STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF BRUNSWICK

James D. and Jane Lathan Ray; James D. )

and Brenda W. Moser, Jr.; John G. and )

Sheila A. Connor, )

)

Petitioners, )

v. ) 04 EHR 0073

N.C. Department of Environment and )

Natural Resources, Division of Coastal )

Management, )

Respondent, )

and )

)

R. Carter Pate, )

Respondent Intervenor, )

_____________________________________________________________________________

R. Carter Pate, )

Petitioner, )

v. )

)

North Carolina Department of )

Environment and Natural )

Resources, Division of Coastal ) 04 EHR 0150

Management, )

)

Respondent, )

and )

)

Steve Bond, )

Respondent Intervenor. )

____________________________________________________________________________

DECISION

These contested cases were heard jointly in a consolidated hearing on May 10, 2004, in the Carolina Beach Municipal Building, Carolina Beach, North Carolina, before the Honorable Beryl E. Wade, Administrative Law Judge, on petitions for contested case hearings regarding the Division of Coastal Management’s (DCM’s) issuance of minor permits under the Coastal Area Management Act (CAMA) for development on lots located at 385, 387 and 379 East First Street in the Town of Ocean Isle Beach.

APPEARANCES

For Petitioners Ray, Moser and Connor: Frank H. Sheffield, Jr.

WARD AND SMITH

1001 College Court

Post Office Box 867

New Bern, NC 28563

For Petitioner and Respondent Intervenor Pate: William A. Raney, Jr.

WESSELL & RANEY

Post Office Box 1049

Wilmington, NC 28402

For Respondent: Meredith Jo Alcoke

Assistant Attorney General

N.C. DEPT. OF JUSTICE

Post Office Box 629

Raleigh, NC 27602-0629

For Respondent Intervenor Bond: Susan McDaniel Keelin

ATTORNEY AT LAW

Landfall Business Center

1213 Culbreth Drive

Wilmington, NC 28405

ISSUE

Whether the Division of Coastal Management substantially prejudiced Petitioners’ rights and acted erroneously by issuing minor permits under the Coastal Area Management Act (CAMA) for development on lots located at 385, 387 and 379 East First Street in the Town of Ocean Isle Beach.

TESTIFYING WITNESSES

Justin Whiteside

Janet Russell

Earl Smith

Jim Gregson

John G. Connor

EXHIBITS RECEIVED INTO EVIDENCE

Petitioners Ray et al.:

9. Photograph (not dated)

10. Photograph dated December 6, 2003

11. Two photographs labeled “Ocean Isle After Floyd 1999 – from DCM Files”

12. Not entered into evidence

13. Photograph dated December 6, 2003

14. Photograph dated December 6, 2003

Respondent:

1. CAMA Minor Development Permit #03-110 to R. Carter Pate

2. CAMA Minor Development Permit #03-123 to Steve Bond

3. CAMA Minor Development Permit #03-124 to Steve Bond

4. 4A: Survey Plate Number P-9 dated December 6, 2000

4B: Survey Plate Number P-8 dated December 6, 2000

5. Ocean Isle Beach Vegetation Line Data

6. Aerial Photograph dated October 10, 2000

Respondent Intervenor Bond:

7. Pre-nourishment photograph of subject area taken February 2001

8. Post-nourishment photograph of subject area taken December 31, 2003 or January 1, 2004

MOTIONS

1. On April 29, 2004, Petitioners Ray et al. filed a Motion for Summary Judgment and Notice of Hearing with OAH. On May 6, 2004, Respondent filed Respondent’s Response to Petitioners’ Motion for Summary Judgment and Opposing Affidavit. On May 7, 2004, Petitioner Pate filed a “conditional” Motion for Summary Judgment. (T p. 56) On May 7, 2004, Petitioners Ray et al. filed a Supplemental Memorandum of Law in Support of Motion for Summary Judgment. Each of the previously described documents was filed by facsimile transmission to be followed by U.S. Mail. At the May 10, 2004, contested case hearing on this matter, Respondent Intervenor Bond submitted a Response to Petitioner Pate’s Motion for Summary Judgment.

2. After hearing oral arguments of the parties and reviewing documents submitted, the undersigned ALJ denied Petitioners’ Motion for Summary Judgment. (T p. 81)

3. On May 6, 2004, Petitioners filed the Affidavit of John G. Connor. At the May 10, 2004, contested case hearing on this matter, Respondent Intervenor Bond orally entered a Motion to Strike the affidavit, which was allowed by the ALJ. (T pp. 270-271)

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. Petitioners James D. Ray and Jane Lathan Ray (the “Rays”) own a residence at 382 East Second Street in the Town of Ocean Isle Beach (“OIB”). (Stip. Fact 1)

2. Petitioners James D. Moser, Jr. and Brenda W. Moser (the “Mosers”) own a residence at 380 East Second Street in OIB. (Stip. Fact 2)

3. Petitioners John G. Connor and Sheila A. Connor (the “Connors”) own a residence at 378 East Second Street in OIB. (Stip. Fact 3)

4. Petitioner R. Carter Pate (“Petitioner Pate”) owns a residence at 388 East Second Street in OIB (“Pate’s Second Street lot”). (Stip. Fact 4)

5. Respondent is the North Carolina Department of Environment and Natural Resources, (“Agency” or _DENR_), Division of Coastal Management (“DCM”). (Stip. Fact 5)

6. Respondent Intervenor R. Carter Pate (“Respondent Pate”), (the same person as Petitioner Pate) has a contractual interest in a 5,000 square foot lot located at 379 East First Street in OIB (“Pate’s First Street lot”). (Stip. Fact 6)

7. Respondent Intervenor Steve Bond (“Bond”) owns two 5,000 square foot lots located at 385 and 387 East First Street in OIB (“Bond’s First Street lots”). (Stip. Fact 7)

The Permits

8. The Local Permit Officer (LPO) for OIB, acting under a delegation of authority from the North Carolina Coastal Resources Commission, issued Respondent Pate a CAMA minor permit (No. 03-110) on December 3, 2003 that authorizes construction of a new 2,500 square foot single family residence with a 12’ by 36’ covered deck on Pate’s First Street lot. (Stip. Fact 8)

9. The LPO for OIB issued Respondent Bond two CAMA minor permits (Nos. 03-123 and 03-124) on December 23, 2003, authorizing construction on each of Bond’s First Street lots of a new 2,500 square foot single family residences with a 17’ by 9’ covered porch and a 17’ by 9’ uncovered deck on the ocean side, and a 17’ by 9’ uncovered deck and a pool on the rear/landward side. (Stip. Fact 9)

10. Petitioners Ray, Moser and Connor filed third party hearing requests with the Chairman of the Coastal Resources Commission seeking to challenge the Pate permit. N.C.G.S. § 113A-121.1(b). Petitioner Pate filed a third party hearing request with the Chairman of the Coastal Resources Commission seeking to challenge the Bond permit. Id. The Chairman granted each of those requests, resulting in this consolidated contested case hearing. The Pate permit and the Bond permits are suspended by operation of law until the Commission makes a final decision in this case. N.C.G.S. § 113A-121.1(c). (Stip. Fact 10)

Orientation of the Properties

11. East First Street is located between Pate’s and Bond’s First Street lots and the frontal dune. (Stip. Fact 11)

12. The Mosers’ lot is directly behind Pate’s First Street lot. (Stip. Fact 12)

13. The Mosers are the adjoining property owners to the Connors. (Stip. Fact 13)

14. The Rays’ lot is diagonally behind Pate’s First Street lot on the east side of Winston-Salem Street. (Stip. Fact 14)

15. Pate’s Second Street lot is located directly behind one of Bond’s First Street lots. (Stip. Fact 15)

The Rules

16. The North Carolina Coastal Resources Commission’s (“Commission”) 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 7H .0305(f). However, the rule provides the following exception: “In areas within the boundaries of a large scale beach nourishment or spoil deposition project, the vegetation line that existed prior to the onset of project construction shall be used as the vegetation line for determining oceanfront setbacks after the project is completed except for those circumstances described under .0305(g) for projects completed after September 1, 2000.” Id. (Stip. Fact 16)

17. This section of Ocean Isle Beach received a large scale federal beach nourishment project beginning in March 2001. Therefore, the vegetation line as it existed prior to the nourishment should be the applicable line for determining oceanfront setbacks. (Stip. Fact 17)

18. The CAMA Permit Application filed by Pate for a proposed house at 379 E. First Street and the CAMA Permit Applications filed by Bond for proposed houses at 385 and 387 E. First Street are subject to and controlled by the same statutes, rules and policies. (Stip. Fact 18)

19. If the Respondent DENR-DCM 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 with regard to either the Pate or Bond permit decisions, it did so with regard to both the Pate and Bond permit decisions. (Stip. Fact 19)

Vegetation Line

20. 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 7H .0305(f). (T p. 117)

21. Janet Russell worked as a field representative for DCM for a period of ten (10) years between 1993 and July 2003. Ms. Russell specifically worked in the Brunswick County area from 1999 until 2003. (T p. 134). As a part of her job duties, Ms. Russell established or marked vegetation lines by “staking” such lines on a routine basis. She has staked vegetation lines hundreds of times. (T p. 136)

22. At the request of the U.S. Army Corps of Engineers (“Corps”) in December 1999, Ms. Russell staked the pre-project vegetation line that existed along the Ocean Isle Beach oceanfront area for a distance of approximately four miles. (T p. 139-140) Ms. Russell staked the line for the entire distance of the Corps nourishment project, including the area that is the subject of these contested cases. (T pp. 138-142) The Corps surveyed this vegetation line and developed the coordinates for the set of maps created from the 1999 data (the “Corps maps”). (T pp. 138, 152)

23. It was brought to DCM’s attention that a portion of the vegetation line staked in 1999 did not appear on the Corps maps. (T p. 141) Ms. Russell contacted the Corps and was told that the disk containing this survey information could not be found, and therefore the missing vegetation line could not be added to the Corps maps. (T pp. 141, 152)

24. The vegetation line was not depicted on two pages of the Corps maps, including the area east of Raleigh Street that is the subject of these contested cases. (T p. 108)

25. Thereafter, Ms. Russell was instructed by her DCM supervisor to stake the vegetation line for the area where the data was missing. (T pp. 144-145). The Corps agreed to survey the newly staked vegetation line and put it on the Corps maps. (T p. 149) In May 2003, Ms. Russell and a contractor for the Corps walked along the section of the Corps project where the data for the vegetation line was missing. (T p. 145) Ms. Russell pointed at the vegetation line as it existed at that time, and the Corps’ contractor recorded the points using a hand-held GPS unit. (T pp. 145, 150) Ms. Russell determined the location of the vegetation line in May 2003 by visually observing multiple species of natural vegetation of a maturity, configuration and density that met the criteria for stable, natural vegetation. (T p. 157)

26. Although Ms. Russell cannot recall today the location of the vegetation line she staked in 1999 in front of the Pate lot or in front of the Bond lots, she is certain that she located and staked a vegetation line in every location throughout the entire project area (T pp. 141-143, 148, 151). A pre-project vegetation line exists regardless of whether it is recorded on any particular map. (T pp. 148-153)

27. There is no CAMA rule prohibiting the first line of stable natural vegetation from existing on top of a dune constructed on top of sandbags as opposed to a natural dune, and there is no CAMA rule requiring a solid, uninterrupted 60 feet of vegetation from the initial vegetation line to the line permitted for construction. In calculating the setback, it is immaterial whether there is a road, a house, or any other structure landward of the first line of stable natural vegetation. (T pp. 199-200, 226, 252-254)

28. The first line of stable natural vegetation is the landward extent of the area that is not affected by wave-induced erosion. The policy behind the setback rules is to allow permitted residences to survive for the length of a normal 30-year mortgage. In areas with a 2 feet per year erosion rate, a 60-foot setback is intended to protect a house for 30 years. (T pp. 201-202)

29. Within the boundaries of a large-scale beach nourishment project, the vegetation line that existed prior to the nourishment is used instead of the post-nourishment line. The pre-nourishment line is established as a static vegetation line that does not change unless the beach erodes landward of that line. (T pp. 202-204)

Permit Review

30. Exhibit 4A consists of two pages of the Corps maps showing the vegetation line on the east side of Raleigh Street, where the subject lots are located. (T p. 94) The LPO received these maps on August 27, 2003. (T p. 93) At the time he received the maps and at the time he issued the subject permits, the LPO did not know when the vegetation line shown on Exhibit 4A had been established, had no knowledge of the history behind Exhibit 4A, assumed Exhibit 4A was a continuation of the vegetation line on the other pages of the Corps maps, and believed that the vegetation line depicted on Exhibit 4A represented a pre-project vegetation line. (T pp. 93-94, 101, 109-110, 112, 115) He learned through this hearing process that the vegetation line shown on Exhibit 4A was actually staked and surveyed in May 2003. (T pp. 101-102, 111)

31. Rule 15A NCAC 7H .0306(a)(1) requires that the erosion setback line be set at a distance of 30 times the long-term annual erosion rate from the first line of stable natural vegetation or measurement line, where applicable. The long-term erosion rate at the Bond and Pate First Street lots is 2 feet per year. In these cases, any development must take place 60 feet landward of the vegetation line. (T p. 90)

32. The LPO used the vegetation line shown on Exhibit 4A to approximate where the 60-foot setback would fall on the Pate lot. (T p. 94) He then obtained from the Corps the coordinates for the vegetation line to determine the exact location of the vegetation line. (T p. 95; Exhibit 5) The LPO gave the coordinates to the surveyors for the permit applicants so that they could put the exact vegetation line and the 60-foot setback on an individual survey of the particular lot in question. (T pp. 96, 125) At the time the permits were issued, the LPO believed the coordinates provided by the Corps represented the pre-nourishment vegetation line. (T p. 97) Once the LPO received the applicant’s survey for the Pate lot showing the lot corners and the 60-foot setback line, the LPO measured the distance from the setback line marked on the survey oceanward a distance of 60’ and did an on-site inspection to see if stable natural vegetation in fact existed at this location. (T p. 98)

33. On the Pate lot, the 60-foot building setback is located approximately 17 feet inside the lot line. (T p. 99) On the Bond lots, the 60-foot building setback is located approximately 20-22 feet inside the lot line. (T p. 103)

34. Based on his review of Exhibit 4A, the applicant’s survey of the lot showing the 60-foot setback based on vegetation line coordinates provided by the Corps, a visual inspection of the site to verify that stable natural vegetation existed as measured 60 feet from the 60-foot setback line as staked by the surveyor (T pp. 91-101), and consultation with employees of the North Carolina Division of Coastal Management to confirm the existence of stable natural vegetation at this location (T pp. 105, 130-131), the LPO determined that the proposed development met the required 60-foot setback, and issued the permits. (T pp. 91-92; Exhibits 1-3)

35. The LPO based his decision to issue the permits on the best information available to him at the time of his decision. (T pp. 108, 131)

Harmless Error – No Substantial Prejudice

36. Jim Gregson has been the district manager for the Wilmington District field office of the Division of Coastal Management since September 2002, and has worked for DCM for seven years. The Wilmington District covers Brunswick County, including the subject property at Ocean Isle Beach. Prior to the LPO’s issuance of the subject permits, and as a result of complaints from adjacent property owners, Mr. Gregson discussed the permit applications with the LPO. (T pp. 193-196)

37. Mr. Gregson met with the LPO on-site in November of 2003 to confirm the presence of stable natural vegetation at the location of the surveyed vegetation line. (T p. 198)

38. There is no written procedure for establishing a vegetation line for large-scale beach nourishment projects when the data for the pre-project line is lost, destroyed or otherwise cannot be located. When there are no specific rules to govern a given situation, DCM staff uses what it deems to be the best and most appropriate procedure available to it at the time and under the circumstances. (T pp. 243-244)

39. Because the survey and coordinate information for a portion of the Ocean Isle Beach pre-project vegetation line was lost and could not be reproduced, DCM marked the vegetation line as it existed in 2003 and had it surveyed so that there would be a line from which to measure setbacks. (T pp. 204-205)

40. DCM decided to use the May 2003 line, rather than try to recreate the pre-project line based on aerial photography, because it believed that “while the line may have moved probably oceanward to some extent, probably just a minor amount, we felt like that was a better decision than to come up with an artificial line based purely on interpretation of aerial photography.” (T pp. 205, lines 20-24, and 206, lines 1-2)

41. If DCM had tried to recreate the pre-project line, it would have made reference to any photography available to DCM that was closest in time to the nourishment project. An October 2000 aerial photography of the area taken by the North Carolina Department of Transportation (NCDOT) was the closest photography. (Exhibit 6) (T pp. 209-210)

42. DCM also conducts its own aerial surveillance flights on a quarterly basis. In response to the issues raised in this case, DCM searched its files for aerial surveillance flight photos of the area in question during the relevant time period. No such photos were located. (T p. 209)

43. DCM uses aerial photography produced by NCDOT’s Photogrammetry Unit on a regular basis. (T p. 207) Mr. Gregson testified that although it is probably not good practice to use aerial photography as the sole basis for determining the location of stable natural vegetation, aerial photography “is a very good indicator of what’s out there” (T p. 217, lines 18-19) and can be used to support a decision made on other grounds. (T pp. 210-211, 217)

44. Subsequent to issuing the subject permits, and as a result of concerns raised by adjacent property owners, including Petitioners, DCM looked at the pre-project DOT aerial photography from 2000 and compared it to the May 2003 vegetation line. (T pp. 205-208)

45. The 2000 DOT aerial photography shows a significant amount of vegetation on the oceanward side of the road. Mr. Gregson explained that he could identify the vegetation line on the photo because it appears darker, in contrast to the lighter sand beach. (T p. 217)

46. DCM concluded that, with regard to the three lots in question, the vegetation line staked and surveyed in May 2003 “appears to very, very closely resemble what is on the 2000 aerial photography.” (T p. 212, lines 17-18)

47. The 2000 DOT aerial photography is set at a scale of 1 inch equals 800 feet. Mr. Gregson testified that the distance between the apparent vegetation line on the photo and the edge of the existing road can be determined within around 5 feet of accuracy. The degree of accuracy is increased if the aerial photograph being reviewed is enlarged. (T pp. 213-215)

48. Using the 2000 DOT aerial photograph enlarged to a scale of 1 inch equals 200 feet, Mr. Gregson used a scale and drew a line on the photograph (Exhibit 6) indicating the location of the 60-foot setback from what he testified appears to be the outer edge of vegetation. (T p. 220) Mr. Gregson’s scaled drawing places the building setback slightly within the Pate and Bond lots. (Exhibit 6).

49. Dr. Earl Smith testified that he owns property at 391 East First Street in Ocean Isle Beach. His lot is located between High Point Street and Winston-Salem Street. In order to document changes on the beach over time, Dr. Smith has taken photographs of the beach in front of his house. (T pp. 189-190)

50. Exhibit 7 is a photograph taken from 391 East First Street, between High Point and Winston-Salem Streets, looking southwest toward Winston-Salem Street. 391 East First Street is separated from the Bond lots by one lot. (T p. 185) The photo was taken in February, 2001, shortly before commencement of the nourishment project at Ocean Isle Beach. (T pp. 178-181)

51. Mr. Gregson testified that Exhibit 7 depicts a dune feature located just oceanward of the road that appears to be covered with stable vegetation. (T p. 222)

52. Mr. Gregson testified that if the only evidence available to him to make a determination of the existence of stable natural vegetation was the 2000 DOT photo, he would conclude that it is stable natural vegetation (T p. 223); that the absence of a vegetation line on a particular map does not mean the vegetation line does not exist (T p. 224); that based on his review of the pre-project photograph (Exhibit 7) and the 2000 DOT photo (Exhibit 6), it is his opinion that by May 2003, the vegetation line had moved only minimally oceanward, if at all (T pp. 224-225); that aerial photography is good for reinforcing decisions that you have made on the ground (T p. 234); that subsequent to issuance of the permits based on the May 2003 vegetation line, he reviewed 2000 DOT aerial photography, and that photography appears to indicate a vegetation line that closely resembles what is at the site today (T pp. 234-235); that the May 2003 vegetation line was adopted by DCM as the “pre-project” line for purposes of measuring setbacks in the area where the original pre-project data was lost, because it is the best line available (T p. 236); that he feels confident in the accuracy of the 60-foot setback measurement he marked on the scaled 2000 DOT aerial photography (T pp. 238-239); that the 2000 DOT aerial photography (Exhibit 6) and the February 2001 pre-project photograph (Exhibit 7) supported the decision to issue the subject permits (T p. 256); that he knows of no basis upon which the LPO could have denied the permits in this case (T p. 255); and that the same result would have been reached and the permits would have been issued if the decision had been based on a surveyed pre-project vegetation line. (T pp. 256-257)

Petitioners’ Testimony

53. Mr. John G. Connor, Petitioner, testified that he owns a house diagonally adjacent to the Pate lot at 378 East Second Street. (T p. 258-59) Mr. Connor purchased the property in July 2003 for $195,000. (T pp. 260, 266) There is an existing house directly in front of Mr. Connor’s property, between his house and the ocean. (T p. 269). Mr. Connor testified that he advertises his house as an “ocean view” rental, and that if Mr. Pate is allowed to build on the lot diagonally in front of him, it will virtually eliminate Mr. Connor’s view of the ocean and will negatively affect his property value. (T pp. 264-65).

54. Mr. Connor testified that after he made an offer to purchase his house, he was told by

his realtor and by the LPO at the time that the Pate lot was “non-buildable.” (T p. 260-262) He did not request or receive anything in writing from the LPO regarding this information. (263-264)

55. Mr. Connor testified that he did not ask for a definition of “non-buildable,” but made an assumption of its meaning. (T pp. 262-263)

56. The word “unbuildable” has a lot of different meanings to different people, and DCM does not advise people that their lot is “unbuildable.” For example, a lot that cannot currently meet CAMA setback standards may satisfy the setback requirements in the future, or the applicant may be able to build something different than what he originally requested, or the applicant may petition the Coastal Resources Commission for a variance. (T pp. 196-197) A determination of whether a lot can meet the ocean erodible setbacks is not made until (i) the vegetation line has been determined and (ii) a survey has been conducted of the vegetation line and showing the applicable setback in relation to the vegetation line. DCM does not advise people whether lots are or are not “buildable” or that setbacks can or cannot be met until a survey has been done. (T p. 242)

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.

6. CAMA requires that when a project meets the development standards, a permit shall be issued. N.C.G.S. § 113A-120(b). Respondent did not make any findings under § 113A-120(a) that would require denial of the permits.

7. The LPO had no legal basis for denial of the CAMA minor development permits for the proposed development at 385, 387, and 379, East First Street, Ocean Isle Beach. N.C.G.S. § 113A-120.

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. 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).

9. 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. Id.

10. Even if procedural error is committed by an agency, the agency’s decision will be upheld if the error is harmless. Britthaven, supra, 118 N.C. App. at 389, 455 S.E.2d at 463.

11. Neither CAMA nor the rules of the Coastal Resources Commission provide a procedure for reviewing permits when data for the pre-project vegetation line is unavailable.

12. Respondent’s use of the May 2003 vegetation line as a basis for reviewing applications for the subject permits was rational under the circumstances.

13. There is substantial evidence in the record that the pre-project vegetation line and the May 2003 vegetation line in the location of the property that is the subject of the contested cases are very close.

14. There is substantial evidence in the record that Respondent would have issued the permits if it had relied on the best evidence of the pre-project vegetation line instead of the May 2003 vegetation line.

15. 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).

16. 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).

17. By issuing the permits for development at 379, 385, and 387 East First Street, the 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).

18. If Respondent committed procedural error, the error was harmless.

19. Petitioners have not met their burden of proof in showing that Respondent deprived Petitioners 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 decisions to issue CAMA minor permits for the properties located at 385, 387 and 379 East First Street in the Town of Ocean Isle Beach are AFFIRMED. Petitioners have not demonstrated by a preponderance of the evidence that Respondent erred in its decision, that Respondent’s grant of the permits was unlawful and erroneous, or that Petitioners’ rights have been substantially prejudiced thereby.

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’ attorneys of record and to the Office of Administrative Hearings.

This the 13th day of August, 2004

____________________________________

Beryl E. Wade

Administrative Law Judge

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