COURT OF APPEALS OF VIRGINIA 

Present: Judges Humphreys, Petty and Alston 

Argued at Richmond, Virginia 

ALAN BIDDISON AND 

 LOIS BIDDISON 

 OPINION BY 

v. Record No. 2940-08-2 JUDGE ROBERT J. HUMPHREYS 

 AUGUST 11, 2009 

VIRGINIA MARINE RESOURCES COMMISSION AND 

 MORNINGSTAR MARINAS/GWYNN’S ISLAND, LLC 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Theodore J. Markow, Judge 

 John B. Thompson (Sherry A. Fox; ThompsonMcMullen, P.C., on 

briefs), for appellants. 

 David C. Grandis, Assistant Attorney General (William C. Mims, 

Attorney General; Roger L. Chaffe, 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 (“appellants”) 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 contest 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 alleged harm. In the alternative, appellants 

argue that they suffered a procedural injury sufficient to confer standing when VMRC “abdicated 

its responsibility to address the impact of the Boatel’s upland expansion.” For the following 

reasons, we reverse the decision of the circuit court. 
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I. Background

 The facts relevant to this appeal are as follows. Appellants own approximately five acres 

of waterfront property on Milford Haven in Mathews County. Appellants’ family has owned this 

property for many generations. Appellants’ property is adjacent to a marina owned by 

Morningstar Marinas/Gwynn’s Island 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 authorization to (1) remove all existing fixed piers and 

construct four new floating piers of various lengths to support the dry stack storage operation, 

fueling, and sewage pump-out, (2) create eighteen 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 comments 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. Appellants 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 engineer 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 routed along a drainage ditch on the east side of the 

property. This drainage ditch runs between appellants’ property and the Boatel’s. 
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 Before hearing the merits of appellants’ appeal, the circuit court held an evidentiary 

hearing on November 10, 2008, to determine whether or not appellants had standing to appeal 

VMRC’s decision. Lois Biddison (“Biddison”) testified that her family has owned their property 

on Milford Haven for “as long as records have been kept in Mathews.” Biddison further testified 

that because of the dredging, “boats leaving the boatel . . . 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 feet of wash on [their] shoreline 

since last year.” Biddison also noted that the increase in shoreline wash affected both appellants’ 

picnic area as well as the area where appellants launch their kayak. In addition, Biddison 

testified that appellants use their pier for swimming, crabbing, and fishing and indicated that 

because of the marina’s expansion and the increase in boat activity in the water, she would not 

want her family swimming from the pier.3

 Biddison also testified that muddy water from the Boatel’s “spoil site”4

 ran down a 

drainage ditch separating the two properties and 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 their property; however, it has been condemned for more than seven 

years. Appellants sub-lease the other oyster bed to a sea farm. Biddison testified 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 material is deposited for disposal. 
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 On November 20, 2008, the circuit court entered an order dismissing 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 decision 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 substantive 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 ultimately 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 connection to, and actual or potential harm from, the law or action 

challenged. The question of whether 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 review in accordance with the provisions of the 

Administrative Process Act (§ 2.2-4000 et seq.).” 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), (8b), 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, 
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to appeal a decision of the State Water Control Board. Although the two statutes do contain 

similar language, Code § 62.1-44.29 specifically incorporates the criteria for establishing 

standing under Article III of the United States 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 intended, 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’ contention as to the meaning of the word 

“aggrieved” in Code § 28.2-1205(F), that conclusion 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 meaning 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 decision. In order for a petitioner to 

be ‘aggrieved,’ it must affirmatively appear that such person had 

some direct interest in the subject 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 the standard for obtaining 

judicial review of a case or controversy 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). 
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seeks to attack. . . . The petitioner ‘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 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.” 

Id. (quoting Virginia Beach Beautification Comm’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,” appellants were required to demonstrate 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 establish standing under this standard. 

 The evidence is uncontested that appellants own waterfront property adjacent to the 

Boatel. So situated, appellants’ property also constitutes “riparian land,” making appellants 

“riparian land owners.” The 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 . . . ‘are qualified property rights incident to the 

ownership of the soil through or by which 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 recreational and aesthetic advantages that are conferred on such 
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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 sufficient to support their claim that their right to 

enjoy the recreational and aesthetic advantages of their waterfront property on Milford Haven as 

riparian landowners was adversely impacted by VMRC’s decision to grant the Boatel’s permit. 

Biddison testified that appellants have experienced an additional two to three feet of shoreline 

wash on their property as a result of boats passing closer to the shore through 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 testified 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 addition, Biddison testified that muddy water from 

the Boatel’s spoil site drained down a ditch on appellants’ property and created a “big flume of 

muddy water” in Milford Haven. In light of this evidence, we hold that appellants’ rights as 

riparian landowners may have been adversely affected by VMRC’s decision to grant the Boatel’s 

permit. 

 Moreover, appellants have a direct and substantial interest in the subject matter of the 

litigation as the owners of adjacent or nearby 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 the public and private benefits of 

the proposed project and shall exercise its authority under this 

section consistent with the public trust doctrine as defined by the 

common law of the Commonwealth adopted pursuant to § 1-200 in 

order to protect and safeguard the public right to the use and 

enjoyment of the subaqueous lands of the Commonwealth held in 
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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 project’s effect on the following: 

 1. Other reasonable and permissible 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 Chapter 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 property 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 statutory 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 review 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 sufficient evidence to establish 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 
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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 circuit court erred in finding that appellants 

lacked standing to appeal VMRC’s decision to grant a permit to the Boatel. Thus, we reverse the 

circuit court and remand for further proceedings consistent with this opinion. 

Reversed and remanded.