STATE OF NORTH CAROLINA
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
04 EHR 0674
COUNTY OF DARE
WELLINGTON BY THE SEA
HOMEOWNER’S ASSOCIATION,
)
)
Petitioner,
)
)
v.
)
DECISION
)
N.C. DEPARTMENT OF ENVIRONMENT)
AND NATURAL RESOURCES,
)
DIVISION OF COASTAL
)
MANAGEMENT,
)
)
Respondent.
)
____________________________________________________________________________
This contested case was heard on September 24, 2004, at the Halifax County Historic
Courthouse, Halifax, North Carolina, before the Honorable Beryl E. Wade, Administrative Law
Judge, on a petition for contested case hearing regarding the Division of Coastal Management’s
(DCM’s) denial of a minor permit under the Coastal Area Management Act (CAMA) for
development on the Wellington by the Sea property in the Town of Kill Devil Hills.
APPEARANCES
For Petitioner:
T.C. Morphis, Esq.
THE BROUGH LAW FIRM
1829 Franklin Street, Suite 800A
Chapel Hill, NC 27514
For Respondent:
Christine Anne Goebel
Assistant Attorney General
N.C. DEPT. OF JUSTICE
9001 Mail Service Center
Raleigh, NC 27699-9001
ISSUE
Whether the Division of Coastal Management, acting through its Local Permitting Officer for
the Town of Kill Devil Hills, substantially prejudiced Petitioners’ rights and that the agency also
acted outside its authority, acted erroneously, acted arbitrarily and capriciously, used improper
procedure, or failed to act as required by law or rule, by denying a Coastal Area Management Act
1
(CAMA) Minor Permit for development proposed on the Wellington by the Sea property in the
Town of Kill Devil Hills.
TESTIFYING WITNESSES
Matt Sekella, Wellington HOA President
George Wood, Agent for Wellington HOA
Ted Sampson, DCM District Manager
Lynn Mathis, DCM Field Rep.
Donna Elliott, Kill Devil Hills LPO
EXHIBITS RECEIVED INTO EVIDENCE
Petitioner:
1.
2.
3.
4.
11.
12.
13.
14.
Three photographs, showing pool as originally built in 1992-93
Photograph, Jan-Mar 2004, fence and pink tape
Photograph, Jan-Mar 2004, looking south
Photograph dated March 18, 2004, Ted Sampson & Donna Elliott on site
Photograph, August, 2004, looking south
and also copy of same photograph that was drawn-on at the hearing and submitted
Two photographs, August 2004, close-ups of grass
Photograph, August 2004, looking south
Four photographs, August 2004, close-ups of grass
Stipulated Exhibit 3, the site plan submitted with the permit application, was drawn-on
during the hearing, and reproduced and submitted as evidence by the Petitioner.
Stipulated Exhibits:
1.
2.
3.
4.
5.
6.
List of owners of Wellington condo unit owners
CAMA general permit for the dune push, dated 2-14-04
Minor Permit Application with attachments, including the site plan
Permit denial letter form Donna Elliott, LPO, dated April 7, 2004
15A NCAC 07H.0305, definition of vegetation line
Division’s Disaster Response Manual p. 16-18, FLSNV section
Respondent:
7.
8.
9.
10.
11.
Photograph, Pre-Isabel September 2003.
Photograph, Storm Damage from Isabel
Photograph, Storm Damage from Isabel
Not admitted into evidence
Not admitted into evidence
2
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
Not admitted into evidence
Not admitted into evidence
Copies of contract between NCDENR & Kill Devil Hills for LPO program
Photograph dated March 18, 2004 looking south
Photograph dated March 18, 2004 Ted Sampson & Donna Elliott, Same as P’s 4
Photograph dated March 18, 2004, close-up of the patch of vegetation
Photograph dated March 18, 2004, looking north
Photograph dated March 18, 2004, close-up of R’s 18
15A NCAC 07I.0702, when action exceeds the local authority
Three photographs, showing pool as originally built in 1992-93
Two photographs, showing pool with wood fence
Photograph, Jan-Mar 2004, fence and pink tape, Same as P’s 2
Photograph, Jan-Mar 2004, looking south, Same as P’s 3
Photograph, Jan-Mar 2004, looking northwest
Photograph, Jan-Mar 2004, looking northwest
MOTIONS
No motions were made in this contested case, other than moving for exhibits to be entered as
evidence at the hearing.
Based upon careful consideration of the applicable law, testimony and evidence received
during the contested case hearing as well as the entire record of this proceeding, the undersigned
makes the following:
FINDINGS OF FACT
The Property
1.
2.
3.
The Property at dispute is the Wellington by the Sea Condominiums (Wellington) and is
located at 1709 Virginia Dare Trail in Kill Devil Hills, North Carolina in Dare County. (Stip.
Fact 1)
The Wellington building was built in 1988. It is four stories tall, with utility and storage
rooms on the ground floor, 2 units on each of the first and second floors and 3 units on the
top floor. (Stip. Fact 3)
A pool was also originally built in 1988 and was damaged in Hurricane Isabel. It was
removed in late 2003. It had been located oceanward of the building, had measured
approximately 20 feet by 50 feet, and had a concrete apron running around its perimeter.
(Stip. Fact 4)
3
4.
The pool originally was surrounded by a chain link fence. Some time between 1992 and
1993, this fence was damaged in a storm and was replaced with a wooden fence. (Stip. Fact
5) Photos that show the pool and chain link fence as it looked between 1988 and 1993 are
R’s Exhibit 21 and P’s Exhibit 1. Photos that show the pool and wooden fence as it looked
between 1993 until just before Isabel are R’s Exhibits 7 and 22.
5.
The property is subject to the Coastal Area Management Act (CAMA) ( N.C.G.S. 113A-100
et seq.) and is within the Ocean Erodible Zone Area of Environmental Concern (AEC) (15A
N.C.A.C. 07H.0300 et seq.) (Stip. Fact 6)
The Parties
6.
The Wellington is owned collectively by the individual owners of the seven units that make
up the complex. Each owner is also a member of the Wellington by the Sea HOA which has
brought this appeal on behalf of the owners. (Stip. Fact 2)
7.
The Respondent is the North Carolina Department of Environment and Natural
Resources, (“Agency” or DENR), Division of Coastal Management (“DCM”).
8.
Through the CAMA local permitting officer program, towns can designate town employees
as Local Permitting Officers (LPO’s) to process Minor Permit Applications based on a
contract between DENR and the municipalities. (N.C.G.S. § 113A-117 and 15A N.C.A.C.
07I et seq.) The Town of Kill Devil Hills local permitting officer program was under
contract with DCM at the time the events in this case took place. (R’s Exhibit 14, T p. 81-83)
9.
As a part of the LPO program, DCM puts on training workshops one or two times per year, at
different times of the year, to train LPOs. This training class also includes a field component
where staff picks an oceanfront site and shows examples of vegetation, some that is stable,
natural and sufficient for a line call and some that is not. (T p. 169)
10.
In this case, the LPO for the Town of Kill Devil Hills is Ms. Donna Elliott. She has been an
LPO for the Town for almost 18 years. (Tp. 168) She makes about 24 to 36 first line of
vegetation calls per year on average. She attends the one or two annual LPO training
workshops put on by DCM. (Tp. 169)
11.
In this case, the DCM staff involved were Ted Sampson, the District Manager, and
Lynn Mathis, a DCM Field Representative.
12.
Ted Sampson has been a District Manager with DCM since January of 2000. In this position
he usually does not make line calls, and typically defers to staff with more “field experience.”
(Deposition p.7 ) On this call he was “relying on her (Ms. Mathis) who I regard as having
even more experience than I do in making first line calls.” (T p. 80) Mr. Sampson has no
criticisms of the Kill Devil Hills LPO Program and none of Ms. Elliott specifically. (Tp. 814
83)
13.
Lynn Mathis has been making first line calls, as an LPO with Currituck County and then as a
Field Representative with DCM for a total of 17 years. She has been the Field
Representative for the Kill Devil Hills area for 5 years. (T p. 135)
14.
Ms. Mathis and Ms. Elliott have known each other for several years, having met at the LPO
training courses. Ms. Mathis stated that they “have always worked very well together. I have
a tremendous amount of respect for Donna. She’s worked very well and diligently with the
program. If she’s ever had any questions she’s always contacted us . . . there has always been
a good working relationship.”(T pp. 148-149) Ms. Mathis stated that “there has never been
any great discrepancy between calls” made by she and Ms. Elliott. (T p 149) In their history
of working together, Ms. Mathis and Ms. Elliott have usually been very close in their “first
line of vegetation” calls or “inches apart.” (T p. 66, 182, 185-186)
The Rules
15.
The relevant Statute in this case is N.C.G.S. § 113A, Article 7, “Coastal Area Management”
(CAMA). Also applicable are the associated administrative rules for coastal management,
found at 15A N.C.A.C. 07 et seq. These are the rules of the Coastal Resources Commission
(CRC) for the administration of CAMA. (Stip Fact 23)
16.
A defining characteristic of the CAMA, and a major force behind its passage, is that it is a
“cooperative state and local program.” (N.C.G.S. § 113A-101) The Local Permitting Officer
Program is an example of this cooperative relationship.
17.
The rules primarily governing this property are for Ocean Hazard Areas, found at 15A
N.C.A.C. 07H.0300 et seq. (Stip. Fact 23) The CRC’s Ocean Hazard rules establish
building setback lines for development in the Ocean Hazard Area of Environmental Concern
(AEC). Generally, the first line of stable natural vegetation is used as the reference point for
measuring oceanfront setbacks. 15A NCAC 07H .0306(a).
18.
The Commission’s Ocean Hazard rules define a “vegetation line” as follows: “Vegetation
line” means the first line of stable natural vegetation, which shall be used as a reference point
for measuring oceanfront setbacks. This line represents the boundary between the normal
dry-sand beach, which is subject to constant flux due to waves, tides, storms and wind, and
the more stable upland areas. It is generally located at or immediately oceanward of the
seaward toe of the frontal dune or erosion escarpment. 15A NCAC 07H .0305(f). (Stip.
Exhibit 5) The phrase “first line of stable natural vegetation” is also abbreviated as FLSNV
in this decision.
19.
Rule 15A NCAC 07H .0309(a) provides exceptions to the setback requirements of .0306(a).
Swimming pools and decking are exceptions to the setback, however, “in all cases, this
5
development shall be permitted only if it is landward of the vegetation line.” (15A NCAC
07H .0309(a))
20.
CAMA is clear on who has the authority to make minor permit decisions. N.C.G.S. § 113A121, “Permits for minor developments under expedited procedures” states, “In cities and
counties that have developed approved implementation and enforcement programs,
applications for permits for minor developments shall be considered and determined by the
designated local official of the city or county as the case may be.” (N.C.G.S. § 113A-121(b))
First Line of Vegetation Calls
21.
The Division of Coastal Management created a document titled “Disaster Response Manual”
and the three pages dealing with FLSNV issues are included in evidence. (Stip. Exhibit 6)
This document is not a statute or a rule, but as shown by its title, is a manual to utilize in
post-disaster times and summarizes common issues that arise in such times.
22.
This section suggests a methodology to utilize when making FLSNV calls. Mr. Sampson
stated that this section of the manual is consistent with what is taught at the Division training
sessions where first lines have been addressed. (T pp. 89-90) Ms. Mathis agreed that this
section accurately describes the method taught in the LPO training classes. (T p. 148)
23.
Neither the CRC’s rules, nor the Disaster Response Manual prescribe or require a method for
determining vegetation lines. Neither requires that you tug on the vegetation or that the
vegetation used for first line calls be of any specific type. (T p. 89, Stip. Exhibits 5 and 6)
Ms. Mathis acknowledges that there is no requirement to tug on the vegetation, and has
described a first line call as primarily a visual process. (T pp. 143-144, Deposition p. 7) Mr.
Sampson has stated that “in all vegetation line calls, it’s a type of judgment call.” (T p. 98)
24.
Mr. Sampson stated that this particular line call was what he would classify as atypical, or,
“where the line may not be continuous. When you look at the vegetation there may be some
questions in your mind is it stable, is it natural, and in this particular case because of the
storm effects there was not a visible continuous line. There were areas of vegetation
interrupted by areas of sand.” (T p. 91)
Hurricane Isabel
25.
26.
On September 18, 2003, Hurricane Isabel struck the North Carolina coast, including the
Town of Kill Devil Hills. (Stip. Fact 8)
Mr. Sampson stated, “It was pretty much a mess from Hatteras Village at the southern end all
the way up to the Virginia line with the greatest affects being in the Hatteras Village,
Rodanthe area. Certainly. . . Kill Devil Hills. . . suffered greatly, not to the extent of
overwash and wind damages as further south.” (T pp. 83-84 )
6
27.
Wellington suffered damage during the storm, including damage to the ground floor area of
the structure. The wooden fence around the pool was destroyed and the pool was damaged.
(Stip. Fact 9) Photos showing the damage to the Wellington pool done by Hurricane Isabel
are R’s Exhibits 8 and 9. According to Mr. Sekella, these photos accurately depict the
condition of the Wellington as he saw it in the days following Hurricane Isabel. (T. pp.4748)28. Other pools on the oceanside of property were also lost in Hurricane Isabel. (T p. 5960, 179) Of these pools, so far only two have rebuilt pools, both on the landward side of the
buildings. (T p. 60, 180)
28.
Just after Hurricane Isabel, Wellington was included in a blanket condemnation by the Town
that included all oceanfront property along this stretch of Kill Devil Hills. As a precaution
taken by the Town, the condemnation required the owners of condemned properties to have
their electrical systems inspected and certified by a licensed electrician before the
condemnation could be lifted for individual properties. (Stip. Fact 10)
Post Isabel
29.
Mr. Sekella testified that he had been told by another owner that the Town had told her the
Wellington must remove the pool to have the condemnation lifted. (T p. 24) Mr. Sekella
admits to having no proof of the truth of this statement. (T p. 50-51) Ms. Elliott stated that
she believed that the condemnation was based on the electric systems and not the pool. (T p
178)
30.
Wellington had the pool removed sometime in September or October of 2003. (Stip. Fact 11)
The pool was removed, partially due to the timing of the Festival of Flight in December of
2003. (T p. 24) Mr. Sekella testified that the owners were aware of their choice, and that if
the pool was removed, it couldn’t go back in the same spot and would be new construction.
(T p. 25)
31.
Mr. Sekella testified that it is possible to put an in-ground pool on the landward side of the
Wellington. (T p. 57) It is possible to build an aboveground pool on the landward of the
Wellington. (T pp. 58-59)
32.
After a hurricane, DCM operates in a “post hurricane mode” DCM is very busy during the
months after a hurricane, serving the public and writing permits. (T p 84) During this period
after Hurricane Isabel, Mr. Sampson and Ms. Mathis worked along the coast from the
Virginia line to Hatteras Village, and made first line calls all through this area.
(T pp. 129-130, 166)
33.
George Wood is the president of Environmental Professionals. (T p. 61) He previously
worked for DCM as a Field Rep, beginning in 1978, for 8 years. (T pp. 62, 71) He typically
is hired to consult on the more difficult projects that deal with CAMA. (T p. 74)
7
34.
In December 2003, Mr. Sekella contacted Mr. Wood about the conditions seaward of
Wellington and what Wellington’s options were under CAMA regarding their sandbags and
a possible new pool. Mr. Wood suggested a meeting at the Wellington with DCM staff to
discuss the situation. (T p. 64) Mr. Wood contacted Ms. Mathis to arrange the meeting, not
Ms. Elliott. (T p. 141)
January 26, 2004 Meeting at Wellington
35.
On January 26, 2004, the following people met at Wellington to discuss the possible options
for the property: Mr. Ted Sampson, DCM District Manager; Ms. Lynn Mathis, DCM Field
Rep.; Mr. George Wood, Environmental Professionals and agent for Wellington; Mr. Matt
Sekella, Owner and HOA President for Wellington; Ms. Susan Guard and Ms. Lori Smith,
Condo unit owners (since the meeting, Ms. Smith has sold her unit). (Stip. Fact 14)
36.
The main premise of this meeting was to discuss the sandbags that were on the property. (T
p. 54) The sandbags were located in front of the removed pool to protect it. (T p. 141)
37.
Ms. Mathis acknowledges that Ms. Elliott had not asked for her help in this case. Mr. Wood
had contacted her to discuss the Wellington. (T p. 149) Ms. Mathis did not call Ms. Elliott
before the meeting to discuss it with her, nor did she call her after the meeting to inform her
of what happened because, “ I did not think at the time that what I was doing was
establishing a first line call for a permit. I knew that they would be applying for the permit
and that would then fall under the LPO.” (T pp. 150-151)
38.
During this meeting, Ms. Mathis marked a FLSNV line in about four places with pink
CAMA marking tape. (Stip. Fact 14) Ms. Mathis stated that her line was curvy, that it was
different from that shown on the survey, and that the line of the survey is close, but she did
not stake a straight line. (T p. 145, 153, 156). The belief of both parties is that during the
time between when Ms. Mathis tied her flags, and the time the surveyor visited the property,
it’s “likely that the flag may have blown away” and that it wasn’t included on the survey. (T
pp. 70-71)
39.
Mr. Wood understood that this FLSNV call by Ms. Mathis was not authoritative, and that the
LPO has the decision-making authority to make the final call. (T p. 75-77) Mr. Wood also
stated that the rules are clear who makes the final call. ( T p. 77) Mr. Sampson stated that
Ms. Mathis’ call was not authoritative. (T p. 110) Ms. Mathis stated that the LPO
“absolutely” had the final authority to make the permanent decision. (T p. 151)
The CAMA Minor Permit Application & Review
40.
On or about February 18, 2004, Environmental Professionals had the FLSNV, as marked by
Lynn Mathis, surveyed. (Stip. Fact 16) This information was surveyed and made into a site
plan prepared by Kirk Foreman, the surveyor hired by Environmental Professionals. The
8
application and attachments are Stip. Exhibit 3.
41.
On or about March 1, 2004, Wellington, through its agent, Mr. Wood, filed an application for
a CAMA Minor Permit (dated February 26, 2004) with the Town of Kill Devil Hills. The
application proposed building a new pool oceanward of the building. (Stip. Fact 17)
42.
Mr. Wood acknowledges that the LPO is the proper person to submit a CAMA Minor Permit
Application to. (T p. 72)
43.
Ms. Elliott said that the receipt of the application from Mr. Wood was the first that she knew
of any plans to replace the pool at the Wellington. (Tp. 180)
44.
Between the time the application was filed (March 1, 2004) and March 18, 2004, Kill Devil
Hills Local Permitting Officer (LPO) Donna Elliott visited Wellington two times to examine
the FLSNV call as shown on the application diagram. (Stip. Fact 18)
March 18, 2004 Meeting at Wellington
45.
On March 18, 2004, Ms. Elliott visited Wellington a third time. This time she was
accompanied by Ms. Meredith Guns, Assistant Town Planning Director and LPO, and Mr.
Sampson. The three discussed Ms. Mathis’ FLSNV call as shown on the application
diagram. (Stip. Fact 19)
46.
Ms. Elliott stated that Ms. Mathis’ call was nothing like what they had been taught in the past
about first line calls. (T p. 97) Ms. Elliott stated that she wanted to be consistent with other
first line calls that had been made in Kill Devil Hills and be consistent with the way she had
done things in the past. (T p. 182)
47.
Ms. Elliott stated that she felt the patches of vegetation were sporadic, and were not stable
enough to be used to make a call. It “wasn’t a consistent pattern.” She did not know the
scientific names of the vegetation, but did recognize them as the same types of grass seen on
beaches in Kill Devil Hills. (T pp. 189, 194)
48.
Ms. Elliott did not change the way she made line calls based on the hurricane. She believed
that the calls being made in areas such as Hatteras were a different situation, and that she was
to keep making calls as usual, and that this method was an accurate method to use post
hurricane. (T pp. 173, 193, 196)
49.
After it became clear that Ms. Elliott disagreed with Ms. Mathis’ FLSNV call, Mr. Sampson
removed the tape marking Ms. Mathis’ FLSNV. (Stip. Fact 19) Mr. Sampson acknowledged
that it was Ms. Elliott’s final call to make. (T p. 97, 182)
50.
Mr. Sampson stated that while he did not agree with Ms. Elliott’s decision, her call was not
9
nullified by DCM for exceeding their authority. (T pp. 101-102)
51.
Ms. Elliott never marked a FLSNV with pink CAMA tape because where she would have
marked was too close to the building to allow a pool. If she had marked it, it would have
been closer to and parallel to the oceanward side of the building, near the wooden walkway.
(Stip. Fact 20) (T p. 186)
Permit Denial and Petition Filing
52.
In a letter dated April 7, 2004, Ms. Elliott denied Petitioner’s CAMA Minor Permit
application. The letter indicated that the proposed pool and deck would be inconsistent with
15A N.C.A.C. 07H.0309(a)(3)(9), which requires that pools and decks be built landward of
the FLSNV. The letter is Stip. Exhibit 4, and is the document consisting of the agency’s
action. (Stip. Fact 21)
53.
Petitioner filed this petition for a contested case hearing with the Office of Administrative
Hearings on April 27, 2004, which was within the statutory time requirements of N.C.G.S. §
150B-23. (See Petition)
CONCLUSIONS OF LAW
1.
The Office of Administrative Hearings has jurisdiction to hear this case pursuant to N.C.G.S.
§ 113A-121.1 and N.C.G.S. § 150B-23.
2.
All parties have been correctly designated and are properly before the Office of
Administrative Hearings. The Office of Administrative Hearings has jurisdiction over the
parties and the subject matter.
3.
Petitioners bear the burden of proof on the issues. Peace v. Employment Sec. Comm’n, 349
N.C. 315, 328, 507 S.E. 2d 272, 281 (1998).
4.
Under CAMA, all development in an area of environmental concern (“AEC”) requires a
permit. N.C.G.S. § 113A-118.
5.
Pursuant to N.C.G.S. § 113A-113(a) and (b)(6), the Coastal Resources Commission has
designated the ocean hazard area as an Area of Environmental Concern and has adopted use
standards or state guidelines for development within them, located at 15A N.C.A.C.
07H.0300 et seq.
6.
The LPO’s basis for denial of the CAMA minor development permit for the proposed
development at the Wellington, was that the development was not located behind the
FLSNV, and therefore, was in violation of the rules for Ocean Hazard Areas, specifically
10
15A N.C.A.C. 07H.0309(a) and N.C.G.S. § 113A-120(a)(8).
7.
The administrative law judge determines these issues based on a hearing limited to the
evidence that is presented or available to the agency during the review period. Britthaven,
Inc. v. Dep’t of Human Resources, 118 N.C. App. 379, 382, 455 S.E.2d 455, 459, rev.
denied, 341 N.C. 418, 461 S.E.2d 745 (1995). This limits the scope of review to that
information available to the agency up until the time of the permit decision on April 7, 2004.
8.
Under N.C.G.S. § 150B-23(a), the administrative law judge in a contested case hearing is to
determine whether petitioner has met its burden in showing that the agency substantially
prejudiced petitioner’s rights, and that the agency also acted outside its authority, acted
erroneously, acted arbitrarily and capriciously, used improper procedure, or failed to act as
required by law or rule. Id.
9.
Petitioners have failed to show that the agency substantially prejudiced petitioner’s rights
because petitioners are able to put a new pool on the landward side of the Wellington, which
would be behind the FLSNV, and would not be in violation of 15A N.C.A.C. 07H.0309(a).
10.
Petitioners have failed to show that the agency substantially prejudiced petitioner’s rights
because petitioners are not precluded from planting new vegetation on the property and/or
waiting for their existing sprigged vegetation to fill in and mature into sufficient stable
natural vegetation for a new line call in the future.
11.
Petitioners have failed to show that the agency substantially prejudiced petitioner’s rights
because petitioners were never entitled to the permit based on Ms. Mathis’ first line call,
which all witnesses have testified was not an authoritative line call.
12.
By denying the permit, Respondent did not exceed its authority or jurisdiction, did not act
erroneously, did not fail to use proper procedure, did not act arbitrarily or capriciously and
did not fail to act as required by law or rule. N.C.G.S. § 150B-23(a).
13.
By denying the permit, Ms. Elliott, did not exceed her authority or jurisdiction where
N.C.G.S. § 113A-121(b) states, “In cities and counties that have developed approved
implementation and enforcement programs, applications for permits for minor developments
shall be considered and determined by the designated local official of the city or county as
the case may be.” Ms. Elliott was the designated local official (LPO) and she considered
and determined the minor permit application as authorized to do so. Petitioners raise no
argument that she did not have this authority.
14.
By denying the permit, Ms. Elliott, did not act erroneously where she had demonstrated her
proven ability to make sound first line calls in the Town of Kill Devil Hills over her 18 year
tenure.
11
15.
By denying the permit, Ms. Elliott, did not fail to use proper procedure in determining the
FLSNV where she determined the line based on her 18 years of training, consistent with the
methods suggested in the Disaster Response Manual and taught in the LPO training class.
16.
By denying the permit, Ms. Elliott, did not act arbitrarily or capriciously, where she
examined the site at least three times, she relied on her extensive training and experience,
and she carefully considered the facts and made her decision consistent with other calls she
had made in the area and consistent with her training.
17.
By denying the permit, Ms. Elliott, did not fail to act as required by law or rule, where the
CRC’s rules do not require a particular method, such as tugging on the plants, for
determining vegetation lines. Ms. Elliott made her call based on the extensive training she
has received and her experience from making hundreds of calls in Kill Devil Hills over the
last 18 years.
18.
If the agency’s conclusions regarding the regulations are not plainly erroneous or inconsistent
with the regulations, the agency’s conclusions of law should be upheld. Simonel v. N.C.
School of the Arts, 119 N.C. App. 772, 775, 460 S.E.2d 194, 196 (1995).
19.
Petitioners have not met their burden of proof in showing that Respondent substantially
prejudiced petitioner’s rights or deprived them of property, and that Respondent exceeded its
authority or jurisdiction, acted erroneously, failed to use proper procedure, acted arbitrarily or
capriciously or failed to act as required by law or rule, as alleged in Petitioners’ petitions for
a contested case hearing. N.C.G.S. § 150B-23(a).
DECISION
Based on the foregoing findings of fact and conclusions of law, Respondent’s decision to
deny the CAMA Minor Permit for an ocean-side pool at the Wellington, based on the Local
Permitting Officer’s determination of the location of the first line of stable natural vegetation
is AFFIRMED. Petitioners have not demonstrated by a preponderance of the evidence that
their rights have been substantially prejudiced, or that Respondent erred in its decision and
the denial of the permit was unlawful and erroneous .
ORDER
It is hereby ordered that the agency serve a copy of its final agency decision on the Office of
Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714, in accordance
with N.C.G.S. § 150B-36(b)(3).
NOTICE
The agency making the final decision in this contested case is the North Carolina Coastal
12
Resources Commission. That Commission is required to give each party an opportunity to
file exceptions to this recommended decision and to present written arguments to those in the
agency who will make the final decision. N.C.G.S. § 150B-36(a).
The agency is required by N.C.G.S. § 150B-36(b) to serve a copy of the final decision on all
parties and to furnish a copy to the parties’ attorneys of record and to the Office of
Administrative Hearings.
This the 2nd day of December, 2004.
____________________________________
Beryl E. Wade
Administrative Law Judge
13