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Environmental – Administrative – Real Property – Variance – Land-Disturbing Activity – Sedimentation Pollution Control Act

Hensley v. North Carolina Department of Environment & Natural Resources. (Lawyers Weekly No. 10-06-0841, 17 pp.) (Paul M. Newby, J.) (Robin E. Hudson, J., dissenting) Appealed from Wake County Superior Court. (W. Osmond Smith, J.) From the Court of Appeals pursuant to G.S. § 7A-30(2). N.C. S. Ct.

Holding: Both the respondent-developer’s proposal and the respondent-agency’s variance conditions ensured that erosion and sedimentation were minimal during the period of golf course construction along Banks Creek. Our Court of Appeals held that the project was not “temporary” because of the developer’s presumed need to conduct periodic maintenance activity in the creek’s buffer zone; however, this reading contradicts the stated purpose of the Sedimentation Pollution Control Act: to encourage continued development.

We reverse the Court of Appeals’ reversal of the superior court’s entry of summary judgment for respondents. We remand for further proceedings.

The act’s preamble makes it clear that the General Assembly intended to promote development “with the least detrimental effects from pollution by sedimentation.” G.S. § 113A-51.

The act allows the Sedimentation Control Commission to “approve plans which include land-disturbing activity along trout waters when the duration of said disturbance would be temporary and the extent of said disturbance would be minimal.” G.S. § 113A-57(1).

The issue at hand is whether the “land-disturbing activity that the agency approved in its variance was “temporary” and “minimal” under § 113-57(1).

The Court of Appeals held that whether land-disturbing activity along a trout waters buffer zone is “temporary” and “minimal” depends on the scope of the entire project rather  than just the sedimentation effects of the project. We disagree.

According to the preamble, the purpose of the act is to minimize sedimentation  resulting from land-disturbing activity and not simply to regulate the land-disturbing activity  itself. Given the act’s overriding purpose of controlling sedimentation, we conclude that the temporary” and “minimal” requirements of § 113A-57(1) refer to the sedimentation effects of t the activity and not to the land use in general.

Rather than prohibiting development that encroaches on trout waters buffers, § 113A-57(1) aims to ensure that such development is undertaken only in a manner that minimizes sedimentation.

The Court of Appeals majority held “as a matter of law” that the periodic maintenance work that the developer will likely wish to perform in the buffer zone along Banks Creek may cause or contribute to sedimentation,’ and thus constitutes ongoing “land-disturbing activity.” We find this reading of the definition of land-disturbing activity to be overly literal.

Virtually any use of land may cause or contribute to sedimentation, so the Court of Appeals’ interpretation effectively reads the variance provisions of § 113A-57(1) out of the act. Because those variance provisions were enacted concurrently with the increased protections for trout waters, we do not believe the General Assembly intended such a result. Rather, we interpret § 113A-52(6) as a more general guide to the agency’s discretionary decision whether to grant a variance under § 113A-57(1).

A review of the developer’s variance proposal and the conditions of the variance reveals that the sedimentation effects during the construction of the golf course were minimized.

Moreover, as evidenced by the letter granting the variance, and in keeping with 15 NCAC 4A .0105(26), the developer properly obtained written approval from the agency for its land-disturbing activity in the Banks Creed buffer zone.

The Court of Appeals’ belief that occasional maintenance violates the “temporary” requirement of § 113A-57(1) regardless of whether additional variances are sought would essentially ban any type of permanent development near trout waters. This interpretation contradicts the act’s stated intention of encouraging continued development in this state.

Lastly, the agency’s interpretation of the purpose and meaning of § 113A-57(1) is entitled to some judicial deference. Although G.S. § 150B-51(c) says the administrative law judge in a contested case “shall not give deference to any prior decision made in the case,” § 150B-51(c) refers only to the agency’s decision in the specific case before the court. The trial court is not barred from considering the agency’s expertise and previous interpretations of the statutes it administers.

The agency’s interpretation that § 113A-57(1) gives the agency authority to grant variances when the impact from sedimentation will be “temporary” and “minimal” has been consistently applied.

We hold that the requirements of G.S. § 113A-57(1) that any “land-disturbing activity” within a trout waters buffer zone must be “temporary” and “minimal” refer to the effects of sedimentation resulting from the activity and not to the entire scope of the activity.

Reversed and remanded.


(Hudson, J.) The majority holds that land-disturbing activities including the removal of trees and canopy within the stream buffer and the permanent rerouting and enclosure of the stream within a pipe are not prohibited by G.S. § 113A-57(1). The majority also asserts that the term “land-disturbing activity” applies only to sedimentation and not to the activity itself. However, the statutory language explicitly provides otherwise.

I do not agree that the provisions of § 113A-57(1) apply only to the period of construction, and I am of the opinion that the majority in the Court of Appeals interpreted this statute exactly as the General Assembly intended.

While criticizing the Court of Appeals majority for “effectively read[ing] the variance provisions … out of the act,” the majority here instead reads the trout water protection provisions out of the act. My reading of the statutes and the arguments here leads me to conclude that the General Assembly intended to restrict development within the 25-foot trout water buffer, while providing ample opportunity for construction of all manner of edifices nearby, even allowing for the buffer area to be disturbed during construction, as long as the disruption is temporary and minimal.

Here, the project will permanently destroy trees and canopy along the watercourse and will reroute and enclose in a pipe the watercourse itself. These alterations are neither temporary nor minimal. I would affirm the Court of Appeals.

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