The recently obtained Legal Brief, or Memorandum as it’s referred to here,  has jeopardized a fair Appeal Hearing according to the Virginia Beach City Attorney Office.

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VIRGINIA:

VIRGINIA MARINE RESOURCES COMMISSION

SANDLER AT INDIGO BAY, LLC

Applicant

v. No. VB07-300 NVW

WETLANDS BOARD

OF THE CITY OF VIRGINIA BEACH

 

 

MOTION IN OPPOSITION

The Wetlands Board of the City of Virginia Beach (?Board?) opposes the inclusion of the applicant?s ?Memorandum in Support of Appeal? in the agenda package of the Virginia Marine Resources Commission (?VMRC?) for the foregoing reasons:

1. The inclusion of such memoranda is not the ordinary course of business for VMRC staff. Memoranda are not routinely submitted by applicants or Boards to argue their case prior to the actual public hearing. As such, the inclusion of this Memorandum in the agenda packet unfairly prejudices the VMRC in favor of the arguments of the applicant, as they have been allowed a forum that was not allowed to the Wetlands Board or other opposition to the application.

The Board can submit their arguments in writing at this time, but they will not be included in the agenda package, as were those of the applicant. The Wetlands Board was not given an opportunity to also have their arguments before the VMRC prior to the hearing and in the agenda packet. This practice encourages the ex parte communication of the applicant, while unfairly prejudicing the rights of the Board to a fair and impartial hearing on the record from below. It is clearly against public policy to encourage such behavior. This unfair advantage given to the applicant by VMRC staff has prejudiced the entire VMRC proceedings.

2. The inclusion of the Memorandum in the agenda package also unfairly gives the impression to the Commissioners that the VMRC staff agrees with and endorses the information found in the Memorandum. Again, giving an unfair advantage to the applicants in a process that should be neutral and fair.

3. The Memorandum also opens the record from the Wetlands Board without authority and without a vote of the Commission as required by the process in Virginia Code Section 28.2-1312. The opening of the record was also done in an ex parte manner without allowing the Wetlands Board and others to object to its inclusion, robbing the Commission of the opportunity to impartially make a reasoned and fair decision as to its relevance and importance. The Commission, not VMRC staff, has the power to include other information not available at the Wetlands Board hearing. Thus, before this hearing begins the procedures of the VMRC have already been compromised.

Therefore, the Board requests that the Memorandum be stricken from the record and that no Commissioner who has read the Memorandum participate in the VMRC proceedings on this application.

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Of Counsel

 

B. Kay Wilson

Counsel for the Wetlands Board

2401 Courthouse Drive

Virginia Beach, Virginia 23456

(757) 385-4531

(757) 385-5687 fax

 

CERTIFICATE

I hereby certify that a true copy of the foregoing Motion in Opposition was mailed, regular mail, this 20th day of July, 2007 to John Daniel II, TROUTMAN SANDERS, 1001 Haxall Point, P. O. Box 1122, Richmond, Virginia 23218-1122 and R. J. Nutter, II, TROUTMAN SANDERS, 222 Central Park Avenue, Suite 2000, Virginia Beach, Virginia 23462.

_____________________________

B. Kay Wilson

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[Some formatting lost from original document by posting it, unedited, as it is presented above.]