STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAKE 01 EHR 1512

RHETT AND JULIE TABER, ROBERT )

W. SAWYER, JOHN T. TALBERT, )

STEPHEN BASTIAN, DR. ERNEST )

BROWN, THOMAS READ, KEITH )

BROWN, FRED JOHNSTON, JAMES L. )

DICKENS, JAMES T. COIN, )

ELEANOR COIN AND JAMES VAUGHN )

Petitioners )

)

v. ) DECISION

)

NORTH CAROLINA DEPARTMENT OF )

ENVIRONMENT AND NATURAL )

RESOURCES, DIVISION OF COASTAL )

MANAGEMENT, )

Respondent. )

This matter came on for hearing before the Honorable James L. Conner, II, Administrative Law Judge, on the 13th day of August, 2002, in Raleigh, North Carolina.

APPEARANCES

Petitioners: Kurt J. Olson, Esquire

Maupin Taylor & Ellis

Attorneys at Law

P.O. Drawer 19764

Raleigh, NC 27619-9764

Respondent: David G. Heeter, Esquire

Assistant Attorney General

N.C. Department of Justice

P.O. Box 629

Raleigh, NC 27602-0629

ISSUES

Issue 1. Whether the Petitioners’ Motion for Summary Judgment should be granted because the Respondent’s concurrence on September 17, 2001, with the U.S. Coast Guard’s modified consistency determination on a maintenance dredging project at Wrightsville Beach failed to follow certain mandatory procedures in the Federal Coastal Zone Management Act and Consistency Regulations?

Issue 2. Whether the Respondent’s motion for summary judgment should be granted because the Petitioners’ challenge to the Respondent’s September 17, 2001, consistency concurrence became moot when the U.S. Coast Guard withdrew the modified consistency determination which was the subject of the Respondent’s concurrence?

FINDINGS OF FACT

1. The U.S. Coast Guard maintains a station off Banks Channel near Masonboro Inlet in Wrightsville Beach, North Carolina. There is a boat basin at the station.

2. Development by Federal agencies on the coast would normally be exempt from regulation by the State, Rule 15A NCAC 7K .0402, but the Federal Coastal Zone Management Act of 1972, 16 U.S.C. §§1451, et seq. as amended, and the Federal Consistency Regulations, 15 C.F.R. Part 930, as amended, require that any Federal agency which undertakes any activity that affects the coastal zone must provide the State with a consistency determination based upon an evaluation of the relevant provisions of the State’s coastal management program.

3. In North Carolina, the Division of Coastal Management is responsible for circulating federal consistency determinations for review, and, when the review process is complete, the Division of Coastal Management must issue a letter indicating whether it concurs or does not concur that the proposed project is consistent with the State’s coastal management program.

4. The State’s coastal management program includes the standards for development which have been adopted by the Coastal Resources Commission and the local land use plans which have been approved by it.

5. The petitioners own property on the shoreline to the north of the Coast Guard facility.

6. In 1993, the Coast Guard proposed to maintenance excavate the boat basin at the station and dispose of the dredge spoil on a spoil island, the Division of Coastal Management concurred with the Coast Guard’s determination that the project was consistent with the State’s coastal management program, and the Coast Guard did the maintenance dredging.

7. In June, 2001, the Coast Guard again proposed maintenance dredging the boat basin, but this time it proposed to dispose of the dredge spoil on the nearby beach in order to renourish it. The dredging phase of the project was not modified.

. 8. In a letter dated September 17, 2001, the Director, Division of Coastal Management, found that the proposed placement of the dredge spoil on the ocean beach was consistent with the State’s coastal management program, subject to several conditions.

9. The petitioners filed a contested case petition with the Office of Administrative Hearings seeking the invalidation of the Division of Coastal Management’s September 17, 2001, consistency concurrence for failure to follow several mandatory procedures in the Consistency Regulations which implement the Coastal Zone Management Act of 1972.

10. The Coast Guard subsequently modified its project to dispose of the spoil on the estuarine beach in front of the Petitioners’ property, but several reviewing agencies objected to the project.

11. In a letter dated May 9, 2002, the Coast Guard informed the Respondent that it wanted to withdraw its consistency determination for the Wrightsville Beach dredging project.

12. On June 5, 2002, the Petitioners filed a motion for summary judgment on the ground that Respondent’s September 17, 2001, consistency concurrence failed to follow certain mandatory procedures in the Coastal Zone Management Act and Consistency Regulations and was therefore arbitrary, capricious, and contrary to law.

13. By way of clarification, the Coast Guard sent the Respondent a second letter dated June 19, 2002, in which it expressly withdrew its modified consistency determination which was the subject of the Respondent’s September 17, 2001, concurrence.

14. In a letter dated July 1, 2002, the Respondent informed the Coast Guard that a new consistency determination and concurrence would be required if the project as modified in 2001 was ever revived.

15. On July 1, the Respondent replied to the Petitioners’ motion and moved for summary judgment on the ground that the Petitioners’ cause of action had become moot because the Coast Guard’s withdrawal of its modified consistency determination had invalidated the Respondent’s September 17, 2001, consistency concurrence.

16. On July 15, 2002, the Petitioners replied that the public interest exception to the general rule of mootness should be applied here. They also replied that the voluntary cessation of a challenged activity does not deprive a court of the power to determine the legality of the practice.

17. On these grounds, the Petitioners urged the OAH to grant their Motion for Summary Judgment and deny the Respondent’s Motion for Summary Judgment.

CONCLUSIONS OF LAWS

1. The Office of Administrative Hearings has jurisdiction over the parties and the subject matter.

2. A Motion for Summary Judgment should be granted when there is no dispute as to any material fact and the movant is entitled to a judgment as a matter of law. Rule 56, Rules of Civil Procedure.

3. Mootness arises when the relief sought by a party has been granted or the original controversy between the parties is no longer at issue. Simeon v. Hardin, 339 N.C, 358, 370, 451 S.E.2d 858, 866 (1994). If an action becomes moot during the course of litigation, it should usually be dismissed. In re Peoples, 296 N.C. 109, 148, 250 S.E.2d 890, 912 (1978).

4. In Shell Island Homeowners Ass’n v. Tomlinson, 134 N.C. App. 186, 517 S.E.2d 401 (1990), the plaintiffs’ taking claim was mooted because the Coastal Resources Commission had granted a variance allowing the plaintiff homeowners to protect their property with a sandbag revetment. The variance provided them with the relief originally sought in their complaint.

5. When the U.S. Coast Guard withdrew it modified consistency determination, the Division of Coastal Management’s concurrence therewith no longer had any force and effect or provided any basis for the Petitioners’ cause of action against the Division.

6. Even if a case becomes moot, the courts will consider a question that involves a matter of public interest, is of general importance, and deserves prompt resolution. N.C. State Bar v. Randolph, 325 N.C. 699, 701, 386 S.E.2d 185, 186 (1989). Leak v. High Point City Council, 25 N.C. App. 394, 397, 213 S.E.2d 386, 388 (1975).

7. The public interest exception does not apply here because the issues raised by the Petitioners do not rise to the level of public interest required by the case law.

8. Under another exception to the general rule, the courts will review a case where the defendant voluntarily ceases its illegal conduct pending appeal. City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289, 71 L. Ed. 2d 152, 159 (1982). Quern v. Mandley, 436 U.S. 725, 731-32, 56 L. Ed. 2d 658, 665-66 (1978).

9. The cessation of conduct exception does not apply here since the Division of Costal Management’s consistency concurrence became ineffective because of an act of the Coast Guard, not the Division.

10. A third exception applies to conduct which is “capable of repetition yet evading review.” Here “An otherwise moot claim falls within the exception where ‘(1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation the same complaining party would be subjected to the same action again.’” Ballard v. Weast, 121 N.C. App. 391, 394, 465 S.e.2d 565, 568, disc. review denied, 343 N.C. 304, 471 S.E.2d 66 (1996).

11. It is highly unlikely that the scenario which gave rise to the Petitioners’ claims will be repeated again.

12. There is no question about any material fact relating to the Coast Guard’s withdrawal of its modified consistency determination, and a party who can show that another party’s action has become moot is generally entitled to a dismissal as a matter of law.

DECISION

The September 17, 2001, consistency concurrence by the Division of Coastal Management no longer has any force and effect which in turn moots the Petitioners’ cause of action against the Division. The Petitioners’ Motion for a Summary Judgment against the Division of Coastal Management is denied. The Division of Coastal Management’s Motion for a Summary Judgment against the Petitioners is granted.

ORDER

It is hereby ordered that the agency serve a copy of its final decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699 in accordance with NCGS §150B-36(b).

NOTICE

The decision of the Administrative Law Judge in this contested case will be reviewed by the agency making the final decision according to the standards found in G.S. 150B-36(b)(b1) and (b2). The agency making the final decision is required to give each party an opportunity to file exceptions to the decision of the Administrative Law Judge and to present written argument to those in the agency who will make the final decision. G.S. 150B-36(a).

The agency that will make the final decision in this contested case is the North Carolina Department of Environment and Natural Resources.

This the 11th day of September , 2002.

________________________________

James L. Conner, II

Administrative Law Judge

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