Save Our Rivers, Inc. v. Town of Highlands, No. 166PA94

No. 166PA94 | N.C. | Sep 8, 1995

WEBB, Justice.

We note that the holding of the Court of Appeals in this case that the petitioners did not have the right to a contested case hearing in the OAH has been overruled in Empire Power Co. v. N.C. Dept. of E.H.N.R., 337 N.C. 569" court="N.C." date_filed="1994-09-09" href="https://app.midpage.ai/document/empire-power-co-v-n-c-department-of-environment-1320291?utm_source=webapp" opinion_id="1320291">337 N.C. 569, 447 S.E.2d 768, reh’g denied, 338 N.C. 314" court="N.C." date_filed="1994-11-02" href="https://app.midpage.ai/document/empire-power-company-v-nc-department-of-environment-health-and-natural-resources-division-of-environmental-management-1327823?utm_source=webapp" opinion_id="1327823">338 N.C. 314, 451 S.E.2d 634 (1994). There was no appeal in this case from the decision of the Court of Appeals. Although we now know it was erroneous, the holding of the Court of Appeals is res judicata and is the law of this case. King v. Grindstaff 284 N.C. 348" court="N.C." date_filed="1973-12-12" href="https://app.midpage.ai/document/king-v-grindstaff-1212875?utm_source=webapp" opinion_id="1212875">284 N.C. 348, 360, 200 S.E.2d 799, 808 (1973).

The question posed by this appeal is whether the petitioners in their petition to the superior court from the order of the DEM brought forward for review any question other than the petitioners’ right to present additional evidence. We hold that they did not do so.

N.C.G.S. § 150B-46 provides, “[t]he petition shall explicitly state what exceptions are taken to the decision or procedure and what relief the petitioner seeks.” N.C.G.S. § 150B-46 (1991). The petitioners say in their petition that the modification to the permit was granted “without any evaluation of potential adverse impacts on the environment of the Cullasaja River and Macon County and without any evaluation of alternative methods of wastewater treatment.” They also say:

6. Petitioners bring this action now to protect and preserve their right to have the substantive issues herein reviewed by the Superior Court.

7. Petitioners are prepared to present evidence and would request that they be allowed to present evidence in connection with this Petition as authorized by NCGS 150B-49, to show that the potential for adverse impact on the environment of the Cullasaja River does exist if the Town of Highlands is allowed to proceed with the construction and operation of the Wastewater Treatment Plant.

In the prayer for relief, the petitioners said:

Wherefore, Petitioners respectfully request that this Petition be allowed and that Petitioners be allowed to present additional evidence as to the potential adverse environmental impact on the Cullasaja River and that construction of and discharge from the proposed wastewater treatment plant of the Town of Highlands be stayed pending resolution of this matter.

As we read the petition, the only thing the petitioners requested was to be allowed to present further evidence. This question was determined by the superior court. The petitioners say at one place that the modified permit was issued without any evaluation of a p'otential adverse impact on the environment of the river and Macon County and at another place that they want to preserve the substantive issues for review. They do not say, however, that they challenge the decision of the DEHNR to authorize the construction of the plant or the decision of the DEM not to prepare an environmental review for the permit modification.

With respect to the second requirement of the statute, that the petition contain a statement as to what relief the petitioners seek, they asked only that they be allowed to present additional evidence. The petition does not satisfy the requirement of N.C.G.S. § 150B-49, that the petitioners explicitly state their exceptions to the proceedings. See Vann v. N.C. State Bar, 79 N.C. App. 173" court="N.C. Ct. App." date_filed="1986-02-04" href="https://app.midpage.ai/document/vann-v-north-carolina-state-bar-1251085?utm_source=webapp" opinion_id="1251085">79 N.C. App. 173, 339 S.E.2d 97 (1986).

The petitioners contend and the Court of Appeals found that the requirements of N.C.G.S. § 150B-46 were met because the petitioners attached to the petition the record of the OAH proceedings which sufficiently identifies the petitioners’ exceptions to the agency’s decision. The Court of Appeals said it was obvious the petitioners were attacking the “agency’s failure to perform an environmental assessment before modifying Highlands’ permit because the agency determined the modification was a ‘minor construction activity.’ ” Save Our Rivers, Inc. v. Town of Highlands, 113 N.C. App. 716" court="N.C. Ct. App." date_filed="1994-03-01" href="https://app.midpage.ai/document/save-our-rivers-inc-v-town-of-highlands-8892610?utm_source=webapp" opinion_id="8892610">113 N.C. App. 716, 724, 440 S.E.2d 334, 339. The difficulty for us is that the OAH proceedings were not made a part of the record on appeal. We cannot consider them. N.C. R. App. P. 9; State v. Hedrick, 289 N.C. 232, 221 S.E.2d 350 (1976).

For the reasons stated in this opinion, we reverse that part of the decision of the Court of Appeals which holds the petitioners are entitled to further judicial review.

REVERSED AND REMANDED.

Justice ORR did not participate in the consideration or decision of this case.