the project would result in increased boat traffic near appellants’ property.

3 Biddison also testified that appellants have two oyster bed leases in the area. One is located directly in front of th eir property; however, it has been condemned for more than seven years. Appellants sub-lease the other oyster bed to a sea farm. Biddison te stified that this oyster bed is located “at the end of Mill Point.” However, from the record before us, we are unable to ascertain the geographical relation of Mill Point to the Boatel or appellants’ property.

4 A spoil site is an area where dredged ma terial is deposited for disposal.- 4 - On November 20, 2008, the circui t court entered an order di smissing appellants’ appeal with prejudice. The circuit court concluded that appellants lacked standing because they “did not present facts sufficient to establish injury in fact, nor did they establish a casual connection between the Boatel’s permitted activities and any alleged harm.” Appellants now appeal that deci sion to this Court.

II. Analysis It is important to note that “[s]tanding to maintain an action is a preliminary jurisdictional issue having no relation to the subs tantive merits of an action.” Andrews v. American Health &

Life Ins. Co. , 236 Va. 221, 226, 372 S.E.2d 399, 402 (1988). Thus, the concept of “standing” is not concerned with whether or not a party will ul timately prevail on the legal merits of an issue but rather with the ability of a party to seek redress through the courts in the first place by demonstrating sufficient connecti on to, and actual or potential harm from, the law or action challenged. The question of whethe r or not a litigant has standing is a “question[] of law subject

to de novo review on appeal.” Moreau v. Fuller , 276 Va. 127, 133, 661 S.E.2d 841, 845 (2008). Code § 28.2-1205(F) sets forth the standing requirement for challenging a decision of VMRC. It provides that “[a]ny person aggrieved by a decision of the Commission [VMRC] under this section is entitled to judicial re view in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et se q.).” Code § 28.2-1205(F) (emphasis added). Appellants argue that we should interpret the word “aggrieved” in Code § 28.2-1205(F) in the same manner as it is defined in Code § 62.1-44.29, 5 which concerns the standing requirements

5 Code § 62.1-44.29 provides: Any owner aggrieved by or any person who has participated, in person or by submittal of written comments, in the public comment process related to a final decision of the Board under § 62.1-44.15(5), 62.1-44.15(8a), (8 b), and (8c), 62.1-44.15:20, 62.1-44.15:21, 62.1-44.15:22, 62.1-44.15:23, 62.1-44.16,- 5 - to appeal a decision of the State Water Contro l Board. Although the two statutes do contain similar language, Code § 62.1-44.29 specifically incorporates the crite ria for establishing standing under Article III of the United Stat es Constitution, while Code § 28.2-1205(F) does not. Because “we presume that the legislature ‘chose, with care,’ the specific words of the statute,” we do not reach the conclusion advocated by appellants. Kane v. Szymczak , 41 Va. App. 365, 371, 585 S.E.2d 349, 352-53 (2003) (quoting Simon v. Forer , 265 Va. 483, 490, 578 S.E.2d 792 796 (2003)). Had the General Assembly so in tended, they would have included the same

reference to Article III in Code § 28.2-1205(F) as they did in Co ,

de § 62.1-44.29. Though we disagree with appellants’ cont ention as to the me aning of the word “aggrieved” in Code § 28.2-1205(F), that co nclusion does not end our analysis. In Bd. of Supervisors v. Bd. of Zoning Appeals , 268 Va. 441, 449-50, 604 S.E.2d 7, 11 (2004), the Supreme Court of Virginia discussed the meani ng of the word “aggrieved” as it pertains to standing. The Supreme Court explained: “The term ‘aggrieved’ has a settled meaning in Virginia when it becomes necessary to determine who is a proper party to seek court relief from an adverse decisi on. In order for a petitioner to be ‘aggrieved,’ it must affirmativ ely appear that such person had some direct interest in the subjec t matter of the proceeding that he

62.1-44.17, 62.1-44.19, or 62.1-44.25, whether such decision is affirmative or negative, is entitled to judicial review thereof in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.) if such person meets th e standard for obtaining judicial review of a case or cont roversy pursuant to Article III of the United States Constitution. A person shall be deemed to meet such standard if (i) such person has suffered an actual or imminent injury which is an invasion of a legally protected interest and which is concrete and particularized; (ii) such injury is fairly traceable to the decision of the Board and not the result of the independent action of some third party not before the court; and (iii) such injury will likely be redressed by a favorable decision by the court. (Emphasis added).- 6 - seeks to attack. . . . The petiti oner ‘must show that he has an immediate, pecuniary and substantial interest in the litigation, and not a remote or indirect interest.’ . . . Thus, it is not sufficient that the sole interest of the petitione r is to advance some perceived public right or to redress some an ticipated 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.”

Id. (quoting Virginia Beach Beautification Co mm’n v. Board of Zoning Appeals , 231 Va. 415, 419-20, 344 S.E.2d 899, 902-03 (1986)) (emphasis added). To establish standing under this definition of “aggrieved,” appellan ts were required to demonstrat e that they possessed either “an immediate, pecuniary and substantial interest in the litigation” or that they were denied, “some personal or property right, legal or equitable,” by VMRC’s decision. Id. We hold that appellants produced sufficient evidence to establis h standing under this standard. The evidence is uncontested that appella nts own waterfront property adjacent to the Boatel. So situated, appellants’ property also constitutes “riparian land,” making appellants “riparian land owners.” Th e final sentence of Code § 28.2-1205(F) provides that “[n]othing in

this subsection shall be construed to deprive a riparian landowner of such rights as he may have under common law.” “[R]iparian rights . . . ‘a re qualified property rights incident to the ownership of the soil through or by whic h the waters of a stream flow.’” Thurston v. City of

Portsmouth , 205 Va. 909, 912, 140 S.E.2d 678, 680 (1965) (quoting Hite v. Town of Luray , 175 Va. 218, 226, 8 S.E.2d 369, 372 (1940)). As such, “[ a] ‘riparian right is property, and is

valuable.’” Id. (quoting Taylor v. Commonwealth , 102 Va. 759, 771, 47 S.E. 875, 880 (1904)).

“ Riparian owners have the right to make reasonable use of the water flowing past their land, and they have a right to enjoy the re creational and aesthetic advantage s that are conferred on such- 7 - land adjoining a watercourse .” State Water Control Bd. v. Crutchfield , 265 Va. 416, 427-28, 578 S.E.2d 762, 768 (2003) (emphasis added). In this case, appellants asserted facts suffi cient to support their clai m that their right to enjoy the recreational and aesthetic advantages of their waterfr ont property on Milford Haven as riparian landowners was adversel y impacted by VMRC’s decision to gran t the Boatel’s permit. Biddison testified that appellants have experienced an additional two to three feetof shoreline wash on their property as a result of boats passing closer to the shore throu gh the new dredge cut.

Biddison further testified that this increased wash has affected the area which appellants use to picnic and launch their kayak. Biddison also test ified that the new dredge cut allows boats to pass closer to appellants’ pier, which is used by appellants to swim, fish, and crab. Biddison

indicated that because of the increased boat activity in the water, she did not want her grandchildren swimming from the pier. In ad dition, Biddison testified that muddy water from the Boatel’s spoil site drained down a ditch on ap pellants’ property and cr eated a “big flume of muddy water” in Milford Haven. In light of this evidence, we hold that appellants’ rights as riparian landowners may have b een adversely affected by VMRC’s decision to grant the Boatel’s permit. Moreover, appellants have a direct and substa ntial interest in the subject matter of the litigation as the owners of adjacent or near by property to the permitted activity. Code § 28.2-1205(A) provides: When determining whether to grant or deny any permit for the use of state-owned bottomlands , the Commission shall be guided in its deliberations by the provisions of Article XI, Section I of the Constitution of Virginia. In addition to other factors, the Commission shall also consider th e public and private benefits of the proposed project and shall ex ercise its authority under this section consistent with the public trust doctrine as defined by the common law of the Commonwealth a dopted pursuant to § 1-200 in order to protect and safeguard th e public right to the use and enjoyment of the subaqueous lands of the Commonwealth held in- 8 - trust by it for the benefit of the people as conferred by the public trust doctrine and the Constitution of Virginia. The Commission shall also consider the proj ect’s effect on the following: 1. Other reasonable and permi ssible uses of state waters and state-owned bottomlands;

2. Marine and fisheries resources of the Commonwealth; 3. Tidal wetlands, except when this has or will be determined under the provisions of Ch apter 13 of this title;

4. Adjacent or nearby properties ; 5. Water quality; and 6. Submerged aquatic vegetation (SAV). (Emphasis added). Thus, subsection (4) of Code § 28.2-1205(A) specifically requires VMRC to consider the effect of a proposed project on adjacent or nearby properties. Clearly appellants, who own or have a riparian interest in prope rty adjacent to the Boatel, have a direct and substantial interest in this litigation simply by virtue of the fact that VMRC was required by statute “to consider the project’ s effect” on their property prior to granting the Boatel’s permit. Code § 28.2-1205(A). Given this statutor y requirement, the Attorney General’s argument to the contrary is illogical, and we hold that appellants qualify as a “person aggrieved” under Code § 28.2-1205(F) and “[are] entitled to judicial revi ew in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).” Code § 28.2-1205(F). Because we hold that appellants presented suffi cient evidence to esta blish that they were “aggrieved” under Code § 28.2-1205(F) and, thus, had standing to appeal the decision of VMRC,

we need not address the issue of whether appellants suffered a procedural injury sufficient to confer standing. “In this case, as in all others, we seek to decide cases ‘on the best and narrowest- 9 - ground available’ from the record.” Kirby v. Commonwealth , 50 Va. App. 691, 702 n.2, 653 S.E.2d 600, 603 n.2 (2007) (citations omitted).

III. Conclusion For the foregoing reasons, we hold that the ci rcuit court erred in finding that appellants lacked standing to appeal VMRC’s decision to gran t a permit to the Boatel. Thus, we reverse the circuit court and remand for further proceedings consistent with this opinion.

Reversed and remanded.