Leeuwenburg v. Waterway Inv. Ltd. Partnership

• Decision Date: 19 July 1994
• Docket Number: No. 935SC524,935SC524
• Citation: 445 S.E.2d 614,115 N.C.App. 541
• Court: North Carolina Court of Appeals
• Parties: William C. LEEUWENBURG, Plaintiff/Appellant, v. WATERWAY INVESTMENT LIMITED PARTNERSHIP, a North Carolina Limited Partnership and Fredrick H. Eshelman and wife, Donna G. Eshelman, Roger N. Schecter, Director Division of Coastal Management, North Carolina Department of Environment, Health, and Natural Resources, and Ann S. Hines, Local Permit Officer for Coastal Area Management Act and Zoning Enforcement Officer, New Hanover County, North Carolina, Defendants/Appellees.

Page 614

445 S.E.2d 614

115 N.C.App. 541

William C. LEEUWENBURG, Plaintiff/Appellant, v. WATERWAY INVESTMENT LIMITED PARTNERSHIP, a North Carolina Limited Partnership and Fredrick H. Eshelman and wife, Donna G. Eshelman, Roger N. Schecter, Director Division of Coastal Management, North Carolina Department of Environment Health, and Natural Resources, and Ann S. Hines, Local Permit Officer for Coastal Area Management Act and Zoning Enforcement Officer, New Hanover County, North Carolina Defendants/Appellees.

No. 935SC524.

Court of Appeals of North Carolina.

July 19, 1994.

Shipman & Lea by Gary K. Shipman, Wilmington, for plaintiff-appellant.

Atty. Gen. Michael F. Easley by Sp. Deputy J. Allen Jernigan, Raleigh, and Asst. Atty. Gen. Jill B. Hickey, for defendants-appellee Schecter.

Murchison, Taylor, Kendrick, Gibson & Davenport by Michael Murchison, Wilmington, for defendant-appellees Eshelman.

Asst. County Atty. Kemp P. Burpeau, Wilmington, for defendant-appellee Hines.

Kenneth M. Kirkman, Morehead City.

MARTIN, Judge.

Plaintiff's sole assignment of error is to the trial court's dismissal of his complaint pursuant to G.S. § 1A-1, Rule 12(b)(6). We agree with the trial court that the present action is precluded by plaintiff's failure to exhaust the administrative remedies provided by CAMA to seek review of the permit decision. Accordingly, we affirm the order dismissing this action.

When the record shows that there is no basis for declaratory relief, or the complaint does not allege an actual, genuine existing controversy, a motion for dismissal under G.S. § 1A-1, Rule 12(b)(6) will be granted. Gaston Bd. of Realtors v. Harrison, 311 N.C. 230, 316 S.E.2d 59 (1984). The Eshelmans' permit was granted pursuant to G.S. § 113A-118.1 entitled "General permits" which provides in part:

(d) The variance, appeals, and enforcement provisions of this Article shall apply to any individual development projects undertaken under a general permit.

G.S. § 113A-121.1 entitled "Administrative review of permit decisions" states:

(b) A person other than a permit applicant ... who is dissatisfied with a decision to deny or grant a minor or major development permit may file a petition for a contested case hearing only if the [Coastal Resources] Commission determines that a hearing is appropriate. A request for a determination of the appropriateness of a contested case hearing shall be made in writing and received by the Commission within 20 days after the disputed permit decision is made. A determination of the appropriateness of a contested case shall be made within 15 days after a request for a determination is received and shall be based on whether the person seeking to commence a contested case:

(1) Has alleged that the decision is contrary to a statute or rule;

(2) Is directly affected by the decision; and

(3) Has a substantial likelihood of prevailing in a contested case.

If the Commission determines a contested case is appropriate, the petition for a contested case shall be filed within 20 days after the Commission makes its determination. A determination that a person may not commence a contested case is a final agency decision and is subject to judicial review under Article 4 of Chapter 150B of the General Statutes.

G.S. § 113A-121.1(c) provides that the permit is suspended until the Commission makes a final decision in a contested case or determines that the review cannot commence. Additionally, G.S. § 113A-123 provides for "Judicial review" as follows:

(a) Any person directly affected by any final decision or order of the Commission under this Part may appeal such decision or order to the superior court of the county where the land or any part thereof is located, pursuant to the provisions of Chapter 150B of the General Statutes.... (Emphasis added.)

G.S. § 150B-43 provides a "Right to judicial review" as follows:

Any person who is aggrieved by the final decision in a contested case, and who has exhausted all administrative remedies made available to him by statute or agency rule, is entitled to judicial review of the decision ... Nothing in this Chapter shall prevent any person from invoking any judicial remedy available to him under the law to test the validity of any administrative action not made reviewable under this Article.

The foregoing provisions operate as statutory limitations on the ability of affected parties to seek judicial review. Based upon a plain reading of the statute, because no final order was entered by the Coastal Resources Commission, plaintiff is not entitled to judicial review. See High Rock Lake Assoc. v. Envt'l Management Comm., 39 N.C.App. 699, 252 S.E.2d 109 (1979). We have recognized that:

The Coastal Area Management ACT (CAMA), N.C.Gen.Stat. 113A-100, et seq., was enacted to provide for the protection and continued productivity of the coastal resources, to manage competing uses of those resources, and to protect public trust rights in the lands and waters of the coastal area. CAMA directs and empowers the Coastal Resource Commission (CRC) to enforce the Act's provisions. Under the authority vested in it by CAMA, the CRC has designated all public trust waters as subject to its management under coastal management development standards. Any development in public trust waters requires a CAMA permit. N.C.Gen.Stat. 113A-118.

Ballance v. N.C. Coastal Resources Comm., 108 N.C.App. 288, 289, 423 S.E.2d 815, 816 (1992), disc. review denied, 333 N.C. 536, 429 S.E.2d 553, reconsideration dismissed, 333 N.C. 789, 431 S.E.2d 21 (1993). Our Supreme Court has stated:

As a general rule, where the legislature has provided by statute an effective administrative remedy, that remedy is exclusive and its relief must be exhausted before recourse may be had to the courts. This is especially true where a statute establishes, as here, a procedure whereby matters of regulation and control are first addressed by commissions or agencies particularly qualified for the purpose. In such a case, the legislature has expressed an intention to give the administrative entity most concerned with a particular matter the first chance to discover and rectify error. Only after the appropriate agency has developed its own record and factual background upon which its decision must rest should the courts be available to review the sufficiency of its process. An earlier intercession may be both wasteful and unwarranted. "To permit the interruption and cessation of proceedings before a commission by untimely and premature intervention by the courts would completely destroy the efficiency, effectiveness, and purpose of the administrative agencies." (Citations omitted.)

Presnell v. Pell, 298 N.C. 715, 721-22, 260 S.E.2d 611, 615 (1979). The policy of judicial restraint acquires the status of a jurisdictional prerequisite when the legislature has explicitly provided the means for a party to seek effective judicial review of a particular administrative action. Id. at 722, 260 S.E.2d at 615. This procedure is particularly efficient when the subject of inquiry is of a very technical nature or involves the analysis of many records. Elmore v. Lanier, 270 N.C. 674, 155...