State of North Carolina s66

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF DARE 07 EHR 1316 ______

KENNETH & MARY ANNE SUTTON, ) Petitioners, ) ) vs. ) ) DECISION N.C. DEPARTMENT OF ENVIRONMENT ) AND NATURAL RESOURCES, ) DIVISION OF COASTAL MANAGEMENT ) Respondent. ) ) ______

This contested case was heard on March 10, 2008 at the Pasquotank County Courthouse in Elizabeth City, North Carolina, before the Honorable Donald W. Overby, Administrative Law Judge.

APPEARANCES

For Petitioner: Kenneth Sutton, Pro Se Mary Anne Sutton, Pro Se 8 Trottwood Drive Poquoson, VA 23662

For Respondent: Christine Anne Goebel, Esq. Assistant Attorney General N.C. Dept. of Justice 9001 Mail Service Center Raleigh, NC 27699-9001

STATEMENT OF THE CASE

The case is pursuant to a petition for contested case hearing filed by the Third-Party Petitioners, pursuant to the Third Party Provisions in the Coastal Area Management Act (CAMA) found at N.C.G.S. 113A-121.1(b). The petition challenges the actions of the Division of Coastal Management (DCM) acting through the CAMA Local Permit Officers (LPO) for the Town of Nags Head. Specifically, Petitioners challenge DCM’s issuance of CAMA Minor Permit No. 07-133 to Mr. George Gatelein for development of a private driveway across the rear of his property in Nags Head, North Carolina. ISSUE TO BE DECIDED

Whether the Division of Coastal Management, acting thorough the Town of Nags Head CAMA LPOs, substantially prejudiced Petitioners’ rights by acting erroneously, acting arbitrarily or capriciously, or failing to act as required by law or rule in granting CAMA Minor Development Permit No. 07-133 to Mr. George Gatelein on August 1, 2007.

TESTIFYING WITNESSES

Kim Jackson Allen, Town of Nags Head CAMA LPO Kelly Brooke Wyatt, Town of Nags Head CAMA LPO Lynn Weber Mathis, DCM Compliance and Enforcement Representative

EXHIBITS RECEIVED INTO EVIDENCE

Petitioners’ Exhibits:

Ex. 1. Aerial Photograph Ex. 6 CAMA Permit issued to Busby Ex. 7 CAMA Permit issued to Busby Ex. 8 CAMA Permit issued to Busby Ex. 9 CAMA Permit issued to West Ex. 10 CAMA Permit issued to Shonnard Ex. 11 CAMA Permit issued to Corbett & Rohrer Ex. 12 CAMA Permit issued to Gatelein Ex. 13 CAMA Permit issued to Mangiamele Ex. 14 CAMA Permit issued to Caraway Ex. 15 CAMA Permit issued to Kirkpatrick Ex. 21 Deed of Easement between Gatelein and Town of Nags Head Ex. 28 Photograph Ex. 29 Photograph Ex. 30 Photograph Ex. 31 Photograph Ex. 32 Photograph Ex. 37 7/16/07 letter from Wyatt to Sutton Ex. 38 Letter from Allen to Sutton Ex. 40 8/31/07 letter from Wyatt to Sutton Ex. 47 Site plan for Sutton property Ex. 51 Email from Mathis to Wyatt Ex. 52 CAMA informational flyer and blank CAMA permit application Ex. 54 15A NCAC 07H.0309 Ex. 55 Portion of the CAMA Handbook for Development from the DCM website Ex. 56 Excerpts from N.C.G.S. § 113A-113

2 Ex. 59 Town of Nags head flood damage prevention ordinance, Town Code Sec. 22-31 MOTIONS

Motion in Limine-Actions of the Town and Jurisdiction over other permits

On January 29, 2008, Respondent filed a Motion in Limine to exclude all evidence as irrelevant (1) concerning the actions of the Town of Nags Head, with the exception of CAMA related actions taken by the town’s CAMA LPOs, and (2) concerning permits issued before July 28, 2007 as the Petitioners did not timely challenge those permits and so OAH lacks jurisdiction over them. On January 30, 2008, an Order was issued by this Court which allowed Respondent’s Motion in Limine concerning actions of the Town of Nags Head, and reserved his ruling concerning evidence of earlier CAMA permits. On or about February 9, 2008, Petitioners filed a Request for Reconsideration by Judge Overby. On February 11, 2008, an Order was issued which affirmed the earlier ruling.

At the commencement of the hearing in this matter on March 10, 2008, Respondent again raised the issue concerning the earlier issued CAMA permits, and whether evidence about them was allowed. The Court ruled that the only permit being challenged in this action was CAMA Minor Permit No. 07-133 issued to Mr. Gatelein, although some evidence related to the earlier permits may be relevant. Ruling was specifically reserved until such time as the evidence was presented.

Motion to Dismiss, Rule 41(b)

The Court explained “burden of proof” to the Petitioners and gave them the option of putting on their evidence first or allowing the Respondent to proceed with the “burden of going forward.” Petitioners understood they bore the burden of proof in this case, and elected to present their case first. Petitioners called three witnesses for their case-in-chief, including Mr. Allen and Ms. Wyatt, two of the town’s CAMA LPOs, as well as Ms. Mathis of DCM. At the conclusion of Petitioners’ case-in-chief, Respondent’s counsel moved to dismiss, based on Petitioners’ failure to introduce any evidence showing that the agency substantially prejudiced petitioner’s rights as required by N.C.G.S. § 150B-23(a). Pursuant to Rule 41(b) of the North Carolina Rules of Civil Procedure, Respondent’s motion was allowed and the Petitioners’ case was involuntarily dismissed, due to Petitioners not meeting their burden of proof.

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 Parties

1. All parties are properly before the Office of Administrative Hearings. The Office of Administrative Hearings has jurisdiction over the parties and the subject matter.

3 2. All parties have been correctly designated, and there is no question as to misjoinder or nonjoinder of parties.

3. Petitioners are Kenneth and Mary Anne Sutton (“Petitioners”). The Petitioners own property located at 9819 Chawanook Court in Nags Head, North Carolina. The Petitioners’ property is landward of the Gatelein property, the site of the development permitted and opposed by Petitioners.

4. Respondent is the North Carolina Department of Environment and Natural Resources, (“Agency” or “DENR”), Division of Coastal Management (“DCM”).

5. The permit at issue in this case was issued by a CAMA Local Permit Officer (“LPO”) for the Town of Nags Head. (P’s Ex. 12) The authority of the LPOs to issue CAMA permits comes from N.C.G.S. §§ 113A-116 and 113A-117.

The Property

6. The Property at the center of this dispute is owned by Mr. George Gatelein, and has the address of 9824 E. Surfside Drive, Nags Head, North Carolina. This property is now adjacent to the Atlantic Ocean beach. Mr. Gatelein’s old driveway, which had connected to Surfside Drive, is completely gone, having been washed out by storm.

7. Surfside Drive was washed out by Hurricane Isabel, and the Town of Nags Head was not attempting to resurrect Surfside Drive at this location. The Town still retains the Surfside Drive right-of-way.

8. The Gatelein property is located within the Ocean Erodible Area of Environmental Concern (AEC). As such, development on the site is subject to the Coastal Area Management Act (CAMA) ( N.C.G.S. § 113A-100 et seq.)

9. The topography of the western most 10-feet of the Surfside Drive lots in this area on either side of Mr. Gatelein’s lot vary in topography, ranging from a fairly flat surface to more noticeable dune structures in a southerly direction. None of the dunes in the easement area are classified as primary dunes or frontal dunes as defined by CAMA.

10. The first mound of sand landward of the ocean on Mr. Gatelein’s property, which was located at the vegetation line and not within the 10-foot easement, was a frontal dune, not a primary dune, as those terms are defined by the CRC’s regulations. The property is shown on the town’s GIS database, and the topography there ranges between eight(8) and sixteen (16) feet. The property is in a VE-11 flood zone, so the dune is one foot short of being classified a “primary dune.”

11. The area of the 10-foot driveway easement at issue herein is a secondary dune and not a frontal dune.

4 12. Of the dunes on Mr. Gatelein’s property, the frontal dune located at the vegetation line would offer protection to property west of the dune, but the secondary dune located in the proposed easement area would only offer minimal protection.

The CAMA Permit Application Review Process

13. Mr. Gatelein submitted a CAMA Minor Permit application, dated July 6, 2007, for a proposed gravel access way.

14. The permit application review was handled by Mr. Kim Allen, a Town of Nags Head CAMA LPO. Mr. Allen has been a CAMA LPO for 14 years.

15. There are several LPOs in Nags Head, and they rotate the CAMA work between themselves.

16. Another LPO who was called to testify, but who did not issue CAMA Minor Permit #07- 133 was Ms. Kelly Wyatt. Ms. Wyatt issued several other CAMA minor permits in the Surfside Drive area.

17. Ms. Lynn Mathis, who has been employed by DCM for 13 years, was called to testify. At the time the permits in question were issued, Ms. Mathis was the DCM field representative for the Nags Head area, but she is now a compliance officer for DCM.

18. Mr. Allen performed a site visit in connection with his permit application review. While on the site, Mr. Allen noted topographical features, even though topographical features were not shown on the application diagram.

19. As a part of the CAMA Minor permitting process, notice is required to be given to the adjacent riparian neighbors about the details of the proposed development. Notice was given to Petitioners in this case.

20. When DCM receives comments on a proposed project, all comments are reviewed to see if any issues relate to CAMA or the CRC’s rules.

21. Petitioners raised objections to the Gatelein application in a letter dated July 8, 2007.

Permit Issuance and Third Party Challenge

22. On August 1, 2007, Mr. Allen issued CAMA Minor Permit No. 07-133 to Mr. George Gatelein. This permit authorized the improvement of a 10-foot wide driveway easement along the rear property boundary, and the development of a 20-foot by 20-foot parking area west of the vegetation line. The permit included several conditions shown on the face of the document, including that the driveway and parking area be made of clay, packed sand or gravel, that there was to be no alteration of sand dunes which would increase flood damage, and that the road “hug” the dune as close as possible.

5 23. On the same date, Mr. Allen sent a letter to Petitioners because they had objected to the project. The letter gave them notice of the permit issuance and information about permit appeal by third parties.

24. On August 17, 2007, Petitioners filed both a Third Party Petition with DCM pursuant to N.C.G.S. § 113A-121.1(b), and a Petition for a Contested Case with the Office of Administrative Hearings. Both filings were seeking to challenge the issuance of CAMA Minor Permit #07-133 issued to Mr. Gatelein, and also attempted to challenge other minor permits issued to nearby residents.

25. Upon receipt of the Petitioners’ third party petition, the permit is stayed by operation of law under N.C.G.S. § 113A-121.1(c). The permitted development approved by CAMA Minor Permit No. 07-133 has not yet been constructed.

26. On September 4, 2007, the Chairman of the CRC issued an Order denying Petitioners’ appeals of permit Nos. 07-83 and 07-126. The Chairman’s Order mistakenly omitted any decision regarding Petitioners’ appeal of permit No. 07-133.

27. On September 7, 2007, Petitioners informed acting CRC Counsel, Senior Deputy AG James Gulick, about the omission in the Chairman’s Order regarding permit No. 07-133.

28. Also on September 7, 2007, the CRC issued an Amended Order granting Petitioners’ Third Party Petition, allowing them to file a Petition for a contested case with the Office of Administrative Hearings pursuant to N.C.G.S. § 113A-121.1(b) to challenge CAMA Minor Permit No. 07-133, but not to challenge the earlier issued permits as Petitioners’ appeal request was not timely as required by N.C.G.S. § 113A-121.1(b), and so the CRC and OAH lacked jurisdiction.

29. Petitioners sent a letter dated September 14, 2007 to the Office of Administrative Hearings, which OAH interpreted as a new Petition and accordingly opened a new case file. On September 25, 2007, the Office of Administrative Hearings dismissed the second contested case as being duplicative of the first.

Issues Challenged by the Petitioners at the Hearing

30. Petitioners challenge the issuance of this permit, primarily on the grounds that the proposed driveway does not meet the exception to the setback found at 15A NCAC 7H.0309(a)(2) being a “parking area with clay, packed sand or gravel,” that there would be damage to the dune from construction of the permitted driveway and vehicle traffic, and that the series of permitted driveways constituted a “road”.

31. CAMA Minor Permit No. 07-133 was issued pursuant to 15A NCAC 7H.0309(a)(2) as an exception allowed within the oceanfront setback but behind the vegetation line. In issuing the permit, it was Mr. Allen’s understanding that the “parking areas with clay, packed sand or gravel” would also allow access or driveways.

6 32. Mr. Allen believed that vehicular traffic would not cause erosion to sand dunes once there was a gravel base. Mr. Allen bases his opinion on his observations of two similar gravel driveways, which have a gravel base approximately four inches thick.

33. The Town has received access easements from ten of the Surfside Drive owners, including Mr. Gatelein. The stated purpose of the access easement was “for the purpose of construction, improvement, and maintenance of a street over, upon and across the westernmost ten feet of Lot 17, High Dunes subdivision…” (Mr. Gatelein’s property).

34. According to sworn testimony, the Town of Nags Head does not intend to build a street in the area of the easements, and the Town has not applied for any CAMA permits to construct such a street. Should the Town desire to construct a street on those easements, the Town would have to apply for such permits, and the permits would be reviewed by DCM staff in Elizabeth City, not the LPOs.

35. The CAMA permit issued does not regulate the types of vehicles allowed on the gravel driveway; however, the nature, size and construction of the driveways would, to a degree, limit the size of vehicles using the driveways.

36. Petitioners introduced into evidence an email from Ms. Mathis to Ms. Wyatt stating that Ed Brooks, DCM’s Minor Permits Coordinator and Ted Tyndall, Assistant Director of DCM concluded that the easements for driveways can be established for driveways, as long as they did not create roads for traffic or a street, and were used to access the houses only.

37. Even to the time of hearing in this matter, Mr. Gatelein does not have access to his property, except at the times of the year when Mr. Gatelein can access his property from the public beach. There is no beach driving during turtle season which is generally from May to November of each year. The CAMA permit authorizes only development of the access and parking area, but does not specify further how Mr. Gatelein will access his property.

38. The Town of Nags Head has an ordinance pertaining to beach driving, which states in part that you cannot drive your car over dunes in order to access the public trust area. This ordinance is in the context of entering and exiting from private property onto the public beach over dunes, not along an approved public access as in this case.

39. Mr. Gatelein may seek to access his lot over adjacent lots. Between the Gatelein property and Oregon Drive to the south, there are 4 lots, and from the Gatelein property to the street to the north, there are 6 lots. The Shonnard Lot, two lots to the north of the Gatelein property, currently has “no trespassing” signs erected.

40. Ms. Wyatt issued a CAMA minor permit for the Corbett & Rohrer property which is the lot adjacent to the Gatelein property. Although the site plan for the Corbett & Rohrer application showed a connecting access onto the next lot (Shonnard), the CAMA permit was only for work on the Corbett & Rohrer property.

7 41. The Gatelein permit requires that the work also conform to Town Code 22-35 (c) which requires that work cannot alter sand dunes so that they increase potential flood damage. The Town’s floodplain manager would have to make such a determination prior to land disturbance.

42. In approving CAMA Minor Permit 07-133, Mr. Allen considered both danger to life and property. Mr. Allen does not believe that “continual traffic over this dune line would cause damage to the dune” if it were improved with gravel, and there would not be a safety issue.

43. Ms. Mathis believes that the permitted construction, improvement, and subsequent traffic would only cause minimal damage at most, to the dune.

BASED UPON the foregoing Findings of Fact, the Court makes the following

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. All parties are properly before the court and that the court has jurisdiction of the parties and the subject matter. All parties have been correctly designated, and there is no question as to misjoinder or nonjoinder of parties.

2. 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 the CAMA.

3. Pursuant to N.C.G.S. § 113A-113(a) and (b)(6), the Coastal Resources Commission has designated Areas of Environmental Concern and has adopted use standards or state guidelines for development within them, located at 15A N.C.A.C. 07H.0100 et seq.

4. Under CAMA, “development” in an AEC requires a permit. N.C.G.S. § 113A-118.

5. The authority of the LPOs to issue a CAMA minor permit comes from N.C.G.S. §§ 113A-116 and 113A-117.

6. DCM and LPOs are charged by the CRC to regulate development within the CRC’s designated AECs within the 20 coastal counties. N.C.G.S. § 113A-103(2) DCM and the LPO’s role is to review and permit development in accordance with CAMA and the administrative rules for coastal development enacted by the CRC.

7. N.C.G.S. § 113A-120 requires that DCM “shall issue” a CAMA permit unless they make the finding that the proposed development will significantly impact specified resources

8 listed in that statute. DCM Staff must issue a permit for proposed development unless the development does not meet one of the bases for denial found at N.C.G.S. § 113A-120.

8. Petitioners bear the burden of proof on the issues. Specifically, Petitioners must prove by a preponderance of the evidence that the Respondent substantially prejudiced Petitioners’ rights and that the agency acted outside its authority, acted erroneously, acted arbitrarily and capriciously, used improper procedure, or failed to act as required by law or rule as set forth in N.C.G.S. § 150B-23(a). Peace v. Employment Sec. Comm’n, 349 N.C. 315, 328, 507 S.E. 2d 272, 281 (1998).

9. 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. 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).

10. Based on a preponderance of the evidence in this case, by issuing the permit, Respondent did not act outside its authority, act erroneously, act arbitrarily or capriciously, use improper procedure, or fail to act as required by law or rule. N.C.G.S. § 150B-23(a). More specifically, the permit is not issued in violation of rules as contended by Petitioners, and the series of driveways do not constitute a “road” as contended by Petitioners.

11. 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).

12. N.C.G.S. § 150B-34(a) provides that “[t]he administrative law judge shall decide the case based upon the preponderance of the evidence, giving due regard to the demonstrated knowledge and expertise of the agency with respect to facts and inferences within the specialized knowledge of the agency.” As such, due regard should be afforded to the DCM staff who have specialized knowledge in their respective resource areas.

DECISION

Based on the foregoing findings of fact and conclusions of law, Respondent’s decision to grant CAMA Minor Permit No. 07-133 is AFFIRMED. Petitioners have not demonstrated by a preponderance of the evidence that Respondent substantially prejudiced petitioner’s rights, or that Respondent acted outside its authority, acted erroneously, acted arbitrarily and capriciously, used improper procedure, or failed to act as required by law or rule.

9 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 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 or their counsel of record and to the Office of Administrative Hearings.

This the 9th day of May, 2008.

______Donald W. Overby Administrative Law Judge