8

STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF PENDER 97 EHR 0791

JAMES W. and WINNIFRED KING, )

Petitioners )

)

vs. ) RECOMMENDED DECISION

)

DIVISION OF COASTAL )

MANAGEMENT, )

Respondent. )

This matter came on for hearing before the Honorable Meg Scott Phipps, Administrative Law Judge, on the 8th of December, 1997, in Carolina Beach, North Carolina. The Honorable Beecher R. Gray, Administrative Law Judge, was subsequently appointed to preside over this matter. The hearing was reconvened in Hampstead, North Carolina, on the 9th of October, 2001, to hear evidence on the current conditions on the property.

APPEARANCES

Petitioners: James W. King

Winnifred King

51 Oak Drive

Holly Ridge, NC 28445

Respondent: David G. Heeter

Assistant Attorney General

N.C. Department of Justice

P.O. Box 629

Raleigh, NC 27602-0629

ISSUES

1. Did the Town of Surf City Local Permit Officer err in denying a Coastal Area Management Act (CAMA) permit to allow the Kings to build a house on their oceanfront lot in Surf City because she found that their application was inconsistent with the rules of the Coastal Resources Commission and provisions in the Surf City Land Use Plan?

2. Should the Coastal Resources Commission grant a variance from the minimum erosion setback requirement of 60 feet in order to allow the issuance of a CAMA permit to build the house on the King’s lot?

STATUTES AND RULES IN ISSUE

N.C. Gen. Stat. 113A-100, et seq.

N.C. Gen. Stat. 113A-120

N.C. Gen. Stat. 113A-120.1

Rule 15A N.C.A.C. 7H .0304

Rule 15A N.C.A.C. 7H .0305

Rule 15A N.C.A.C. 7H .0306

Rule 15A N.C.A.C. 7J .0703

Rule 15A N.C.A.C. 7J .0210

FINDINGS OF FACT

Evidence Heard on December 8, 1997

1. The Petitioners, James W. and Winifred King, own an oceanfront lot at 1606 N. Shore Dr., Town of Surf City, Pender County, NC.

2. The King lot is located within the Ocean Hazard Area of Environmental Concern (AEC) designated by the Coastal Resources Commission (CRC) in Rule 15A NCAC 7H .0304.

3. Rule 15A NCAC 7H .0306(a) of the CRC establishes an erosion setback line which oceanfront development must comply with.

4. The erosion setback line requires oceanfront development to be located far enough landward to protect it from erosion over its anticipated lifespan. (Kirk, p. 23; Stroud, pp. 124-25.)

5. Rule 15A NCAC 7H .0306(a)(1) provides as follows:

If neither a primary nor frontal dune exists in the AEC on or landward of the lot on which the development is proposed, the development shall be landward of the erosion setback line. The erosion setback line shall be set at a distance of 30 times the long-term annual erosion rate from the first line of stable natural vegetation or measurement line, where applicable. In areas where the rate is less than two feet per year, the setback line shall be 60 feet from the vegetation line or measurement line, where applicable.

(Respondent’s Exhibit 6.)

6. The long-term annual erosion rate for Surf City is two feet per year so 30 times the annual erosion rate is 60 feet, the same as the minimum 60 setback. (Russell, pp. 39-40.)

7. The erosion setback is measured from the first line of stable natural vegetation because the vegetation’s root system helps to hold the sand in place and provide protection from wind and water. (Russell, pp. 41-42.)

8. By 1989, the vegetation line on the King’s lot was just oceanward of the house on the King’s lot, and house was no longer sited in compliance with the minimum 60 foot erosion setback. (Respondent’s Exhibits 5A and 5B; Russell, pp. 45-46.)

9. When the house on the King’s lot was built in the early 1980s, it had to comply with the minimum 60 foot erosion setback, but some 50 or so feet of lot had eroded away by 1989. (Russell, p. 46)

10. The King’s lot is located at the north end of Surf City, and some ten surrounding blocks were particularly hard hit by Hurricanes Bertha and Fran in 1996. (Kirk pp. 29-31; Respondent’s Exhibits 11A-B.)

11. Hurricanes Bertha and Fran were Category 3 hurricanes, and Bertha lowered the beach profile so the tides during Fran caused greater damage. (Stroud, p. 126.)

12. In 1996, the house on the King lot was destroyed during Hurricane Fran, and there was extensive erosion of the shoreline during Hurricanes Bertha and Fran.

13. On April 17, 1997, the Kings applied to Jane Kirk, Local Permit Officer (LPO), Town of Surf City, for a CAMA minor development permit to build a house on the lot. (Respondent’s Exhibit 1.)

14. Surf City has a Land Use Plan approved by the Coastal Resources Commission (CRC), and the Surf City LPO has the authority to grant or deny applications for CAMA minor development permits within the Town. (N.C. Gen. Stat. 113A-118(b); Respondent’s Exhibit 9.)

15. Because of the great number of permit applications which were filed after the two hurricanes, the Surf City LPO asked the Division of Coastal Management (DCM) for assistance in determining where the erosion setback line should be measured from on the King lot. (Kirk, p.21.)

16. The DCM determined that there was no primary or frontal dune on the King lot and thus the erosion setback line should be measured from the first line of stable natural vegetation. (Russell, p. 40.)

17. Because the lot had eroded so badly, the DCM determined that there was no longer a first line of stable natural vegetation on the lot as defined in Rule 15A NCAC 7H .0305(e). (Respondent’s Exhibit 7; Russell, p. 44.)

18. Using aerial photography taken after Hurricane Bertha, the DCM attempted to extrapolate a measurement line (in lieu of a first line of stable natural vegetation) but was unsuccessful due to the lack of any vegetation for some three blocks to the south and seven blocks to the north. (Russell, pp. 44-45; Stroud, pp. 118-20.)

19. The FEMA emergency berm that was pushed up along the upper end of the beach did not play any role in determining whether the erosion setback requirement had been complied with, and the area between the FEMA berm and the road was not build able since there was no vegetation line. (Russell, pp. 48, 59 & 65.)

20. In a letter dated June 16, 1997, Janet Russell, DCM, informed Mr. and Mrs. King that she had been unable to establish a vegetation line or measurement line on their lot and that it would be necessary to wait until the natural vegetation became reestablished to determine an erosion setback line for building purposes. (Respondent’s Exhibit 2.)

21. Because so much erosion had occurred, the beach came back almost to the road, and there was no buildable area on the King’s lot. (Kirk, pp. 22-23; Russell, pp. 50-51.)

22. In a letter dated June 19, 1997, Jane Kirk, Surf City LPO, informed the Kings that their permit application was denied under N.C. Gen. Stat. 113A-120(a)(8) because it was inconsistent with the erosion setback requirement in Rule 15A N.C.A.C. 7H .0306(a)(1). (Respondent’s Exhibit 3; Kirk, pp. 22-23.)

23. Ms. Kirk also informed the Kings that their application was denied under N.C. Gen. Stat. 113A-120(a)(8) because of a provision in the Surf City Land Use Plan requiring that all development in the Ocean Hazard AEC be located "so as to maximize a structure’s protection from wind and water and to minimize damage to the protective land forms of dunes and beaches in accordance with CAMA regulations." (Respondent’s Exhibits 3 and 9, p. 4; Kirk, pp. 25-27.)

24. Mr. and Mrs. King timely filed a contested case petition with the Office of Administrative Hearings challenging the denial of their permit application.

25. The Kings also petitioned the Coastal Resources Commission under N.C. Gen. Stat. 113A-121.1 and Rule 15A N.C.A.C. 7J .0703 for a variance from the erosion setback requirement and Land Use Plan. (Respondent’s Exhibit 10, p.40.)

26. The DCM moved to consolidate the hearings on the King’s permit appeal and variance request, and this motion was granted. (The King’s Variance Request is attached to the Respondent’s Motion to Consolidate.)

27. Prior to Hurricanes Bertha and Fran, there were other lots in the vicinity of the King’s lot which could no longer comply with the erosion setback. (Kirk, p. 29.)

28. Because of Hurricane Fran, there were other lots in the vicinity of the King’s lot where houses were destroyed or damaged so badly that they had to be demolished. (Kirk, p. 29; Russell, p. 49; Stroud, pp. 122-23.)

29. During Hurricanes Bertha and Fran, there were other lots in the vicinity of the King’s lot which were badly eroded. (Kirk, pp. 29 & 32-33; Stroud, pp. 122-23.)

30. Following Hurricanes Bertha and Fran, applications for permits to rebuild houses were denied for other lots in the vicinity of the King’s lot. (Kirk, p. 29; Russell, p. 49.)

31. To facilitate reestablishing a vegetation line and trapping moving sand, property owners may install sand fencing, sprig vegetation, and take other steps. (Russell, pp. 52-53.)

32. Neither the Town of Surf City nor the Division of Coastal Management favored pushing the FEMA berm towards the ocean to expand the lots since any material which was pushed oceanward would likely erode over the winter and weaken the berm system. (Russell, pp. 61-62 & 65-69.)

Evidence Heard on October 9, 2001

33. On October 4, 2001, Bob Stroud, Wilmington District Manager, Division of Coastal Management, inspected the King’s lot at Surf City. (Stroud, October 4, 2001, Transcript.)

34. He determined that a first line of stable natural vegetation has formed along the crest of the sand berm located immediately landward of the erosion escarpment. (Id.)

35. The 60 foot erosion setback as measured from the vegetation line on the King lot falls some ten feet short of the street right-of-way. (Id.)

36. The King’s lot is 70 feet deep as measured from the vegetation line to the street right-of-way, and thus the buildable area is only ten feet deep. (Id.)

37. There are six or seven lots immediately to the south of the King’s lot where houses were destroyed or damaged and severe erosion occurred as a result of Hurricanes Bertha and Fran. (Id.)

38. These other lots are also unbuildable because the erosion setback line falls near the street right-of-way. (Id.)

39. The King’s lot and the other nearby lots impacted by the Hurricanes have not recovered to the point where a residence can be constructed on them with any degree of safety. (Id.)

CONCLUSIONS OF LAW

In General

1. The Office of Administrative hearings has jurisdiction over the parties and the subject matter and there is no question of joinder or misjoinder.

Denial of Permit Application

2. The burden is upon the Petitioners to show by clear and convincing evidence that the Surf City Local Permit Officer erred in denying their CAMA permit application.

3. All development within the Ocean Hazard AEC must be located landward of the erosion setback line unless it falls within the list of exceptions in Rule 15A NCAC 7H.0307 which does not include single-family residences.

4. Rule 15A NCAC 7H.0306(a(1) requires that the erosion setback line for development on an oceanfront lot should be measured from the first line of stable natural vegetation wherever there is no frontal or primary dune on or landward of the lot.

5. The sand berm which the Town of Surf City pushed up along the beach did not qualify as a frontal or primary dune as defined in Rule 15A NCAC 7H.0305 because it offered little or no protective value in the event of a storm, and it played no role in locating the erosion setback.

6. There being no frontal or primary dune on or landward of the King lot, the erosion setback line on the King lot should be measured from the first line of stable natural vegetation.

7. On December 8, 1997, there was no first line of stable natural vegetation on the King lot as defined in Rule 15A NCAC 7H.0305(e).

8. The area in the vicinity of the King lot was so impacted by the 1996 hurricanes that a measurement line could not be extrapolated using aerial photography taken after Hurricane Bertha as provided in Rule 15A NCAC 7H.0305(e).

9. So much of the King lot eroded away during the 1996 hurricanes that the beach came almost back to the road, and a house could not have been located on the lot consistent with the erosion setback even if there had been a vegetation line.

10. On December 9, 1997, the King lot could not be developed consistent with the applicable rules of the Coastal Resources Commission, and the Surf City Local Permit Officer properly found that their permit application was inconsistent with the Commission’s rules.

11. The Surf City Land Use Plan requires that all development in the Ocean Hazard AEC must be in accordance with CAMA regulations, and the Surf City Local Permit Officer properly found that the King’s permit application was inconsistent with the Land Use Plan.

12. The Surf City Local Permit Officer did not err when she denied the King’s CAMA permit application under N.C. Gen. State §113A-110(a)(8) because of inconsistency with the rules of the Coastal Resources Commission and the Land Use Plan for Surf City.

13. There is presently a first line of stable natural vegetation on the King lot as defined in Rule 15A NCAC 7H .0305(e).

14. The minimum erosion setback as measured from the vegetation line presently falls some ten feet from the street right-of-way.

15. The buildable area on the King lot is only some ten feet deep, thus leaving insufficient space on the lot to construct a house.

Variance Request

16. The burden is upon the Petitioners to show that they can satisfy the four variance criteria in Rule 15A NCAC 7J.0703 by clear and convincing evidence. (The criteria are taken from N.C. Gen. Stat. §113A-120.1).