Virginia Administrative Process Act for Property Owners

What is the Virginia Administrative Process Act?

This law dictates how Virginia’s administrative agencies are to conduct business on behalf of the commonwealth and its citizens.

There are three main areas outlined by the act:

1. Fair Procedures: Agencies must establish and enforce policies in a fair manner that treats everyone equally, without undue burden.

2. Public Participation: The public must be notified and provided an opportunity to comment before new rules may be adopted.

3. Judicial Review: The act codifies the right of citizens to appeal agency decisions in the courts in a broad set of situations.

Put more simply, the VAPA actually evens the scales in favor of citizens against agency overreach. This is politically popular in Virginia, but there are instances where it hamstrings legitimate efforts by the commonwealth’s agencies to protect the public interest.

So, it’s a mixed bag, depending on who you talk to. The important thing is you need to understand how this tool can be used to defend your rights in regards to the use of your waterfront property. 

Why does VAPA matter to waterfront property owners?

Why does VAPA matter to waterfront property owners?

• Wetland Permits

  The Virginia Department of Environmental Quality, together with the Virginia Marine Resources Commission, and Local Wetlands Boards function as a team to manage the Virginia Water Protection (VWP) permit program.

  Guided by state regulations and the State Water Control Law, if your activities impact Virginia’s surface waters (i.e. altering shoreline by dredging, bulkheading, installing a pier), you’re going to need to seek approval before commencing. Under the Virginia Administrative Process Act, agencies like the VMRC and DEQ must follow strict procedures when reviewing or denying permits. 

• Riparian Rights

  Neighbors fight all the time about who has control over the water in their community.

  Do you want to allow your neighbor to build a pier that obstructs your pristine waterfront view? Do you have a comprehensive riparian survey to back up your claim of ownership or control? Does your neighbor really have the ability to stop you?

  What if the flow of the water or shape of the shoreline has changed - making riparian boundaries less clear?

• Environmental Compliance

  Both property owners and the government share a responsibility to safeguard water quality and ensure stormwater is properly managed - necessitating interaction with state agencies.

• Shoreline Structures

  These include boat ramps, docks, piers and living shorelines (nature-based erosion control).

• Resource Protection Areas (RPAs)

  Wetlands and shorelines in Virginia can be classified as RPAs if they are environmentally sensitive. The goal is to protect the commonwealth’s biodiversity and water quality - most commonly established by the Chesapeake Bay Preservation Act in VA.

When agencies issue rulings related to these areas, VAPA empowers property owners to ensure agencies are following the law, and provides a path for property owners to challenge decisions - if they act in a timely manner.

I and my colleagues have years of experience helping clients navigate both the regulations and the bureaucracy to achieve their goals in these areas.

Understanding VAPA Rulemaking & Adjudication

VAPA is best understood by breaking it down into two elements:

Rulemaking

This is the term used to describe anytime an agency passes a rule that applies to everyone in the commonwealth. One example is when the Virginia Department of Environmental Quality (DEQ) adopts new rules for erosion and sediment control near wetlands.

VAPA requires agencies to provide public notice of proposed changes, as well as an opportunity for public comment. This feedback must be considered before rule changes may be finalized.

Adjudication

Agencies in Virginia are charged with considering how current rules and regulations apply to individual cases, including permit applications. Adjudication is different from rulemaking in that these decisions apply to individual situations, instead of universal updates to rules and regulations impacting all Virginians.

For example, if you apply for a permit to build a dock near wetlands, the VMRC may initially deny your permit due to concerns around submerged aquatic vegetation.

VAPA dictates that you must be given the opportunity to review the written findings that led to the permit denial, and a pathway for appeal.

The goal of the Virginia Administrative Process Act is to provide property owners with transparency, consistency and fairness when interacting with commonwealth agencies.

As with many rights, if you do not act on them, the time allowed for response and appeal may expire. This timeline can be as short as 30 days in some instances.

It is crucial to contact an experienced waterfront attorney in a timely manner if you want to achieve the best possible outcome.

Real-World Impact: Waterfront Permit Dispute

Let’s dive into a real-world example and how a situation should be handled in consideration of VAPA.

Virginia waterfront homeowners applied for permits to build a bulkhead because they’re worried about the impact of future erosion on their property. They started the process by submitting a Joint Permit Application (JPA) to the Virginia Marine Resources Commission (VMRC).

Installation of a bulkhead provides a vertical barrier to retain soil and protect shoreline from the erosive forces associated with waves and currents.

The VMRC permitting process can take months, depending on the complexity of the project.

In this example, the homeowner has waited a few months for a response. They submitted the applications without a lawyer’s help, which caused delays as the agency had to submit follow-up questions for materials that should have been included at the outset.

The VMRC Denies Waterfront Permit Application

The VMRC circulated the JPA to the various local, state and federal agencies with permit issuing authority for bulkheads. These include the Local Wetlands Board, Virginia Department of Environmental Quality, and the U.S. Army Corps of Engineers, to name a few. Finally, after these other agencies have completed their review, the VMRC held a hearing.

The waterfront property owners represented themselves at the VMRC hearing, or they had the engineer who designed their bulkhead represent them at the hearing. At the close of the hearing the VMRC denied the JPA, citing environmental concerns.

Again, these concerns may have been more easily addressed at the outset with a more detailed permit application prepared by an expert. But, here we are…

Petition for Judicial Review

After reviewing the information the homeowner provides about the case, their lawyer advises that they can leverage VAPA totake  the case to Circuit Court to request that the Court overturn the VMRC’s decision. This is the only potential resolution at this point.

This is very different from a criminal court case. We highly recommend watching this webinar. Our team outlined the differences in great detail, including answers to commonly asked questions.

It’s important to note that the only information the court can consider is what was previously submitted to the agency as part of the permit application process. No new or non-existing information can be provided to the courts. 

The agencies are responsible for producing the package of information reviewed by the court. It should include everything the homeowner submitted, but it’s possible the agency failed to include relevant information. 

An attorney asked to deal with this matter at the last minute would lack independent knowledge of what had been submitted, and by extension, what information should be included. What if something is missing that should be in this file? They will be forced to rely on their client’s memory and record keeping - which can impact the attorney’s ability to deliver a favorable outcome. 

What’s the good news? If you prevail in the circuit court, the State of Virginia will be responsible for reimbursing your costs, including attorney’s fees. So the goal of winning is even more rewarding in these types of cases. The Virginia Administrative Process Act provides property owners a clear pathway for judicial review when they believe an agency decision was made unfairly.

Strict VAPA Deadlines

Notice of Appeal

Which agency actions trigger VAPA?

VAPA is most commonly used by property owners in Virginia to handle the following agency actions:

Denials of Wetland Permits

If the VMRC or DEQ denies your Wetland Permit, VAPA provides a pathway for a timely appeal.

Disputes over Permit Conditions

When a permit is issued, agencies often add conditions that limit the scope and impact of the proposed project. This means they want to approve the project, but need to reduce the likelihood of negative impacts on the environment. VAPA allows for the appeal of permit conditions you disagree with.

Agency Enforcement Actions

If an agency issues a fine, a stop work order, or other enforcement action you have a limited period of time to appeal under VAPA.

Zoning and Shoreline Conflicts

Neighbors end up in fights over this all the time, but did you know that state rules and local ordinances can overlap? This type of conflict results from potentially conflicting information from different levels of government. We lean on the process outlined in VAPA to resolve these conflicts.

Case Law and Judicial Oversight

Virginia’s agencies have the specialized expertise to handle situations they are assigned to handle on behalf of the public’s interest. However, they must follow the law.

VAPA empowers the courts to determine review appeals by those impacted by agency action. In these instances, their duty is to determine if the agency acted within statutory authority, followed proper procedures, and came to a decision supported by the available evidence.

If you fail to provide well-founded evidence and complete paperwork to the agencies at the outset, your ability to achieve a desirable outcome is limited - especially if you do choose to take it to the courts. 

Getting these forms and supporting evidence submissions wrong can get very expensive. It’s far cheaper to contact an expert at the earliest stage possible to control costs and reduce the amount of time required to get the best possible outcome.

How VAPA helps attorneys protect Virginia property owners:

Navigating the Virginia Administrative Process Act can feel overwhelming. It doesn’t have to be. An experienced waterfront attorney will:

• Review agency actions to identify procedural errors.

• Prepare appeals within strict filing deadlines.

• Gather expert testimony (such as environmental consultants) to strengthen your case.

• Challenge enforcement actions which unfairly restrict property use.

• Represent you in circuit court if judicial review is necessary. At this stage, though, they may only rely on evidence and information previously provided to the agencies, and then forwarded to the courts. The courts cannot consider things you did not already submit to the agencies when they were making their decisions.

Tips for Property Owners Facing Agency Action

Strict deadlines impact your options. If you wait too long, the window to push back will close. Most of the response windows close around the 30 day mark - although this may be impacted by unique circumstances.

Do not delay in reaching out to a qualified expert. Waiting too long can forfeit your right to appeal.

Organize your records. You’ll need to request records from every entity involved, and organize your own documents to make it easier to understand and respond effectively.

Consult qualified experts. While you organize your documents, get in touch ASAP with an attorney who specializes in this area of Virginia law. Your attorney can advise if you’ll also need help from engineers, surveyors and other consultants. Thankfully, we have a network of trusted experts so, by working with our team, you’ll avoid the costly expense of going with unproven resources.

An ounce of preparation is worth a pound of fixes. Get legal advice before starting your waterfront project. You can avoid common pitfalls and craft your plan so that it has the best chance of approval with minimal pushback from local and commonwealth agencies.  

VAPA Should be a Safeguard for Waterfront Property Owners

Losing water rights will negatively impact your property’s resale value. VAPA provides the structured framework to pushback when an agency action threatens your property rights. The Virginia Administrative Process Act serves as a safeguard for waterfront property owners, ensuring fairness and transparency when dealing with state agencies.