Virginia Lawyers Weekly VA Lawyers Weekly
The neighbor of a rural landowner loses her challenge to an after-the-fact permit granted to the owner to build an access bridge across a shallow mountain creek; the Court of Appeals affirms a circuit court decision upholding issuance of the permit by the Virginia Marine Resources Commission.
In 2011, the landowner bought property abutting Hogue Creek in Frederick County. As part of the purchase agreement, the seller constructed a bridge across the creek so the owner could access the property through a private right of way connecting the property to a public road. The “low water bridge” is little more than concrete slab over corrugated steel drainage pipes. The seller did not believe he needed a VMRC permit. He had applied for a permit to construct a similar bridge in 2003 and had been notified by the agency that no permit was necessary because VMRC typically did not exert jurisdiction on non-tidal streams where the drainage area upstream of the impact area is less than five square miles.
When appellant, the owner’s neighbor, became aware of the bridge, she notified VMRC of her objections. Reconsidering their earlier position, VMRC staff concluded the drainage area upstream of the bridge location was greater than five square miles and advised the owner to apply for an after-the-fact permit.
In response to environmental concerns detailed by the neighbor, VMRC staff contacted the Virginia Department of Game & Inland Fisheries and the Virginia Department of Conservation and Recreation. These agencies did not see any major environmental impact upon protected species and other area resources. After reviewing the staff recommendation and evidence received during a public hearing, including evidence submitted by appellant, the VMRC issued the permit. The circuit court affirmed that decision.
On appeal, the neighbor claims the VMRC decision violated her procedural due process rights and that the agency acted arbitrarily in granting the after-the-fact permit. She claims the VMRC – merely by issuing the permit – deprived her of “real property rights” and in particular, her common law “riparian” rights. We need not determine the scope of appellant’s riparian rights, if any, implicated by the bridge, because the VMRC permit did not (and as a matter of law could not) deprive appellant of any cognizable property rights. The bridge may or may not affect such rights, but the permit does not.
This seemingly subtle distinction is intrinsic to the very structure of the Constitution. With a few notable exceptions, the Constitution restrains only state action – not the actions of private individuals. It necessarily follows that procedural due process principles apply only if a governmental action will constitute the impairment of some individual’s life, liberty or property.
In this case, the VMRC issued the permit but did not build the bridge. The only question is whether the issuance of the permit, by itself, has the legal effect of depriving appellant of any property rights. As a matter of law, the answer must be no. Because the VMRC has no legal effect on appellant’s property rights, she cannot claim the VMRC deprived her of any property rights in violation of due process principles.
The court also rejects appellant’s challenge under the Virginia Administrative Process Act. We cannot conclude the agency abused its discretion in issuing the permit. The VMRC reviewed a detailed staff recommendation, received testimony from an engineer hired by appellant and considered appellant’s testimony and exhibits. The agency record shows a need for the bridge to accommodate ingress and egress to a landlocked parcel of land. Both the VMRC staff and other agencies they consulted concluded the bridge provided access without any appreciable damage to the environment. The decision to issue the permit cannot be judicially deemed arbitrary and capricious.
Judgment affirmed.
French v. Va. Marine Resources Comm’n (Kelsey) No. 0498-14-4, Jan. 20, 2015; Frederick County Cir.Ct. (Athey) Richard M. Cornelius for appellant; Matthew L. Gooch, AAG, for appellee. VLW 015-7-009, 12 pp.
