COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bumgardner and Frank Argued at Richmond, Virginia

THOMAS C. EVELYN OPINION BY v. Record No. 2945-04-2 JUDGE LARRY G. ELDER OCTOBER 25, 2005 COMMONWEALTH OF VIRGINIA MARINE RESOURCES COMMISSION

FROM THE CIRCUIT COUR T OF NEW KENT COUNTY W. Park Lemmond, Jr ., Judge Designate Bruce E. Arkema (Cantor Arkema , P.C., on briefs), for appellant. Carl Josephson, Senior Assistan t Attorney General (Judith Williams Jagdmann, Attorney General, on brief), for appellee.

Thomas C. Evelyn (appellant) appeals a circ uit court decision holdi ng that the Virginia Marine Resources Commission (VMRC) had the au thority to order the re moval of a portion of his private pier, located along th e Pamunkey River. We hold th e governing statutes limit the riparian owner’s rights such that he may build, without a permit, only those structures “necessary” or essential to the placement of a private pier fo r the limited purpose of accessing navigable waters or vessels moored in those waters. The riparian landowner may not build, without a permit, incidental appendages designed merely to enhance the primary purpose of the pier. Thus, we affirm the circ uit court’s decision affirming th e VMRC’s order to appellant to remove the roof and second-story deck structur e he added to his pier without VMRC approval. 1

1 Because appellant has challenged only the conclusion that Code §§ 28.2-1203 and 62.1-164 did not authorize him to build the roof an d deck structure withou t a permit, we do not consider whether the VMRC acted arbitrarily and cap riciously in rejecting appellant’s request for approval of the structure after-the-fact.- 2 - I.

BACKGROUND On March 24, 2000, appellant submitted an a pplication to the VMRC for permission to construct a pier and boat ramp on his propert y along the Pamunkey Rive r. The application sought permission to construct on appellant’s property “a six (6) foot wide[, 80-foot long] private pier extending 45 feet beyond the mean high water shoreline with an 18- foot long T-end and a 15-foot wide boat ramp extending 15 feet channelw ard of the mean low water line.” The VMRC responded as follows: The proposed boat ramp will require a permit from our agency. However, based upon your application and drawings, which assert that you are a ripari an property owner, please be advised that no authorization is re quired from the [VMRC] or your local wetlands board for your pier with T-end, provided it will be used exclusively for your private, noncommercial use, is located within your riparian area, and will not extend beyond the established navigation line. On August 7, 2000, the VMRC issued a permit for c onstruction of the boat ramp that granted appellant “permission to . . . [e]ncroach i n, on, or over State-owned subaqueous bottoms pursuant to Chapter 12, Subtit le III, of Title 28.2 of the Code of Virginia.” On May 8, 2002, VMRC staff conducted a “routine compliance check” of the boat ramp. The ramp constructed was longer than authorized by the permit, but “the additional length over the original request was landward of mean low water[,] and the subaqueous encroachment was consistent with the permit.” Appellant applied fo r and received an after-the-fact approval for the boat ramp extension. Also at the May 8, 2002 compliance check, VMRC staff determined that the pier constructed was longer than proposed, that the T-head was larger than proposed, and that a “roof/deck with stair access,” not mentioned in the request for authorization, “had been constructed over a portion of the pier T-head.” At a fo llow-up visit on May 16, 2002, appellant’s- 3 - agent indicated that the changes in the design of the pier were made after receipt of the VMRC’s letter of April 18, 2000, indicating that no author ization was required for the pier. The agent indicated his belief, based on the VMRC’s letter , that no additional aut horization was required for the changes to the pier to include the roof/deck structure. On May 21, 2002, the VMRC issued a notice of violation based on the unauthorized roof

structure and ordered that the st ructure be removed. However, it also acknowledged appellant’s desire to submit “an after-the-fact request to modify [the] existing permit to retain the existing roof structure” and agreed to hold “further enforcement in abeyance” pending the VMRC’s ruling on the request. Appellant submitted that request, which included “adjoining property forms” indicating no opposition to th e structure and a letter from th e applicant’s sister indicating that several family members were elderly a nd handicapped and required the shade provided by the structure’s second story in order to enjoy family gatherings on the pier. On September 24, 2002, the VMRC held a hearing on appellant’s request. The “[r]ecommendation from [VMRC] st aff” was to deny the after-the-f act request, based in part on the following rationale: The applicant and/or agent were well aware that permits for encroachment over State-owned subaqueous lands are required since a permit was issued for th e boat ramp. Additionally, the structures, as built, do not conform to the original drawings and contain larger and ad ditional structures than . . . originally requested. In this case, the cove red roof/deck structure represents an unauthorized encroachment ove r State-owned submerged lands and is not necessary for use of the pier or access to the river. The VMRC voted seven to one to deny the reques t for after-the-fact authorization for the roof/deck structure and to requi re its removal within 60 days. Appellant noted his appeal to the New Kent County Circuit Court. Appellant’s primary argument was that the roof/deck structure was allowed as part of the pier that Code § 28.2-1203(A)(5) authorized him to construct wi thout a permit. Appe llant argued in the- 4 - alternative that the VMRC acted ar bitrarily and capriciously in rej ecting his after-the-fact request for a permit. The court affirmed the VMRC’s ru ling. On appeal to this Court, appellant contends only that the pier and roof/deck stru cture are exempt from the VMRC’s control based on the language of existing statutes and the absen ce of any applicable regulations. He does not contend that, if the VMRC had such permitting author ity, it acted arbitrarily and capriciously in rejecting his application fo r approval after-the-fact.

II.

ANALYSIS On appeal of an agency’s determination on issues of law, “‘[i]f the issue falls outside the area generally entrusted to the agency, and is one in which the courts have special competence, i.e., the common law or constitutional law,’” the court need not de fer to the agency’s interpretation. Johnston-Willis, Ltd. v. Kenley , 6 Va. App. 231, 243-44, 369 S.E.2d 1, 8 (1988) (quoting Hi-Craft Clothing Co. v. NLRB , 660 F.2d 910, 914-15 (3d Cir. 1981)). However, where the question involv es an interpretation which is within the specialized competence of the agency and the agency has been entrusted with wide di scretion by the General Assembly, the agency’s decision is entitled to special weight in the courts[, and] . . . “‘judicial in terference is permissible only for relief against the arbitrary or capricious action th at constitutes a clear abuse of delegated discretion.’”

Id. at 244, 369 S.E.2d at 8 (quoting Va. Alcoholic Beverage Control Co mm’n v. York St. Inn,

Inc. , 220 Va. 310, 315, 257 S.E.2d 851, 855 (1979) (quoting Schmidt v. Bd. of Adjustment , 88 A.2d 607, 615-16 (N.J. 1952))). Although the outcome of this appeal turns to some extent on an interpretation of the common law, that law has b een codified by the General Assembly in statutes it has entrusted the VMRC to apply. Thus, we give the agency’s in terpretation “special weight.”

Id.- 5 - State law specifies that, unless otherwis e provided “by special grant or compact according to law,” “the limits or bounds of the tr acts of land lying on the bays, rivers, creeks and shores within the jurisdiction of the Commonwealth, and the rights and privileges of the owners of such lands, shall extend to the mean lo w-water mark but no farther.” Code §§ 28.2-1200, -1202. “‘[T]itle to the land between low water ma rk and the line of navigability is in the Commonwealth . . . .’” Avery v. Beale , 195 Va. 690, 702, 80 S.E.2d 584, 591 (1954) (quoting

Grinels v. Daniel , 110 Va. 874, 877, 67 S.E. 534, 535-36 (1910)); see Code § 28.2-1200. This “property of the Commonwealth . . . may be used as a common by all the people of the Commonwealth for the purpose of fishing, fowling, hunting, and ta king and catching oysters and other shellfish.” Code § 28.2-1200; see Taylor v. Commonwealth , 102 Va. 759, 765-70, 47 S.E. 875, 877-79 (1904) (recognizing that pr edecessor to this code secti on was merely declaratory of common law and did not represent “an arbitrary assumption of right upon the part of the State”). At common law, A riparian owner has the right to [use of] the water frontage belonging by nature to his land. This right includes, inter alia , the right of access from the front of his property [past the low water mark] to the navigable part of th e waterway, and al so the right to the soil under the water between hi s land and the navigable line of the watercourse. Upon this soil, the owner may erect wharves, piers, or bulkheads for his own use, or the use of the public . . . . Langley v. Meredith , 237 Va. 55, 62, 376 S.E.2d 519, 523 (1989). This common law principle “was generally interpreted as ha ving as its main purpose ‘to i nduce the erection of wharves for the benefit of commerce’” “without depleting th e public treasury.” Jose L. Fernandez, Untwisting the Common Law: Public Trust and the Massach usetts Colonial Ordinance , 62 Alb. L. Rev. 623, 624, 633 (1998) (quoting Commonwealth v. City of Roxbury , 75 Mass. (9 Gray) 451, 515 n.13 (1857)); see also Joseph K. Angell, A Treatise on the Right of Property in Tide

Waters and in the Soil and Shores Thereof 234 (2d ed. 1847). “Thus, for a particular public- 6 - purpose, private rights over a publ ic resource were extended at the expense of public rights,” “subject to a limitation not to ‘materially impair[]’ [the public’s right to] na vigation” or “to fish and hunt.” Fernandez, supra , at 632-33 (quoting Kean v. Stetson , 22 Mass. 492, 495 (1827)); see

also Ill. Cent. R.R. v. Illinois , 146 U.S. 387, 452-53, 13 S. Ct. 110, 118, 36 L. Ed. 1018, 1042-43 (1892). A variant of this common law right, now limited to noncommercial purposes, is codified in Code § 62.1-164, which provides as follows: Any person owning land upon a wate rcourse may erect a private wharf on the same, or private pier or landing, in such watercourse opposite his land; provided, such wh arf, pier or landing is for noncommercial purposes and navigation be not obstructed, nor the private rights of any person be otherwise injured thereby. The circuit court of the county in which such wharf, pier or landing is, after causing ten days’ notice to be given to the owner thereof, of its intention to consider the subject, if it be satisfied that such wharf, pier or landing obstructs the navigation of the watercourse, or so encroaches on any private la nding as to prevent the free use thereof, may abate the same. This right is “subject to such rules and regulatio ns as the General Assembly may impose for the public’s protection.” Langley , 237 Va. at 62, 376 S.E.2d at 523, cited with approval in Carr v.

Kidd , 261 Va. 81, 91, 540 S.E.2d 884, 890 (2001); Zappulla v. Crown , 239 Va. 566, 569, 391 S.E.2d 65, 67 (1990) (“Upon that soil, the owne r may erect docks a nd other facilities, subject to the rights of the public pres erved by the General Assembly , provided no injury be done to the private rights of others.” (emphasis added)). Although the riparian owner has a right of use in the land and water below the low water mark, which the Supreme Court has recognized is a “valuable” “property” right, actua l “‘title to the land between lo w water mark and the line of navigability’” remains in the Commonwealth, Avery , 195 Va. at 702, 80 S.E.2d at 591 (quoting

Grinels , 110 Va. at 877, 67 S.E. at 535-36), subject to “use[] [in] common by all the people of the Commonwealth,” Code § 28.2-1200. See generally Angell, supra , at 196-99 (“[I]nasmuch,- 7 - as in England, the right of property in tide waters , and in the soil thereof, is by the common law, in the king, and, in this country, in the state, the king or the state may abate every intrusion thereon, whether the same be a nui sance to navigation or not.”). The General Assembly has given the VMRC jurisdiction over “all commercial fishing and all marine fish, marine shellfish, mari ne organisms, and habitat” “throughout” the

“state-owned bottomlands in the Commonwealth.” Code § 28.2-101. In order to safeguard the Commonwealth’s resources, the General Assembly ha s enacted statutes expr essly authorizing the VMRC to oversee the attempts of individual landowners to exercise their riparian rights. For example, the relevant version 2 of Code § 28.2-1203(A) provided as follows: A. It shall be unlawful for any person to build, dump, trespass or encroach upon or over . . . the beds of the bays, ocean, rivers, streams, or creeks wh ich are the property of the Commonwealth, unless such act is performed pursuant to a permit issued by the Commission or is necessary for the following:

* * * * * * * 5. Placement of private piers for noncommercial purposes by owners of the riparian lands in the waters opposite those lands, provided that the piers do not ex tend beyond the navigation line or private pier lines established by the Commission or the United States Army Corps of Engineers. Subject to any applicable local ordinances, such piers may include an attached boat lift and an open-sided roof designed to shelter a single boat slip or boat lift. In cases when such roofs will exc eed 700 square feet in coverage, and in cases in which an adjoin ing property owner objects to a proposed roof structure, permits sh all be required as provided in § 28.2-1204.

B. A violation of this section is a Class 1 misdemeanor.

2 Unless otherwise noted, this opinion references the versions of the various statutes in effect in 2000 when appellant notified the VMRC of his desire to build a pier and boat ramp and the VMRC issued a permit for the ramp because these same statutes govern whether appellant was required to obtain a permit for the pier he constructed.- 8 - 1998 Va. Acts, ch. 605; see 2000 Va. Acts, ch. 167 (amending s ubsection 5 to add at beginning, “Except as provided in subsection D of § 28.2-1205,” which requires a permit for certain private piers “that traverse[] commercially productive leased oyster or clam grounds,” a provision not claimed to apply in appellant’s case). Pursuant to Code § 28.2-1204(1) , the VMRC is authorized to [i]ssue permits for all reasonable uses of state-owned bottomlands not authorized under subsection A of § 28.2-1203, including but not limited to, dredging, the taking and use of material, and the placement of wharves, bulkheads, and fill by owners of riparian land in the waters opposite their lands, provided such wharves, bulkheads, and fill do not extend beyond any lawfully established bulkhead lines.

See 1992 Va. Acts, ch. 836 (enacting Code § 28.2- 1204, which has not been amended since that time). Code § 28.2-1205, as it existed when the VMRC issued the boat ramp permit, set out the

criteria the VMRC shall consider in dete rmining whether to issue such permits: A. 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 pr ovisions 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 § 1-10 in order to protect and safeguard th e public right to the use and enjoyment of the subaqueous lands of the Commonwealth held in 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 permi ssible uses of state waters and state-owned bottomlands;

2. Marine and fisheries re sources of the Commonwealth; 3. Tidal wetlands, except when this has or will be determined under the provisions of Chapter 13 of this title;- 9 - 4. Adjacent or nearby properties; 5. Water quality; and 6. Submerged aquatic vegetation (SAV).

* * * * * * * F. Any person aggrieved by a decision of the Commission under this section is entitled to judicial review in accordance with the provisions of the Administ rative Process Act (§ 2.2-4000 et seq.). However, any decision made by the Commission hereunder consistent with the public trust doctrine as defined by the common law of the Commonwealth adopted pursuant to § 1-10 shall not be deemed to have been made pursuant to the police power. Nothing in this subsection shall be c onstrued to deprive a riparian landowner of such rights as he may have under common law. 2000 Va. Acts, ch. 167 (amending code section by a dding subsection D and redesignating former subsections D and E as subsections E and F). It is undisputed that appella nt did not obtain a permit for construction of the roof and deck structure on his pier. He contends that no applicable statute or properly promulgated regulation required him to obtain a permit for that structure and that the circuit court’s decision affirming the VMRC’s order requiring him to re move the roof and deck structure should be reversed. We disagree and affirm. “In construing statutes, courts are charged with ascertaining a nd giving effect to the intent of the legislature.” Crown Cent. Petroleum Corp. v. Hill , 254 Va. 88, 91, 488 S.E.2d 345, 346 (1997). “That intention is initially found in the words of the statut e itself, and if those words are clear and unambiguous, we do not rely on rules of statutory constructi on or parol evidence, unless a literal application would produce a meaningless or absurd result.” Id. (citations omitted). “[W]ords and phrases used in a stat ute should be given their ordinary and usually accepted meaning unless a different intention is fairly manifest.” Woolfolk v. Commonwealth , 18 Va. App. 840, 847, 447 S.E.2d 530, 534 (1994).- 10 - Although Code § 62.1-164 gives a riparian la ndowner authority to erect a “private wharf,” “pier or landing,” it does not define the terms “wharf,” “p ier” or “landing.” Further, Code § 28.2-1203 makes it unlawful, absent issuan ce of a permit, for any person to build over the Commonwealth’s subaqueous riverb eds “unless such act . . . is necessary for[, inter alia ,] the . . . [p]lacement of private piers for noncommerc ial purposes by owners of the riparian lands in the waters opposite those lands . . . .” Code § 28.2-1203(A) (emphasis added); see also Linda Lee Butler & Margit Livingston, Vi rginia Tidal and Coastal Law § 16.3, at 565 (1988) (stating that the predecessor to Code § 28.2-1203(A) “may be viewed as a statutory modification of the common law right” “to wharf” in context of discu ssing severability from land of right to wharf without specific discussion of st atute’s “necessary” language). Although this statute does not define the word “pier,” it makes clear that any construction over the su baqueous beds must be “necessary” for placement of a “pier.” Every statute, whether “‘penal or benefici al, restrictive or enlarging of the common law,’” Bd. of Supers. v. King Land Corp. , 238 Va. 97, 102, 380 S.E.2d 895, 897 (1989) (quoting Heydon’s Case , 3 Co. Rep. 7a, 7b, 76 Eng. Rep. 637, 638 (1584)), is to be read so as to “‘promote the ability of the enactm ent to remedy the mischief at which it is directed,’” Natrella v. Bd. of Zoning Appeals , 231 Va. 451, 461, 345 S.E.2d 295, 301 (1986) (quoting Jones v.

Conwell , 227 Va. 176, 181, 314 S.E.2d 61, 64 (1984)). Although penal statutes are to be strictly construed against the Commonwealth, see, e.g. , Cox v. Commonwealth , 220 Va. 22, 25, 255 S.E.2d 462, 464 (1979), a statute is not penal si mply because its violation is a Class 1 misdemeanor, see Kitze v. Commonwealth , 23 Va. App. 213, 216, 475 S.E.2d 830, 832 (1996);

see also Trop v. Dulles , 356 U.S. 86, 96, 78 S. Ct. 590, 595-96, 2 L. Ed. 2d 630 (1958) (plurality opinion).- 11 - Here, the evident purpose of the legi slation is protecting the rights of “ all the people of the Commonwealth” to use the bottomlands for, inter alia , “fishing, fowling, hunting, and taking and catching oysters and other shellfish,” while simultaneously permitting individual riparian owners to build private piers in order to access navigable waters. Code §§ 28.2-1200 (emphasis added), -1203, -1205, 62.1-164. Thus, the statute has a primarily regulatory, non-penal purpose and should be construed liberally in favor of the public inte rest rather than against it. 3 See King Land Corp. , 238 Va. at 102-03, 380 S.E.2d at 897.

It is in this context that we examine the meaning of Code § 28.2-1203(A). The Virginia Supreme Court has held that the “ordinary and accepted meaning” of “necessary” is “‘whatever is essential for some purpose . . . of, relating t o, or having the character of something that is logically required or logically inevitable or that cannot be de nied without involving

3 Consideration of a form of the public trust doctrine is entirely appropriate in determining legislative intent. The Virginia Supreme Court held in Commonwealth v. City of Newport News , 158 Va. 521, 549, 164 S.E. 689, 697 (1932), th at “except as is otherwise expressly or impliedly provided by the Constitution, what is for the benefit of the people is committed to [the legislature’s] discretion free from the control or dictation of the executive or judicial department of the government.” Since the Virginia Supreme Court issued th at decision in 1932, Virginia’s Constitution has been amended to require, inter alia , protection of the Commonwealth’s “waters from pollution, impairment, or destruction, for the bene fit, enjoyment, and general welfare of the people of the Commonwealth.” Va. Const. art. XI, § 1. “In furthera nce of such policy, the General Assembly may undertake . . . the protection of its . . . waters from pollution, impairment, or destruction, by agencies of the Commonwealth . . . .” Id. § 2. Thus, the Constitution makes clear it is entire ly appropriate for the VMRC and judiciary to consider the legislature’s expr ess duty to “safeguard the public right to the use and enjoyment of the subaqueous lands of the Commonwealth held in trust by it for the benefit of the public as conferred by the public trust doctrine and the Constitution of Virginia,” Code § 28.2-1205(A), when interpreting and applying all legislative enactments, including Code §§ 28.3-1203 and 62.1-164. See Sharon M. Kelly, Note: The Public Trust a nd the Constitution: Routes to Judicial Overview of Resource Manage ment Decisions in Virginia , 75 Va. L. Rev. 895, 900-16 (1989) (discussing evolution of public trust doctrine in Virginia and extent to which judiciary may evaluate legislative enactments for consistency wi th doctrine). We need not decide whether the General Assembly has the power to allow riparian owners to build recreational structures atop the portions of their piers in public waters withou t violating the public trus t doctrine as it exists in Virginia because we hold Code § 28.2-1203(A) doe s not grant riparian owners such authority. Such building, if allowed, requires a permit issued pursuant to Code § 28.2-1205.- 12 - contradiction.’” Scotts dale Ins. Co. v. Glick , 240 Va. 283, 287, 397 S.E.2d 105, 108 (1990) (quoting Webster’s Third New International Dictionary 1510 (1986)) (analyzing meaning of insurance contract). The Virginia Supreme Court has recognized th at a “pier” is one type of “artificial mooring out to or along navigabl e waters,” but it has not further defined the term. Irby v.

Roberts , 256 Va. 324, 330 n.4, 504 S.E.2d 841, 844 n.4 (1998) (in context of interpreting deed purporting to grant easement to construct pier, ho lding that “‘pier’ and ‘w harf’ are not congruent

terms” but that “the constructi on of an artificial mooring out to or along navigable waters requires the same riparian right regardless of the intended use of the structure”). Black’s Law Dictionary defines a “pier” as a “structure extending fr om solid land out into the water of a river, lake, harbor, etc. to afford c onvenient passage for persons and pr operty to and from vessels along the sides of the pier.” Black’s Law Dictionary 1305 (4th ed. 1968); see Mayor of Seabright v. Allgor , 56 A. 287, 288 (N.J. 1903). Thus, under the plain meaning of Code § 28.2-1203(A)(5), appe llant was entitled, without obtaining a permit from the VMRC, to bu ild “an artificial moor ing out to navigable waters” to the extent that mooring was “essentia l” for the “convenient passage [of] persons and property to and from vessels along the sides” of th e structure. The roof, stairs, and second floor structure appellant added to his pier were not “e ssential” to his ability to reach the navigable portion of the river. As appellant admitted on brief, these structures were “incidental appendages” designed to “enhance[] the primary purpose of the pier.” Code § 28.2-1203(A)(5) did not auth orize appellant’s construction, without a permit , of the portion of the mooring that was not “essent ial” to accessing navigable waters. Although appellant’s pier involved only a second-story deck with an op en design, appellant’s reasoning, carried to the extreme, would allow the constr uction of a multi-story, enclosed dwelling not- 13 - subject to VMRC oversight. Allowing unfettere d noncommercial building atop piers that do not intrude into navigable waters is contrary to th e plain meaning of the statute and the common law and would produce an absurd resu lt. Although appellant concedes “the architecture of a private pier can be the subject of regulation” by a local government , this position ignores the fact that the

VMRC is the body to which the General Assembly has assigned the task of protecting the public’s interests in “sta te-owned bottomlands.” Further, even if we were to hold the statut e is ambiguous, requiring re sort to the rules of statutory construction, these ru les further support the determin ation we have already made regarding the plain meaning of th e term “pier.” “Statutes addressing the same subject are to be

read in pari materia [, that is, they should be] ‘read, constr ued and applied toge ther so that the legislature’s intention can be gathered from the whole of the enactments.’” Alger v.

Commonwealth , 19 Va. App. 252, 256, 450 S.E.2d 765, 767 (1994) (quoting Black’s Law Dictionary 791 (6th ed. 1990)). Under “[t] he maxim of statutory construction expressio unius est

exclusio alterius . . . [,] where a statute speaks in speci fic terms, an implication arises that

omitted terms were not intended to be included w ithin the scope of the statute.” Commonwealth ex rel. Dep’t of Corr. v. Brown , 259 Va. 697, 704-05, 529 S.E.2d 96, 100 (2000) (holding only circuit courts had authority to issue prisoner tr ansportation orders in ci vil cases where statute granted such authority to circuit courts without mention of dist rict courts). “W hen a legislative enactment limits the manner in which something may be done, the enactment also evinces the

intent that it shall not be done another way.” Grigg v. Commonwealth , 224 Va. 356, 364, 297 S.E.2d 799, 803 (1982). Finally, “[i]t is well settled that where th e construction of a statute has been uniform for many years in administrative practice, and has been acquiesced in by the General Assembly, such construction is entitled to great weight with the courts,” Dan River Mills, Inc. v. Unemployment Comp. Comm’n , 195 Va. 997, 1002, 81 S.E.2d 620, 623 (1954),- 14 - and “in doubtful cases will be regarded as decisi ve,” S. Spring Bed C o. v. State Corp. Comm’n , 205 Va. 272, 275, 136 S.E.2d 900, 902 (1964). Thus, the right to erect a “pier” as that te rm is used in Code § 62.1-164 must be construed in harmony with the provisions of Code § 28.2-1203(A)(5). Code § 28.2-1203(A)(5) requires that a person wishing to build, for nonco mmercial purposes, a priv ate pier traversing

Commonwealth bottomlands located between th e mean low water mark and the line of navigability of a river must ei ther (1) obtain a permit for such construction from the VMRC or (2) establish that traversing the Commonwealth’s property is “necessary” for the placement of a pier that complies with the prov isions contained in that code section. Code § 28.2-1203(A)(5) provides that “such piers may include an attached boat lift and an open-sided roof designed to shelter a single boat slip or boat lift.” (Emphasis added). It also provides that “[i]n cases in which such roofs will exceed 700 sq uare feet in coverage, and in cases in which an adjoining property owner objects to a proposed roof structure, permits shall be required as provided in § 28.2-1204.” The General Assembly, by specifying th e nature and size of a particular structure that may be included on a pier, has demonstrated its intention that a ripari an pier authorized by Code § 28.2-1203(A)(5) may not include appurtenant structures not specifically authorized therein. Although the statute aut horizes the erection of a roof of limited size over a single boat slip or lift, it makes no mention of a roof over the pier itself. It would be inconsistent to require a riparian owner to obtain a permit to construct a roof exceeding 700 square feet over a boat lift or boat slip while simultaneously permitting, subjec t to no height or other size restrictions whatever, the construction of a roof or deck structure over the pier itself. Further, although the erection of a roof or second floor over a pier may enhance a riparian owner’s enjoyment of his pier, such a structure is not “necessary” to the “placement” of a “pier” as authorized by Code § 28.2-1203(A)(5). Cf. 78 Op. Md. Atty. Gen. 26, 1993 WL 343619, *1- 15 - (Aug. 6, 1993) (holding “[a] pier covering is ‘non-water dependent’ whenever it has a purpose

that could be served if the structure were loca ted on land” and that the fact “[t]hat a structure would afford greater enjoyment to the owner were it located on a pier does not take the structure out of the class of ‘non-water dependent’ structur es” (emphasis added)). Such an interpretation is consistent with the rights of riparian owners at common law to construct a pier for the purpose of accessing the navigable portion of an adjacent river, see Langley , 237 Va. at 62, 376 S.E.2d at 523, for purposes such as fishing, bathing, and boating, see Becker v. Litty , 566 A.2d 1101, 1104 (Md. Ct. App. 1989). “[O]nce the right of access is gr atified, this particular [private] right of a riparian owner goes no further.” Id. (holding that right of ripari an owner “does not encompass a right of free navigation” and that “[t]he right to navigate on navigable waters is a public right, not one that attaches only to th e owner of riparian property”). Such an interpretation also is consistent with the amendments the General Assembly made to the statute in 2003. Those amendments, made after the VMRC’s decision in this case, place further restrictions on the dimensions of a pi er constructed without a permit, requiring that such a pier “not exceed six feet in width” and that “any L or T head construction platforms or protrusions . . . not exceed 250 total square f eet.” 2003 Va. Acts, ch. 973. The amendments contain no language indicating error in the VMRC’s conclusion that, pursuant to Code § 28.2-1205(A), the covered roof and deck struct ure on appellant’s pier “represent[ed] an unauthorized encroachment over State-owned submerged lands and [was] not necessary for use of the pier or access to the river.” Thus, the amendments represent acquiescence in the VMRC’s interpretation of the statutes to require a permit for the incl usion on a pier of any non-water dependent structures not specifically authorized by the General Assembly. Appellant complains that even if the VM RC does have the aut hority to regulate the architecture of private piers, it may not do so in this case because it has not “promulgated [any]- 16 - regulations that clearly prohibit th e type of pier” he has constructe d. Again, we disagree. As we held above, Code § 28.2-1203(A)(5) doe s not authorize appellant to construct a roof and deck on his pier. Thus, Code § 28.2-1203(A) required appe llant to obtain a permit from the VMRC for the roof and deck. Pursuant to Code § 28.2- 1204, the VMRC “is authorized to . . . [i]ssue permits for all reasonable uses of state-ow ned bottomlands not authorized under [Code § 28.2-1203(A)] . . . .” Code § 28.2-1205(A) sets out a non-exhaustive list of criteria the VMRC “shall consider” “[w]hen determining whether to grant or deny any permit for the use of

state-owned bottomlands.” The VMRC need not promulgate official regulations pursuant to Code § 28.2-1205(A) before it may issue or deny pe rmits pursuant to the cr iteria in that code

section. See Code § 28.2-103 (“The Commission shall exercise all of the powers herein

conferred and may promulgate regulations and guidelines necessary to carry out the provisions of this title.” (emphasis added)); see also SEC v. Chenery Corp. , 332 U.S. 194, 203, 67 S. Ct. 1575, 1580, 91 L. Ed. 1995, 2002 (1947) (“[T]he choice be tween proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency.”), quoted with approval in NLRB v. Bell Aerospace Co , 416 U.S. 267, 292-93 & n.23, 94 S. Ct. 1757, 1770-71 & n.23, 40 L. Ed. 2d 134, 152-53 & n.23 (1974). It is the governing statutes, not the guid elines, that determine the scope of appellant’s pier-building rights. Any failure of the VMRC to comply w ith the statutory requirements, if any, for the promulgation of its Subaqueous Guidelines does not defeat its duty to apply Code § 28.2-1203(A) to safeguard the Commonwealth’s resources. Thus, we affirm the trial court’s conclusion that a permit was required in order for appellant to construct the r oof/deck structure on his pier.- 17 - III. For these reasons, we hold Code § 28.2-1203 lim its the riparian owner’s rights such that he may build, without a permit, only those structures “necessary” or essentia l to the placement of a private pier for the limited purpose of accessing navigable waters or vessels moored in those waters. The riparian landowner may not buil d, without a permit, “incidental appendages” designed merely to “enhance[] the primary purpose of the pier.” Thus, we affirm the circuit court’s decision affirming the VM RC’s order to appellant to rem ove the offending structure. Because appellant has challenged only the conclusion that Code §§ 28.2-1203 and 62.1-164 did

not authorize him to build the roof and deck structure withou t a permit, we do not consider whether the VMRC acted arbitrarily and caprici ously in rejecting a ppellant’s request for approval of the structure after-the-fact.

Affirmed.