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 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 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).
B. The Commission shall consult with other state agencies, including the Virginia Institute of Marine Science, the State Water Control Board, the Virginia Department of Transportation, and the State Corporation Commission, whenever the Commission's decision on a permit application relates to or affects the particular concerns or activities of those agencies.
C. No permit for a marina or boatyard for commercial use shall be granted until the owner or other applicant presents to the Commission a plan for sewage treatment or disposal facilities that has been approved by the State Department of Health.
D. A permit is required and shall be issued by the Commission for placement of any private pier measuring 100 or more feet in length from the mean low-water mark, which is used for noncommercial purposes by an owner of the riparian land in the waters opposite the land, and that traverses commercially productive leased oyster or clam grounds, as defined in § 28.2-630, provided that the pier does not extend beyond the navigation line established by the Commission or the United States Army Corps of Engineers. The permit may reasonably prescribe the design and location of the pier for the sole purpose of minimizing the adverse impact on such oyster or clam grounds or the harvesting or propagation of oysters or clams therefrom. The permit shall contain no other conditions or requirements. Unless information or circumstances materially alter the conditions under which the permit would be issued, the Commission shall act within 90 days of receipt of a complete joint permit application to approve or deny the application. If the Commission fails to act within that time, the application shall be deemed approved and the applicant shall be notified of the deemed approval.
E. All permits issued by the Commission for the use of state-owned bottomlands pursuant to § 28.2-1204, or to recover underwater historic property shall be in writing and specify the conditions and terms that the Commission determines are appropriate, and royalties unless prohibited under other provisions of this chapter.
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 Administrative 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 § 1-200 shall not be deemed to have been made pursuant to the police power. No person shall reapply for the same or substantially similar use of the bottomlands within 12 months of the denial of a permit by the Commission. Nothing in this subsection shall be construed to deprive a riparian landowner of such rights as he may have under common law.
Code 1950, § 62-2.1; 1960, c. 600; 1962, c. 637; 1966, c. 641; 1968, c. 659, § 62.1-3; 1970, c. 621; 1972, c. 866; 1973, cc. 23, 361; 1974, cc. 92, 385; 1975, c. 431; 1976, c. 579; 1980, c. 253; 1982, c. 102; 1988, c. 868; 1992, c. 836; 1996, c. 228; 1999, c. 741; 2000, c. 167; 2001, c. 72; 2004, cc. 405, 899, 1018; 2005, c. 839.
Notes of Decisions
Cited in
13
cases, 1999–2018 · leading case:
Boone v. Harrison, 660 S.E.2d 704 (Va. Ct. App. 2008).
Boone v. Harrison, 660 S.E.2d 704 (Va. Ct. App. 2008).
· cites it 28× “The VMRC guidelines also make clear that water dependency is not a mandatory factor: “Use of the definition of water dependency does not necessarily preclude issuance of a permit for non-water dependent structures over State-owned submerged lands.”
Biddison v. Virginia Marine Resources Comm'n, 680 S.E.2d 343 (Va. Ct. App. 2009).
· cites it 28× “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…”
Virginia Marine Resources Com'n v. Clark, 709 S.E.2d 150 (Va. 2011).
· cites it 18× “[1] On May 27, 2008, the VMRC conducted a public hearing pursuant to Code § 28.2-1205 to consider the City's application.”
Palmer v. Commonwealth of Virginia Marine Resources Comm'n, 628 S.E.2d 84 (Va. Ct. App. 2006).
· cites it 17× “t shall be unlawful for any person to build, dump, trespass or encroach upon or over, or take or use any materials from the beds of the bays, ocean, rivers, streams, or creeks which are the property of the Commonwealth, unless such act is performed pursuant to a permit issued by…”
Evelyn v. Commonwealth, 621 S.E.2d 130 (Va. Ct. App. 2005).
· cites it 13× “Code § 28.2-1205, as it existed when the VMRC issued the boat ramp permit, set out the criteria the VMRC shall consider in determining whether to issue such permits: A.”
Susan L. French Virginia Marine Resources Comm'n, 767 S.E.2d 245 (Va. Ct. App. 2015).
· cites it 14× “After careful deliberation and after considering all of the factors contained in § 28.2-1205 of the Code of Virginia, the Commission voted five to three [to] approve the project as presented.”
Wills v. Virginia Marine Resources Comm'n, 717 S.E.2d 803 (Va. Ct. App. 2011).
· cites it 10× “3 They asserted that VMRC’s decision to approve the permits was arbitrary and capricious and that the permits unlawfully authorized encroachment in, on, or over state-owned subaqueous bottomlands, were unsupported by adequate evidence, were granted in violation of Code §§…”
Virginia Marine Resources Comm'n v. Chincoteague Inn & Raymond Britton, 735 S.E.2d 702 (Va. Ct. App. 2013).
· cites it 8× “In exercising its authority to grant or deny a permit, Code § 28.2-1205(A) directs VMRC to be guided by Article XI, Section I of the Constitution of Virginia, to consider the public and private benefits of proposed projects as well as the effects of the projects on a list of…”
Harrison v. Virginia Marine Resources Comm'n, 73 Va. Cir. 111 (Norfolk Cir. Ct. 2007).
· cites it 46× “2-4020 (providing for formal hearings on litigated issues); and, Va. Code § 28.2-1205 (prescribing the numerous considerations required as requisites for granting permits to use state-owned bottomlands).”
Virginia Marine Resources Comm'n v. Sarah Harrison, No. 1316071 (Va. Ct. App. May 20, 2008).
· cites it 25× “The VMRC guidelines also make clear that water dependency is not a mandatory factor: “Use of the definition of water dependency does not necessarily preclude issuance of a permit for non-water dependent structures over State-owned submerged lands.”
Va. Code Ann. § 28.2-1205(A): 9 cases
Boone v. Harrison, 660 S.E.2d 704 (Va. Ct. App. 2008).
“The VMRC guidelines also make clear that water dependency is not a mandatory factor: “Use of the definition of water dependency does not necessarily preclude issuance of a permit for non-water dependent structures over State-owned submerged lands.”
Evelyn v. Commonwealth, 621 S.E.2d 130 (Va. Ct. App. 2005).
“Code § 28.2-1205, as it existed when the VMRC issued the boat ramp permit, set out the criteria the VMRC shall consider in determining whether to issue such permits: A.”
Susan L. French Virginia Marine Resources Comm'n, 767 S.E.2d 245 (Va. Ct. App. 2015).
“After careful deliberation and after considering all of the factors contained in § 28.2-1205 of the Code of Virginia, the Commission voted five to three [to] approve the project as presented.”
Biddison v. Virginia Marine Resources Comm'n, 680 S.E.2d 343 (Va. Ct. App. 2009).
“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…”
Palmer v. Commonwealth of Virginia Marine Resources Comm'n, 628 S.E.2d 84 (Va. Ct. App. 2006).
“t shall be unlawful for any person to build, dump, trespass or encroach upon or over, or take or use any materials from the beds of the bays, ocean, rivers, streams, or creeks which are the property of the Commonwealth, unless such act is performed pursuant to a permit issued by…”
Va. Code Ann. § 28.2-1205(A)(4): 5 cases
Boone v. Harrison, 660 S.E.2d 704 (Va. Ct. App. 2008).
“The VMRC guidelines also make clear that water dependency is not a mandatory factor: “Use of the definition of water dependency does not necessarily preclude issuance of a permit for non-water dependent structures over State-owned submerged lands.”
Virginia Marine Resources Comm'n v. Sarah Harrison, No. 1316071 (Va. Ct. App. May 20, 2008).
“The VMRC guidelines also make clear that water dependency is not a mandatory factor: “Use of the definition of water dependency does not necessarily preclude issuance of a permit for non-water dependent structures over State-owned submerged lands.”
Harrison v. Virginia Marine Resources Comm'n, 73 Va. Cir. 111 (Norfolk Cir. Ct. 2007).
“2-4020 (providing for formal hearings on litigated issues); and, Va. Code § 28.2-1205 (prescribing the numerous considerations required as requisites for granting permits to use state-owned bottomlands).”
Va. Code Ann. § 28.2-1205(B): 3 cases
Boone v. Harrison, 660 S.E.2d 704 (Va. Ct. App. 2008).
“The VMRC guidelines also make clear that water dependency is not a mandatory factor: “Use of the definition of water dependency does not necessarily preclude issuance of a permit for non-water dependent structures over State-owned submerged lands.”
Harrison v. Virginia Marine Resources Comm'n, 73 Va. Cir. 111 (Norfolk Cir. Ct. 2007).
“2-4020 (providing for formal hearings on litigated issues); and, Va. Code § 28.2-1205 (prescribing the numerous considerations required as requisites for granting permits to use state-owned bottomlands).”
Virginia Marine Resources Comm'n v. Sarah Harrison, No. 1316071 (Va. Ct. App. May 20, 2008).
“The VMRC guidelines also make clear that water dependency is not a mandatory factor: “Use of the definition of water dependency does not necessarily preclude issuance of a permit for non-water dependent structures over State-owned submerged lands.”
Va. Code Ann. § 28.2-1205(D): 1 case
Palmer v. Commonwealth of Virginia Marine Resources Comm'n, 628 S.E.2d 84 (Va. Ct. App. 2006).
“t shall be unlawful for any person to build, dump, trespass or encroach upon or over, or take or use any materials from the beds of the bays, ocean, rivers, streams, or creeks which are the property of the Commonwealth, unless such act is performed pursuant to a permit issued by…”
Va. Code Ann. § 28.2-1205(E): 1 case
Harrison v. Virginia Marine Resources Comm'n, 73 Va. Cir. 111 (Norfolk Cir. Ct. 2007).
“2-4020 (providing for formal hearings on litigated issues); and, Va. Code § 28.2-1205 (prescribing the numerous considerations required as requisites for granting permits to use state-owned bottomlands).”
Va. Code Ann. § 28.2-1205(F): 7 cases
Biddison v. Virginia Marine Resources Comm'n, 680 S.E.2d 343 (Va. Ct. App. 2009).
“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…”
Susan L. French Virginia Marine Resources Comm'n, 767 S.E.2d 245 (Va. Ct. App. 2015).
“After careful deliberation and after considering all of the factors contained in § 28.2-1205 of the Code of Virginia, the Commission voted five to three [to] approve the project as presented.”
Boone v. Harrison, 660 S.E.2d 704 (Va. Ct. App. 2008).
“The VMRC guidelines also make clear that water dependency is not a mandatory factor: “Use of the definition of water dependency does not necessarily preclude issuance of a permit for non-water dependent structures over State-owned submerged lands.”
Wills v. Virginia Marine Resources Comm'n, 717 S.E.2d 803 (Va. Ct. App. 2011).
“3 They asserted that VMRC’s decision to approve the permits was arbitrary and capricious and that the permits unlawfully authorized encroachment in, on, or over state-owned subaqueous bottomlands, were unsupported by adequate evidence, were granted in violation of Code §§…”
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.