North Carolinain the Office Of

NORTH CAROLINAIN THE OFFICE OF

ADMINISTRATIVE HEARINGS

WAKE COUNTY 01 EHR 0088

Martin Properties)

Mr. David Martin)

Petitioner,)

)

v.)

) DECISION

Town of Cary)

Development Services Dept.)

Erosion Control Office)

Respondent.)

______

This matter came before Senior Administrative Law Judge Fred G. Morrison Jr. on Monday and Tuesday, June 18-19, 2001, in Raleigh, North Carolina. The case involved the appeal of a civil penalty assessment in the amount of $5,000.00 for violations of the Town of Cary’s Unified Development Ordinance (hereinafter referred to as “UDO”). Specifically, the Town cited Petitioner for engaging in land disturbing activity without an approved erosion control plan or permit in violation of Chapters 5 and 14 of the UDO after having been specifically ordered to stop work. The Town assessed the maximum, one-time civil penalty provided for in § 18.1.2 of the UDO based on Petitioner’s prior record, the damage to the environment, and willful non-compliance.

APPEARANCES

For Petitioner:For Respondent:

Theodore S. DanchiWilliam C. Morgan, Jr.

106 Holleman StreetThe Brough Law Firm

P.O. Box 1600Ste. 800-A, 1829 E. Franklin St.

Apex, North Carolina 27502Chapel Hill, North Carolina 27514

ISSUES:

1.Whether Petitioner engaged in prohibited land disturbing activity without obtaining a permit and approval of an erosion control plan and continued to engage in that activity after being ordered to stop work.

2.Whether Respondent acted properly in assessing the one-time $5,000 civil penalty in this case.

STATUTORY SECTION IN QUESTION

The Sedimentation Pollution Control Act of 1973, N.C. Gen. Stat. §§ 113A-50 through 113A-71; the Administrative Procedure Act, Article 3, N.C. Gen. Stat. §§ 150B-22 through 150B-50; UDO §§ 2.1.4, 18.1.2, Chapter 14, Part 3 and Chapter 5, Part 9.

EXHIBITS RECEIVED INTO EVIDENCE

PETITIONER:

1. Map/plat of site
2. October 13, 2001 letter/notice of violation
3. October 16, 2001 letter/civil penalty assessment
4. Cary’s seeding standards
5. Chapter 18 of UDO
6. Cary website information
7. Herbert Cox’s bill for work

RESPONDENT:

1. Deed of Easement and Exchange Agreement
2. March 8, 2000 letter from Tutor to Martin
3. Chapter 5 of UDO
4. Chapter 14 of UDO
5. Before and After depiction utilizing aerial photograph (5A and 5B)
6. 1997 Notice of Violation
7. 1994 Notice of Violation
8. Notice of Violation
9. Erosion control plan for “Toys-R-Us” property
10. Photo of site
11. Photo of site
12. May 23, 2001 square footage calculations

FINDINGS OF FACT:

1.Petitioner is an individual residing and conducting business in Wake County, North Carolina.

2.Respondent is a municipal corporation organized and existing pursuant to N.C. Gen. Stat. §§ 160A-1, et seq. The Town is vested with the statutory authority to enforce an approved local erosion and sediment control program that meets or exceeds the State’s Sedimentation Pollution Control Act of 1973 and regulations promulgated thereunder, pursuant to G.S.§113A-60.

3.N.C. Gen. Stat. §§ 113A-52(6), codified in the Cary UDO in Section 2.1.4, defines “land disturbing activity” as “any use of the land by any person for residential, industrial, educational, institutional or commercial development or for highway and road construction and maintenance that results in a change in the natural cover or topography and that may cause or contribute to sedimentation.”

4.Section 5.9.2 of the Cary UDO prohibits land-disturbing activity impacting in excess of 12,000 square feet without first obtaining an environmental permit and approval of an erosion control plan that meets the standards set forth in Chapter 14 of the UDO.

5.Petitioner’s son, David Martin, Jr., owns property located behind the Best Western Hotel along walnut Street in Cary, Wake County, North Carolina (the “site”), more particularly described in Petitioner’s Exhibit 1. Petitioner’s company, South Hills Shopping Center, Inc., for whom he serves as President, holds an outstanding Deed of Trust on that same property.

6.Petitioner’s son claims an ownership interest in a strip of land bordering the above-described property as shown on Petitioner’s Exhibit 1, pursuant to a “Deed of Easement and Exchange Agreement” (Respondent’s Exhibit 1), whereby Martin, Jr. purports to grant a perpetual non-exclusive easement for ingress and egress in exchange for this “middle piece” or “slither” as it is referred to from time to time in the testimony. The other party to that agreement, Community Life Church, owned the remainder of the lands at issue as shown on Petitioner’s Exhibit 1, prior to the same being condemned by the Town of Cary.

7.In early October 2000, Petitioner began a project on Martin, Jr.’s tract and over onto the middle piece consisting of substantial clearing and grading of approximately 1.4 acres of land, and the piping of a small creek recognized and identified by the North Carolina Department of Environment and Natural Resources, Division of Water Quality, as a protected riparian stream and tributary to Lynn Branch, a tributary to the Neuse River within the Neuse River Basin.

8.On October 12, 2000, Mark Tutor (Cary Erosion Control Officer) and his supervisor Thomas L. Horstman (Cary Erosion Control Supervisor) were at the Best Western off of Walnut Avenue adjacent to Martin, Jr.’s tract to check on a retention pond when they became aware of land clearing and grading taking place on the adjacent property. Upon further inspection, they found the Petitioner and a heavy equipment operator, Mr. Glenn Williams, engaged in work.

9.Mr. Horstman informed Petitioner that the work being conducted on the site was illegal without an approved plan and grading permit. Mr. Horstman indicated that the grading work must immediately cease, but that Petitioner could seed and stabilize the site pursuant to Town standards. Mr. Horstman further indicated that although he had been instructed by the Town’s attorney not to post written stop work orders on the site due to some concerns that arose in another matter regarding local authority to post such orders, that he had authority to and was in fact verbally ordering all grading and related work to be halted immediately, and that he would be following up with a letter to that same effect.

10.On October 13, 2000, Mr. Tutor mailed a certified “Notice of Violation” letter to Petitioner dated October 13, 2000, that indicated “no land-disturbing activity may take place on this property without a permit and without an approved erosion control plan. The grading of the site that has been conducted must cease immediately and not be resumed until a permit has been issued and an erosion control plan approved.” The notice also required that the property be seeded within seven days of delivery.

11.Later on October 13, 2000, Mr. Tutor revisited the site. There he met with Mr. Glenn who was still working on the site. Following the meeting the day before, Petitioner orchestrated 12 hours of work in an effort to finish his clearing and stream-piping project. Specifically, Petitioner had finished installing a pipe leading from the edge of the property adjacent to US 64 down to the piped creek and into a junction with that pipe, built a dam, and placed a large junction box into the ground that had been on the truck on site the day before. This work took place after the verbal stop work order was issued, but prior to Petitioner receiving the written notice of violation dated October 13, 2000. Some of this additional work took place on the “middle piece” of property.

12.On October 16, 2000, Mr. Tutor sent Petitioner another certified letter assessing a $5,000.00 civil penalty pursuant to Section 18.1.2 of the UDO, due to the Town’s position that the land disturbing activity had been willfully continued, committed by someone with a prior record of failing to comply with the Town’s ordinances relative to sedimentation and soil erosion control, and had caused great damage to the natural environment.

13.Petitioner was motivated by his desire to obtain a higher appraisal for the property during the condemnation process which was imminent at the time the work was undertaken.

CONCLUSIONS OF LAW

1.All parties are properly before the Office of Administrative Hearings, and the Office has jurisdiction over the parties and the subject matter.

2.All parties have been correctly designated, and there is no question as to misjoinder or nonjoinder.

3.The burden of proof rests on the Petitioner to present evidence showing that the Respondent acted outside of its authority or jurisdiction or that it acted erroneously.

4.From at least early October, 2000, through October 16, 2000, Petitioner violated §5.9.2 of the Cary Unified Development Ordinance by engaging in land disturbing activity without first obtaining an environmental permit and approval of an erosion control plan.

5.The Cary Erosion Control Officer acted within his authority and jurisdiction when he verbally ordered Petitioner to immediately cease work on the site. Petitioner was not allowed to continue to work pending the receipt of written notification to cease work.

6.The Erosion Control Officer acted within his authority and jurisdiction when he assessed a one time civil penalty of $5,000.00, as Petitioner’s continued work on the site constituted a willful violation of law. In addition, Petitioner had been cited, but not fined, on at least four prior occasions for grading without an approved erosion control plan and permit. Finally, the Town correctly considered the damage that had been done to the natural environment in assessing the fine. The Town’s fine was reasonable under these circumstances.

1. Petitioner, although not the fee simple owner of the site in question, had sufficient possession and control of the property to make him accountable for the violations set forth herein. Petitioner planned, orchestrated and supervised the work on the property and continued to do so after having been specifically informed that the work taking place thereon was illegal, subjecting him to the Town’s enforcement actions.

8.The precise location of Petitioner’s continued work (whether on the Martin, Jr. tract or the tract purportedly conveyed to Martin, Jr. by the Community Life Church) is irrelevant as a matter of law.

9.Petitioner was not entitled to a hearing prior to the assessment of the one time $5,000.00 civil penalty. Petitioner’s due process rights are protected by the provision of the right to seek a contested case hearing, which he in fact availed himself of herein.

Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned makes the following:

DECISION

The Cary Town Manager should uphold the decision to assess a civil penalty against Petitioner for violations of Chapters 5 and 14 of the Cary Unified Development Ordinance in the amount of $5,000.00, unless the parties are able to settle their differences before such decision. It is noted that the hearing and Decision have been delayed in order to give the parties time to reach an amicable resolution, which hopefully will take place in the near future.

ORDER

It is hereby ordered that the Town serve a copy of its final agency decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, North Carolina 27699-6417, in accordance with N.C. Gen. Stat. § 150B-36(b).

NOTICE

The Town is required to give each party an opportunity to file exceptions to this Decision and to present written arguments prior to making the final agency decision. N.C. Gen. Stat. § 150B-36(a).

The Town is required by N.C. Gen. Stat. § 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties’ attorneys of record and to the Office of Administrative Hearings.

This the 6th day of September 2001.

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Fred G. Morison Jr.

Senior Administrative Law Judge

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