Judge says developer must wait before paving over wetlands to build a parking lot to protect cars from flooding; dispute will likely be settled in court

July 8, 2019

     The Back Bay Restoration Foundation has prevailed in its recent efforts to obtain a legal injunction against the U.S. Army Corps of Engineers, regarding a building permit for flood-prone Ashville Park.

     “Upon receipt of our Motion for Preliminary Injunction and Complaint, the DOJ (U.S. Department of Justice) spoke with the corps and the developer,” said foundation attorney Doug Kahle. “Clearly, the DOJ believed we would prevail on our motion .  .  . so the DOJ convinced the corps and the developer to refrain from conducting any work otherwise authorized by the permit, until December, 2019, (and upon 30 days advance notice) by which time the Court will have ruled on our case.”

     On June 20, 2019, the foundation filed a Motion for Preliminary Injunction in the United States District Court for the Eastern District of Virginia, to force the corps to rescind its permit allowing the city of Virginia Beach and an out-of-town developer from destroying wetlands, in the Back Bay watershed, in order to build a parking lot and other infrastructure to protect residents' cars.



 What are wetlands?

Wetlands are a critical part of the natural environment that protect shores from wave action, reduce the impacts of floods, absorb pollutants and improve water quality, according to the U.S. Department of the Environment and Energy. They provide habitat for animals and plants and many contain a wide diversity of life, supporting plants and animals that are often

not found anywhere else.

(Images courtesy of HomeFed Corporation.)



     “We are pleased that the DOJ implicitly acknowledged that a preliminary injunction, recognized as an extraordinary form of relief,  was likely to be granted, thereby protecting these resources while the Court considered the merits our of case,” said Jared Brandwein, the foundation’s executive director. “Although (we) proposed solutions that would restore and increase wetlands in Ashville Park, neither the corps, the city nor the California developer have allowed for a transparent process for public participation and alternative analysis. Faced with no avenues for discussion, and actions by the corps otherwise not in accordance with the laws and in violation of the Administrative Procedure Act, (we) had no options other than to pursue legal action.”

      The groups says it will keep pressure on the city.

     “As the only non-profit group with a mission to conserve Back Bay, the foundation will continue to pursue legal relief until the corps, city and developer agree to consider alternatives to outdated housing project development schemes,” said David Johnson, board president.

​​​​​​      Here is some background on flood-prone Ashville Park's drainage system, courtesy of the city of Virginia Beach:

     The Ashville Park neighborhood is located in the southeastern part of the city,  bounded by Princess Anne Road to the west and Sandbridge Road to the east. 

    The stormwater drainage system winds through 15, on-site interconnected lakes to Ashville Creek and then to​​​ Muddy Creek and ultimately into Back Bay. 


 Ashville Park homes can cost as much as $500,000.


     During intense rainfall events or windblown tidal events that are accompanied with moderate rain events, Ashville Park experiences wide-spread roadway flooding. 

     During three severe rainfall events in 2016 (Tropical Storm Hermine Sept. 1, 2016; Tropical Storm Julia Sept. 19, 2016; Hurricane Matthew Oct. 2016), in addition to roadway flooding, residential structural flooding was experienced.​

     The city retained a national engineering firm to develop a comprehensive drainage analysis to ide​ntify improvements to address the flooding. This analysis is complete and the FY18 capital improvement program, recently adopted by the City Council, provides funding to begin to implement the initial improvements. 


     About the Back Bay Restoration Foundation: The Back Bay Restoration Foundation's mission is to serve and protect the residents of the Back Bay and the fragile Southern watersheds, which are subject to increasingly severe flooding; and to create solutions which foster responsible development.


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