*1 COURT OF APPEALS Community In re Association ecutrix her had nor sister identified them or given whatsoever concerning them. Defendant’s character and credibili- ty were not in issue when the books were offered as part of the State’s case in As chief. the books were not competent corroborative or substantive purposes, they should have been ex- note, however, cluded. We only the titles of the books were read jury; the contents were not read or discussed. We con- admission, erroneous, clude on this basis that their while was not trial, so prejudicial as to require a new particularly in view of the almost overwhelming evidence tending to demonstrate defendant’s guilt. This assignment of error overruled. fifth,
Defendant has abandoned his eighth and eleventh assignments of error. carefully We have examined his sixth assignment of error and find it to be without merit. We conclude that defendant had a fair trial free from prejudicial error. For the reasons foregoing the judgment of conviction affirmed. Affirmed.
Judge concurs. WELLS concurs only. in the result HEDRICK Appeal Application IN THE MATTER OF the from the Denial of the Dredge Fill of the Broad and and/or Gales Creek Association
No. 793SC302 (Filed 1980) January Waters and Watercourses 7— dredge denial of or fill —effect owner The Marine arbitrarily Fisheries Commission acted capriciously or fill in estuarine waters for the of con- structing ground on the the- would have a 113-229(e)(2), adverse effect aon G.S. where all of the evidence related to adverse effects such parking, trespass, privacy, loss of but there was no evidence that the use approaches and its operation or the of boats on the waters would have adverse effect on the environment of estuarine resources of the riparian owner’s land. (Robert M.)
Judge Martin dissenting. *2 Rouse, Judge. Judgment APPEAL from applicant Court, County. 6 1978 in CARTERET entered November 15 1979. in on November Appeals Heard the Court This case arises from the refusal of the North Carolina a permit to grant Marine Fisheries Commission and/or County. Broad and Applicant in Carteret on Broad Creek for the Community sought Association Gales Creek By letter constructing ramp. purpose Divi- May Tilley, L. assistant director of the dated Leo 11 Fisheries, request Marine informed the that its applicant sion of objections because of being “strong was denied Although agen- landowners.” eleven State adjacent riparian from extensive objections proposal had no after lodged cies the Division never- inspections, review and on-site plan detrimentally would affect the project theless concluded that the landowners, Fred enjoyment value and of the two property Rugumak, J. and Ltd. Cone was timely by the the matter request applicant,
Pursuant Thirty-four August heard before the full Commission on witnesses, 1976. located, was ramp live in the area where the to be who testimony appeared support project. substantially that called to the effect applicant adversely enhance rather than affect the
ramp would a much- and that it would serve enjoyment property, of their public launching since there was no other needed public Lewis, William R. Board of in the area. Chairman Association, Directors of the Broad Gales Creek Association, 1500 representing testified members, community “numerous projects had undertaken add to our and that it wished “to public good”, for the community.” provide list of facilities to witnesses, each of four offered Respondents in the Rugumak proper- one-fourth undivided interests whom own They testified that ty adjacent proposed ramp. to the site of the adversely af- of their would be the value ways: following in the fected the construction of the on his people parking concern about Ruggles expressed Edward area; Gullette stated that George Mrs. littering she, too, early and feared noise morning was worried about litter late; Edward Schoen- Mrs. sleeping
which her from prevent characters “afraid of some of the said that she was born and that all the dogs it public ramp],” would come in and use [a in; came strangers like mad” when “would bark neighborhood losing she was concerned about Mrs. Fadum testified that Ralph used to be sun- will ruin what her privacy, “[i]t noise would be detrimental swimming”, and that bathing These witnesses also testified of her property. to her they drainage problems about erosion were concerned they conceded that the although road to the ramp, the dirt access past. maintained in the None of the four Association had the road *3 basis, they and a full-time but the occupy Cone, Fred the other frequently. their families vacation there initially the did not objected project, appear landowner who “very he had her he was testify. Mrs. Fadum testified that told She that he did not live on his admitted opposed” project. she did when he had last vacationed and that not know there. evidence, findings the Commission made At the close of law, and of and entered its Order dated
of fact conclusions and fill application dredge March for signifi- have a proposed project on the that “the ground the value and cant adverse effect on owner, Rugamak Ltd.” Court, review in Superior for Upon applicant’s petition affirmed deci- was heard before Rouse who matter findings sion its decision of Commission 113-229(e)(2), by the Gen. Stat. that the authorized constitutional, was supported statute was and that decision by to this Applicant thereupon appealed substantial evidence. Court. Bennett, Bennett, & Thomas McConkey S. Thompson, for
the applicant appellant. Edmisten, Attorney by Special Attorney General Deputy Jr., Attorney W. A. and Assistant General Amos Raney, General III, C. Dawson the Marine Fisheries Commission. for Davis, Davis, & Warren J. Wheatly, Wheatly Rugumak, Ltd. HEDRICK, Judge. is en- Statutes Carolina General North
Chapter provision question Development.” titled “Conservation 113-229, as follows: part in pertinent appeal, provides on this waters or or about estuarine or dredge Permits —(a) as hereinafter provided lakes. Except state-owned begun filling project excavation or before marshlands, waters, tidelands, or state-owned estuarine lakes, such shall first ob- to do parties desiring or party Natural Resources tain from Community Development. (e) for a may deny . . an . The Department (1) will be there finding: or fill permit upon dredging filling adverse effect of the significant (2) will that there be public; water or
on the use of the adverse effect on the significant (3) owners; will be or health, safety, effect on significant welfare; (4) effect on that there or (5) water supplies; the conservation *4 wildlife or adverse effect on will be significant water, fisheries. In the absence of or marine fresh estuarine granted. shall be findings, indicates, in nature of a conser- This as its title and preser- the protection Its is obvious: purpose vation measure. resources, in its estuarine particular, natural vation of the State’s measures are universally that such agreed have Courts resources. its inherent exercises the State of legitimate constitutional See interest in conservation. promote police power (1972). Nevertheless, Annot., any statute 3d 1431 46 A.L.R. strictly con- must be power of the police in the exercise enacted liber- with personal in the least interference as to result strued so 11, 3d, 11.1 Law Constitutional N. Index ty. 3 C. Strong’s §§ (1976). Moreover, ends legislative to achieve the the means chosen and, police power, of the in the context must be reasonable of the necessarily balancing entails standard reasonableness achieved. to be public good and the to be affected interest v. 258 S.E. 2d City Raleigh, See A-S-P Associates (1979); 16A Am. Jur. 2d Constitutional Law 385 alia, In us inter argues, the case before appellant erred in the decision of the Commission affirming Court for the reason that the Order was not sup- arbitrary ported substantial evidence it was above, As we capricious. pointed purpose out obvious regulating statutes the issuance of and fill is to permits protect the environment. the obvious of the Specifically, statute under protect consideration the environment of estuarine waters and resources from the detrimental effects of dredging filling such waters.
The Commission bottomed its decision on the and con- finding clusion that for the dredging required construction of would have a ramp “significant effect on the Rugamak 113-229(e)(2). N. Ltd.” C. Gen. Stat. It is significant that the wholly any us is record before devoid of evidence concerning effect that the proposed “dredging filling” pursuant to the per- mit have might on the estuarine resources contiguous to owners, Furthermore, including Rugumak. we think it logical adversely to assume that would not dredging affect the estuarine resources since the plans proposal were cir- culated and studied among requisite agencies, eleven State none raised objections of whom thereto.
All evidence exclusively this case relates developed to the effect that the use of approaches by its idiosyncratic would have on the in- sensitivities of four dividuals, boats, influx that the with and the people possible adversely littering affect their their There is property. no evidence about the effect of the dredg- itself. There is ing not one scintilla of evidence that the use waters, and its approaches, operation or the of boats on the would have effect on the environment *5 estuarine resources. Without belittling the concerns of the owners desires Rugumak property or their for privacy quiet, we a cannot construction of this accept statute that allows the State to favor interests over private public interests. legitimately The State in the exercise of its acts police power only general when acts the and the protect public good it thereby welfare. It matters not that interests are bene- private only fited. The State considers the benefit properly may members of the as a and it not exercise the group, See A-S-P police power private to favor or benefit some interest. Associates v. 16A Am. Jur. 2d Constitu- City Raleigh, supra; tional Law 360 et seq. §§
Yet, did in case. Despite that what the Commission evidence that construction of a boat overwhelming in the area would be beneficial public, private Commission allowed concerns to We with prevail. agree arbitrary appellant capricious. action was The Com- mission cannot use the police power private to further interests way. in this stated,
For the reasons judgment Court is reversed. The cause is remanded to the Superior Court entry an Order remanding proceeding directing the is- permit, suance of the the statute. required Reversed and remanded. WELLS concurs.
Judge (Robert M.) dissents.
Judge Martin (Robert M.) dissenting. MARTIN majority contends that the sole of N.C. Gen. 113-229 resources, protection Stat. is “the of the State’s preservation natural its This particular, ap- estuarine resources.” however, overlooks the fact has proach, Legislature of Natural granted Department Resources authority deny an Development (2) "... permit upon finding: effect on the value and . . .” Legislature empowered That has to consider the effects of prop- 113-229(d) erty owner is further which requires reinforced “ . . . applicant shall cause to be served an *6 adjoining ap- each tract that of the riparian property owner of of a filed with the State of North plicant copy of adjacent such owner shall have riparian Carolina and each such to file with the of days Department from the date of service objec- written Development Natural Resources fill.” Thus tions to or granting to statutory adjacent riparian given insures that owners be pattern and an opportunity object signifi- notice of a project enjoyment cant adverse effect of a on the value and project will grounds owner’s be for the denial of riparian Thus within the permit. acting the Commission statute adja- when the adverse effects of the on four project it considered cent land owners. may
While interests be the protection ecological primary aim is well protection provided interests for. The statute does not owner’s value require riparian enjoyment be confined to its estuarine value his objections project ecological be Therefore, legitimately nature. concerned with such objections and adverse effects as parking, trespass values. hearing At before the Marine Fisheries Commission testimony by there was adjacent owners which would support “the finding proposed project have a significant effect on the value and Ragamak Ltd.” According 113-229(g)(5), “The burden of shall proof hearing at person or ... agency case, at whose hearing instance the held.” In being although applicant adduced on the beneficial ef- whole, fects of the as a it did not meet its burden of prov- ing that not be effects on the value and enjoyment of the property of owners. In re Ap- Co., Seashell 213 S.E. peal App. 2d 374
I vote to affirm the judgment of the trial court.