State of North Carolina s12

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF PENDER 02 EHR 1078FOREST SOUND HOMEOWNERS ) ASSOCIATION, JAMES P. HYNES, ) PRESIDENT, ) Petitioner, ) ) v. ) ) DECISION N.C. DEPARTMENT OF ) ENVIRONMENT AND NATURAL ) RESOURCES, DIVISION OF ) COASTAL MANAGEMENT, ) Respondent. )This contested case was heard on January 15 and March 4, 2003, in the Carolina Beach Municipal Building, Carolina Beach, 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 Petitioner’s application for a major permit under the Coastal Area Management Act (CAMA) and State Dredge and Fill Law. APPEARANCESFor Petitioner: Susan McDaniel Landfall Business Center 1213 Culbreth Drive Wilmington, NC 28405For Respondent: Meredith Jo Alcoke Assistant Attorney General N.C. Dept. of Justice Post Office Box 629 Raleigh, NC 27602-0629ISSUEWhether the Division of Coastal Management substantially prejudiced Petitioner’s rights and acted erroneously by denying Petitioners’ application for a permit under the Coastal Area Management Act and the North Carolina Dredge and Fill Law. TESTIFYING WITNESSESPetitioners: Respondent:1 James P. Hynes Doug Huggett Neal Andrew Charles S. Jones David ThomasEXHIBITS RECEIVED INTO EVIDENCEPetitioner: P.Ex. 1 Map of Section One of Forest Sound Subdivision P.Ex. 2 21 photographs of causeway P.Ex. 3 Petitioner’s CAMA permit application P.Ex. 4 6/17/02 letter denying permit P.Ex. 5 9/24/02 letter from Neal Andrew to James HynesRespondent R.Ex. 1 6/17/02 letter denying permit R.Ex. 2 Petitioner’s CAMA permit application R.Ex. 3 N.C. Division of Marine Fisheries comment cover sheet R.Ex. 4 N.C. Division of Marine Fisheries comments R.Ex. 5 N.C. Department of Transportation comments R.Ex. 6 2/25/02 Letter from U.S. Army Corps of Engineers with attached comments from U.S. Fish and Wildlife Service R.Ex. 7 Determination of inconsistency with Pender County Land Use Plan R.Ex. 8 12/12/02 letter from Allen Pope to Doug Huggett R.Ex. 9 Photos labeled 9A through 9D9A “Private Road” sign 9B Close-up of “Private Road” sign 9C Coastal wetland marsh and side view of causeway 9D CausewayBased 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 FACT1. Petitioner Forest Sound Homeowners Association (HOA) is a North Carolina non-profit corporation whose membership is comprised of all lot owners in Forest Sound Subdivision as shown on a map recorded in Map Book 18 at Page 45-46 of the Pender County Register of Deeds. (Stip. Fact 1) 2. Respondent is the North Carolina Department of Environment and Natural Resources, (Agency or DENR), Division of Coastal Management (DCM). (Stip. Fact 2)3. Respondent DCM is the agency responsible for permitting under the 1974 Coastal Area2 Management Act (CAMA), N.C.G.S. § 113A-100 et seq. DCM is also the agency responsible for implementing the North Carolina State Dredge and Fill Law, N.C.G.S. § 113-229. (Tp 89)Background on Forest Sound Subdivision4. Forest Sound Subdivision is a waterfront residential subdivision situated around Old Topsail Creek in Hampstead, Pender County, North Carolina, and consists of 112 residential lots. (Stip. Fact 3)5. Forest Sound Subdivision was developed in 1980 by Forest Sound Development Corporation. On July 25, 1980, Respondent issued CAMA Major/State Dredge and Fill Permit Number 84-80 to Alexander M. Hall as agent for Forest Sound Development Corporation, authorizing the construction of a filled causeway and installation of culverts on Corcus Ferry Road over a marsh connected to Old Topsail Creek. (Stip. Fact 4)6. The causeway and road provide the only access to approximately 70 lots in the Forest Sound subdivision, and all 18 lots in the adjacent Howard Subdivision. (Stip. Fact 5)7. During the review of the application for Permit Number 84-80, Mr. Hall agreed to reduce the impacts to coastal wetlands from 7,400 square feet to 6,200 square feet, and the permit was issued based on this reduction. (Stip. Fact 6)8. Thereafter, the existing causeway was constructed within the 60’ right-of-way of Corcus Ferry Road. (Stip. Fact 7)The Causeway9. Corcus Ferry Road is a private road. (R Exs 2, 9A, 9B). It was not constructed to minimum Department of Transportation (DOT) standards for subdivision roads. (Tp 54, R Ex 6)10. The causeway is approximately 28 feet wide by 200 feet long and is elevated approximately six feet above the marsh substrate. The entire causeway is paved, and the outer four feet on each side of the causeway slopes toward the marsh. (Stip. Fact 9)11. Five cross culverts, 28 feet in length and 30 inches in diameter, are located beneath the paved road and allow for water transport. There are no guardrails along either side of the causeway. (Stip. Fact 9) 12. A three-foot high wooden retaining wall is located along both sides of the causeway. The retaining wall is in a deteriorating state. (Stip. Fact 9) The coastal wetlands extend right up to the base of the retaining walls on both sides of the causeway. (Tpp 86-87, 135, R Exs 9C, 9D)3 Application to Rehabilitate Causeway13. On September 12, 2001, Petitioner applied for a CAMA Major/Dredge and Fill Permit to rehabilitate the existing private road and causeway. The stated purpose of the improvement is to make needed repairs to the roadway and to bring it up to minimum DOT standards for subdivision roads. (Stip. Fact 10, R Ex 2) 14. Private roads are not required to be constructed to minimum DOT standards. (R Ex 6) Even if the road was brought up to minimum standards for subdivision roads, there is a significant review process Petitioner would have to go through to get the road accepted on the state system and there are no guarantees that it would be accepted. (Tpp 145-48)15. The development would involve resurfacing the road, widening the shoulder of the road 13 feet on either side for a distance of 200 feet, and placing stone fill as a buttress to strengthen the sides of the causeway and road. (Stip. Facts 10, 16)16. The project as proposed would result in the filling of approximately 4,000 square feet of coastal wetlands adjacent to a Primary Nursery Area. (Stip. Facts 11, 12)17. All development in areas of environmental concern requires a CAMA permit. N.C.G.S. § 113A-118. The definition of “development” under CAMA includes “filling” as proposed by Petitioner, and coastal wetlands are a designated “area of environmental concern.” N.C.G.S. § 113A-103(5)(a), -113(a), -113(b)(1). 18. A CAMA Major permit is required for this activity because Petitioner proposes to expand the width of the causeway by filling 4,000 square feet of coastal wetlands, which constitutes “development” under CAMA. (Tpp 89, 118) 19. Petitioner’s proposed development also requires a Dredge and Fill Permit because Petitioner proposes to excavate and fill coastal wetlands. (Tp 89)20. CAMA lists certain activities that are excluded from the definition of development and do not require CAMA permits. N.C.G.S. § 113A-103(5)(b). One of these exclusions is “maintenance or repairs (excluding replacement) necessary to repair damage to structures caused by the elements . . . .” N.C.G.S. § 113A-103(5)(b)(5). (Tp 119)21. While a portion of Petitioner’s proposed work on the causeway is in the nature of a repair or rehabilitation of the existing structure, the project does not qualify as “repair” as that term is legally defined in the CAMA statute or the CRC’s rules. (Tpp120, 123, Stip. Facts 10, 15) The work is not “repair” because the development involves significant expansion of the fill area up to 13 feet on either side of the causeway; filling will take place outside the existing footprint and will increase the footprint; and filling 4,000 additional square feet of coastal wetlands constitutes new development that requires a4 permit. (Tpp 89, 109, 118, 125-26, 156)22. Petitioner applied for a CAMA and Dredge and Fill Permit and did not assert until after the permit was denied that the activities proposed constituted “maintenance or repair” under the statute and that no permit should have been required. (Tpp 126, 130)Coastal Wetlands23. The North Carolina Division of Marine Fisheries (DMF) has designated the waters of Old Topsail Creek adjacent to Forest Sound Subdivision as a Primary Nursery Area (PNA). (Stip. Fact 11) PNA’s are areas where juvenile fish, crabs, shrimp and other species live during their early life stages. (Tp 93) These areas provide important habitat for juvenile fish and shellfish so that they can grow into their adult stages, which is essential for the viability of the fishery stock in North Carolina for both recreational and commercial fishing. (Tpp 93, 96) The Coastal Resources Commission’s rules place a high importance on protection of primary nursery areas. (Tp 95)24. The coastal wetlands adjacent to a primary nursery area is critical because they provide habitat and protection from predators for the juvenile fish and shellfish. (Tp 96) The organic material in the marsh also provides a significant food source for both the juvenile fish and the larger fishery as well. (Tp 96) 25. The wetlands at this particular site are a healthy and functioning coastal marsh, primarily dominated by a significant stand of black needle rush. (Tpp 86-87, R Exs 9C, 9D) Permit Review26. Under the CAMA major permit process, the Division circulates applications to up fourteen state and federal review agencies having expertise in the criteria the Division must consider before issuing a permit. 15A NCAC 7J .0207(b). (Tp 84) 27. In this case, several commenting agencies expressed concerns about the coastal wetlands impacts. They deemed the amount of impacts to be excessive based on the importance and the health of the coastal wetlands, as well as a belief that an alternative existed that would allow the causeway to be rehabilitated in a safe manner while significantly minimizing impacts to coastal wetlands. (Tp 91)28. The North Carolina Division of Marine Fisheries (DMF) expressed concerns about the project as proposed based on the loss of 4,000 square feet of coastal wetlands and impacts to the adjacent PNA. (Stip. Fact 13)29. DMF stated that it would approve the project only if recommended changes were incorporated. In order to minimize impacts to this coastal wetland and PNA,5 the DMF recommended that rather than widening the road, the edge of the road could be stabilized with a vertical sheetpile wall along the current footprint. (Tp 92, R Exs 3,4)30. The U.S. Army Corps of Engineers also commented on the project. (Tp 97) The Corps of Engineers coordinates three other federal review agencies, each of which are given the opportunity to comment on a proposed project. (Tp 97)31. One of the federal agencies that commented through the Corps of Engineers’ coordinated review effort was the U.S. Fish and Wildlife Service. (Tp 96) The Service stated that it did not believe that efforts to avoid and minimize aquatic habitat had been demonstrated. (Tp 98, R Ex 6) In order to minimize impacts, the Service recommended a new retaining wall be constructed waterward of the existing retaining wall. If such a wall were placed two feet waterward and the area behind it were backfilled, this would allow a six-foot shoulder on either side of the road. (Tp 98, R Ex 6)32. The U.S. Fish and Wildlife Service also commented that the Environmental Protection Agency’s guidelines state that fill material will not be placed in aquatic ecosystems if there is a practicable alternative which would have less impact on aquatic ecosystems; for non-water dependent activities proposed for special aquatic sites, including wetlands, practical alternatives are presumed to exist unless clearly demonstrated otherwise; and fill of aquatic habitat to upgrade a private road to minimum DOT standards is not a water dependent activity. (Tpp 99-100; R Ex 6)33. Respondent also considered the recommendation of the local field representative who works in the project area and who first reviewed the project. The field representative recommended that the permit be denied because the applicant had not chosen an alternative that minimized impacts to coastal wetlands and because he believed an alternative existed. (Tp 101)34. The retaining wall design proposed by both DMF and the U.S. Fish and Wildlife Service could be permitted under CAMA and the rules of the CRC, even going out to approximately 2 to 3 feet beyond the current footprint, allowing for a safe shoulder and the replacement of the deteriorating retaining wall. (Tp 114) DCM has offered this permittable option to Petitioner several times. (Tp 114) 35. Respondent is required to consider the comments of federal state review agencies when making a CAMA or Dredge and Fill permit decision. 15A NCAC 7J . 0207(d). (Tp 98)36. Respondent sought the expertise of the North Carolina Department of Transportation (DOT) regarding ways in which the causeway could be repaired. (Tp 134) 37. DOT Division Engineer Allen Pope assigned David Thomas to assist DCM in reviewing options for improving the causeway. (Tp 134) David Thomas is a6 registered Professional Engineer and a DOT Division Maintenance Engineer supervisor in the Wilmington Division who has been with DOT over eighteen years. (Tpp 132-33) The Division includes six counties: Sampson, New Hanover, Duplin, Onslow, Pender, and Brunswick. (Tp 133) Mr. Thomas lives near the Hampstead area; is familiar with Corcus Ferry Road; and has visited the causeway in question. (Tp 135) 38. Mr. Thomas drafted a letter to Respondent for Mr. Pope’s signature advising of three options DOT would consider using if this road were on the state maintenance system and DOT was trying to improve the safety of the causeway for the traveling public. (Tp 137, R Ex 8)39. The first option DOT would consider is the one Petitioner has proposed, which would involve addition of two 6-foot shoulders with a 2:1 slope. (Tpp 138-40, R Ex 8) This fill option is the simplest, but DOT would anticipate that they would have to look at other options because of the direct impacts to the wetlands. (Tpp 139-40) 40. The second option DOT would consider is to use vertical sheet pile (i.e., retaining wall type of structure) to provide support. (Tpp 138-140, R Ex 8) A properly designed guardrail would also be desirable with this option due to the absence of front slopes. (Tp 141, R Ex 8) 41. DOT recommended another way the second option could help lessen wetland impacts: Use pavement marking lines (none presently exist) which would delineate two ten-foot lanes, and utilize the remaining portion of the paved area in conjunction with the earthen material to provide six foot shoulders. (Tp 141, R Ex 8) Mr. Thomas stated that he only presumed that the paved area is wider than 20 feet but did not measure it. (Tp 142) His assumption is correct because Petitioner’s permit application shows that the causeway is approximately 28 feet wide and the entire causeway is paved. (R Ex 1, Stip. Fact 9) 42. The second option would still allow 6-foot grass shoulders, but would eliminate the additional impact to the wetlands associated with building a 2:1 slope. (Tp 140, R Ex 8) This option would cost more than the first option, but may be more economical than replacement mitigation that DOT may have to do as a public entity. (Tpp 141-42, R Ex 8) 43. The third option DOT would consider is to replace the causeway with bridging. (Tp 143, R Ex 8) This option would minimize impacts to wetlands and the environment but may be cost prohibitive. (Tpp 143-44, R Ex 8) Because of present day environmental considerations, DOT often constructs bridges where in the past causeways would have been built. (Tp 143)44. Petitioner has rejected the alternative design options suggested by Respondent, the Division of Marine Fisheries, the Department of Transportation and the U.S. Fish and Wildlife Service. (Tpp 114-115)7 45. The primary reason Petitioner rejects the retaining wall option is because it is more expensive than Petitioner’s current proposed design. (Tpp 43-46, 115) 46. Petitioner has not obtained any cost estimates or bids from any contractors for a retaining wall design or any other design that would reduce wetland impacts. (Tpp 63, 74, 195)47. Petitioner admits that a structural solution such as a retaining wall is physically doable, but maintains that it is not practical for various reasons, including that the homeowners association will not pay for it. (Tpp 43, 59-60, 69)48. Petitioner also objected to the retaining wall design because Petitioner believed that it would cause damage to the marsh and that the construction could not be accomplished without closing the road. (Tpp 115, 187) 49. The evidence and testimony presented by Respondent established that Petitioner’s arguments regarding that impracticality or infeasibility of the retaining wall design are based on speculation, and that costs are the primary concern. (Tpp 115-117, 195)50. Petitioner has not attempted to design or submit any other proposal that reduces impacts to wetlands at all. (Tpp 60, 195-96)51. While Petitioner’s permit application was still under review by DCM, Petitioner contacted the North Carolina Wetlands Restoration Program (NCWRP) to see if that agency would accept payments for wetland impacts. (Stip. Fact 19)52. By letter dated April 11, 2002, the NCWRP notified Petitioner that it would accept payment in the amount of $30,000 for the wetlands impacts associated with the project if all other applicable permits could be obtained. The letter stated that the NCWRP’s acceptance “does not assure that this payment will be approved by the U.S. Army Corps of Engineers, the N.C. Division of Water Quality Wetlands/401 Unit, or the Division of Coastal Management. It is the responsibility of the applicant to contact these agencies to determine if payment to the NCWRP for impacts associated with this project is appropriate.” (Stip. Fact 20)53. The rules of the Coastal Resources Commission (CRC) allow mitigation for impacts to coastal wetlands only for projects that will have public benefits, as determined by the DCM, provided that the public benefits clearly outweigh the adverse effects of the project, and further, that all reasonable means of impact avoidance and minimization have been incorporated into the project’s design and implemented at the applicant’s expense. 15A NCAC 7H. 0208(a)(3). (Stip. Fact 21) 54. The Division of Coastal Management determines which projects have8 public benefits as identified in the findings and goals of CAMA, and then whether those benefits clearly outweigh the adverse effects of the project. 15A NCAC .0208(a)(3). Examples of projects with public benefits may include DOT highway and bridge projects, as well as industrial facilities that drive the local economy such as the Weyerhaeuser plant near Plymouth or the Nucor Steel Mill. (Tp 112) 55. Petitioner’s proposed project is not appropriate for mitigation because as a private road to a private subdivision, it does not have overriding public benefits. (Tp 111) 56. The CRC’s rules regarding mitigation also require the applicant to demonstrate that all reasonable means and measures to mitigate adverse impacts of the project have been incorporated into the project design and will be implemented at the applicant’s expense. 15A NCAC 7H .0208(a)(3). 57. Petitioner’s project is further inappropriate for mitigation because Respondent and other resource agencies determined that an alternative design did exist that would allow Petitioner to rehabilitate the causeway in a safe manner while significantly minimizing coastal wetlands impacts. (Tp 111)Permit Denial58. Respondent denied Petitioner’s permit application by letter dated June 17, 2002, filed as the “Document Constituting Agency Action.” (Stip. Fact 22) 59. Doug Huggett was the chief witness for the Respondent regarding the permit review process and denial. Mr. Huggett is employed as the Major Permits Coordinator with the Division of Coastal Management and has been with the agency for almost 8 years. (Tpp 81-82) Mr. Huggett was formerly employed with the N.C. Department of Transportation where he was a Permits and Mitigation Specialist. (Tp 82) In this capacity, Mr. Huggett obtained permits for DOT and provided advice to the DOT planning and design engineers on what kind of projects and designs were environmentally feasible and could or could not be permitted. (Tp 82) Mr. Huggett has been working for the last year and a half on a process improvement initiative with the DOT that deals with improved permit processing, increased avoidance and minimization of high quality resource areas and issues related to wetlands mitigation. (Tpp 82-83)60. Respondent denied Petitioner’s application for a Major Permit under the State Dredge and Fill Law and the Coastal Area Management Act and the rules promulgated thereunder, because the proposed project is inconsistent with the state guidelines for coastal wetlands. (R Ex 1)61. The first basis for denial of Petitioner’s permit application is that the development is inconsistent with the “management objective” for coastal wetlands in 15A NCAC 7H .0205(c), which is “[t]o conserve and manage coastal wetlands so as to safeguard9 and perpetuate their biological, social, economic and aesthetic values; to coordinate and establish a management system capable of conserving and utilizing coastal wetlands as a natural resource essential to the functioning of the entire estuarine system.” (Tp 105, R Ex 1) Petitioner’s proposed development is inconsistent with the management objective for coastal wetlands cited above because of the amount of coastal wetland impacts associated with the project do not safeguard or perpetuate the biological integrity of the coastal wetlands. (Tp 105)62. The second basis for denial of Petitioner’s permit application is that the development is inconsistent with the use standards for coastal wetlands in 15A NCAC 7H .0205(d). The development is inconsistent with the use standard cited above because it specifically lists “private roads” as an “unacceptable land use” within coastal wetlands. (Tp 106, R Ex 1)63. The third basis for denial of Petitioner’s permit application is that the development is inconsistent with the use standard for coastal wetlands in 15A NCAC 7H. 0208(a)(2)(B) which requires that before any development is allowed within them, the applicant has selected a combination of sites and design that will have a minimum adverse impact upon the productivity and biologic integrity of the coastal wetland. (Tp 107, R Ex 1) Petitioner’s proposed development is inconsistent with the use standard cited above because a suitable alternative exists that would allow the roadway to be rehabilitated safely while significantly minimizing the coastal wetland impacts. (Tpp 107, 157-58) 64. Generally, it is appropriate for Respondent to consider costs when reviewing a proposed design. (Tp 163-64) However, the Coastal Resources Commission’s rules do not provide that an applicant is entitled to use the cheapest alternative. (Tp 163) 65. Coastal wetlands are one of the most important and fragile resources the State has. (Tp159) Respondent DCM is mandated and required to make sure that impacts to coastal wetlands are minimized. (Tp 159) CONCLUSIONS OF LAW1. 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. Petitioner bears the burden of proof on the issues.4. Under CAMA, all “development” in an “area of environmental concern” (“AEC”) requires a permit. N.C.G.S. § 113A-118. 10 5 Pursuant to N.C.G.S. § 113A-113(a) and (b)(1), the Coastal Resources Commission has designated coastal wetlands as an Area of Environmental Concern and has adopted use standards or state guidelines for development within them.6. “Development” is broadly defined under CAMA, N.C.G.S. § 113A-103(5), and includes “construction or enlargement of a structure; excavation; dredging; filling; dumping; removal of clay, silt, sand, gravel or minerals; bulkheading, driving of pilings; clearing or alteration of land as an adjunct of construction; alteration or removal of sand dunes; alteration of the shore, bank or bottom of the Atlantic Ocean or any sound, bay river, creek, stream, lake, or canal; or placement of a floating structure.”7. The parties have stipulated that the Petitioner proposes to fill 4,000 square feet of coastal wetlands to rehabilitate a private road.8. Petitioner’s proposed activity constitutes “development” under CAMA and requires a permit. N.C.G.S. § 113A-118. 9. Petitioner’s proposed development activities are not exempt from the permitting requirements of CAMA and the Dredge and Fill Law. The proposed development is not “repair” under N.C.G.S. § 113A-103(5)(b)(5) because it involves the additional filling of 4,000 square feet of coastal wetlands outside the footprint of the existing structure. There is no “repair” exemption from the permitting requirements of the Dredge and Fill Law. 10. Under the State guidelines, "Coastal wetlands receive the ‘highest priority’ of protection,15A NCAC 7H .0205(c)(1985), because ‘without the marsh, the high productivity levels and complex food chains typically found in the estuaries could not be maintained,’ 15A NCAC 7H.0205(b) (1985)." State ex el. Rhodes v. Simpson, 325 N.C. 514, 516, 385 S.E.2d 329, 330(1989), reversing 91 N.C. App. 517, 372 S.E. 2d 317 (1988). 11. Petitioner’s proposed filling of coastal wetlands is inconsistent with the management objective for coastal wetlands in 15A NCAC 7H .0205(c) which is to conserve and manage coastal wetlands so as to safeguard and perpetuate their biological values. 12. Petitioner’s proposed filling of coastal wetlands is inconsistent with the use standard for coastal wetlands in 15A NCAC 7H .0205(d) which states that “unacceptable land uses” may include “private roads.” 13. Petitioner has not selected a design that will have minimum adverse impact upon the productivity and biologic integrity of the coastal wetland as required by 15A NCAC 7H.0208(a) (2)(B).14. Petitioner could rehabilitate the causeway by utilizing an alternative design, such as a retaining wall, which will minimize impacts to coastal wetlands while still achieving the stated purpose of improving the safety of the causeway.11 15. CAMA requires that the agency shall deny an application upon finding “[i]n any case, that considering engineering requirements and all economic costs there is a practicable alternative that would accomplish the overall project purposes with less adverse impact on the public resource.” N.C.G.S. § 113A-120(a).16. Respondent agency properly considered both engineering requirements and economic costs in denying the Petitioner’s permit application. 17. CAMA requires that an application for a permit must be denied upon finding that the development is inconsistent with State guidelines or the local land use plans. N.C.G.S. § 113A120(a). Respondent denied Petitioner’s permit application because it found that the development is inconsistent with the State guidelines for coastal wetlands.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. The agency should also be afforded deference if its factual findings are made pursuant to delegated authority from the legislature with adequate guiding standards and based on agency expertise in administering its program. “It is enough if general policies and standards have been articulated which are sufficient to provide direction to an administrative body possessing the expertise to adapt the legislative goals to varying circumstances.” Adams v. N.C. Dep’t of Natural and Economic Resources, 295 N.C. 683, 698, 249 S.E.2d 402, 411 (1978). If the legislature has properly set forth adequate standards to allow the agency, with its accumulation of expertise in this subject area, to apply the standards to the varying factual circumstances, the agency should do so. In re Appeal of Broad & Gales Creek Community Assoc., 300 N.C. 267,274, 266 S.E.2d 645, 651 (1980).20. Petitioner has not met its burden of proof in showing that Respondent substantially prejudiced Petitioner’s rights or acted erroneously, as alleged in Petitioner’s petition for contested case hearing, nor has Respondent committed any of the other errors outlined in N.C.G.S. § 150B-23. DECISIONBased on the foregoing findings of fact and conclusions of law, Respondent’s decision to deny Petitioner’s CAMA major permit application is AFFIRMED. Petitioner has not demonstrated by a preponderance of the evidence that Respondent erred in its decision.ORDERIt 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 accordance12 with N.C.G.S. § 150B-36(b)(3).NOTICEThe 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’ attorneys of record and to the Office of Administrative Hearings.This the 9th day of June, 2003.______Beryl E. Wade Administrative Law Judge13

State of North Carolina s12

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