Opinion

Everhart & Associates, Inc. v. Department of Environment, Health & Natural Resources

  • 127 N.C. App. 693
  • 493 S.E.2d 66
  • 1997 N.C. App. LEXIS 1186
Court
Court of Appeals of North Carolina
Filed
Nov 18, 1997
Status
Published
Author
Martin
On the bench
Greene, Mark, Martin, Wynn
Cited by
0 cases
Authority
More cited than 12.9%

The opinion

*699 Judge Martin, Mark D.,

concurring in the result only.

This case arises out of the Coastal Resources Commission’s interpretation of the 1992 Hyde County Land Use Plan (Hyde County Land Use Plan), a publicly available document providing notice to, and routinely relied on by, landowners, land planners, developers, and governmental agencies. It is undisputed the Hyde County Land Use Plan prohibits development of estuarine “islands” within one mile of Ocracoke Island. It is also undisputed the Hyde County Land Use Plan characterizes Petitioner’s property as a “peninsula.” The legend on the Hyde County Land Use Plan states that “lot lines, rights of way, shorelines, lakes, creeks, canals, etc.” depicted represent approximate locations. The Coastal Resources Commission, based on this customary legend, inserted a “new” shoreline on the Hyde County Land Use Plan, transforming the “peninsula” into an “island.”

During administrative review of the initial decision of the Division of Coastal Management, the Administrative Law Judge (ALT) found that Petitioner’s property was a “peninsula,” not an “island.” The Superior Court found that the Coastal Resources Commission “relies on the Land Use Plan when it serves it[s] purpose and ignores it when it does not” and concluded, as a matter of law, that “[t]he initial determination by the Division of Coastal Management that the Petitioner’s plan was inconsistent with the Hyde County Land Use Plan and the subsequent affirmation of that finding by the Coastal Resources Commission ironically and unlawfully ignores the Land Use Plan.”

This case raises grave concerns about whether petitioners, who proceeded in good faith based upon the characterization of their property on the Hyde County Land Use Plan, have been fairly treated by their government. Nonetheless, although a judicial body “might not have reached the same result as the [Commission],” State v. Jackson, 322 N.C. 251, 257 , 368 S.E.2d 838, 841 (1988), cert. denied, 490 U.S. 1110 , 109 S. Ct. 3165 , 104 L. Ed. 2d 1027 (1989), I am constrained to concur in the result of the majority opinion due to the deferential standard of review applicable to review of administrative determinations, Comr. of Insurance v. Rate Bureau, 300 N.C. 381 , 269 S.E.2d 547 (1980), Eury v. N.C. Employment Security Comm., 115 N.C. App. 590 , 446 S.E.2d 383 , disc. review denied, 338 N.C. 309 , 451 S.E.2d 635 (1994).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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