Code of Virginia

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Code of Virginia
Title 28.2. Fisheries and Habitat of the Tidal Waters
Chapter 6. Planting Grounds

Article 3. Assignment, Transfer, Condemnation; Other Grounds.

§ 28.2-623. Excusing rent payment on condemned oyster grounds in the Lynnhaven River and tributaries.

Whenever leased oyster ground in the Lynnhaven River and its tributaries has been condemned by the Commissioner of the State Department of Health for not less than 180 consecutive days, other than regular seasonal condemnation, the lessee, after prior written notice to the Commission, may choose not to pay the rent on the condemned acreage for the year immediately following the year in which the one hundred eightieth day of condemnation occurs. This choice may continue until the condemnation is terminated. However, if the lessee makes such a choice, (i) oysters or clams shall not be taken from such leased area by the lessee for any reason during the condemnation period; (ii) the lease shall continue to run; and (iii) the lessee may renew the lease as provided by law. The Commissioner may not make a new lease assignment or transfer an existing lease that lies wholly or partially within a condemned area unless the applicant executes a release that he will not exercise his rights under this section for the duration of the lease.

1976, c. 557, § 28.1-109.1; 1992, c. 836.

§ 28.2-624. Public rocks, etc., not to be used or staked off; penalty.

It is unlawful for any person to stake, use, or occupy for the purpose of propagating or planting oysters or shells any public oyster bed, rock, or shoal, or any bottom which has not been assigned to him, or any public clamming grounds which have been set aside as such. The officer for that district or any other officer of the Commission shall require any such person to remove all stakes, watchhouses, or other obstructions from the public beds, rocks, or shoals or from any bottom which has not been assigned to him. The failure of any person to remove such stakes or other obstructions within ten days of receiving the written notice is a separate and additional unlawful act and violation of this section. The stakes or other obstructions shall be removed by the officer at the cost of the person unlawfully placing or having placed the stakes or other obstructions.

A violation of this section is a Class 3 misdemeanor.

Code 1950, § 28-125; 1962, c. 406, § 28.1-111; 1992, c. 836.

§ 28.2-625. Transfer or assignment.

A person holding an existing lease of oyster-planting ground may transfer or assign all or any part of the lease to another under the following conditions and provisions:

1. The transfer or assignment may be made only to a resident of the Commonwealth, or a firm or corporation authorized by Virginia laws to occupy and hold oyster-planting ground.

2. The application for transfer or assignment shall be in the form prescribed by the Commissioner and shall be filed with the Commission.

3. The Commissioner shall require a new survey if no survey exists of the exact parcel or parcels of grounds to be transferred or assigned.

4. The cost of any new surveys required under this section shall be borne by the person making the transfer, and the cost and fees shall be the same as for surveys made by the Commissioner.

5. The application shall be accompanied by the transfer fee of $300 for each lease less than five acres, $500 for each lease of five to 25 acres, and $1,000 for each lease greater than 25 acres.

6. The Commissioner shall record in his office the application for transfer or assignment with any correction or new plat he deems necessary only if the Commissioner believes that the transfer or assignment is in the public interest after considering the factors in subsection A of § 28.2-1205 and the public benefits and impacts of shellfish aquaculture. No lease shall be transferred if the leaseholder has been denied renewal under § 28.2-613.

7. The transfer or assignment shall constitute a new lease of the tract or parcel assigned and any ground remaining under the old lease.

Code 1950, § 28-126; 1962, c. 406, § 28.1-112; 1984, cc. 100, 259; 1992, c. 836; 2019, c. 164.

§ 28.2-626. Refund of rent paid under mistake.

Whenever the Commissioner finds that a person has mistakenly paid to the Commonwealth any money that he is not legally obligated to pay, the Commissioner may refund the money. All amounts refunded under this section shall be paid out of the then current appropriations made for the Commissioner's use.

Code 1950, § 28-127; 1962, c. 406, § 28.1-113; 1992, c. 836.

§ 28.2-627. Relief from rent.

The Commissioner may forgive ground rent for oyster leases in any area declared a disaster area for oyster culture. A disaster area may be declared when any natural or man-made condition arises which precludes satisfactory culture of oysters in that area. Such declaration for an area shall be made by the Commissioner upon the advice of the Director of the Virginia Institute of Marine Science on or before July 1 of each year, and ground rent due and payable in September following such declaration may be forgiven for the ensuing tax year. Such relief may continue until the Commissioner with the approval of the Virginia Institute of Marine Science declares the area again productive.

Code 1950, § 28-128; 1962, c. 406, § 28.1-114; 1992, c. 836.

§ 28.2-627.1. Oyster Leasing, Conservation, and Repletion Programs Fund.

There is hereby created in the state treasury a special nonreverting fund to be known as the Oyster Leasing, Conservation, and Repletion Programs Fund, referred to in this section as "the Fund." The Fund shall be established on the books of the Comptroller. All oyster planting ground application fees, oyster planting ground transfer fees, oyster planting ground lease renewal fees, and oyster ground rents collected pursuant to this chapter shall be paid into the state treasury and credited to the Fund. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. Moneys in the Fund shall be used solely for the purposes of administering the oyster ground leasing program and the conservation and repletion program. Expenditures and disbursements from the Fund shall be made by the State Treasurer on warrants issued by the Comptroller upon written request signed by the Commissioner.

2020, c. 806.

§ 28.2-628. Condemnation of oyster bottoms and grounds.

The Department of Transportation and any locality shall have the right by eminent domain, to acquire any right or interest, partial or complete, in and to any oyster bottoms, oyster-planting grounds, or interest therein necessary for the purpose of such Department or locality. The procedure in such cases shall conform to the provisions of Chapter 3 (§ 25.1-300 et seq.) of Title 25.1. However, a locality shall not exercise the right by eminent domain to acquire any right or interest, partial or complete, in and to any oyster-planting grounds leased pursuant to Article 1 (§ 28.2-600 et seq.) or 2 (§ 28.2-603 et seq.) of Chapter 6, other than a water-dependent linear wastewater project where there is no practical alternative and the project is subject to permitting under the State Water Control Law (§ 62.1-44.2 et seq.).

The Department of Conservation and Recreation shall have the same right of eminent domain against the same properties as previously described, where the purpose of the condemnation is to provide for a navigational improvement benefiting the Commonwealth and not limited to purposes of any particular locality.

Code 1950, § 28-122.1; 1950, p. 92; 1962, c. 406, § 28.1-115; 1989, c. 656; 1992, c. 836; 2003, c. 940; 2014, cc. 162, 591.

§ 28.2-629. Rights of owner to waters within lawful survey.

If any creek, cove, or inlet within the jurisdiction of this Commonwealth flows into or runs through the lands of any person, is less than 100 yards in width at mean low water, and is comprised within the limits of his lawful survey, as defined in § 28.2-1202, such person or other lawful occupant shall have the exclusive right to use the creek, cove, or inlet for sowing or planting oysters or other shellfish. However, in the County of Mathews the owners or lawful occupants of land on both sides of any creek, cove, or inlet, except Horn Harbor, Winter Harbor, and Milford Haven, suitable for the planting of oysters, above the point where such creek, cove, or inlet is 100 yards in width, shall have the exclusive right to use such creek, cove, or inlet for planting oysters. The right of the owners or occupants of land on the opposite sides of such creek, cove, or inlet extends to the middle of the channel.

Code 1950, § 28-132; 1962, c. 406, § 28.1-116; 1964, c. 393; 1966, c. 656; 1968, cc. 659, 747; 1972, c. 539; 1992, c. 836.

§ 28.2-630. Rights of riparian owners to build bulkhead or wharf.

All assignments or leases of oyster or clam grounds under this chapter shall be subject to the rights vested in riparian claimants under Article 1 (§ 28.2-600 et seq.) of this chapter and also to the following condition: That any landowner who desires to erect a bulkhead or wharf in front of his property or to open a channel, and who is not a lessee or riparian holder of suitable bottoms for that purpose, shall give the lessee or other holder of oyster or clam grounds in front of his property twelve months' notice of such intention; and upon the expiration of that time, the rights of the lessee or holder of so much of the oyster or clam grounds as are reasonably needed for building the bulkhead, wharf, or channel shall cease. This twelve-month notice and waiting period shall not apply if, at the time the landowner provides notice to the lessee or other holder of the oyster or clam grounds in front of his property, the landowner provides the Commissioner sufficient information describing the dimensions and location of the bulkhead, wharf or channel and the Commissioner subsequently finds, in writing, that the proposed bulkhead, wharf or channel will not adversely impact commercially productive oyster or clam grounds. For purposes of this section "commercially productive oyster or clam grounds" are those areas which can be demonstrated to have (i) suitable substrate for oyster or clam production and (ii) evidence of commercial oyster or clam production within the past three years. If the bulkhead, wharf, or channel has not commenced as specified in the notice within three months after the oyster or clam grounds were vacated, the former lessee or holder shall have the right to resume possession of the oyster or clam grounds he has vacated in favor of such landowners, subject to the provisions of this chapter. Any person constructing a channel under this section shall compensate the lessee of any oyster or clam grounds for all losses or damages including the value of the ground taken for the construction of the channel. The lessee shall have recourse under action of the law in the court of the proper jurisdiction of the Commonwealth of Virginia to recover damages.

Code 1950, § 28-134; 1962, c. 406, § 28.1-118; 1992, c. 836; 2000, c. 167.

§ 28.2-631. Grounds for clams.

The provisions in this chapter referring or relating to the leasing of oyster grounds include the right of the Commissioner to lease grounds for planting, growing, storing, and harvesting clams. The Commissioner may use the same application and assignment forms and procedures for leasing grounds for producing clams as provided for leasing grounds for producing oysters.

1962, c. 406, § 28.1-110; 1970, c. 726; 1992, c. 836.

§ 28.2-632. Public clamming grounds.

Any ground in the waters of this Commonwealth not assigned to anyone for planting or bathing purposes may be, on application of twenty or more citizens to the officer assigned to the district in which the land lies, laid off and designated as public clamming grounds; or the Commissioner may do so without such petition, provided in his opinion no oyster interests will suffer thereby and the clams are of sufficient quantity for a person to realize at least 225 clams or $1.50 per day catching and taking clams from such ground. If the ground is laid off, the Commissioner shall designate by stakes the metes and bounds of such ground and also have a plat made, to be recorded in the clerk's office of the county where the ground lies. All costs of surveying, platting, and recording shall be paid by the applicant. Such ground shall be set apart and remain a public clamming ground for the common use of the citizens of Virginia for so long as the Commissioner determines, and shall not be assigned to anyone during such period.

Code 1950, § 28-180; 1962, c. 406, § 28.1-162; 1992, c. 836.

§ 28.2-633. Bathing grounds; assignment; rental.

Any person desiring to obtain a location for bathing grounds shall apply to the Commissioner to have the location designated, surveyed, and assigned. An annual rental fee of $7.50 per acre shall be charged for obtaining such a location. The cost for the assignment of bathing grounds shall be three dollars. Any such application, surveying, assigning, and marking shall conform to the law pertaining to oyster-planting grounds. Such licenses shall be for public or commercial bathing grounds only.

If any lessee of bathing ground has his ground or any portion thereof resurveyed or if he reassigns any or all of the ground, the resurvey or reassignment shall not be considered a twenty-year renewal of his lease, or as a new assignment of the ground, but shall be a continuation of the original assignment, subject to all the limitations and conditions under which the ground was originally assigned.

The lessee of any bathing ground, the rent of which is to be paid to the following September of any year, may abandon his holdings at any time without being liable for the payment of the rent for the following year, provided he notifies an officer or the Commissioner in writing of his intention to do so before September 1. This notice, when received by the officer, shall be immediately forwarded by him to the office of the Commissioner.

Code 1950, §§ 28-39, 28-187; 1952, c. 649; 1960, c. 517; 1962, c. 406, §§ 28.1-44, 28.1-118.1; 1984, c. 100; 1986, c. 184; 1992, c. 836.