13311_DOXEY, SANFORD & OVERBECK CHARLES_19941130

CAMA AND DREDGE AND FILLDEC
GENERAL 01994-�
PERMIT
as authorized by the State of North Carolina
Department of Environment, Health, and Natural Resources and. op;Coastal Resources Commission
in an area of environmental concern pursuant to 15A NCAC ` i E t--' C11
<f
Applicant Name
Phone Number
Address
City1 s�:
�ii � 4t _ State lf' _ Zip � > i r%
Project Location (County, State Road, Water Body, etc.) �..�ett'�1 A.
Type of Project Activity
PROJECT DESCRIPTION
Pier (dock) length,
SKETCH ..,� �;{� _ (SCALE:
I°
)
Groin length
­t"
a
}-
I
number04
Bulkhead length
max. distance offshore
Basin, channel dimensions _
!
I
+
#
I,�.
4
I
\°1
cubic yards
I
Boat ramp dimensions
Other
I
i
�
This permit is subject to compliance with this application, site
drawing and attached general and specific conditions. Any
violation of these terms may subject the permittee to a fine,
imprisonment or civil action; and may cause the permit to be-
come null and void.
This permit must be on the project site and accessible to the
permit officer when the project is inspected for compliance.
The applicant certifies by signing this permit that 1) this pro-
ject is consistent with the local land use plan and all local
ordinances, and 2) a written statement has been obtained from
adjacent riparian landowners certifying that they have no
objections to the proposed work.
In issuing this permit the State of North Carolina certifies that
this project is consistent with the North Carolina Coastal
Management Program.
,1(
applicant's signature
permit officer's signature
t issuing date expiration date
attachments
application fee-

......
D
State of North Carolina
MICHAEL F. EASLEY Department of Justice
ATTORNEY GENERAL P. O. BOX 629
RALEIGH
27602-0629
December 29, 1994
Mr. Eugene B. Tomlinson, Jr.
Chairman
Coastal Resources Commission
101 River Drive
Southport, North Carolina 28461
RE: Third Party Hearing Request Recommendations
Dear Chairman Tomlinson:
JAN031995 l
4�
I�esirwHMrw+w� a €� �wAwet�BMl��
REPLY M AmyR GOVe
Environmental Division
[phone]
[phone]-Fax
Please find enclosed the Division of Coastal Management's recommendation on Third
Party Hearing Request by Jerry A. Cook and Marilyn S. Cook and John W. Sherrill, 94 CMT IS.
The Division recommends that this request be denied.
Please contact me if you desire further information.
Very truly yours,
Amy R. Gillespie
Associate Attorney General
An Equal Opportunity / affirmative Action Employer

STATE OF NORTH CAROLINA
COUNTY OF NEW HANOVER
BEFORE THE CHAIRMAN
COASTAL RESOURCES COMMISSION
94 CMT 18
PETITION FOR THIRD PARTY ) RECOMMENDATION OF
HEARING BY JERRY A. ) DIVISION OF COASTAL MANAGEMENT
and MARILYN S. COOK; and )
JOHN W. SHERRILL
Pursuant to G.S. § 113A-121.1(b) of the Coastal Area Management Act (CAMA), Jerry
A. Cook, Marilyn S. Cook, and John W. Sherrill, the petitioners, have filed a Third Party Hearing
Request with the Coastal Resources Commission. The petitioners seek permission to file a
Contested Case Hearing Petition with the Office of Administrative Hearings to challenge the
issuance of CAMA General Permit No. 13311-D to Sanford Doxey, Jr. to construct a bulkhead
in Wrightsville Beach, New Hanover County, North Carolina.
T FA(�Tc
A. Sanford Doxey, Jr. is the owner of a residential lot located at 106 S. Channel Drive,
Wrightsville Beach, North Carolina.
B. On August 8, 1994, Mr. Doxey was issued LAMA General Permit No. 12576-D,
authorizing him to construct a bulkhead on the lot. [A copy of Permit No. 12576-D is attached
as Exhibit A and is incorporated by reference.]
C. On November 8, 1994, Permit No. 12576-D expired. No work had been done
Pursuant to it.
D. On November 30, 1994, General Permit No. 13311-D was issued by the Division of
Coastal Management (I)CM). [A copy of Permit No. 13311-D is attached as Exhibit B and is

incorporated by reference.] This permit was a re -issuance of Permit No. 12576-D and authorized
construction of a 63 foot long bulkhead with a maximum distance offshore of two feet.
E. On December 19, 1994, DCM received Petitioners' Third Party Hearing Request.
II. PETITIONERS' ARGUMENT
A. Petitioners contend that the issuance of Permit No. 13311-D is contrary to statute in
that the previous bulkhead violated the permit which authorized it, Dredge and Fill Permit No.
183-77.
B. Petitioners contend that Mr. Doxey does not have proper title and property rights on
the subject property because the land is state property pursuant to N.C.G.S. Chapter 146 and no
fee interest or easement from the state has been acquired.
C. Petitioners allege that they own property adjacent to the development site and "have
the right as does every citizen to the use of public lands and waters guaranteed by our laws."
D. Petitioners allege that expansion beyond the current bulkhead will affect water access
to and recreational use of the city park which adjoins the subject property to the northeast.
E. Petitioners allege that expansion beyond the current bulkhead will affect the value and
enjoyment of their land by increasing the size of Mr. Doxey's property and by reducing
petitioners' proximity to Banks Channel views and water access.
III. DIVISION'S ARGUMENT
A. The petitioners have alleged that "the permit decision is contrary to applicable statute
in that the property was bulkheaded out in violation of Dredge and Fill Permit No. 13311-D over
state submerged lands, waters, and tidal areas, and is therefore currently in violation of state law."
Contrary to petitioners' allegations, the existing bulkhead was constructed in accordance with the
2

permit, and the permit itself was in accordance with law. Furthermore, even if this permit had
violated a statute, petitioners do not allege, as required by N.C.G.S. § 113A-121.1, that the
present permit violates a statute.
1) Dredge and Fill Permit No. 183-77 was issued pursuant to N.C.G.S. § 113-229
on December 22, 1977 to Mr. Richard N. Waters, Mr. Doxey's predecessor in title. [A copy of
Permit No. 183-77 is attached as Exhibit C and is incorporated by reference.] Permit No. 183-77
authorized Mr. Waters to construct a bulkhead along the waterward boundary of the property in
question. The bulkhead was authorized waterward of the mean high water mark by a distance
not to exceed 5 feet. The project drawing indicates that the authorized bulkhead would be
located between 15 and 20 feet waterward of an existing bulkhead. [A copy of this project
drawing is attached as Exhibit D and is incorporated by reference.] This location is not
inconsistent with the five foot requirement, as the pre-existing bulkhead would have been above
the mean high water mark. The permit also authorized the filling of the area landward of the
bulkhead. The bulkhead was constructed according to Permit No. 183-77 and marks the present
waterward boundary of the property. Nothing in the permit or the way the bulkhead was
constructed suggests that the permit or the manner in which it was carried out violated the
Dredge and Fill Act or LAMA.
2) Even if Permit No. 183-77 were somehow in violation of a statute, petitioners
do not allege and cannot show that the decision to issue the present permit, General Permit No.
13311-D, was contrary to a statute or rule, as required by N.C.G.S. § 113A-121.1. The proposed
new construction has been duly authorized by the new permit. Under the Commission's rules,
bulkheads may be positioned an average distance of two feet waterward of the mean high water
M

mark. 15 North Carolina Administrative Code (NCAC) 7H.1105(b)(1). The existing bulkhead
marks the mean high water mark. Due to its elevation and its nature as a physical barrier, water
does not extend landward of it. Permit No. 13311-D would place the new bulkhead two feet
from this bulkhead and thus two feet from the mean high water mark, as authorized by 15 NCAC
714.1105(b)(1).
B. Petitioners allege that permittee Doxey does not have proper title and property rights
on the subject property because it is state property under N.C.G.S. Chapter 146. DCM denies
that the permit applicant does not hold title to the property in question and that there has been
any violation of CAMA or N.C.G.S. Chapter 146. N.C.G.S. § 146-3 provides in pertinent part
that "[n]o submerged lands may be conveyed in fee, but easements therein may be granted, as
provided in this Subchapter." N.C.G.S. § 146-6(b) provides:
If any land is, by act of man, raised above the high watermark of
any navigable water by filling, except such filling be to reclaim
lands theretofore lost to the owner by natural causes or as
otherwise provided under the proviso of subsection (d), title thereto
shall vest in the State and the land so raised shall become a part of
the vacant and unappropriated lands of the State, unless the
commission of the act which caused the raising of the land in
question shall have been previously approved in the manner
provided in subsection (c) of this section. Title to land so raised,
however, does not vest in the State if the land was raised within
the bounds of a conveyance made by the State Board of Education,
which included regularly flooded estuarine marshlands or lands
beneath navigable waters, or if the land was raised under permits
issued to private individuals pursuant to G.S. 113-229, G.S. 113A-
100 through 113A-128, or both.
(emphasis added). Under this provision, title to land raised under permits issued to private
individuals pursuant to N.C.G.S. § 113-229 does not vest in the State. Rather, title to such land
vests in the individual so raising the land in question.
9

C. The petitioners generally allege that the proposed construction will affect their rights
as citizens of the State to use public lands and waters. The petitioners have not, however, alleged
how the proposed project will affect their right to use public lands or waters. As set forth above,
title to the development site is held by the permit applicant. Therefore, DCM denies that the
proposed project will affect the petitioners' right to use and enjoy any public lands or waters.
D. Petitioners claim that the proposed bulkhead will cause a reduction in access to and
use of the adjoining public park. However, the bulkhead will extend seaward only two feet from
the existing bulkhead. Furthermore, it will terminate at the property line that divides the
permittee's land from the city park. This development will not cause an appreciable reduction
in access to and use of this park.
E. DCM contends that the petitioners' Third Party Hearing Request should be denied.
They have failed to show a violation of any statute or rule or a substantial likelihood of
prevailing in a contested case hearing, as required by N.C.G.S. § 113A-121.1(b).
IV. RECOMMENDATION
For the reasons stated herein, the Division of Coastal Management recommends that the
Chairman deny the petitioner's Third Party Hearing Request.
This the 29th day of December, 1994.
Amy/R. Gillespie
Associate Attorney General
N.C. Department of Justice
Post Office Box 629
Raleigh, NC 27602-0629
[phone]

CERTIFICATE OF SERVICE
This is to certify that a copies of the foregoing RECOMMENDATION OF DIVISION OF
COASTAL MANAGEMENT were served on Jerry A. Cook, Marilyn S. Cook and John W.
Sherrill petitioner, by causing a copies thereof to be deposited in the United States Mail, first
class, postage prepaid, addressed as follows:
Jerry A. Cook
P.O. Box 31063
Raleigh, North Carolina 27612
Marilyn S. Cook
3215 Darien Drive
Raleigh, North Carolina 27607
John W. Sherrill
P.O. Box 871
Wrightsville Beach, North Carolina 28480
This the 29th day of December, 1994.
C@
am
MICHAEL F. EASLEY
Attorney General
Amy I/ Gillespie
Asso ate Attorney General
N. C. Department of Justice
Post Office Box 629
Raleigh, NC 27602-0629
[phone]