In re Community Association
No. 101
IN THE SUPREME COURT OF NORTH CAROLINA
3 June 1980
300 N.C. 267
IN THE MATTER OF THE APPEAL FROM THE DENIAL OF THE APPLICATION TO DREDGE AND/OR FILL OF THE BROAD AND GALES CREEK COMMUNITY ASSOCIATION
While notice of appeal of a judgment rendered out of session was required by Appellate Rule 3(b) to be filed with the clerk and served on the other parties, steps taken by appellant in an attempt to perfect its appeal were minimally acceptable in this case because the respondents were in fact put on actual notice of applicant‘s intent to appeal from any adverse decision where applicant stated in open court that it would appeal if it lost, and the applicant in open court requested that the proposed judgment to be submitted by respondents contain appeal entries so that applicant‘s notice of appeal would be perfected if the court should sign the proposed judgment.
2. Waters and Watercourses § 7- denial of dredge or fill permit-adverse effect on riparian owners-no unlawful delegation of legislative power
There are adequate statutory guidelines and procedural safeguards relating to the authority of the Department of Natural Resources and Community Development and the review commission to deny an application for a permit to dredge or fill in estuarine waters pursuant to
3. Waters and Watercourses § 7- denial of dredge or fill permit-adverse effect on riparian owners-constitutional exercise of police power
The statute giving the Department of Natural Resources and Community Development the authority to deny an application for a dredge or fill permit in estuarine waters upon finding “that there will be significant adverse effect on the value and enjoyment of the property of any riparian owners,”
In determining whether to deny an application for a dredge and fill permit in estuarine waters on the ground that there would be a significant adverse effect on the value and enjoyment of the property of riparian owners, the review commission was not limited to a consideration only of the effects of the dredging and filling itself on adjacent landowners but could properly consider the effects of a boat ramp which was the ultimate purpose of the dredge and fill work. Furthermore, even if the review commission exceeded its statutory authority in considering the effects of the boat ramp, the commission‘s denial of a dredge and fill permit would still be upheld where the application stated that the fill from the dredging operation would be placed on the roadbed leading to the boat ramp site; the riparian owners presented evidence that the roadbed has already suffered erosion, that erosion will continue unless adequate drainage measures which the applicant did not propose are taken, and that the erosion will affect the access area and the property of the riparian owners, since the adjacent owners’ property will be adversely affected by the dredging and filling itself because of the further erosion that will occur.
5. Waters and Watercourses § 7- denial of dredge and fill permit-boat ramp‘s adverse effect on riparian owners-sufficiency of evidence in record as a whole
There was substantial evidence in the record as a whole to support the decision of the review commission upholding the denial of a dredge and fill permit by the Department of Natural Resources and Community Development on the ground that a boat ramp which is the ultimate purpose of the dredge and fill work will significantly adversely affect the value and enjoyment of riparian property.
Justice EXUM dissenting in part.
ON appeal by an adjacent riparian landowner and the Marine Fisheries Commission from the decision of the Court of Appeals, 44 N.C. App. 554, 261 S.E. 2d 510 (1980) (opinion by Hedrick, J. with Wells, J. concurring and Martin [Robert M.], J. dissenting), which reversed the judgment entered by Rouse, J. on 6 November 1978 in CARTERET County Superior Court upholding the decision of the Marine Fisheries Commission denying the applicant a permit to dredge and fill on Broad Creek.
Applicant Broad and Gales Creek Community Association sought from the Department of Natural Resources and Community Development a permit to dredge and fill on Broad Creek for the purpose of constructing a boat launching ramp. Pursuant to
By letter dated 11 May 1976, Mr. Leo Tilley, Assistant Director of the Division of Marine Fisheries within the Department of Natural Resources and Community Development, informed the applicant that its request for the permit was denied. The denial was based on
Pursuant to
Wheatly, Wheatly, Davis & Nobles by Warren J. Davis for appellant Rugumak, Ltd.
Attorney General Rufus L. Edmisten by Special Deputy Attorney General W. A. Raney, Jr. for appellant Marine Fisheries Commission.
Bennett, McConkey & Thompson, P.A. by Thomas S. Bennett for appellee.
COPELAND, Justice.
[1] Six questions are presented for our consideration. The first issue is whether the Court of Appeals erred in failing to dismiss the applicant‘s appeal to that court due to a failure to properly serve notice of appeal on the opposing party. The Court of Appeals did not address this issue. Nevertheless, “[a] party who was an appellee in the Court of Appeals and is an appellant in the Supreme Court [Rugumak, Ltd.] may present in his brief . . . any questions which, pursuant to Rule 28(c), he properly presented for reivew to the Court of Appeals.” Rule 16(a), Rules of Appellate Procedure. Rule 28(c) deals with the presentation of additional questions by an appellee and Rugumak, Ltd., as appellee in the Court of Appeals, properly presented this issue to that Court by noting an exception, making a cross-assignment of error, and arguing the question in its brief in the Court of Appeals. Therefore, as provided in Rule 16(a), the question is properly before us for review.
Rule 3(a), Rules of Appellate Procedure, allows the notice of appeal to be given in open court when the “judgment or order . . . [is] rendered in a civil action or special proceeding during a session of court.” [Emphasis added.] The judgment in this case was rendered out of session and Rule 3(b) plainly provides that “[a]ny party entitled by law to appeal from a judgment or order . . . rendered in a civil action or special proceeding out of session may take appeal by filing notice of appeal with the clerk of superior court and serving copies thereof upon all other parties within the time prescribed by subdivision (c) of this rule.”
Thus, Rugumak was put on notice that the applicant would appeal in the event it lost in the trial court. While it is true that since the judgment was rendered out of session it is Rule 3(b) and not Rule 3(a) that is applicable, under the peculiar facts of this particular case we hold that the above noted steps taken by the applicant in an attempt to perfect an appeal are minimally acceptable because Rugumak was in fact put on actual notice of applicant‘s intention to appeal from any adverse decision. Such a procedure for giving notice of appeal should not, however, be repeated because the steps for taking an appeal are clearly set forth in Rule 3 and should be followed as written. This assignment of error is overruled.
Before discussing the remaining issues we must note that the parties to this appeal have not adhered to the literal requirements of Rule 16(a) of the Rules of Appellate Procedure. Rugumak was the appellee in the Court of Appeals and is the appellant here. The rule is: “A party who was an appellee in the Court of Appeals and is an appellant in the Supreme Court may present in his brief any questions going to the basis of the Court of Appeals’ decision by which he is aggrieved, and any questions which, pursuant to Rule 28(c), he properly presented for review to the Court of Appeals.” Rule 16(a).
The issue that Rugumak presented to the Court of Appeals for review pursuant to Rule 28(c) (upon a cross-assignment of error) was the denial of its motion to dismiss applicant‘s appeal. As
Nevertheless, we shall address all of the issues presented here by Rugumak as appellant because Rule 16(a) also provides: “A party who was an appellant in the Court of Appeals, and is either an appellant or an appellee in the Supreme Court, may present in his brief any question which he properly presented for review to the Court of Appeals, and is not limited to those actually determined by the Court of Appeals. . . .” Rule 16(a). The applicant was the appellant in the Court of Appeals and is the appellee here. Thus, it is clear that if Rugumak had properly limited itself to the issues decided against its position in the Court of Appeals, the applicant, after responding in its brief to this Court to those issues, could then have presented as additional questions for review, all of the issues that it had presented to the Court of Appeals without limitation to those actually determined by that Court. Such steps would have then necessitated a reply brief from Rugumak to respond to those additional questions presented in the applicant‘s brief to this Court.
These additional steps were unnecessary on this appeal. The applicant has vigorously argued all of the issues and clearly wishes this Court to address all of the issues within our potential scope of review. See, Drafting Committee Note to Rule 16. Therefore, even though Rule 16 has not literally been followed, the parties have put before us all of the issues that were before the Court of Appeals. Rugumak seeks a reversal on the point upon which it lost in the Court of Appeals and the applicant would like us to address the additional grounds that he presented
[2] The second issue is whether
Our recent decision in Adams v. N.C. Department of Natural and Economic Resources, 295 N.C. 683, 249 S.E. 2d 402 (1978), fully sets forth the current status of and analysis of cases under the non-delegation doctrine in this jurisdiction. The full exposition of the doctrine in Adams by Justice Huskins cannot be improved upon and it would serve no useful purpose to simply repeat it here. It remains for us to apply the doctrine to the statute at issue in this case.
The test is whether the delegation is accompanied by adequate guiding standards. If so, the delegation will be upheld. The need to delegate a limited portion of legislative powers in order to effectively utilize administrative expertise must be reconciled with the constitutional mandate that the legislature retain in its own hands the supreme legislative power. Jernigan v. State, 279 N.C. 556, 184 S.E. 2d 259 (1971). We must insure that the decision-making by the administrative agency is not arbitrary and unreasoned and that the agency is not asked to make important policy choices that might just as easily be made by the legislature. Adams v. N.C. Department of Natural and Economic Resources, supra. The goals and policies set forth by the legislature for the agency to apply in exercising its powers need be only as specific as the circumstances permit. Id.; N.C. Turnpike Authority v. Pine Island, Inc., 265 N.C. 109, 143 S.E. 2d 319 (1965).
The applicable standard by which to judge applications for permits to dredge and fill that is at issue in this case provides:
“The Department may deny an application for a dredge or fill permit upon finding: . . . (2) that there will be significant adverse effect on the value and enjoyment of the property of any riparian owners. . . .”
G.S. 113-229(e)(2) .
If the matter goes to the Commission for review, it shall conduct a hearing.
“At said hearing, evidence shall be taken by the review commission from all interested persons. . . . After hearing the evidence, the review commission shall make findings of fact in writing and shall affirm, modify or overrule the action of the Department concerning the permit application.”
G.S. 113-229(f) .“The burden of proof at any hearing shall be upon the person or agency, as the case may be, at whose instance the hearing is being held.”
G.S. 113-229(g)(5) .“No decision or order of the review commission shall be made in any proceeding unless the same is supported by competent, material and substantial evidence upon consideration of the whole record.”
G.S. 113-229(g)(6) .
The above quoted statutes give clear and sufficiently detailed guidance to the Department of Natural Resources and Community Development (Department) and the review commission with respect to granting or denying applications for permits to dredge and fill. “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. Department of Natural and Economic Resources, supra at 698, 249 S.E. 2d at 411. In fact, it is precisely this need to deal with individual factual circumstances, as in the case of applications for permits to dredge and fill in the state‘s estuarine resources, which makes the task impossible for the legislature to manage alone. The legislature has properly set forth adequate standards here to allow the agency, with its accumulation of expertise in this subject area, to apply the standards to the varying factual circumstances.
In its conclusions of law, the Commission defined three of the terms appearing in
“1. ‘Value’ as it appears in
G.S. 113-229(e) means fair market value.
2. ‘Enjoyment’ as it appears in
G.S. 113-229(e) means possession and beneficial use for the purposes to which it is reasonably susceptible by a person of ordinary sensibilities.3. As to what constitutes a ‘significant adverse effect on value and enjoyment’ as the phrase is used in
G.S. 113-229(e) , an objective standard is applied.”
Final interpretation of statutory terms is, of course, a judicial function, but definitions and interpretations of the statute by the agency with the expertise in administering it are entitled to due consideration by the courts. F.T.C. v. Texaco, Inc., 393 U.S. 223 (1968). We find the above definitions to be entirely proper and in accordance with the intent and goals of the legislature.
Also, we see nothing wrong in placing the burden of proof at the hearing before the review commission on the party who lost before the Department.
Another relevant circumstance in determining whether a particular delegation of authority is supported by adequate guiding standards is to consider whether the authority vested in the agency is subject to procedural safeguards. This aids in insuring that the agency‘s decision-making is not arbitrary and unreasoned. Adams v. N.C. Department of Natural and Economic Resources, supra. There are four sources of procedural safeguards: (1) those provided by the Act, (2) those contained in the North Carolina Administrative Procedure Act (APA), (3) the Administrative Rules Review Committee created by
Review in the superior court is pursuant to the APA.
[3] The Court of Appeals held that the grant of authority contained in
“The police power is inherent in the sovereignty of the State. . . . It is as extensive as may be required for the protection of the public health, safety, morals and general welfare. . . . [When there is a challenge to certain legislation on the grounds that the police power has been exercised in violation of constitutional provisions, the legislation is subjected to a two-pronged analysis.] First, is the object of the legislation within the scope of the police power? [In other words, does the legislation promote the public health, safety, morals, or general welfare?] Second, considering all the surrounding circumstances and particular facts of the case if the means by which the governmental entity has chosen to regulate reasonable? . . . This second inquiry is two-pronged: (1) Is the statute in its application reasonably necessary to promote the accomplishment of a public good and (2) is the interference with the owner‘s right to use his property as he deems appropriate reasonable in degree?” [Citations omitted.]
When the most that can be said against a statute is that whether it is an unreasonable, arbitrary or unequal exercise of the police power is fairly debatable, the court will not interfere and will not substitute its judgment for that of the legislature since that body is charged with the primary duty of determining what is in the interest of the public health, safety, morals and general welfare. Id.
The issue is whether
It is still to be noted that the restriction of (e)(2) is not a restriction regarding what a landowner may do with his own land but is concerned with what a landowner adjacent to our estuarine resources may do as far as dredging and filling in those waters when an adjacent landowner will be adversely affected in the enjoyment and value of his land. Nevertheless, the basic issue is the same: Is it of concern to the public when the actions of one landowner affect the value and enjoyment of another landowner‘s property? More specifically, does it promote the public health, safety, morals, or general welfare to place restrictions on what one landowner may do when his actions will adversely affect the value and enjoyment of the property of others?
We answered this issue in the context of a zoning case as follows:
“The whole concept of zoning implies a restriction upon the owner‘s right to use a specific tract for a use profitable to him but detrimental to the value of other properties in the area, thus promoting the most appropriate use of land throughout the municipality, considered as a whole. The police power, upon which zoning ordinances must rest, permits such restriction upon the right of the owner of a specific tract, when the legislative body has reasonable basis to believe that it will promote the general welfare by conserv-
ing the values of other properties and encouraging the most appropriate use thereof.” Blades v. City of Raleigh, 280 N.C. 531, 546, 187 S.E. 2d 35, 43 (1972). [Emphasis added.]
If the legislature may exercise the police power to restrict the rights of an owner on his own land, then a fortiorari, it may be exercised to restrict an applicant‘s right to dredge and fill in estuarine waters which belong to the public when the waters or adjacent private property will be adversely affected. Thus,
With respect to the second prong of the test regarding the police power, the means chosen to achieve the legislative objective, the permit application system created by
[4] The next issue is whether
It is proper to presume that an administrative agency has properly performed its official duties. In re Annexation Ordinance, supra; see, J. B. Montgomery, Inc. v. United States, 206 F. Supp. 455 (D. Colo. 1962), aff‘d, 376 U.S. 389 (1964). Of course, the responsibility for determining the limits of statutory grants of authority to an administrative agency is a judicial function for the courts to perform. Garvey v. Freeman, 397 F. 2d 600 (10th Cir. 1968).
The agency is a creature of the statute creating it and has only those powers expressly granted to it or those powers included by necessary implication from the legislative grant of authority. Soriano v. United States, 494 F. 2d 681 (9th Cir. 1974). The agency has those powers that are explicitly granted in the statute plus those powers that are ascertainable as inherent in the underlying policies of the statute, United Steelworkers of America, AFL-CIO v. N.L.R.B., 390 F. 2d 846 (D.C. Cir. 1967), cert. denied sub nom., 391 U.S. 904 (1968), and that may be fairly implied from the statute. Pan American World Airways, Inc. v. United States, 371 U.S. 296 (1963); Morrow v. Clayton, 326 F. 2d 36 (10th Cir. 1963). The agency‘s powers include those that the legislative body intended the agency to exercise. See, Midwest Video Corp. v. F.C.C., 571 F. 2d 1025 (8th Cir. 1978), aff‘d, 440 U.S. 689 (1979). Regulatory legislation should be given a practical construction so that the agency may perform the duties required of it by the legislative body. F.D.I.C. v. Sumner Financial Corp., 451 F. 2d 898 (5th Cir. 1971).
“The court is not limited to the mere words of a statute or what is expressly declared therein, and that which is in-
cidentally necessary to a full exposition of the legislative intent should be upheld as being germane to the law. In the construction of a grant of powers, it is a general principle of law that where the end is required the appropriate means are given and that every grant of power carries with it the use of necessary and lawful means for its effective execution. There is therefore conferred by necessary implication every power proper and necessary to the exercise of the powers and duties expressly given and imposed.” 1 Am. Jur. 2d, Administrative Law, § 44, p. 846 (1962).
It is the express policy and intent of the legislature in its grant of jurisdiction to the Department that it act to conserve our estuarine resources.
The same is likewise true when there is evidence that the ultimate purpose of the dredging, the end result, will significantly adversely affect adjacent riparian landowners. In order to fulfill the purpose of
To hold otherwise would be to unduly hamper the agency‘s efforts to achieve its statutory goals and purposes and to deprive it of a proper and necessary means (denial of a permit application when the end result of the project is detrimental to the estuarine resources or the property of any adjacent owners) to achieve the
In addition, even if we were to strike down all of the actions of the Commission in considering the effects of the boat ramp as being in excess of its statutory authority, we would still uphold the Commission‘s decision. This is true because the application states that the fill from the dredging operation would be placed on the roadbed leading to the site of the boat ramp. The riparian owners presented evidence that this roadbed has already suffered erosion, that the erosion will continue unless adequate drainage measures (that the applicant did not propose to implement) are taken and that the erosion will affect the access area and the property of the riparian owners. Therefore, the adjacent owners’ properties will be detrimentally affected by the dredging and filling itself because of the further erosion that will occur. For the above reasons we conclude that the agency acted within its statutory authority and these assignments of error are overruled.
[5] The next issue is whether there is substantial evidence in view of the entire record as required by
Consideration of the sufficiency of the evidence to support a decision under the whole record test does not allow us to replace the agency‘s judgment when there are two reasonably conflicting views. However, we are required to take into account the
The record properly shows the review commission‘s ruling with respect to each proposed finding and conclusion submitted by the parties as required by
The next issue is whether the Department or the review Commission acted arbitrarily or capriciously. Since the administrative bodies acted in accordance with the applicable statute which we find to be proper and constitutional in all respects and since the Commission applied an objective standard for determining whether there was a significant adverse effect on the value and enjoyment of the property of the adjacent owners, we find no arbitrary or capricious actions by either the Department or the review Commission. These assignments of error are overruled.
The last issue is whether the trial judge erred in signing the judgment he entered in this case. For all of the reasons discussed above, the trial judge was correct in all respects in affirming the decision of the Commission. Therefore, his judgment was properly signed and entered. These assignments of error are overruled.
The Court of Appeals is reversed and the judgment of the trial judge is reinstated.
Reversed.
I dissent from that portion of the majority opinion which concludes that
There is scant mention in the majority opinion of the evidence offered before the Marine Fisheries Commission (Commission) and the real basis for the objection of the appellant Rugumak, Ltd. This evidence is adequately summarized in the opinion of the Court of Appeals. The application for the dredge and fill permit was made by the Broad and Gales Creek Community Association for the purpose of constructing a public boat launching ramp. Thirty-four witnesses, living in the area of the ramp, appeared to support the project. Rugumak, Ltd., offered four witnesses, each of whom owned a one-fourth undivided interest in the Rugumak property adjacent to the proposed ramp. One of these expressed concern about people parking on his property and littering in the area. Another stated that she was worried about the litter and feared early morning noise which would preclude her sleeping late. Another witness testified that she was afraid of “some of the characters . . . that would come in and use [a public ramp]” and that the dogs in the neighborhood “would bark like mad” when strangers came in. Another witness expressed concern about losing her privacy. She said the boat ramp “will ruin what used to be private sunbathing and swimming” and that the noise would be detrimental to the enjoyment of her property. There was some concern about drainage and erosion problems on a dirt road leading to the ramp although all conceded that the Association had adequately maintained the road in the past. None of these four witnesses lived full time on the property. They vacationed there periodically.
There was no evidence that the dredging and filling operation itself would have any adverse effect on the enjoyment or value of the riparian owners’ property. While the majority notes that “the application states that the fill from the dredging operation would be placed on the roadbed leading to the site of the boat ramp” and there was some evidence that the roadbed was
It is clear that the objections of the riparian owners were not to the dredging and filling operation itself. Their objection was to the installation of a public boat ramp on Broad Creek. It is also clear that the Commission did not direct its attention to the effect of the dredging and filling; it denied the permit because of what it perceived to be the additional congestion, noise, and litter which would be caused in the area by a public boat ramp. In doing this, I believe the Commission exceeded its statutory authority.
“The Department may deny an application for a dredge or fill permit upon finding: (1) that there will be significant adverse effect of the proposed dredging and filling on the use of the water by the public; or (2) that there will be significant adverse effect on the value and enjoyment of the property of any riparian owners; or (3) that there will be significant adverse effect on public health, safety, and welfare; or (4) that there will be significant adverse effect on the conservation of public and private water supplies; or (5) that there will be significant adverse effect on wildlife or freshwater, estuarine or marine fisheries. In the absence of such findings, a permit shall be granted.” (Emphasis supplied.)
I am satisfied that the limiting language-“of the proposed dredging and filling“-was intended by the Legislature to apply not only to finding (1) but also to findings (2), (3), (4), and (5). The inquiry should be addressed to the effect of the proposed dredging and filling itself, not, as here, to the effect of whatever ultimate project the dredging and filling is designed to facilitate. This is so because the Marine Fisheries Commission‘s (and now the Coastal Resources Commission‘s, see
The gravamen of Rugumak‘s objection is that the use contemplated by the Community Association, to-wit, a public boat ramp, would constitute a private nuisance. If this is so, adequate redress lies in the courts. It does not, I submit, lie with the Department of Natural Resources and Community Development.
For this reason, I vote to affirm the decision of the Court of Appeals.
Notes
Often, however, the public may not be the beneficiary of the dredging and filling activity. It may solely benefit the private landowner who wishes to conduct the activity in the water adjacent to his property. No matter who the project may benefit, the denial of the permit in any instance where the water or adjacent private property will be adversely affected is, in both instances, a matter of public interest and therefore is a proper subject for regulatory legislation.