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Developed and maintained by the Division of Legislative Automated Systems.
1996 SESSION
964449252Be it enacted by the General Assembly of Virginia:
1. That [ § § 9-6.14:4, 9-6.14:16, 10.1-1318, and
62.1-44.29 of the Code of Virginia are is ] amended and reenacted
and that the Code of Virginia is amended by adding a section numbered
9-6.14:7.2 as follows:
§ 9-6.14:4. Definitions.
As used in this chapter:
A. "Agency" means any authority, instrumentality, officer, board or
other unit of the state government empowered by the basic laws to make
regulations or decide cases.
B. "Agency action" means either an agency's regulation or case decision
or both, any violation, compliance, or noncompliance with which could be a
basis for the imposition of injunctive orders, penal or civil sanctions of any
kind, or the grant or denial of relief or of a license, right, or benefit by
any agency or court.
C. "Basic law" or "basic laws" means provisions of the Constitution and
statutes of the Commonwealth of Virginia authorizing an agency to make
regulations or decide cases or containing procedural requirements therefor.
D. "Case" or "case decision" means any agency proceeding or
determination that, under laws or regulations at the time, a named party as a
matter of past or present fact, or of threatened or contemplated private
action, either is, is not, or may or may not be (i) in violation of such law or
regulation or (ii) in compliance with any existing requirement for obtaining or
retaining a license or other right or benefit.
"Guidance document" means any manual or other document developed by a state
agency for official use [ to direct, instruct or advise to
provide general direction, instruction or advice to ] agency employees
in determinations regarding permitting activities.
E. "Hearing" means agency processes other than those informational or
factual inquiries of an informal nature provided in §§ 9-6.14:7.1 and
9-6.14:11 of this chapter and includes only (i) opportunity for private parties
to submit factual proofs in formal proceedings as provided in § 9-6.14:8
of this chapter in connection with the making of regulations or (ii) a similar
right of private parties or requirement of public agencies as provided in
§ 9-6.14:12 hereof in connection with case decisions.
F. "Rule" or "regulation" means any statement of general application,
having the force of law, affecting the rights or conduct of any person,
promulgated by an agency in accordance with the authority conferred on it by
applicable basic laws.
G. "Subordinate" means (i) one or more but less than a quorum of the
members of a board constituting an agency, (ii) one or more of its staff
members or employees, or (iii) any other person or persons designated by the
agency to act in its behalf.
H. [Repealed.]
§ 9-6.14:7.2. Use of supplemental information by agency.
A. Each state agency shall annually publish a list of any guidance documents. Notice of any changes to existing guidance documents shall be published at the time of the change in the Virginia Register of Regulations unless the change is so minor that the agency finds such publication to be impractical or unnecessary.
B. When a state agency proposes to use new guidance documents developed by it, notice of the proposed use shall be published by the agency in at least one issue of the Virginia Register of Regulations before commencing the use.
C. This requirement shall not apply to federal guidance documents.
[ § 9-6.14:16. Right, forms, venue.
A. Any person affected by and claiming the unlawfulness of any regulation,
or party aggrieved by and claiming unlawfulness of a case decision, as the same
are defined in § 9-6.14:4 of this chapter and whether or not excluded from
the procedural requirements of Article 2 (§ 9-6.14:7.1 et seq.) or 3
(§ 9-6.14:11 et seq.) hereof, shall have a right to the direct review
thereof by an appropriate and timely court action against the agency as such or
its officers or agents in the manner provided by the rules
Rules of the Supreme Court of Virginia. In the
case of environmental-permitting decisions made under the authority of
§§ 10.1-1318, 10.1-1457, or § 62.1-44.29, "aggrieved" shall be
interpreted no more broadly than required by federal environmental laws and
regulations governing delegation of federal environmental programs to state
agencies for administration. Such actions may be instituted in any
court of competent jurisdiction as provided in § 9-6.14:5, and the
judgments of such courts of original jurisdiction shall be subject to appeal to
or review by higher courts as in other cases unless otherwise provided by law.
In addition, when any such regulation or case decision is the subject of an
enforcement action in court, the same shall also be reviewable by the court as
a defense to the action, and the judgment or decree therein shall be appealable
as in other cases.
B. The provisions of this article shall apply to case decisions regarding
the grant or denial of aid to dependent children, Medicaid, food stamps,
general relief, auxiliary grants, or state-local hospitalization. However, no
appeal pursuant to this article may be brought regarding the adequacy of
standards of need and payment levels for public assistance programs.
Notwithstanding the provisions of § 9-6.14:17, such review shall be based
solely upon the agency record, and the court shall be limited to ascertaining
whether there was evidence in the agency record to support the case decision of
the agency acting as the trier of fact. If the court finds in favor of the
party complaining of agency action, the court shall remand the case to the
agency for further proceedings. The validity of any statute, regulation,
standard or policy, federal or state, upon which the action of the agency was
based shall not be subject to review by the court. No intermediate relief
shall be granted under § 9-6.14:18.
§ 10.1-1318. Appeal from decision of Board.
A. Any owner aggrieved by a final decision of the Board under §§
10.1-1309, 10.1-1322 or subsection D of § 10.1-1307 is entitled to
judicial review thereof in accordance with the provisions of the Administrative
Process Act (§ 9-6.14:1 et seq.).
B. Any person who is aggrieved by a final decision of the Board under
§ 10.1-1322, who participated, in person or by submittal of written
comments, in the public comment process related to the Board's decision and who
has exhausted all available administrative remedies for review of the Board's
decision, shall be entitled to judicial review of the Board's decision in
accordance with the provisions of the Administrative Process Act (§
9-6.14:1 et seq.). The person invoking jurisdiction under this subsection
bears the burden of establishing that (i) such person has suffered an actual,
threatened or imminent injury; (ii) such injury is an invasion of an immediate,
legally protected, pecuniary and substantial interest which is concrete and
particularized; (iii) such injury is fairly traceable to the decision of the
Board and not the result of the action of some third party not before the
court; and (iv) such injury will likely be redressed by a favorable decision by
the court. For purposes of this section, "aggrieved" shall have the
meaning ascribed to it in § 9-6.14:16.
§ 62.1-44.29. Judicial review.
(1) Any owner person aggrieved by a final decision of
the Board under §§ 62.1-44.15 (5), 62.1-44.15 (8a), (8b), and (8c),
62.1-44.16, 62.1-44.17, 62.1-44.19 or § 62.1-44.25, whether such decision
is affirmative or negative in form, is entitled to judicial review thereof in
accordance with the provisions of the Administrative Process Act (§
9-6.14:1 et seq.). For purposes of this section, "aggrieved" shall
have the meaning ascribed to it in § 9-6.14:16.
(2) through (8) [Repealed.] ]