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CAV: City’s challenge to oyster-farming lease fails

Rebecca M. Lightle//August 24, 2018

CAV: City’s challenge to oyster-farming lease fails

Rebecca M. Lightle//August 24, 2018

The City of Virginia Beach, which intended to perform dredging in the Lynnhaven River as a matter of public interest, could not do so in an area where a citizen had obtained a riparian lease for oysters. The City claimed the lease was an effort to frustrate its dredging project.


The City of Virginia Beach appeals a decision affirming the Virginia Marine Resources Commission’s issuance of a riparian oyster-planting lease to Philip G. Hightower.

In September 2016, Hightower applied for the lease on submerged lands adjacent to his property on the Lynnhaven River. The City objected, arguing that Hightower sought it only in order to prevent the City from planned dredging in that area. Nevertheless, the Commission issued the lease pursuant to Code § 28.2-600, noting that Code § 28.2-1205, as invoked by the City in its objection, does not apply to the issuance of oyster-planting leases. The circuit court affirmed, and the City has appealed.

Standard of review

The City asserts that the circuit court failed to consider issues of statutory review de novo, but the record belies this argument.

While both appellees recited the “substantial evidence” standard during the circuit court hearing, it is evident that any such reference was part of a broader summary of standards of review. They did not advocate for the circuit court to review the issues of law under this more lenient standard. Hightower even noted that this standard applies only to factual disputes.

The circuit court, noting the City’s high burden to establish legal error, observed that “generally if you look at the court of appeals and the supreme court records, it’s a graveyard of circuit judges who have overturned certain administrative agencies.” This statement was merely a comment on the general rate of success of appeals of agency decisions, and this court will not fix upon such isolated statements, taken out of context, and use them as a predicate for holding that the law has been misapplied.

In explaining its rulings, the circuit court made express reference to the relevant statutory language and its plain meaning; it did not reference substantial evidence or frame its decision as a factual dispute. As such, this court finds no error in the standard of review applied below.

Discretion to deny lease

Distilled, Code § 28.2-600 explains that there are limited circumstances under which the Commission could refuse to issue the Hightower lease. It is undisputed that Hightower’s amended application didn’t fall into any of the listed categories and thus satisfied the statutory requirements, such that the Commission was required to issue the lease.

The Commission is a creature of statute and must comply with the relevant legislative mandates. Code § 28.2-600 clearly states that if Hightower complied with the statute’s requirements, the Commission “shall” issue him the lease. The General Assembly did not include any “public interest” considerations, even though it has expressly directed the Commission to consider the public interest in other related statutes (such as when the agency issues general oyster leases). Accordingly, the Commission followed the legislature’s directive in declining to weigh the public interest in the dredging project when issuing the Hightower lease, and the circuit court did not err in affirming that decision.

This court also disagrees with the City’s interpretation of its power over navigable waterways under Code § 15.2-2403. Although it has the power to acquire oyster bottoms, oyster-planting grounds, or interest therein necessary, it may not do so when such grounds are leased.

Code § 15.2-2403(1) does not grant the City unlimited power to encroach on a private property interest whenever it determines one of the permissible uses or actions are necessary. Its authority under this statute is subject to the same statutory prohibition that applies to condemning property currently subject to an oyster-planting lease. Although the General Assembly has conferred on the City a general right to dredge waterways, it has more specifically forbidden it from acquiring any right or interest in riparian oyster grounds. The more general right is subject to the more specific prohibition, and the City may not dredge waterways in an area subject to an active oyster lease.


City of Va. Beach v. Va. Marine Res. Comm’n, Record No. 1648-17-1, Aug. 21, 2018. CAV (AtLee), from Va. Beach Cir. Ct. (Padrick). Gerald L. Harris for Appellant; Kelci A. Block & Carl A. Eason for Appellees. VLW No. 018-7-219, 10 pp.

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