Can a Virginia local wetlands board take public comment at meetings even when a statute doesn't require a public hearing?

Plain-English summary

Suffolk's Wetlands Board was hearing a progress report from a permittee on a vegetative buffer planting project. Members of the Nansemond River Preservation Alliance were in attendance. The Board's chairman wanted to invite their comments. The Board was advised that under state law, a wetlands board can take public comment only during permit application hearings or hearings to suspend or revoke a permit.

Delegate Chris Jones asked the Attorney General whether that advice was correct. Attorney General Herring concluded it was not. The Board may permit public comment whenever it chooses, even when not statutorily required.

The analysis was straightforward. Va. Code § 28.2-1302 requires wetlands boards to hold public hearings for permit applications and for permit suspension or revocation, and "[a]ny person may testify at a public hearing." That establishes a floor, not a ceiling. The statute is silent on whether boards can take public comment in other circumstances. Silence is not prohibition.

Herring added three supporting points:

1. It's common practice for the chair of any deliberative body to permit comment from non-members. Robert's Rules of Order recognizes this practice for public bodies.

2. A wetlands board is a "public body" under Virginia FOIA (Va. Code § 2.2-3701), and FOIA expressly says it "shall not be construed to discourage the free discussion by government officials or employees of public matters with the citizens of the Commonwealth."

3. The overall guiding principle of FOIA is open government, which includes free discussion with citizens.

Taken together, none of those sources forbid optional public comment, and FOIA actively encourages it.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current FOIA and wetlands statutes before relying on any specific procedure mentioned here.

Common questions

Can a wetlands board open a meeting to public comment on any topic at any time?

Under this opinion, yes, the board has discretion to allow public comment when it chooses, even when not required. The board can set reasonable procedural limits on those comments (time limits, sign-in requirements, etc.).

Is the board required to allow comment at every meeting?

No. The board is only required to take public comment at the hearings § 28.2-1302 mandates (permit applications and permit suspension/revocation). Beyond those, it's discretionary.

Could the board take a vote based on the public comment?

The opinion doesn't address that question directly. If the matter is one for which the board would otherwise act, a vote could follow. But a board cannot make decisions on matters that weren't properly noticed under FOIA's meeting rules and the wetlands law.

Does this apply to other Virginia local boards (planning, BZA, etc.)?

The opinion's reasoning is wetlands-specific, but the general principles (no statute forbids optional public comment; FOIA encourages free discussion) apply to most Virginia local bodies. Each board's enabling statute would need to be checked for any explicit restriction.

Background and statutory framework

Virginia's Wetlands Act (Va. Code §§ 28.2-1300 to 28.2-1320) authorizes localities to enact wetlands zoning ordinances and to create wetlands boards to administer them. Section 28.2-1303(A) requires every locality with a wetlands ordinance to create a wetlands board.

Section 28.2-1302 sets out the required terms of local wetlands ordinances, including:

• A model ordinance for localities to adopt by reference
• Public hearings for permit applications (subsection 6)
• Public hearings for suspension or revocation of previously issued permits (subsections 7(B) and 8)
• A right for "any person" to testify at these public hearings

The statute does not require public hearings for other actions of a local wetlands board (progress reports, administrative items, general discussions). It also doesn't say boards can't take public comment in other circumstances. The silence is what Herring built on.

The City of Suffolk adopted the model ordinance by reference, as authorized by § 28.2-1303. The Suffolk Wetlands Board operates under the model ordinance with the same statutory framework as any other Virginia wetlands board.

FOIA defines "public body" broadly (Va. Code § 2.2-3701) to include "any . . . board . . . of the Commonwealth or of any political subdivision of the Commonwealth, including cities, towns, and counties." A wetlands board fits. The FOIA general purpose clause at § 2.2-3700(B) reinforces the conclusion that public bodies should facilitate, not restrict, discussion with citizens.

Citations

• Va. Code Ann. § 2.2-505 (AG advisory opinions)
• Va. Code Ann. § 2.2-3700 (FOIA general purpose)
• Va. Code Ann. § 2.2-3701 (FOIA definitions, including "public body")
• Va. Code Ann. § 28.2-1302 (model wetlands zoning ordinance)
• Va. Code Ann. § 28.2-1303 (local wetlands boards)
• City of Suffolk Unified Development Ordinance § 31-418 (adopting model ordinance)
• Robert's Rules of Order Newly Revised (11th ed. 2013), pp. 96-97 (chair's discretion on non-member comment)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2015/15-027Jones.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

900 East Main Street
Richmond, Virginia 23219
September 4, 2015
804-786-2071

The Honorable S. Chris Jones
Member, House of Delegates
Post Office Box 5059
Suffolk, Virginia 23453-0059

Dear Delegate Jones:

I am responding to your request for an official advisory Opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You inquire about the authority of the Suffolk Wetlands Board (the "Board") to permit public comment during meetings where public comment is not statutorily required.

Background

According to the materials you provided, the Board held a meeting to hear a progress report on a project it had previously permitted. The report was required by the conditions of the permit previously issued by the Board and pertained to the permittee's efforts at planting a vegetative buffer on the banks of the Nansemond River.

Following the report, the Board's chairman noted that members of the Nansemond River Preservation Alliance were present. He stated that he would like to hear from the public about the report. The Board was advised that there was no authority for it to allow public comments on the matter currently before it. The Board was further advised that, under state law, a wetlands board may take public comments only during public hearings for the review of a permit application, and not on any other occasion.

Applicable Law and Discussion

Every county, city, or town that enacts a wetlands zoning ordinance is required to create a wetlands board. Section 28.2-1302 of the Code of Virginia sets forth the required terms of local wetlands zoning ordinances, including public hearings for permit applications and for the suspension or revocation of a previously issued permit. Any person may testify at a public hearing. While the statute does not require public hearings for other actions of a local wetlands board, there are no circumstances or types of hearings where the statute bars or restricts a local board from receiving public comment.

Pursuant to this enabling legislation, Suffolk enacted a wetlands zoning ordinance, as part of its Unified Development Ordinance. The Suffolk ordinance adopts by reference the model ordinance set forth in the Code of Virginia, stating: "The wetlands Zoning Ordinance set forth in Code of Virginia § 28.2-1302, is hereby adopted as the Wetlands Zoning Ordinance of the City of Suffolk."

Thus, local enactment of the state statute means public comment must be allowed where the Board is considering issuing, revoking, or suspending a permit. It does not mean the Board may not receive public comment in other circumstances. I also note that it is common practice for the Chair of a deliberative body to permit comment by non-members.

Finally, a wetlands board is a public body under the Virginia Freedom of Information Act ("FOIA"). The overall guiding principle of FOIA is open government, which includes free discussion with citizens:

The provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. . . . This chapter shall not be construed to discourage the free discussion by government officials or employees of public matters with the citizens of the Commonwealth.

Conclusion

Because there is neither a state law nor a local ordinance prohibiting the Board from receiving public comment where public comment is not required, because it is common practice for the Chair of a deliberative body to permit comment by non-members, and because of the overarching importance of open government and free discussion with citizens, as articulated by FOIA, it is my opinion that the Board may from time to time choose to permit public comment when public comment is not required.

With kindest regards, I am

Mark R. Herring
Attorney General