25372_PASQUOTANK COUNTY_20000607

CAMA and DREDGE AND FILL
G E N E R A L M-2A
PERMIT
as authorized by the State of North Carolina JUL ®3 2000
Department of Environment and Natural Resources and the Coastal Resources Commission
in an area of environmental concern pursuant to 15 NCACri k- 1�;
Applicant Name ✓` i-1 i Phone Number
Address
City
State
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Project Location (County, State Road, Water Body, e)tc.)�, �% ` /` *, , (" I Ll +
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Type of Project Activity
PROJECT DESCRIPTION SKETCH
Pier (dock) Length �
x
Groin Length
number
Bulkhead Length
max. distance offshore
Basin, channel dimensions
cubic yards
Boat ramp dimensions
Other
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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 become null and void.
This permit must be on the project site and accessible to the permit of-
ficer when the project is inspected for compliance. The applicant certi-
fies by signing this permit that 1) this project 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.
(SCALE: .0 %
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applicant's signature
permit officer's signature
issuing date expiration date
tattachments
application fee

State of North Carolina vAepl td' 2000
MICHAEL F. EASLEY Department of ,Justice Ryke Longest
Environmental Division
ATTORNEY GENERAL P. O. BOX 629 Tel: [phone]
RA1-SIGH Fax: [phone]
27602-0629
July 14, 2000
R. L. Gray
1153 Salem Church Road CERTIFIED MAIL
Elizabeth City, NC 27909 RETURN RECEIPT REQUESTED
Re: Third party Hearing Request for Permit No. 25372A to Pasquotank County
Dear Mr. Gray:
The Chariman of the Coastal Resources Commission has decided to deny the hearing
request which you submitted concerning Permit No. 25372A to Pasquotank County. Enclosed
please find a copy of the order, signed by the Chairman of the Coastal Resources Commission,
denying the request submitted by you. You may appeal the Commission's decision by filing a
petition for judicial review in superior court within thirty days after receiving the order. A copy
of the judicial review petition must also be served on the Coastal Resources Commission's agent
for service of process at the following address:
Daniel F. McLawhorn, General Counsel
Dept. of Environment and Natural Resources
P.O. Box 27687
Raleigh, NC 27611
Sincerely,
JRe'Longest
Special Deputy Attorney General
Enclosure
cc: Merrie Jo Alcoke
Charles Jones
Donna Moffitt
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waw,me•
State of North Carolina
MICHAEL F. EASLEY Department of Justice
ATTORNEY GENERAL P. O. BOX 629
RALEIGH
27602-0629
July 14, 2000
Pasquotank County
Attn: Mike Etheridge
Director of Solid Waste
P.O. Box 39
Elizabeth City, NC 27907
Re: CAMA Permit Appeal
Dear Mr. Rizzo:
Reply to: Ryke Longest
Environmental Division
Tel: [phone]
Fax: [phone]
Enclosed please find the final order, signed by the Chairman of the Coastal Resources
Commission, denying the hearing request submitted by R.L. Gray.
As a result of the Chairman's decision, your permit is no longer suspended and construction
of the project may begin. Please note, however, that the petitioners can appeal the Chairman's
decision by filing a petition in superior court within thirty days following receipt of the order.
If you have any questions, please call me at [phone].
Very truly yours,
rly�
Longest
Special Deputy Attorney General
cc: Merrie Jo Alcoke
Donna Moffitt
Charles Jones
/34684

STATE OF NORTH CAROLINA BEFORE THE CHAIRMAN
COASTAL RESOURCES COMMISSION
COUNTY OF PASQUOTANK CMT 00-10
IN THE MATTER OF THE ) FINAL ORDER
THIRD PARTY HEARING REQUEST )
BY R. L. GRAY )
I. PASQUOTANK COUNTY'S PERMIT
Petitioner requests permission to file a petition for a contested case hearing as a third
party pursuant to N.C.G.S. § 113A-121.1(b). Petitioner challenges the issuance of CAMA
General Permit No. 25372A issued to Pasquotank County for construction of a public boat ramp
and boardwalk. The subject property is located at the intersection of Sawmill Road and N.C. 34
(Weeksville Road) on Newbegun Creek in Pasquotank County, North Carolina.
II. STANDARD OF REVIEW
Under the Coastal Area Management Act (CAMA), a third party may file a contested case
hearing petition to challenge the issuance or denial of a CAMA permit to someone else only if
the Coastal Resources Commission (CRC) first determines that a contested case hearing is
appropriate. Section 113A-121.1(b) of the North Carolina General Statutes provides that the
determination as to whether a hearing is appropriate should be based upon a consideration of
whether the Petitioner:
1. Has alleged that the decision is contrary to a statute or rule;
2. Is directly affected by the decision; and
3. Has alleged facts or made legal arguments that demonstrate that the
hearing request is not frivolous.

The CRC has delegated the authority to its Chairman to determine whether a third party
request for a hearing should be granted or denied. Rule 15A NCAC 7J .0301(b). A third party
whose hearing request is granted may file a contested case hearing petition with the Office of
Administrative Hearings. N.C.G.S. § 113A-121.1(b). A third party whose hearing request is
denied may seek judicial review. Id.
III. FINDINGS OF FACT
A. The permittee, Pasquotank County, applied for and received a permit for the
construction of a public boat ramp and boardwalk on Newbegun Creek in Pasquotank County.
B. General Permit No. 25372A authorizing the development was issued by the
Division of Coastal Management (DCM or Division) on June 7, 2000. The General Permit is
included in petitioner's third party hearing request materials, which are attached to the staff
recommendation as Exhibit A and incorporated by reference.
C. The subject property is located at the intersection of Sawmill Road and N.C. 34
(Weeksville Road) on Newbegun Creek in Pasquotank County, North Carolina. The proposed
development is located in designated Public Trust Areas and Estuarine Waters Areas of
Environmental Concern (AEC's).
D. The petitioner, R. L. Grey, owns property near the site of the proposed boat ramp.
Petitioner's property is bordered on the north by Trunk Creek, a tributary of Newbegun Creek.
These creeks form the boundary between petitioner's property and that property which is owned
by the permittee, Pasquotank County. See Pasquotank County Tax Map P-95, attached to the
2

staff recommendation as Exhibit B. Note that all handwritten words on the map are notations of
the Division and not the County.
E. As part of the application process, the permittee (through its agent) sent
notification of the proposed development to Mr. W. H. Morris. Mr. Morris' property is also
located on the other side of the creek and like petitioner, he is not an adjacent riparian property
owner. Mr. Morris did not provide comments on the proposed development.
F. R. L. Grey filed a third parry hearing request on June 23, 2000, challenging the
County's permit. See Exhibit A attached to the staff recommendation.
IV. CONCLUSIONS OF LAW
1. Petitioner has alleged that the subject CAMA permit decision is contrary to rule or
statute, and have satisfied the criteria for hearing established at N.C.G.S. § 113A-121.1(b)(1) by
alleging CAMA Permit No. OB2000-24C is contrary to certain Rules of the Coastal Resources
Commission.
2. Petitioner has demonstrated that he is directly affected by the issuance of Permit
No. OB2000-24C, and has therefore satisfied the criteria for hearing established at N.C.G.S. §
113A-121.1(b)(2).
3. Petitioner has not alleged facts or made legal arguments that demonstrate that the
request for the hearing is not frivolous. N.C.G.S. § 113A-121.1(b)3. Petitioner's request and
staff s recommendation disclose that no rule or statute has been violated. The permit was issued
lawfully and petitioner has not alleged any facts or provided information which would show that
3

DCM exceeded its authority, acted erroneously, failed to use proper procedure, or acted
arbitrarily and capriciously.
In order to prevail in a third party hearing request, petitioner must first allege that the
agency made a decision that is contrary to statute or rule. N.C.G.S. § I I3A-121.1(b)l. Petitioner
contends that he is an adjacent riparian landowner and the Division failed to properly notify him
of the proposed project. In support of this argument, petitioner cites to rule 15A NCAC 7J .0805.
While rule 7J .0805 refers to notification of adjacent riparian landowners under the
Dredge and Fill Act, this rule was repealed effective July 1, 1989. The current standard
governing notification for this type of development is found in rule 7H .1202 under the section
for general permits for construction of piers, docks and boathouses in estuarine and public trust
waters. That rule requires that the permit applicant must provide confirmation that a written
statement has been obtained signed by the adjacent riparian property owners indicating they have
no objections to the proposed work, or confirmation that the adjacent riparian property owners
have been notified by certified mail of the proposed work and given the opportunity to comment.
15A NCAC 7H .1202(b).
Petitioner is not an adjacent riparian landowner entitled to notification because
petitioner's property is located on the opposite side of the creek from the County's property. See
Map, Exhibit B attached to staff recommendation. Petitioner has not provided any specific
information to support his claim that he is an adjacent riparian property owner. Though
petitioner is an adjacent landowner, the rule clearly states that notification must be given to
adjacent riparian property owners. Pasquotank County tax maps and the deed to petitioner's
2

property both reveal that petitioner's property is bordered on the north by a creek. The maps
further show that the County's property is bordered primarily by Newbegun Creek and its
tributary, except on the west-northwest side, where it is bordered by Sawmill Road and
Weeksville Road. Thus, the North Carolina Department of Transportation is the only adjacent
riparian property owner entitled to notification. Since petitioner is not an adjacent riparian
property owner entitled to notification under rule 7H .1202, petitioner has failed to allege that
DCM's decision to issue the permit is contrary to statute or rule. N.C.G.S. § 113A-121.1(b)l.
Even if petitioner had been given official notification of the project and made comments prior to
permit issuance, the Division would still be required under CAMA to issue the permit if the
project met all applicable rules and guidelines. N.C.G.S. § 113A-120(b).
Petitioner also cited to the provisions in CAMA governing land use plans. Without any
argument accompanying the citation to N.C.G.S. § 113A-110(e) and (f), it is difficult to discern
how the land use plan guidelines in CAMA are relevant to petitioner's challenge in the case at
hand. Petitioner argues that there is a need for public review and comment on development of
this project and that there has been none. Subparts (e) and (f) of N.C.G.S. § 113A-110 pertain to
local noticing procedures which must be followed when a local government adopts or amends its
land use plan, requiring that there be public hearings prior to adoption of a plan and an
opportunity for interested persons to present objections and comments to the Coastal Resources
Commission. The statute does not require public comment and review of specific development
projects, such as this boat ramp.
5

In the section of petitioner's argument addressed to whether petitioner is directly affected
by the permit decision, petitioner first argues that the project will have an adverse effect on his
property due to wakes caused by the additional boat traffic. While this concern may support the
claim that petitioner is directly affected, concerns regarding the amount of water traffic in a given
area and associated boating issues such as wakes are not addressed by CAMA or the CRC's rules
and are not a basis of permit denial.
Petitioner secondly argues that the project will have an adverse effect on the community
by presenting a public danger since, in petitioner's opinion, the project is located at a busy
intersection that has a blind curve. Again, issues of boating safety, such as the amount of traffic
and speed, are not addressed by CAMA or the CRC's rules and therefore are not a matter for
proper consideration by DCM when issuing a permit.
Finally, petitioner argues that the project will have an adverse effect on the environment,
wildlife, and wetlands. Staff s maintains that the DCM Field Representative acted lawfully,
taking the standards of the CRC into full account. Though petitioner may personally believe that
the project does not have inherent value, such considerations do not amount to an allegation of a
decision which contravenes a statute or rule. Moreover, if a project meets the applicable rules
and guidelines, CAMA requires that the permit "shall" be granted. N.C.G.S. § 113A-120(b).
Therefore, Petitioners' request for a Third Party Hearing is hereby DENIED.
This the 13th day of July, 2000.
tugene B. Tomlinson, Jr.
Chairman
Coastal Resources Commission
0

CERTIFICATE OF SERVICE
This is to certify that I have served a copy of the attached Final Order on R.L. Gray by
causing a copy thereof to be placed in the United States Postal Service bearing sufficient postage
for delivery by first class mail, certified mail return receipt requested and addressed as follows:
R. L. Gray
1153 Salem Church Road
Elizabeth City, NC 27909
This the I `-/ day of July, 2000.
EP-419 5
7
rJr es P. Longest, Jr.
Special Deputy Attorney General
N.C. Department of Justice
P.O. Box 629
Raleigh, NC 27602-0629
[phone]

STAYE
LJUN 2 9 2000
State of North Carolina COAST%L f W--_'Nc f� NT
r.40f?EtiEA� ._.
MICHAEL F. EASLEY Department of .justice I-------- —�
ATTORNEY GENERAL P. O. BOX 629
RALEIGH REPLY TO Ryke Longest
Environmental Division
27602-0629 Tel. [phone]
Fax [phone]
June 27, 2000
Pasquotank County
Attn: Mike Etheridge CERTIFIED MAIL
Director of Solid Waste RETURN RECEIPT REQUESTED
P.O. Box 39
Elizabeth City, NC 27907
Re: Suspension of work -appeal of CAMA General Permit Number 25372A
Dear Mr. Etheridge:
The Chairman of the Coastal Resources Commission has received a request for an
administrative hearing to challenge General Permit Number 25372A issued to Pasquotank County
for the construction of a boat ramp and dock. The Third Party Hearing Request was filed by R.L.
Gray on June 23, 2000, so Chairman Tomlinson will have to make a decision on or before Monday,
July 10. Under N.C.G.S. § 113A-121.1, the permits are automatically suspended upon receipt of a
hearing request and remains suspended until either: (1) the Chairman denies the hearing request
(under standards set out in the statute); or (2) there is a final Coastal Resources Commission decision
on the permit appeal. You may not undertake any development under the permits until further notice.
The Division of Coastal Management will prepare a recommendation for the Chairman on
whether to grant or deny the hearing request. The Chairman must make a decision within 15 days
after receipt of the hearing request --in this case no later than July 10, 2000. If you wish to submit
any materials for the Chairman's consideration in ruling on the request for contested case hearing,
please send them to me at the letterhead address or by FAX to [phone] as soon as possible.
Sincerely,
Ryke Longest
Special Deputy Attorney General
cc: Charles S. Jones ✓/
Dennis Hawthorn
Merrie Jo Alcoke