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Development Permit Withdrawn in Chesapeake Wetlands

Virginia
Jun 19, 2003

Chesapeake Bay Foundation v. Tri-City Properties

CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE. CASE RESULTS DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE.

RICHMOND, VA - On June 19, 2003, after mounting pressure by the Virginia office of the Chesapeake Bay Foundation, Tri-City Properties, L.L.C. withdrew consideration of its application to the State Water Control Board for development of a 428-acre multi-use community in Chesapeake, VA.  Had the permit been approved, the development would have destroyed 145 acres of protected non-tidal wetlands –in direct and blatant violation of a 2000 Virginia law. 

After learning the application would be recommended for approval in March, Chesapeake Bay Foundation and other environmental groups presented the agency staff and the State Water Control Board comprehensive letters detailing Tri-City’s failure to:
     1.  avoid and minimize the wetlands destruction to the maximum extent practicable,
     2.  propose and consider reasonable alternatives to reduce wetlands destruction, and
     3.  account for the cumulative impact of its proposed development with other proposed developments in the area.

Earlier this morning, according to state agency sources, the agency staff had changed its earlier recommendation, and planned to recommend the State Water Control Board that it deny the permit.  Just prior to this action and notification, Tri-City voluntarily pulled its application from consideration at the last minute. 

In 2000, the Virginia General Assembly enacted a law to protect the state’s valuable non-tidal wetland resources and to fill a gap left by recent Supreme Court decisions limiting the federal government’s ability to regulate activities on non-tidal wetlands.  Not long after, Tri-Cities (a/k/a/ Tri-City) Properties, L.L.C. filed an application (Virginia Water Protection Joint Permit Application number 00-1688) to develop a multi-use community on 428 acres in Chesapeake, VA that called for the destruction 145 acres of protected wetlands, by far the greatest wetland impact proposed to date, under the new law.

The Chesapeake Bay Foundation (CBF), a Maryland not-for-profit organization dedicated to the preservation of the Bay and its resources, enlisted the aid of attorney Robert Wise of Bowman and Brooke LLP to assist it pro-bono with its challenge to this permit application.  CBF along with the Environmental Protection Agency, the U.S. Fish and Wildlife Service, the City of Virginia Beach, Virginia, and Citizens for Stumpy Lake challenged the permit application for its failure to protect the non-tidal wetlands.

At the March 25, 2003 meeting of Virginia's State Water Control Board, the state’s environmental agency staff recommended issuance of the permit by the Board.  Prior to that meeting, CBF and Bowman and Brooke’s Wise presented the State Water Control Board and the environmental agency staff with a comprehensive letter detailing numerous deficiencies, flaws, and inaccuracies in Tri-City’s permit application.  Specifically, that letter focused on errors in Tri-City’s financial analysis, which it utilized to claim that it could not afford to minimize the acres of impacted wetlands.

In presenting testimony to the Board, Attorney Wise convinced it to forego approval.  In an unprecedented action, the Board failed to act on the staff’s recommendation and deferred a decision on Tri-City’s permit application until June 19, 2003.

Further examples of the flaws in the Tri-City application found by CBF and Bowman and Brooke include:
     1.  Tri-City did not own all the land it was seeking to develop in its permit application.
     2.  Tri-City acquired the application property in 1999 -- not in 1985 as it stated in its application papers.
     3.  Tri-City paid less than $250,000 for the property, as opposed to the millions of dollars it claimed in its financials.

Tri-City did not have the necessary zoning for its proposed development, proposing to build units and impact wetlands when it lacked the legal right to do so under local land use decisions.

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Founded in 1967, The Chesapeake Bay Foundation (CBF) is the largest privately funded, non-profit organization dedicated solely to protecting and restoring the Chesapeake Bay.  Since first rallying behind its slogan--Save the Bay--CBF has grown to more than 100,000 members and 160 staff with headquarters in Annapolis, MD, and state offices in MD, VA, and PA.  CBF works throughout the Chesapeake's 64,000 square-mile watershed to protect and restore the Bay with programs in environmental education and resource protection and restoration.