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Board Demands Wetlands Mowing Permit

Property owners who are challenging the Norfolk Wetlands Board’s recent demand that they obtain a permit in order to continue mowing vegetated wetlands on their property cannot have the court determine the wetlands boundaries on their property, and the Norfolk Circuit Court says the parties will have to try other issues in the case.

The court finds the following facts to be undisputed. Plaintiff owners’ property is located at 9506 15th Bay St., Norfolk, Virginia. A portion of the property includes vegetated wetlands as defined in Va. Code § 28.2-1300. The owners have routinely “mowed” the property – including areas with vegetated wetlands – for many years. The board recently instructed the owners to cease mowing the vegetated wetlands without a permit.

Owners sued the Norfolk Wetlands Board seeking a declaratory judgment after the board required them to obtain a permit for mowing. Count I requests a declaration that a permit is not required to mow vegetated wetlands and count II seeks a judicial determination of the wetlands boundary lines and riparian rights on the property. The board demurred to count II and requests summary judgment as to count I.

Based on the information provided in the amended complaint, owners have not presented a justiciable controversy. Although they cite to cases purporting to authorize a judicial determination of riparian rights, their reliance is misplaced. The cited cases discuss judicial determination of riparian rights in the context of disputes between private parties or among adjacent property owners; they did not contemplate a situation, such as the one before the court, involving a dispute between a private landowner and a governmental entity. The court therefore does not find these cases persuasive with respect to judicial authority to establish wetlands boundary lines and/or establish riparian rights.

The court finds guidance in § 49-2 of the Wetlands Ordinance, which sets forth how wetlands boundary lines are determined. The definitions of wetlands expressly provide that the boundary lines are derived mathematically from mean low water and mean tidal range for a given location. The court is not aware of any Virginia cases in which the calculation of wetlands boundaries – established pursuant to Va. Code § 28.2-130 or an equivalent local wetlands ordinance such as Norfolk City Code § 49-2 – was the subject of a dispute. Owners have not sufficiently pleaded a controversy regarding the location of the wetlands boundaries on the property and the concomitant riparian rights.

The court sustains the demurrer to count II.

Permit exemptions

The parties have a fundamental disagreement regarding the plain meaning of the permit exemptions provided in the Wetlands Ordinance. The relevant exemption at issue is the one for grazing, haying and cultivating and harvesting agricultural, forestry or horticultural products. The court concludes that grazing and haying may involve products other than agricultural, forestry or horticultural products. Grazing and haying are not required to involve agricultural, forestry or horticultural products to be exempt from permitting under the Wetlands Ordinance.

There is no express language identifying mowing as an exempt activity. Mowing, by itself, is not the equivalent of “haying,” as owners contend. If owners used the cut grass as part of haying, i.e., gathered the cut grass for some productive purpose, the mowing arguably falls within the haying exemption. If they merely disposed of the cut grass – such that the cut grass served no productive purpose – the mowing would not fall within the exemption. Because the disposition of the cut grass on the property has not been established, the issue is not ripe for resolution as a matter of law. Alternatively, the court holds that mowing is not an exempt “other outdoor recreational activity.”

Because there are disputed material facts – namely, what the owners do with the cut grass, whether their cutting of the vegetation despoils or destroys the wetlands on the property and whether the mowing impairs the natural functions or alters the natural contour of the wetlands – the court cannot grant relief as a matter of law and the board’s motion for summary judgment is denied.

Nicoll v. City of Norfolk Wetlands Board (Lannetti) No. CL 14-4046, April 10, 2015; Norfolk Cir.Ct.; Adam D. Melita, City Att’y Office; Mark R. Baumgartner for owners. VLW 015-8-038, 12 pp.

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