Appeals Granted

Case

VIRGINIA MARINE RESOURCES COMMISSION v. CHINCOTEAGUE INN, et al.
(Record Number 130239)

From

The Court of Appeals of Virginia

Counsel

David C. Grandis (Office of the Attorney General) for appellant

Jon C. Poulson (Law Offices of Jon C. Poulson) for appellees

Assignments of Error

1. The Court of Appeals erred in affirming the circuit court’s ruling that the Virginia Marine Resources Commission lacked jurisdiction over the Chincoteague Inn’s restaurant addition that was built on a temporarily moored barge where the barge had been built out in such a manner that it was indistinguishable from the Inn, where the Inn had placed new decking, railing, running electricity, running water, tables, and chairs on the addition, where the Inn had obtained a permit from the Virginia Department of Health for additional restaurant seating and where § 28.2-1203 is not limited by the object of the unpermitted use of state-owned submerged land.
2. The Court of Appeals erred when it limited the application of the terms “encroach” and “trespass” in § 28.2-1203 to situations that involve the right of all the people of the Commonwealth to use the bottomlands for the purpose of fishing, fowling, hunting, and taking and catching oysters and other shellfish, and prohibit the Commonwealth from properly managing the bottomlands where the en banc opinion engages in a functional analysis rather than a linguistic analysis and where the plain language of the statute and the context of the statutory scheme impose no such limitation.
3. The Court of Appeals erred when it held that applying § 28.2-1203 to a temporarily moored vessel without a permit leads to an absurd result where the statutory language does not limit its application by the object of the encroachment, and where the statute is capable of operation here as the Commission is seeking to regulate unpermitted use of the Commonwealth’s bottomland for a restaurant expansion.

Date Granted

  09-13-2013