Adams v. North Carolina Department of Natural & Economic Resources

TERM 1978 FALL Dept, of N.E.R. Dept, Everett v. of N.E.R. and with the stick Just more of the comments. No COURT: evidence. record, from I’d like that stricken Mr. BLACKFORD: your Honor. the com- jury, do not consider Members of the COURT: may may they what or regarding counsel ments between not con- clients. Do their respective regard have done in this case.” your deliberations sider sufficient, clearly jury was instruction The trial court’s discussed, remedy already impropriety rules under the defendant’s Accordingly, private prosecutor. the remark is overruled. of error assignment error assignments other defendant’s have examined

We trial and In the merit discussion. they do not and find that was there imposed sentences

No error. decision of in the consideration part BRITT took no

Justice case. this DAVIS, BROWN, ADAMS, M. and RODA HENRY THURMAN CLAUDE

JACK partnership) (a v. NORTH HILL PROPERTIES and CROW LAWRENCE RESOURCES AND ECONOMIC OF NATURAL DEPARTMENT CAROLINA COMMISSION RESOURCES COASTAL NORTH CAROLINA HARTSFIELD, JR., EVERETT, SR., PARKER B. JULIUS RAY K. ALPHIOUS NATURAL DEPARTMENT OF v. NORTH CAROLINA YOPP LISTON COASTAL and NORTH CAROLINA AND RESOURCES ECONOMIC RESOURCES COMMISSION 28No. 1978)

(Filed 28 November general act § between local 2.1— distinction 1. Statutes reasonably special warrants a class which general defines A law class, uniformly everyone while a in the applies legislative attention IN THE SUPREME COURT of N.E.R. and Everett v. Adams or, unreasonably special legislative singles a class for attention local act out classification, uniformly apply having not to all made a reasonable dоes designated class. members of the 2.9; § Management § 2. Statutes 7— Area Waters and Watercourses Coastal legislative class Act —coastal counties —valid purpose legislative counties constitute a valid class for the of coastal problems addressing special urgent environmental found the coastal 113A-102, zone, since, according legislative findings of G.S. resources; among valuable lands and waters are the State’s most coastal biologically productive regions among of the State the coastal area is the most nation; provide and marshlands almost of the most and the coastal waters 90% S.; productive sport U. area has a fisheries on the east coast of the the coastal high preserved; and in recent and esthetic value which should be recreational years subjected increasing pressures resulting area has been the coastal expansion development, population and of industrial recreational from the needs. boundary Management § 7— Area 3. and Watercourses Coastal Waters Act— coastal area —seawater encroachment criterion Assembly properly did define contention that the General not Plaintiffs’ Management in the Area Act of the inland limits of the coastal sounds Coastal unreasonably coverage excluded from the of the Act counties and hence merit, since, in nature is without in order to determine the which were coastal boundary sounds and hence the western inland limits of the coastal areas, Assembly salty, marshy, had to decide where the coastal the General began; the criterion ended and the fresh water coastal rivers sounds Assembly ultimately adopted the General was “the limit of seawater en- conditions; given under normal and the western croachment” on a coastal river boundary zone as determined use of the seawater encroach- of the coastal reasonably purpose related to the the Act. ment criterion was delegation legislative authority requirements § 1— 4. Administrative Law — authority against delegating legislative inhibition does The constitutional adjudicative transferring rule-making preclude legislature from provided accompanied powers such transfers are to administrative bodies delegated powers. adequate guiding govern the exercise standards to 1;§ § 7 Law Wаters and Watercourses —Coastal Area 5. Administrative authority proper delegation Management to Coastal Resources Com- Act — —guidelines—procedural safeguards mission authority Management properly delegates Area Act of The Coastal develop, adopt State Commission to and amend the to the Coastal Resources area, provides guidelines guidelines the coastal since the Act that the State system goals management as set will of the coastal area be consistent 113A-102(a) 113A-102; legislative findings in and the forth in G.S. pro- designating 113A-113 areas of environmental concern in G.S. criterion for in the specific standards to aid the Coastal Resources Commission vide further guidelines; goals, policies and criteria outlined formulation of State adequate provide with an notion of the these statutes the Commission they operate legislative parameters in the exercise of their within which TERM FALL Everett v. N.E.R. and Adams subjected actions of the has delegated powers; and the General system procedural safeguards. to an extensive Commission Management Act—unconstitu- § Area Declaratory Judgment 3— Coastal Act 6. controversy justiciable alleged taking of land tional —no 1974 ef- Management Act of Area that the Coastal Plaintiffs’ contention in a properly dismissed taking land was of their an fected unconstitutional since, plain- brought, was declaratory at the time the action judgment action exemptions permits, variances or development seek had occasion to tiffs no Act, only they speculate as to the could therefore coverage under the from specific plots of and value of their have the usefulness Act would on effect the land; controversy justiciable under the speculation did not constitute such Declaratory Judgment Act. improper Management § Area Declaratory Judgment 3— Coastal 7. Act Act — controversy justiciable alleged power —no search warrantless alleged declaratory plaintiffs that the Coastal judgment where a action violative of the warrantless searches Management Act 1974authorized of Area Amendment, controversy respect to that justiciable was there no Fourth plaintiffs allege did not properly it since court dismissed issue and the trial they had been fined they subjected or that to actual searches had bеen 113A-126(d)(l)c investigators. refusing access to pursuant for to G.S. Copeland dissenting. Justice this case. decision of part in the consideration or took no

Justice Britt Walker, of judgment in each case from by plaintiffs APPEAL S.J., Superior sitting special at 30 November CARTERET Court. al., Adams, 5on their action instituted et Jack Plaintiffs al., Sr., Everett, in- K. et Alphious 1976. Plaintiffs

November plain- motion of joint 24 1977. Upon March action on stituted their trial on were consolidated these actions tiffs and defendants 1977. 29 August action, Declaratory under the brought

In this consolidated Act, constitutionality of the attack plaintiffs Judgment 113A-100, et seq., Act of Management Area Coastal in pertinent allege Act. Plaintiffs as the referred to hereinafter part: II, sec- Article act under local prohibited

1. Act is That the 24 North Carolina Constitution. tion of the Resources authority Coastal delegates Act 2. That the CRC) (hereinafter adopt develop to as referred Commission IN THE SUPREME COURT 686 of N.E.R. and Everett v. Adams providing “State for the area without Guidelines” ade- the power delegated standards to quate govern the exercise II, I, of Article Article section violation section 6 and North Carolina Constitution. Act,

3. State provisions guidelines That the of thе and the CRC, deprive them their without due adopted property law in violation of Amend- the Fifth and Fourteenth process I, ments and in violation of Article section North Carolina Constitution.

4. That Section 113A-126 Act warrantless authorizes Amend- repugnant searches the CRC Fourth I, ment of the United States and Article section Constitution the North Carolina Constitution.

5. That the for the coastal guidelines area promulgated powers delegated the CRC exceed the the Act and are imper- missibly with the goals inconsistent Act as set forth in Sec- tion 113A-102. Area Act of is a Management “cooperative Coastal between of coastal area local state

program management (G.S. 113A-101). objective basic is to “establish governments.” Its orderly a comprehensive plan preservation, for the protection, and the coastal area of North development management of (G.S. 113A-102(a)). Carolina.” the Act is Primary given for to a responsibility implementing CRC, all but panel, citizen three of activity fifteen-member whom specific must have in a of coastal such as expertise phase engineering, agriculture commercial coastal coastal or fishing, twenty- land or in lоcal in the development, government coastal county coastal area. Twelve of the fifteen are nominees of local (G.S. 113A-104). by all are appointed Governor. government; by Advisory The is assisted Resources CRC Coastal (CRAC), by each composed representatives appointed of Council counties, twenty multi-county plus coastal four from coastal cities, and from coastal towns and as well planning groups eight in- agencies as marine scientists and of State representatives (G.S. 113A-105(b)). programs volved in coastal FALL TERM of N.E.R. and Everett v. of area is all generally including The coastal defined as counties G.S. bordering the Atlantic Ocean or one coastal sounds. 113A-103(2). activities, A ac- including number of certain agricultural tivities, by from of the Act G.S. exempted coverage 113A-103(5)b.

Four basic mechanisms are utilized the Act accomplish objectives: I. State Guidelines For The Area Are To Be Coastal By Promulgated 113A-106 108. CRC. G.S. The through area, is to State develop guidelines CRC coastal objectives, and standards be specifying policies followed use land and public private of water the coastal area. These are to to the nature guidelines give particular attention which shall development be within the various appropriate types (See of area environmental concern designated CRC. infra.) III, Part 113A-107. The guidelines G.S. State have (see infra) II, county threefold effect. All land use Part must plans be with the All guidelines. permits consistent development (see infra) IV, Part must be granted consistent Finally, all guidelines. land of the State to ac- policies relating use, land shall quisition, disposition, classification of coastal be with the 113A-108. guidelines. consistent G.S. By Adopted County

II. Land Use Plans Are To Be Each 113A-109 112. through G.S. Within The Area. Coastal A objectives, land use plan to “consist statements of use policies, public private standards to followed county” land within the which shall be supplemented maps land showing particular types location of appropriate atteption water use in areas. The shall particular plan give special areas en- protection appropriate development 113A-110(a). If a designated vironmental concern the CRC. G.S. county a land use shall adopt plan fails to the CRC 113A-109. plan. plans such a The land use promptly prepare by the are to be with the Stаte guidelines promulgated consistent 113A-110(a). un- G.S. land use shall become effective plan CRC. No 113A-110(f). county land til it is G.S. The approved CRC. use have a twofold effect. No shall be plans development permit IN THE SUPREME COURT N.E.E. and Everett v. (infra) IV which is with the ap-

issued under Part inconsistent county in which is development land use for the proved plan 113A-111. shall be proposed. regulation G.S. No local ordinance or (see III, an area environmental Part adopted within concern infra) county is inconsistent with the land use plan Id. regulation which said ordinance or is effected. Designation

III. Areas Of Of Environmental Concern By Through Making. 113A-113 CRC G.S. The Rule 115.

through “The shall rule areas of the designate geographic [CRC] areas and specify coastal area as of environmental concern 113A-113(a). . . .” boundaries thereof. G.S. areas of specifying (AEC) concern is the criteria environmental CRC to consider 113A-113(b). any adopting permanent- listed in G.S. “Prior to rule ly any Secretary a designating shall hold ‍​‌​‌​‌‌‌​‌‌​​​​‌‌‌​‌​‌​‌​​‌​‌​​​‌‌‌​​‌‌​‌‌‌‌​‌‌‌‍[AEC] [CRC] county in each in which lands affected are public hearing to be located, at which shall have the public private parties oppor- 113A-115(a). tunity to comment and views.” G.S. present CRC biennially. shall review the at leаst New designated AEC’s AEC’s may pro- be added others deleted accordance with the cedures outlined above. Development

IV. Be Within Permits Must Obtained For 113A-116 G.S. 125. through AEC’s. Every any person undertaking development before 113A-118(a). a permit. major

AEC must obtain G.S. Permits for are and permits obtained from the CRC for minor developments county are obtained in the first instance from the developments development place. major in which the is to take Permits for formal, are development through quasi-judicial pro- obtained 113A-122. All ceeding. permit major G.S. applicants develop- to a in which evidence taken and the hearing ment are entitled rules to civil actions are insofar procedure applicable followed hearing as A of this is forwarded to the practicable. transcript CRC which renders decision of fact supported findings Any directly by any law. Id. affected final person conclusions of may decision or order of the court for appeal superior CRC judicial review. 113A-123.Permits for minor development an ex- from the local official procured designated pursuant system review. are for- pedited expedited procedures These FALL TERM 1978 689 Dept, N.E.R. and Adams v. of Everett v.

mulated Any at the local level. 113A-121. G.S. person directly affected a decision of the designated may local official request before the Id. hearing CRC. The procedure followed at this is identical hearing to that major followed at for hearings permits. 113A-122. development

The trial court upheld in all respects constitutionality the Act and the State guidelines promulgated by the CRC. Plain- tiffs appealed Court of Appeals, we allowed motion to bypass court to the end that initial appellate review be had in the Supreme Court.

Turner, Enochs, Foster, Foster & Burnley by C. Allen Watson, Wendell H. Ott and E. Thomas attorneys plaintiffs for appellant. Edmisten, General; III, L. Attorney A. C. Dawson Rufus General; Jr., Assistant Attorney W. A. Raney, Special At- Deputy General, torney appellee. for defendants (Natural John Curry, attorney S. Amicus Curiae Council, Inc.; Club;

Resources Sierra Conservation Coun- Defense Carolina; cil North New Hope Chapter the National Audubon Society support appellees.) HUSKINS, Justice: challenge constitutionality Plaintiffs of the Act on two (1) grounds: The Act constitutes local legislation prohibited Ar- II, (2) Constitution;

ticle 24 section of the North Carolina Act unconstitutionally delegates authority to the Coastal (CRC) Resources Commission develop adopt “State guidelines” for the coastal area.

The scope of review exercised this Court when passing on constitutionality a legislative act is well stated in Glenn v. (1936): Education, Board 210 187 N.C. S.E. 781

“It is well settled in this State that the courts have the cases, power, duty and it is their to declare an act proper General unconstitutional —but it must be doubt, clearly If plainly the case. there is reasonable it will be resolved favor of the lawful exercise of their powers the representatives of the people.” IN THE SUPREME COURT Dept, of Everett v. of N.E.R. and Accord, Clarkson, 2d S.E. McIntyre constitutionality accorded in this Implicit presumption and the General is that this Court legislative principle to acts the the state Assembly government. coordinate branches of “are other.” Nicholson v. Education superior Neither is of the the (1969). 439, In 275 168 S.E. 2d 401 Authority, Assistance N.C. constitutionality act it is not for legislative of a upon the passing These matters are this to wisdom and judge expediency. Court Rather, Assembly. it is the Court’s of the General province the act in exceeds duty legislative question whether the to determine “If is a be- prohibition. limitation or there conflict constitutional Constitution, must determine a and the this Court tween statute it litigants or duties of before in ac- rights and liabilities the Constitution, is the with the because Constitution cordance Thus, “will Id. this rule law in that situation.” Court superior body it counter law-making an unless runs not disturb act of the McIntyre v. a or prohibition.” to constitutional limitation Clarkson, supra. is a for is whether the Act local

The first issue consideration II, 24 or is a act Article section Constitution prohibited Assembly has power to enact. general law which General a act a law and local it is distinguishing general between XIV, 3 at that Article section to note the outset important may laws that: “General expressly provides Constitution or other criteria.” In by population classes defined enacted for Pleasants, Sheriff, 142 2d S.E. 697 Co. Surplus (1965), legislating, “For the the General purposes we said: conditions, classify Assembly may persons, places and does does render a ‘local’ if the and classification statute things, reasonable and based on rational difference of classification is Thus, ap- fact that a statute and condition.” mere situation only government to units of local does not itself certain plies statutory if Only a act. the statute local prohibited render will the unreasonable or under-inclusive statute classification is act. as local prohibited be voided between a valid ^[1] The above discussion indicates that the general law and a prohibited distinguishing local act are the factors applica reasonable classification and uniform related elements of reasonably warrants A law defines a class general tion. FALL TERM 1978 Adams Everett v. of N.E.R. uniformly everyone

special legislative applies attention hand, the class. unreasonably singles On the other local act out or, a class special legislative attention made a having classification, reasonable uniformly does not all members apply sum, of the designated class. In the constitutional prohibition against local acts commands that when simply legislating cer- tain fields specified the General must make rational distinctions among units local which are government reasonably related A law purpose legislation. general “any if rational reasonably objective basis related to the can legislation justifies be identified which separation of units of local government intо included and excluded Ferrell, categories.” Legislation “Local in the North Carolina Assembly,” General Rev. N.C.L. This rule of reasonable formally classification was announced in v. McIntyre Clarkson, Clark, and supra, reaffirmed Treasure City, Inc. (1964); Pleasants, 261 134 97 N.C. S.E. 2d Surplus Co. v. Sheriff, County Smith v. supra; Mecklenburg, 280 of S.E. 2d 67 a argument Plaintiffs make two-part support posi- of their tion that the Act a prohibited they constitutes local act. First Assembly may reasonably contend the General distinguish be- tween the and coast the remainder of the State when enacting next, if legislation; environmental and that even the is suffi- coast ciently justify unique separate legislation, environmental the twenty counties covered the Act do not embrace the entire necessary legislation. area for the We will ad- purposes dress these seriatim. arguments

[2] support of the first contention plaintiffs argue that natural and resources environmental needs of the coastal counties sufficiently are not to warrant unique special legislative treat ment in of “a comprehensive the form for the plan protection, orderly preservation, development, and management of the 113A-102(a). coastal аrea North Carolina.” G.S. We disagree. legislative The findings on their face highlight importance of the unique exceptionally fragile ecosystem: coastal —(a) 113A-102. Find- Legislative findings goals.

“§ hereby ings. determined declared as a matter of —It legislative finding among North most valuable Carolina’s IN THE SUPREME COURT and Everett v. Adams area, and waters. The coastal its coastal lands resources are estuaries, the most among are particular and in and of the na- of this State productive regions biologically provide and marshlands and estuarine waters tion. Coastal (90%) productive sport the most ninety percent almost States. North on the east coast of United fisheries extremely high recreational coastal area has an Carolina’s preserved be and enhanced. value which should and esthetic subjected to years area has been In recent the coastal the result often- are increasing pressures society develop- in industrial expanding needs of conflicting ment, and in recreational population, aspirations controlled coor- pressures Unless these citizens. very of the coast which features management, dinated will ecоnomically, esthetically, ecologically rich it make finds that an destroyed. The General therefore need exists to establish com- pressing immediate and orderly plan protection, preservation, for the prehensive the coastal area of North management development, Carolina.” Rev. 779 and passages from N.C.L. N.C.L. following convey coastal help exceptional qualities 889-90

Rev. this State and the nation: important which make it so zone “The estuarine areas of North Carolina—‘those vast where fresh water from the land meets complexes daily tidal flux’— are exceeded salt water of the sea with only and in area those of Alaska Louisiana. total sounds, harbors, bays, tidal lagoons, include Estuarine areas marshes, coasts, and in which the salt salt inshore waters the and are diluted the fresh waters waters of ocean meet Carolina, this ex- encompasses of the inland rivers. North marshes, sounds, and broad river mouths tensive coastal salt 2,200,000 are of acres. These areas one North exceeding most valuable resources. Carolina’s

[*] ^{[*] [*] [*]} array provide vast land water combines to This of and relatively natural areas on the largest unspoiled the one of . . . This massive coast of the United States. eastern FALL TERM 1978 693 v. of N.E.R. Adams Everett v. food, cover,

ecosystem provides nesting spawning areas finfish, shellfish, waterfowl, game for countless and fur and animals.” cited are legislative findings above confirmed the

trial fragile record indicate that unique, irreplaceable nature of coastal significance public zone to the justify welfare the reasonableness of amply special legislative We treatment. conclude that the coastal counties constitute valid class legislative for the purpose addressing special and urgent problems environmental found in the Ac- coastal zone. cord, Toms River v. Pro- Department Environmental Affiliates tection, 135, (1976); 140 A. Super. N.J. 355 2d 679 Meadowlands 89, State, Regional Development Agency 112 N.J. 270 Super. (1973). (1970), 35, A. 2d 418 63 N.J. 304 A. 545 2d See aff’d. 109, Island, generally, Turnpike Authority v. Pine (1965). S.E. 2d 319 Plaintiffs’ contention that ‍​‌​‌​‌‌‌​‌‌​​​​‌‌‌​‌​‌​‌​​‌​‌​​​‌‌‌​​‌‌​‌‌‌‌​‌‌‌‍the of the problems environmental piedmont mountains and equally deserving at- legislative tention is a valid objection light constitutional inAct sufficiently our finding that coastal area is unique to warrant special legislative attention. is require- no constitutional “[T]here ment that a regulation, rеspects other must reach permissible, every which class to it might applied Legislature —that must be held ... rigidly to the choice of all or It regulating none. enough present statute strikes at the evil it is where felt, and reaches the class cases it where most oc- frequently Silver, curs.” Silver 280 U.S. 74 L.Ed. S.Ct. (1929). Tomlinson, generally, See Mobile Home Sales v. 276 N.C. 661, 174 S.E. 2d 542 ^[3] In the second part of their argument plaintiffs contend General did not inland properly define the limits of the 113A-103(3) coastal in G.S. unreasonably sounds and hence exclud ed coverage from the Act counties were coastal nature. It be noted that the inland limits coastal should sounds in effect constitute the western boundaries of the coastal zone for purposes Act. us argument requires

Plaintiffs’ to consider whether Assembly, General defining the inland limits of sound, boundary reasonably drew lines were related to the IN THE SUPREME COURT and Everett v. N.E.R. it this issue is well to note determining the Act. purposes . . . essential in classifica- distinctions are “[wjhile that substantial tion, not be scientific or exact. distinctions need McIn- making has wide discretion in classifications.” Legislature Clarkson, Thus, reviewing the General in supra. tyre limits sounds of the inland Assembly’s definition prohibition recognizes against that the constitutional this Court fit; rather, it perfect requires a legislation require local does reasonably related to only that definition legislative from Justice Holmes The following passage Act. purpose why body has law-making generally broad the reason explains the nature of classifications illuminates making discretion by the inland defining the task faced the General limits of the coastal sounds: determined, is as no one legal

“When a distinction be, day, may childhood and night that it between doubts extremes, has a any point to be fixed or maturity, or other drawn, out successive gradually picked line has to be or decisions, at place. takes Looked change to mark where it, itself, necessity behind the line without regard well, well, nearly as arbitrary. It as or might or seems point But it is seen or the other. when be a little more one side be, must and that there is no point a line or there way fixing it the deci logical precisely, or mathematical say unless we can it accepted must be legislature sion of any very mark. wide of reasonable [Citation omitted.]” Coleman, Co. v. 277 U.S. L.Ed. Louisville Gas (1928) (dissenting opinion). S.Ct. the inland limits of legislative definition of To evaluate context, we must first examine sounds in its propеr the coastal 113A-103(2). area area in G.S. The coastal the definition of coastal (in adja- are “that whole or part) is defined as those counties to, by the Atlantic by or bounded adjoining, cent intersected statutory This definition of ... coastal sound.” Ocean accurately of our geography reflects the unique coastal area by the Atlantic Some coastal counties are bounded coastal area. shallow, but the ocean while others bounded not Ocean landward side which lie to the swampy, fertile coastal sounds known as Outer system of barrier islands our extensive FALL TERM 1978 Dept, Dept, Adams v. of N.E.R. and N.E.R. Everett of sounds, course, Banks. The coastal of are the heart of the coastal Note, area. See 888-92 generally, N.C.L. Rev.

These saltwater coastal sounds are in turn fresh fed the water the coastal rivers. One of of the North unique features Carolina salty coastal zone coastal are con- sounds fact, tiguous with the fresh water rivers. In the sounds represent the mouths of the coastal rivers. See G.S. generally, 113A-103(3) Thus, for the names of the coastal sounds and rivers. in order to determine the inland limits of the coastal sounds boundary hence the western of the coastal areas the General Assembly had salty, marshy, to decide where the coastal sounds ended the water fresh coastal rivers began.

It is evident from the record that the boundaries of the coastal area could not be formulated with mathematical exact- conditions, ness. Affected a number of varying the reaches of vary markedly saltwater intrusion tidal influence from time to time and are thus of incapable exact determination. The ultimately criterion chosen the Assembly General distinguish salty the coastal sounds from the fresh water coastal rivers which fed was into sounds “the limit en- of seawater croachment” on a given coastal river under normal conditions. 113A-103(3). effect, the limits of the were coastal sounds defined as those on the coastal rivers points where the salt con- tent scientifically of the water measured below a determined amount. Assembly

The General added two refinements seawater encroachment criterion. en- The limits of seawater croachment were established as the of a legislatively confluence given easily tributary coastal river an identifiable near always but points at the indiсated as farthest inland reach 113A-103(3). of difficulty seawater encroachment. G.S. Given of determining precise location inland extent encroachment, seawater we the points think of confluence provid- ed a convenient method of implementing seawater encroach- ment criterion. The General also excluded from all coverage adjoined Act counties which con- point — lay entirely fluence and of said west Id. Two counties point. Jones and Pitt —were excluded from Act as coverage result exemptive of this clause. The record shows that these coun- THE COURT IN SUPREME and Everett insignificant quan- in nature and contained were not coastal

ties with the conclusion of the agree We tities of coastal wetlands. into extent of seawater encroachment slight that the trial court to an accurate and was no significance these two counties the coastal area. reasonable definition of boundary the coastal zone that the western of We conclude by of seawater encroachment criterion as determined use the shows, reasonably of the Act. record purpose related to the confirm, will that any of eastern North map and look at Carolina of the Act under twenty purview included within the the counties are statutory are the counties which definition of coastal area the water which substantially open bodies of large bounded the otherwise, scientifically, considered to be may or logically, be all area as defined includes those sounds. The coastal intimately North quality affect the of Carolina’s counties which general hold that the Act is a estuarine waters. We thus valuable Assembly had enact. power law which the General to Act is a law we need not general Since we hold that the regulates subjects to or one determine whether it relates See prohibits legislation. as to which the local N.C. Constitution Const., II, art. 24. § un- for determination is whether the Act

The second issue authority adopt the to constitutionally develop, to CRC delegates the coastal area. See “State guidelines” and amend 113A-107: vides that

[4] Article I, section legislative, executive and 6 the North Carolina judicial Constitution pro branches from each “ought separate to be forever distinct government vested the General Legislative power is other.” II, 1 these constitutional From Article section Constitution. the legislature “that glean principle we bedrock provisions supreme its may delegate to make laws or power not abdicate its any any agency branch to coordinate legislative power to Island, supra. v. Pine It may Authority Turnpike which it create.” literally would ab that if the Constitution interpreted is obvious However, legislative power. it solutely preclude delegation problems this that recognized has been Court long complexity must are of such legislature modern confront non-delegation to ideal notions of the doctrine strict adherence 697 1978 FALL TERM v. N.E.R. Everett Assembly exercise of its unduly hamper would General See, Authority v. constitutionally vested powers. e.g., Turnpike Island, 237 Turnpike Authority, v. supra; Highway Pine Coastal must able legislature 2d 310 A N.C. S.E. modern instances —“a limited delegate proper portion —in which are equipped to administrative bodies legislative powers” involving numerous adapt complex “to conditions legislation directly.” deal Turnpike details with which cannot Legislature 114; Island, Authority Pine at Coastal Highway 265 N.C. supra, Thus, we Authority, at 60. have Turnpike 237 N.C. supra, held that constitutional inhibition repeatedly agаinst authority preclude legislature delegating legislative does adjudicative to ad transferring rule-making powers from accompanied bodies such provided ministrative transfers standards adequate guiding exercise govern See, Davis, 147, 232 delegated powers. e.g., Hospital v. 292 N.C. (1977); Taylor, 2d Guthrie v. 185 S.E. S.E. 2d (1971), denied, (1972), cert. cited U.S. cases therein. particular

The task of is determining delegation whether by is adequate simple standards not one. accompanied guiding in that determination were suc making The difficulties involved Justice, cinctly by now Chief in Jern Sharp, summarized Justice (1971): State, 279 184 S.E. 2d 259 “The inherent igan capable persons discretion in place conflict between need to manner be some directed requirement that discretion commentary the satisfactorily her cannot be resolved.” In Chief guiding clearly perceives adequate that the purpose Justice to delegate is to need legislative standards test reconcile re authority legislature the constitutional mandate that the general See power. hands the supreme legislative tain in own we this test must Taylor, supra. applying Guthrie v. ly, effectively is to legislate if the General recognize that delegate instances to authori capacity proper must have the it hand, duty it is our administrative On the other to ty to bodies. necessary and indeed that all such are do not delegations insure by Assembly. We a total concur constitute abdication General key intelligent application the observation that to an “[t]he that, to delegations power an while understanding this is [test] necessary, such transfers of agencies power administrative by closely decision-making be monitored to insure that should arbitrary agency and that the is is not unreasoned agency IN THE SUPREME COURT N.E.E. and Everett v. of N.E.E. not asked to make important choices which policy might just as easily by be made the elected in the representatives legislature.” Glenn, The Coastal Management Act in the A Courts: Preliminary Analysis, 53 N.C.L. Rev.

In the search for adequate standards guiding the primary sources of legislative guidance are declarations the General Assembly of the legislative goals and which an policies agency is to apply when exercising its delegated We powers. have noted that such declarations need only “as specific as the cir- Island, cumstances permit.” Turnpike Authority v. Pine supra. also, State, Jernigan See Whеn supra. there is an obvious need expertise in the legislative achievement of goals the General Assembly is required not lay to a detailed agenda down covering every conceivable problem which arise in the might implementa- tion legislation. It is enough if general policies and stand- ards have been articulated which are sufficient to provide direction body to an administrative possessing to expertise adapt the legislative goals to varying circumstances.

Additionally, in determining whether a particular delegation authority is supported adequate guiding standards it is per- missible to authority consider whether the vested in the agency is subject procedural key A safeguards. purpose of the adequate guiding standards test is to “insure that the decision-making Glenn, agency arbitrary and unreasoned.” supra. Pro- cedural safeguards tend encourage adherence to legislative standards the agency to power has been delegated. We thus join growing authority trend of which recognizes that presence absence of procedural safeguards is relevant the broader question whether a delegation authority is ac- Davis, companied adequate guiding standards. See K. 1 Ad- (2d Treaties, 1978). ministrative Law 3.15 at p. ed. § ^[5] Applying these principles to the case sub judice we conclude that the Act properly delegates authority to the CRC to develop, adopt and amend State guidelines for the coastal area. guidelines

The State are designed to facilitate state and local government compliance with the planning and permit-letting of the Act. aspects G.S. 113A-108.Land use plans adopted by the coastal counties must be consistent with the guidelines. Id. No permit development within the shall granted AEC’s FALL TERM Dept, of N.E.R. N.E.R. and Everett Finally, State land policies Id. guidelines. inconsistent with use, by State and of land disposition the acquisition, governing land and State classification and agencies departments Id. guidelines. must be with the system consistent area “State for the coastal guidelines The Act states that and standards to objectives, policies, of statements of shall consist land and water areas and use of public private be followed 113A-107(a).The Act provides: then within the coastal area.” G.S. goals with the of the coastal “Such shall be consistent guidelines 113A-102.”Id. These system as set forth in management area (b) out as in subsection of G.S. goals spelled follows legislative 113A-102:

“(b) area management Goals.—The of the coastal goals Article are system to be to this as follows: pursuant created (1) system management capable To provide ecological and the natural

preserving managing system, of the estuarine the barrier conditions beaches, and so as system, safeguard dune productivity natural perpetuate their values; and esthetic biological, their economic (2) preservation that the or development To insure land and resources of the coastal water

area a manner consistent with proceeds and water for development, land ‍​‌​‌​‌‌‌​‌‌​​​​‌‌‌​‌​‌​‌​​‌​‌​​​‌‌‌​​‌‌​‌‌‌‌​‌‌‌‍capability use, based on con- preservation ecological siderations;

(3) orderly and To insure the balanced use resources behalf of of our coastal on

preservation nation; and the people of North Carolina (4) and standards policies, guidelines To establish

for: Protection, and conservation of preservation,

a. but limited to including

natural resources wildlife; use, vistas, and fish water scenic intensely transitional or management of especially areas and areas suited developed IN THE SUPREME COURT and Everett v. of N.E.R. intensive use or as well development, as areas value; natural significant area, b. development The economic construction, but not including limited to loca- industries, facilities, design port tion and commercial establishments other developments; c. Recreation and tourist facilities

parklands; d. Transportation and circulation patterns

the fares, major coastal area including thorough- routes,

transportation navigation chan- harbors, nels and and other public utilities and facilities; historic,

e. Preservation of the enhancement cultural, and scientific of the coastal aspects area;

f. Protection of present common-law and statutory in lands and public rights waters area;

of the coastal Any g. necessary other purposes deemed or ap-

propriate to effectuate the of this policy Arti- cle.” 113A-102(a)

We also note that the legislative findings in G.S. the criteria for in designating provide AEC’s G.S. 113A-113 fur- specific ther standards to aid the in CRC the formulation of State guidelines.

In view our of legislative findings declarations and goals, articulated G.S. 113A-102 and the criteria for designating 113A-113 specific AEC’s G.S. are “as as the per- circumstances Island, mit.” v. Pine Turnpike Authority supra. reaching this conclusion we note that proсess developing adopting use guidelines ecosystem detailed land for the complex is an undertaking coastal area much requires expertise. need is Legislative recognition this reflected in the composition CRC, which is to consist of fifteen members —twelve of whom required to have facets expertise different of coastal FALL TERM Dept, N.E.R. Dept, of N.E.R. and Everett

Adams v. criteria and outlined policies 113A-104. The problems. goals, G.S. the members of provide 113A-102 and G.S. 113A-113 the in G.S. within legislative parameters an notion CRC with adequate their they delegated in the exercise of operate which are to powers. set of with a comprehensive

In addition to the CRC providing standards, ac- Assembly subjected has General legislative system safeguards. an of procedural tions of the CRC to extensive effect, the standards the General has furnished both its delegated in the exercise of which are to CRC guide which insures the CRC procedural and framework powers in a with fairly duties and manner consistent perform will intent. legislative (1) those safeguards: There are sources of procedural four (2) Act, Ad- by the North Carolina

provided those contained (3) (APA), Rules Act the Administrative ministrative Procedure (4)the by created 120-30.26and “Sunsеt” Review Committee G.S. 143-34.10, by Assembly, the 1977 General G.S. enacted legislation seq. et Act

Initially, 113A-107 of the sets forth detail section and amend- adoption to followed the CRC the procedures pro- These include submission of the guidelines. ment of the State cities, public, review and comment to the posed for guidelines State, counties, and all regional organizations, private, lead federal, special expertise have regional agencies and local cultural, environmental, social, economic, esthetic, respect adopt- development. Copies historical of coastal aspects the Legislature be filed with both ed must Houses guidelines mail Attorney copies also to and the General. CRC counties, cities, regional organiza- all lead guidelines to adopted tions, These agencies. provi- broad and to citizens appropriate all levels representing and review input groups sions for against substantial curb provide interests types agencies Additionally, arbitrary and unreasoned action CRC. every years, by five be reviewed CRC guidelines must necessary. as time to time they may be reviewed from although 113A-107(f). must these Any amendments follоw proposed they can be scrutiny adopted. before public for procedures same be filed with the amendments must copies of Certified Legislature. IN THE SUPREME COURT of N.E.R. and Everett v.

Secondly, amendments to the State guidelines the CRC are considered administrative rule-making under G.S. 150A-10and thus subject to the comprehensive additional safeguards contain- ed in the Administrative Procedure Act. G.S. 150A-1 et seq. The APA sets specific mandatory forth guidelines for rule-making, including requirements public hearings publication all agency mandatory rules. The provisions of the APA must now be read as complementing procedural safeguards in the Act itself. See 150A-9 G.S. 17. through

Thirdly, pursuant to et seq., G.S. 120-30.24 all rules adopted by the are subject CRC to review a permanent committee of Legislative Research Commission known as the Ad- ministrative Rules Committee. The purpose of this legislative scrutiny is to determine whether the agency whose rules are under review “acted statutory within its authority in pro- 120-30.28(a). mulgating the rule.” G.S. An elaborate review procedure whereby is established the Administrative Rules Com- mittee and the Legislative Research Commission lodge objections ato rule with the particular If appropriate agency. the agency Commission, does not act upon recommendations “may Commission submit a report to the next regular session of Assembly the General recommending legislative action.” G.S. 120-30.33.

Finally, under the “Sunset” legislation, entitled “Periodic Review of Agencies,” Certain State G.S. 143-34.10 et seq., the subjected is CRC Commission, to review the Governmental Evaluations .17; G.S. 143-34.16and to public hearings held Commission, 143-34.18; Governmental Evaluations and to hearings recommendations of legislative committees. G.S. 143-34.19.The Act will stand repealed July effective 1 1981 unless by legislative revived 143-34.12. action. G.S. authority

We conclude that the delegated to the CRC is ac- companied adequate standards in guiding the form of declarations legislative goals policies, procedural safeguards. We therefore hold that the General proper- ly delegated authority CRC to prepare State adopt guidelines for the coastal area.

[6] At the trial of this case plaintiffs contended the Act effected an taking unconstitutional of their land and that the Act authoriz ed warrantless searches violative of the Fourth Amendment. At 703 1978 FALL TERM

Adams of N.E.R. and Everett v. evidence, gen- trial ruled that no judge plaintiffs’ the close to these issues controversy existed as justiciable ‍​‌​‌​‌‌‌​‌‌​​​​‌‌‌​‌​‌​‌​​‌​‌​​​‌‌‌​​‌‌​‌‌‌‌​‌‌‌‍uine and issues. Plaintiffs motion dismiss on these defendants’ granted this as error. assign ruling declaratory many have that “an action for

We said times an real only will in a in which there is actual or lie case judgment in controversy between adverse interests parties having existing Mears, 111, Lide 56 S.E. 2d 404 dispute.” the matter N.C. Co., Consumers Power v. Power generally, See N.C. (1974), An and cases cited therein. actual con 206 S.E. 2d troversy jurisdictional prerequisite is a parties between Declaratory Act Judgment under the order proceeding concept sound that the juridic inviolate ancient and “preserve judicial adjudicate genuine inherent function of tribunals antagonistic litigants respect to their controversies between Mears, status, Lide v. As legal supra. or other relations.” rights, Co., 222 v. Power Tryon Seawell stated Justice (1942): [Declaratory Judgment “The does not re 2d 450 S.E. Act] advisory which the purely opinion par the court to give quire if and when put so on ice to used occasion might, speak, ties to sum, judicial principle arise.” In the sound that resources might present rather problems be focused on which real should abstract, questions, remote is hypothetical than on or dissipatеd Declaratory generally, Act. See fully Judgment applicable (3d Text, Davis, ed. p. Law 21.01 at K. Administrative § 1972). an ac- plaintiffs allege to determine whether proceed We now tual, controversy “taking” with existing respect genuine issues. and “search” is that taking on the issue gist plaintiffs’ contention land as an “interim” area of environmental of their

designation 113A-114, CRC, a “conservation area” concern G.S. as in determines that plans, practical the local land-use effect eventually as an formally designated will be AEC property their 113A-115 and all for applications development under G.S. that in- development will be denied on the that all is ground permits aas with the of their conserva- property consistent classification 113A-120(a)(7). area. See tion G.S. IN THE SUPREME COURT of N.E.R. and Everett v. We apparent think it there has been “taking” no plaintiffs’ property justiciable rise to a gives controversy at this time. Plaintiffs’ assertion that their has property been “taken” the Act rests speculative on assumptions concerning declaratory which a will judgment not be rendered. “It is no part courts, of the function of the judicial the exercise of the power Constitution, vested in them advisory to give opiniоns, or to answer moot questions, to maintain a bureau legal for those interested, may who chance to be time being, pur- Poore, suit of some academic matter.” Poore v. (1931). S.E. 532 A brief examination of relevant provisions of the Act demonstrates that plaintiffs’ apprehension of diminished land values is premature justiciable. hence not

At the outset we permits note that must be sought land develop which falls within an AEC. G.S. 113A-118. It fur- ther noted designation that the land as an interim under AEC G.S. 113A-114 subject “does not development a permit require- ment; merely it requires the developer to give sixty the state days notice before undertaking the proposed activity.” Schoen- baum, The Management of Land and Water Use in the Coastal Carolina, A Zone: New Law is Enacted in North 53 N.C.L. Rev. 275, 290 Before an area can be designated as an AEC the CRC must engage full-blown administrative rule-making public participation consideration of factors enumerated in 113A-113. G.S. a permit Before can request be granted or denied the CRC must a quasi-judicial hold hearing and make written find- ings of fact and conclusions of law. G.S. 113A-122. An applicant may appeal the decision of the CRC to the superior court and 113A-123; then to the Appeals Court of as a matter right. G.S. 7A-27(b). Significantly, the Act provides also that in his ap- peal of a denial permit the applicant may litigate also the ques- tion whether denial of a permit constitutes a taking just without 113A-123(b).Moreover, compensation. G.S. the Act exempts cer- 113A-103(5)b, tain activities from its G.S. coverage, and also per-. mits landowners to a request variance from the CRC. G.S. 113A-120(c).

It is plaintiffs evident that no position at this point to declaratory obtain a judgment determining whether the provi- FALL TERM of N.E.R. and Everett impermissibly sions of the Act have impaired the usefulness and value of land. their At the time this case was tried few determina- tions which could lead a genuine controversy to over taking had plaintiffs’ land been made. land Although some had been AEC, an designated as no development permits were un- required 1til March the “permit by the changeover designated date” Secretary the Department of Natural and Economic Resources 113A-118(a). G.S. 113A-125.See pursuant to The remainder of plaintiffs’ designated land was as an “interim” and was AEC not Thus, subject a permit requirement. to at the time this case was plaintiffs tried had no seek development occasion to permits, varianсes, Hence, they from exemptions coverage. only or could speculate as to the effect the Act would on have the usefulness their value of of land. A specific plots “suspicion” that all within will development permits be denied does not AEC’s con- controversy a Tryon stitute within the meaning of our cases. Co., Power supra. affirm Accordingly, ruling we trial judge justiciable controversy that there is no on issue taking Declaratory entitling plaintiffs to relief under the Act. Judgment ^[7] an actual “search” For similar reasons issue. G.S. or presently 113A-126(d)(l)c existing we conclude that controversy permits plaintiffs the CRC to assess respect do allege civil of not than penalty any more one thousand dollars against entry who refuses to person premises —“not oc including or cupied dwelling house an curtilage” official of the CRC —to who is an conducting investigation authorized the Act. Plain tiffs this provision contend authorizes warrantless searches in However, violation the Fourth Amendment. plaintiffs did not they had allege subjected that been to actual searches that they had been fined access Since refusing investigators. controversy failed to as an actual search it plаintiffs allege jurisdiction follows the trial was upon court without to pass constitutionality this provision. Plaintiffs contend the State deal- guidelines adopted CRC 7B, area, ing with land-use in the coastal ex- planning NCAC authority ceed the granted Act therefore issue, adopted are void. Plaintiff’s on this guidelines argument so however, couched in generalities make it difficult for us where and in manner State pinpoint guidelines what adopted by allegedly authority granted CRG exceed the to it. Cf. IN THE SUPREME COURT

706 Everett (1970).Nonetheless, 123, 416 171 S.E. 2d 276 N.C. Kirby, State light arguments guidelines we have examined will no Further discussion serve arguments unpersuasive. find is This overruled. purpose. assignment useful plaintiffs’ in excluding contend the trial court erred Plaintiffs was relevant to Plaintiffs that this exhibit argue Exhibit No. 35. Conceding, local act issue. without determination Exhibit excluding plaintiffs’ the trial court erred in deciding, that 35, that admission of this exhibit would opinion we are of No. act issue and its exclu- have the result on the local changed not Cross, sion, error, error. State v. 284 N.C. if was harmless See 174, (1973); Stansbury’s North Evidence 200 S.E. 2d 27 1 Carolina 1973). (Brandis 9 Rev. § appealed from are judgments

For the reasons stated the Affirmed. or took the consideration decision part

Justice no Britt case. this Copeland dissenting.

Justice II, Section 24 of the North Carоlina Constitution Article local, shall not enact declares that General “[t]he act which falls within certain private or or resolution” special Thus, analysis a two-prong there must be categories. designated prohibited whether a is a act or a valid law local to determine general one. local,

First, means, must question the act in which form, least, fact, if at a law that in confin- “primarily state, ed within territorial limits other than whole of a limited property persons por- ... or [applies] state, locality ... or is specific tion of the directed generally as from a law distinguished operates spot, 510, Clarkson, McIntyre v. 254 throughout the state.” 2d S.E. however, every necessity, that not By recognized this has Court all of the State. areas apply equally valid law does definition FALL TERM Dept, v. N.E.R. Adams and Everett v.

“A law in is the constitutional sense when it general applies uniformly operates and on all members of persons, class of places things requiring peculiar itself in legislation matters Dixon, 161, 171, covered law.” v. 215 the State 1 S.E. 2d (1939) 521, (Barnhill, J., concurring), McIntyre in quoted added.) Clarkson, 520, at at supra S.E. 2d 895. (Emphasis (the An examination of the Area Management Coastal Act Act) itself warrants the that this is piece legislation сonclusion than a nothing enabling more device the implementation of con- 113A-102(b) servation and land-use management. G.S. forth sets Act, goals the the and insuring development include the land, preservation of water and natural resources and setting facilities, guidelines for economic recreation development, historical and cultural and in the transportation enhancement desirable, coastal area. While these results are no unquestionably seriously they one would contest that can to all apply and should of North Carolina.

It important merely lays is to note that the Act out these broad and policies up system by sets which the are goals reached, specifically be through Coastal Resources Commission and a Advisory Coastal Resources Council local working with economic, I do governments. not doubt that conservation and en- problems vironmental differ significantly among various areas However, throughout the State. are problems specifically these dealt with outside the Act set for that up purpose. bodies The court it trial overlooked this fact when found 'that “[a] comprehensive management plan type envisioned be dealing would beneficial in in other problems CAMA Carolina, however, regions prob- of North uniqueness provided in lems the coastal area a rational basis for inclusion of fact, covered the Act.” In legislation ques- the counties attempt does even to deal with these “unique” problems. tion Furthermore, a comprehensive management statewide land-use See, Policy act is viable and Land Act possible, e.g., reasonable. 113A-150 et seq. N.C.G.S. §§ The of this Court majority legislative findings cites 113A-102 as goals signifying importance unique- area, such can singled ness of our coastal that it out for this Act, Mountain Area Senate special Management treatment. The Session, Bill which was same as the introduced the time IN THE SUPREME COURT Dept, of N.E.R. and Everett v.

Adams enacted, Act but was not states Management Area Coastal 113A-137. legislative goals proposed § hereby as a matter of “It determined declared its land including that the mountain area legislative finding areas of is one of the most valuable water resources The forest and mineral resources of North Carolina. economy State major region importance streams, and forests, the vast unpolluted nation. cleаr it vistas of make region and the scenic the mountain esthetically of the State and pleasing regions one the most of mountain of North Because these features the area nation. extremely an and esthetic high has recreational Carolina preserved value which should be and enhanced. years subjected area in recent has been to

The mountain con- pressures which the result the often increasing society in develop- needs industrial flicting ment, expanding aspirations and in the recreational population, by coor- citizens. Unless these are controlled pressures very of the area management, dinated features mountain economically, esthetically and make it rich ecologically therefore, Assembly, destroyed. will finds be The General pressing that an immediate and need exists to establish a orderly plan protection, preservation, comprehensive management of the mountain area of North development, Carolina. virtually

This identical in to G.S. language possible respects all 113A-102, majority above in the quoted opinion. to if

The which must answered determine question second be a law is a аct is it falls within prohibited local whether one Const, listed 24. subject matters art. The trial court § health, Act abate- found that “relates to sanitation and the streams ment nuisances and to and CAMA non-navigable trade, labor, manufacturing.” It thus deter- regulates mining categories listed in mine that the Act comes within three of our Constitution. I to that their except finding, defendants this feel

Although instance, 113A-102 is without merit. For dictates argument guidelines must be set as to “economic development FALL TERM Haywood State v. area, construction, including but not limited to location industries, facilities, design port commercial

establishments and other Clearly these relate developments.” Moreover, trade. regulation of same section Act states that “water resources in order managed shall preserve and enhance water I Again, not see quality.” do how “health, sanitation, water does pollution not relate Glenn, abatement of nuisances.” See also The Coastal Area Management Act A Analysis, Courts: Preliminary Rev. 306-07 N.C.L. summary, the North forbids Carolina Constitution Legislature to enact local laws that deal with topics. certain It was determined that concern over these subject matters embraсe the entire State. Coastal Area such a Management pro- Act is law; therefore, hibited local it is unconstitutional. reason, foregoing

For the I respectfully dissent. HAYWOOD, ‍​‌​‌​‌‌‌​‌‌​​​​‌‌‌​‌​‌​‌​​‌​‌​​​‌‌‌​​‌‌​‌‌‌‌​‌‌‌‍STATE OF NORTH CAROLINA PAUL AUSTIN JOHN BROWN, WATKINS, WILLIAM JAMES LEWIS EUGENE RONALD COVINGTON No. 83 (Filed 1978) 28 November 14.2; Robbery § § 1. deadly Assault weapon robbery 4.3— with assault with — —sufficiency firearm of evidence deadly prosecution against In a weapon four for defendants assault with a firearms, robbery following support evidence was sufficient to concert, finding jury acting that the four defendants were friends aiding abetting robbery, each was in the that all the others were principals charged: in the crimes defendant Brown was identified the victim person “long type as the who beat him in with a weapon” the face and defend- “yellow wearing top” ant Watkins as the man tank a witness saw a whom away walking lay few minutes later victim from the as he door of the help; crying store defendant Watkins owned the automobile several shot; grocery witnesses saw at store before after the was at victim store; perhaps grocery least three and four of the defendants went into the store, getaway when car would not crank after left the defendants Watkins to start remained the car while others fled the store behind car, patrolman picked up; spotted getaway where Watkins them when a all

Case Details

Case Name: Adams v. North Carolina Department of Natural & Economic Resources

Court Name: Supreme Court of North Carolina

Date Published: Nov 28, 1978

Citation: 249 S.E.2d 402

Docket Number: 28

Court Abbreviation: N.C.