Stark v. N.C. Dep't of Env't & Natural Res., Div. of Land Res.

• Decision Date: 18 December 2012
• Docket Number: No. COA12–449.,COA12–449.
• Citation: 736 S.E.2d 553
• Parties: Rufus STARK and Betty Stark, Petitioners, v. N.C. DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, DIVISION OF LAND RESOURCES, Harrison Construction, Division of APAC Atlantic, Inc., and the North Carolina Mining Commission, Respondents.
• Court: North Carolina Court of Appeals

736 S.E.2d 553

Rufus STARK and Betty Stark, Petitioners,

v.N.C. DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, DIVISION OF LAND RESOURCES, Harrison Construction, Division of APAC Atlantic, Inc., and the North Carolina Mining Commission, Respondents.

No. COA12–449.

Court of Appeals of North Carolina.

Dec. 18, 2012.

Appeal by petitioners from order entered 28 September 2011 by Judge James U. Downs in Clay County Superior Court. Heard in the Court of Appeals 27 September 2012.

Stark Law Group, PLLC, Chapel Hill, by Thomas H. Stark, for petitioner appellants.

Attorney General Roy Cooper, by Assistant Attorneys General Sueanna P. Sumpter, Rufus Allen, and Special Deputy Attorney General Kathryn Jones Cooper, for the North Carolina Department of Environment and Natural Resources, Division of Land Resources, and the North Carolina Mining Commission respondent appellees.

Roberts & Stevens, PA, Asheville, by William Clarke; and Deborah Murphey, for Harrison Construction, Division of APAC Atlantic, Inc., respondent appellee.

McCULLOUGH, Judge.

Rufus Stark and Betty Stark (“petitioners”) appeal from an order of the trial court affirming the Final Agency Decision of the North Carolina Mining Commission (the “Mining Commission”). We affirm.

I. Background

Respondent Harrison Construction, Division of APAC Atlantic, Inc. (“Harrison”), holds Mining Permit No. 22–06, authorizing operation of a crushed stone quarry known as the Hayesville Quarry in Clay County, North Carolina. The Hayesville Quarry is located in the vicinity of Shewbird Mountain. Harrison's permit was issued by respondent North Carolina Department of Environment and Natural Resources (“DENR”), Division of Land Resources (“DLR”), in 1989 and renewed by DLR in 1999. On 5 January 2007, Harrison applied for a major modificationto its permit, seeking to add 37 acres to its previously permitted acreage and, within the proposed permit boundary, to increase the area disturbed by its mining operations by 22.1 acres.

Upon receipt of Harrison's application for modification, DLR routed the application to multiple state and federal agencies for review and comment, including the Asheville Regional Office of DENR's Divisions of Air Quality and Water Quality, the North Carolina Wildlife Resources Commission, the United States Fish and Wildlife Service, DENR's Division of Parks and Recreation, the State Historic Preservation Office's Division of Historical Resources, and DLR's North Carolina Geological Survey Section, as specified in N.C. Gen.Stat. § 74–50(b3) (2011). Upon receipt of written comments from those agencies, any concerns expressed were investigated by DLR and, where appropriate, additional information was requested from Harrison.

On 17 January 2007, Harrison sent notice of its application for modification to adjoining landowners of record. On 14 March 2007, James Simons, Director of DLR (“Simons”), determined that significant public interest concerning Harrison's permit modification application warranted a public hearing in the matter. Petitioners attended the public hearing conducted on 2 April 2007 and both submitted written comments and made an oral presentation at the public hearing. Petitioners subsequently forwarded additional written comments to DLR following the hearing.

Petitioners reside on a 32–acre tract of land located on the south face of Shewbird Mountain. Their property adjoins that of Harrison, with a common property line of approximately 1500 feet. Petitioners' home is approximately 300 feet from that line.

At the public hearing, petitioners described cracks in the foundation of their home and the worsening of cracks in the tile floor of their home. They also indicated a window in their home had been displaced in its frame and they had replaced four large windows whose vacuum seal had been “compromised.” Petitioners also stated the following concerns in their written comments expressing opposition to modification of the permit: the operation would have an adverse impact on water supply wells in the area and decrease the flow and quality of surface waters; it would destroy plants and animal habitats in the area of the proposed expansion; it would present a physical hazard to petitioners' home; it would have an adverse impact on publicly owned parks and recreation areas, as Shewbird Mountain is visible from various points in the area; and blasting would threaten the stability of rock outcroppings above their home. Prior to the 2 April 2007 public hearing concerning the subject permit modification application, petitioners had not made any complaints to DLR about Harrison's mining operation.

After hearing and considering the concerns of petitioners and various other attendees at the public hearing, on 27 April 2007, DLR sent Harrison a letter in which it requested the applicant submit additional information and studies. Specifically, Harrison was asked, inter alia, 1) to address screening of the mining operation from public view; 2) to obtain a groundwater study evaluating possible impacts of the proposed quarry expansion on water supply wells on the north, east, and south sides of Shewbird Mountain; and 3) to obtain a blasting study to determine if expansion of the quarry could occur as proposed with blasting levels remaining below the permit limits at the closest occupied dwelling and without mobilizing existing old debris slides on the east side of the mountain. In response to DLR's 27 April 2007 request for additional information, Harrison submitted a letter addressing the information requested along with a groundwater evaluation completed by Geological Resources, Inc. and a blasting evaluation completed by GeoSonics Inc. (“GeoSonics”).

In determining whether to approve the proposed permit modification, Simons considered the application and all relevant materials in light of the denial criteria set forth under N.C. Gen.Stat. § 74–51(d) (2011). Following that review, on 18 January 2008, DLR approved the requested modification to Harrison's mining permit.

On 21 February 2008, petitioners initiated a contested case in the North Carolina Office of Administrative Hearings (“OAH”) to challenge DLR's 18 January 2008 decision to approve Harrison's permit modification. A hearing was held before an Administrative Law Judge (“ALJ”) on 12–14 October 2009. At the contested case hearing, petitioners presented evidence to the effect that as of January 2008, their home had sustained some cracks in the foundation and in the tile floor. The cracks in the tile floor were present when petitioners moved into the home in 2001 but had lengthened recently. Petitioner Rufus Stark painted the foundation of the home in 2001 and did not notice any cracks at that time.

Petitioners also presented the testimony of two expert witnesses: Stephen Blevins (“Blevins”), who testified as an expert in the fields of blasting, geology, and professional engineering regarding soils and materials; and Bernard Feinberg (“Feinberg”), who testified as an expert in the fields of structural engineering and blasting. Blevins was retained by petitioners to review the GeoSonics blasting evaluation and comment upon it. Feinberg was retained by petitioners to visit their home and observe various defects at the residence. In addition, the ALJ heard testimony by Simons as to DLR's review of each of the statutory denial criteria set forth under N.C. Gen.Stat. § 74–51(d), as well as testimony by Jeffrey Straw (“Straw”), who testified as an expert in the field of ground vibration and acoustics analysis and its effect on structures; Straw also had prepared the GeoSonics blasting evaluation. On 28 January 2010, the ALJ entered a decision affirming DLR's decision to approve the permit modification.

The matter was then heard before the Mining Commission on 15 June 2010. Prior to the hearing, the parties were allowed to submit exceptions to the ALJ's decision and written arguments for consideration. At the hearing, the parties were also allowed to present oral arguments. Following deliberations, the Mining Commission voted to adopt the decision of the ALJ. The Final Agency Decision was signed on 8 July 2010 and served upon the parties.

On 6 August 2010, petitioners commenced an action in superior court seeking judicial review of the Mining Commission's Final Agency Decision. The matter was heard by the trial court on 28 December 2010, and on 28 September 2011, the trial court entered an order affirming the Mining Commission's Final Agency Decision in its entirety. Petitioners now appeal from the trial court's order affirming the Mining Commission's Final Agency Decision.

II. Standards of Review

Pursuant to N.C. Gen.Stat. § 74–61 (2011):

An applicant, permittee, or affected person may contest a decision of [DENR] to deny, suspend, modify, or revoke a permit or a reclamation plan ... by filing a petition for a contested case under G.S. 150B–23 within 30 days after [DENR] makes the decision. Article 4 of Chapter 150B of the General Statutes governs judicial review of a decision of the Commission.

Id.N.C. Gen.Stat. § 150B–51(b) (2011) provides:

The court reviewing a final decision may affirm the decision or remand the case for further proceedings. It may also reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the findings, inferences, conclusions, or decisions are:

(1) In violation of constitutional provisions;

(2) In excess of the statutory authority or jurisdiction of the agency or administrative law judge;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Unsupported by substantial evidence admissible under G.S. 150B–29(a), 150B–30, or 150B–31 in view of the entire record as submitted; or

(6) Arbitrary, capricious, or an abuse of discretion.

Id. “On judicial review of an administrative agency's final decision, the substantive nature of each [asserted error] dictates the standard of review.” N.C. Dep't of Env't...