{ "id": 11920091, "name": "DARE COUNTY BOARD OF EDUCATION, a body of politic and corporate, Plaintiff v. ELPIS SAKARIA, Defendant; DARE COUNTY BOARD OF EDUCATION, a body of politic and corporate, Plaintiff v. RAJ ALEXANDER TRUST, Elpis J.G.B. Sakaria, Trustee, Defendant; DARE COUNTY BOARD OF EDUCATION, a body of politic and corporate, Plaintiff v. JERA ASSOCIATES, a Maryland Partnership, Defendant; DARE COUNTY BOARD OF EDUCATION, a body of politic and corporate, Plaintiff v. JACK HILLMAN and wife, LILLIAN HILLMAN", "name_abbreviation": "Dare County Board of Education v. Sakaria", "decision_date": "1995-05-02", "docket_number": "No. COA94-739", "first_page": "609", "last_page": "616", "citations": [ { "type": "official", "cite": "118 N.C. App. 609" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "80 ALR3d 833", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "442 S.E.2d 149", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "153", "parenthetical": "abuse of discretion means action so arbitrary it could not have been result of a reasoned decision" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 352", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527565 ], "year": 1994, "pin_cites": [ { "page": "358", "parenthetical": "abuse of discretion means action so arbitrary it could not have been result of a reasoned decision" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0352-01" ] }, { "cite": "70 S.E.2d 500", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "pin_cites": [ { "page": "503" } ], "opinion_index": 0 }, { "cite": "235 N.C. 463", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625479 ], "year": 1952, "pin_cites": [ { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/nc/235/0463-01" ] }, { "cite": "226 S.E.2d 175", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "177" } ], "opinion_index": 0 }, { "cite": "30 N.C. App. 87", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552017 ], "year": 1976, "pin_cites": [ { "page": "90" } ], "opinion_index": 0, "case_paths": [ "/nc-app/30/0087-01" ] }, { "cite": "433 S.E.2d 471", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "473" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 857", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524424 ], "year": 1993, "pin_cites": [ { "page": "859" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0857-01" ] }, { "cite": "91 S.E.2d 180", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "pin_cites": [ { "page": "183", "parenthetical": "discussing predecessor to 115-517" } ], "opinion_index": 0 }, { "cite": "243 N.C. 520", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625976 ], "year": 1956, "pin_cites": [ { "page": "523", "parenthetical": "discussing predecessor to 115-517" } ], "opinion_index": 0, "case_paths": [ "/nc/243/0520-01" ] }, { "cite": "163 S.E.2d 35", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1968, "pin_cites": [ { "page": "38" } ], "opinion_index": 0 }, { "cite": "2 N.C. App. 233", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552505 ], "year": 1968, "pin_cites": [ { "page": "238" } ], "opinion_index": 0, "case_paths": [ "/nc-app/2/0233-01" ] }, { "cite": "33 U.S.C. \u00a7 403", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "33 U.S.C. \u00a7 1344", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 } ], "analysis": { "cardinality": 746, "char_count": 17904, "ocr_confidence": 0.739, "pagerank": { "raw": 6.849654986260373e-07, "percentile": 0.9643160663034794 }, "sha256": "758d184d9814621cbb42364a87262048e40bcabe6671bf4c8736f68ee0f3698c", "simhash": "1:baae532b154a3240", "word_count": 2848 }, "last_updated": "2023-07-14T20:04:31.897721+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges LEWIS and MARTIN, MARK D., concur." ], "parties": [ "DARE COUNTY BOARD OF EDUCATION, a body of politic and corporate, Plaintiff v. ELPIS SAKARIA, Defendant DARE COUNTY BOARD OF EDUCATION, a body of politic and corporate, Plaintiff v. RAJ ALEXANDER TRUST, Elpis J.G.B. Sakaria, Trustee, Defendant DARE COUNTY BOARD OF EDUCATION, a body of politic and corporate, Plaintiff v. JERA ASSOCIATES, a Maryland Partnership, Defendant DARE COUNTY BOARD OF EDUCATION, a body of politic and corporate, Plaintiff v. JACK HILLMAN and wife, LILLIAN HILLMAN" ], "opinions": [ { "text": "GREENE, Judge.\nElpis Sakaria, Raj Alexander Trust, Elpis J.G.B. Sakaria, Trustee, Jera Associates, and Jack and Lillian Hillman appeal from a 27 April 1994 final judgment and 25 May 1994 corrected judgment entered in Dare County Superior Court, decreeing that the Dare County Board of Education (plaintiff} has the authority to condemn lands for construction and use of proposed school facilities. All the defendants gave notice of appeal; however, because the assignments of error and arguments in defendants\u2019 brief only relate to property belonging to defendants Sakaria and the Hillmans, we need only address those arguments. N.C.R. App. P. 10(c)(1); N.C.R. App. P. 28(b).\nPlaintiff is responsible for the operation of the Cape Hatteras School (the School) in Buxton, North Carolina, which is located on the Pamlico Sound side of Hatteras Island, part of the Outer Banks. Beginning in 1985 and again in 1988, plaintiff recognized that the School needed additional athletic facilities in order to meet state and southern accreditation requirements and began efforts to expand the School\u2019s athletic facilities in 1985. Plaintiff owns a 12.5 acre tract of land which is located west of the School\u2019s campus, which includes all land from the highway to the Pamlico Sound east of defendants\u2019 lots. Therefore, defendants\u2019 lots are surrounded by plaintiff\u2019s property on three sides, and the Pamlico Sound on the fourth side. Because portions of plaintiff\u2019s land and defendants\u2019 lands are wetlands, they are within the jurisdictional bounds of the United States Army Corps of Engineers (the Corps) under Section 404 of the Clean Water Act, 33 U.S.C. \u00a7 1344 and Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. \u00a7 403 and of the North Carolina Department of Environment, Health and Natural Resources, Division of Coastal Management (Coastal Management) and subject to numerous state and federal regulations.\nPlaintiff planned to use its 12.5 acre lot, which contains 3.1 acres of wetlands, to expand the School\u2019s athletic facilities. In June 1988, Coastal Management denied plaintiff\u2019s requests for a dredge and fill permit and water quality certification to make the 12.5 acre tract suitable for building athletic fields because plaintiff\u2019s proposal would result in an unacceptable loss of wetlands. A second permit application by plaintiff in 1992 was denied by both Coastal Management and the Division of Environmental Management after the coastal wetlands were realigned. On 9 February 1993, plaintiff adopted a resolution approving condemnation of defendant\u2019s six lots, lot 5 belonging to the Hillmans and lot 6 belonging to Sakaria, and submitted a proposal involving defendants\u2019 lots to the Corps on 15 February 1993. Under this proposal, defendants\u2019 lots 5 and 6 would be used only as a source of fill and for wetlands mitigation. This proposal received a conditional permit from the Corps. On 19 February 1993, plaintiff filed four separate actions in Dare County Superior Court to condemn the six lots. The four actions were consolidated, and the court conducted a bench trial on the issue of plaintiff\u2019s authority to condemn defendants\u2019 property.\nAt trial, Allen Burrus (Mr. Burrus), a member of plaintiff, testified that after Coastal Management denied a permit to use plaintiff\u2019s 12.5 acres for additional facilities, plaintiff \u201cformed an ad hoc committee\u201d which looked for available and suitable properties that were within \u201cfive miles of the facility,\u201d consisted of \u201ceight or ten acres\u201d and \u201chad to be accessible by road, hard road.\u201d Mr. Burrus testified that the properties considered by the ad hoc committee were unavailable because they either did not meet the criteria necessary for school facilities, were deemed an Area of Environmental Concern, consisted of federal property belonging to the National Park Service, or were rejected by the various federal and state agencies having jurisdiction over the wetlands.\nMr. Burrus testified that in order to get a permit from the Corps, plaintiff had to mitigate damages to wetlands, and defendants\u2019 property was being offered to satisfy that mitigation \u201c[n]ot completely but at least partly.\u201d Plaintiffs proposal, which included using defendants\u2019 lots, received a conditional permit from the Corps. Under plaintiffs proposal, of the 1.8 acres necessary to satisfy the requirement of wetlands mitigation, \u201capproximately a half an acre\u201d of lots 5 and 6 would be used, with property owned by plaintiff supplying the remaining 1.3 acres necessary for mitigation. Mr. Burrus stated that plaintiffs ad hoc committee had \u201clooked for complete sites\u201d and, therefore, had not searched \u201cfor alternatives to find a half acre that can be offered for mitigation.\u201d Mr. Burrus agreed that there are numerous parcels within Dare County that would contain a half acre of property that could be used to satisfy the mitigation requirement, but because the agencies presented to plaintiff \u201cin verbal exchanges more than once\u201d that on-site mitigation would increase its chances of obtaining a permit, plaintiff looked for \u201con-site, on-kind mitigation.\u201d Mr. Burrus agreed, however, that the Corps permitted off-site mitigation. When asked whether plaintiff considered establishing the half acre of wetlands on property plaintiff already owned, Mr. Burrus replied, \u201cYes, sir, there was. . . . They just \u2014 they never gave us a yes on that. They gave us a yes on this particular scenario [involving defendants\u2019 properties] and that\u2019s it. And we offered them quite a few scenarios.\u201d\nGeorge Wood (Mr. Wood), an environmental consultant, testified that he was on the ad hoc committee that looked at forty-one possible sites for the proposed athletic fields. In the second application, plaintiff requested authorization to use a site south of Canadian Hole for off-site mitigation, but the request was denied by Coastal Management. Mr. Wood stated he did not know all the reasons for the denial, \u201cbut one of the considerations was that there was concern about off-site mitigation, that the preference of the state agencies was for mitigation which was closer to the development site.\u201d On-site means \u201cnear the site\u201d where the impacts are. He explained that although off-site mitigation is permitted under the federal regulations, \u201cit is not the highest preference\u201d because the Corps prefers \u201cto have at least the mitigation done in the same system as the unavoidable impacts are done. . . . [I]f there is the opportunity for a higher level of practicable mitigation, higher level in their priority of consideration, that you should use the highest level of mitigation practicable.\u201d Mr. Wood testified that the forty-one sites considered by the ad hoc committee were first viewed for use as the facilities, and \u201cthey were subsequently reviewed again for sites for mitigation, so we visited each site twice.\u201d None of the sites, however, were appropriate for various reasons, including distance, expense, unsuitability, or unavailability. Mr. Wood also stated that in considering defendants\u2019 lots:\nWe were trying to meet all the regulatory requirements, site-development requirements and we were trying as best we could to duplicate uses for as much of the property as possible so we could meet the minimization, so that we could meet the requirements of the mitigation not only by the Corps of Engineers but by the state agencies and so that we could meet the requirements of environmental management and other regulatory agencies that were all tugging on this application in different ways. So we felt that the proposed plan \u2014 in fact, we were encouraged by the agencies that the proposed plan had merit and that we should advance it and we did and we received approval. . . . [T]he school board advanced the application, but it was advanced at the advice and the consultation with the state and federal agencies, so it was \u2014 it was a negotiated application certainly.\nHe testified that plaintiff advanced its proposal involving defendants\u2019 lots to meet the Corps\u2019 requirements \u201cto minimize wetland impacts and then to adequately mitigate under their sequence of preference\u201d and to comply with applicable regulations. Mr. Wood also testified that he did not think Coastal Management \u201crejected the consideration of off-site mitigation. We certainly pursued it, continued to pursue it.\u201d\nAfter making findings of fact, the trial court, in its order filed 27 April 1994, concluded plaintiff \u201chas the authority to take the lands of\u2019 defendants by condemnation. The court also concluded the lands described in the complaints are necessary for the construction of the school facilities proposed by plaintiff and the uses of portions of the property for wetlands mitigation and a source of fill are necessary for the construction of the school facilities proposed and clearly implied in the condemnation authority of plaintiff. The trial court therefore ordered that plaintiff has the authority to condemn defendants\u2019 lots, vested title to defendants\u2019 properties in plaintiff, and ordered the Dare County Clerk of Superior Court to disperse the deposits made by plaintiff pursuant to N.C. Gen. Stat. \u00a7 40A-41 to each of the defendants \u201cas a credit upon the amount of compensation to be determined and provided by law.\u201d The court then entered a corrected judgment \u201cto include the specific descriptions of the lands affected and of the property acquired by\u201d plaintiff.\nThe issues presented are (I) whether N.C. Gen. Stat. \u00a7 115C-517 permits a local board of education to condemn land solely used as wetlands mitigation and a source of fill; and (II) if so, whether plaintiffs action of condemning lots 5 and 6 as necessary to build athletic facilities was an arbitrary abuse of discretion.\nI\nDefendants first argue that taking lots 5 and 6 only \u201cfor mitigation and as a source of fill is neither authorized by the limited grant of authority contained in N.C.G.S \u00a7 115C-517 nor clearly implied by that grant\u201d because such uses are not \u201cto construct any \u2018school facility.\u2019 \u201d We reject this argument.\nEminent domain is the \u201cpower of the State or some agency authorized by it to take or damage private property for a public purpose upon payment of just compensation,\u201d and the manner in which eminent domain may be exercised is prescribed by our General Assembly. Highway Comm\u2019n v. Matthis, 2 N.C. App. 233, 238, 163 S.E.2d 35, 38 (1968). Because the exercise of the power of eminent domain is in derogation of property rights, all laws conferring this power must be strictly construed; therefore, statutory grants of the power of eminent domain are \u201climited to the express terms or clear implication of the act or acts in which the grant of the power of eminent domain is contained.\u201d Id.\nLocal boards of education possess the power of eminent domain and have broad discretion to condemn under Chapter 40A of the General Statutes a \u201csuitable site or right-of-way\u201d for \u201ca school, school building, school bus garage or for a parking area or access road suitable for school buses or for other school facilities\u201d whenever the board is unable to acquire or enlarge the suitable site or right-of-way by gift or purchase. N.C.G.S. \u00a7 115C-517 (1994). \u201c[T]he determination of the local board of education of the land necessary for such purposes shall be conclusive\u201d provided that no more than a total of fifty acres for one site is condemned. Id. Plaintiff, therefore, has the discretion under Section 115C-517 to determine what land constitutes a \u201csuitable site\u201d to construct its athletic facilities and what land is \u201cnecessary\u201d to construct its athletic facilities, which may, depending on the circumstances of a particular case, encompass more than the actual land on which the athletic facility sits. Plaintiff, therefore, had the discretion under Section 115C-517 to determine that lots 5 and 6 are \u201cnecessary\u201d to construct its proposed athletic facilities.\nII\nUnder Section 115C-517, the courts are bound by the discretionary decision of a local board of education in selecting and determining the land necessary to construct a school, school building, school bus garage, a parking area, an access road suitable for school buses or \u201cother school facilities\u201d unless that decision is an \u201carbitrary abuse of discretion or disregard of law.\u201d Board of Educ. v. Allen, 243 N.C. 520, 523, 91 S.E.2d 180, 183 (1956) (discussing predecessor to 115-517); see also Department of Transp. v. Overton, 111 N.C. App. 857, 859, 433 S.E.2d 471, 473 (1993); Guyton v. Board of Transp., 30 N.C. App. 87, 90, 226 S.E.2d 175, 177 (1976). A discretionary act is an arbitrary abuse of discretion when it is \u201cnot done according to reason or judgment, but depending upon the will alone\u201d and \u201cdone without reason.\u201d In re Housing Auth., 235 N.C. 463, 468, 70 S.E.2d 500, 503 (1952); Wyatt v. Hollifield, 114 N.C. App. 352, 358, 442 S.E.2d 149, 153 (1994) (abuse of discretion means action so arbitrary it could not have been result of a reasoned decision).\nDefendant argues that plaintiffs decision to use lots 5 and 6 only for wetlands mitigation and as a source of fill is arbitrary and capricious because \u201cthere were alternate sources available to meet [plaintiff] \u2019s mitigation needs,\u201d and plaintiff did not explore available off-site mitigation alternatives. We disagree.\nThe evidence in this record shows that because the area on Hatteras Island on which plaintiff is proposing to build an athletic facility is an ecologically sensitive area containing a significant portion of wetlands which are under the jurisdiction of the Corps and Coastal Management and subject to other federal and state agencies, plaintiff cannot construct its proposed athletic facility without having additional land for wetlands mitigation and as a source for fill. For mitigation purposes, plaintiff has to create wetlands to replace the acre of wetlands which was to be filled under its proposal. The evidence also shows that after plaintiff\u2019s proposal in its first permit application was rejected, plaintiff formed a committee and considered forty-one sites as \u201ccomplete sites\u201d and for mitigation purposes, all of which were rejected because of cost, distance, or other reasons. In its second permit application, which was denied, plaintiff proposed areas of off-site mitigation which were also rejected by Coastal Management. Although plaintiff was aware that off-site mitigation was permitted and there were other sources of fill on Cape Hatteras, the Corps and Coastal Management gave off-site mitigation a lower preference than on-site mitigation, rejected all of the off-site mitiga-tions proffered by plaintiff, and encouraged the proposal involving lots 5 and 6, which would provide on-site mitigation. Although there is evidence that alternate sites were available which plaintiff did not consider, we cannot say on this record that plaintiffs decision to condemn lots 5 and 6 was \u201cnot done according to reason or judgment, but depending upon the will alone\u201d and \u201cdone without reason.\u201d Therefore, plaintiffs decision that lots 5 and 6 are necessary for construction of its athletic facilities was not an arbitrary abuse of discretion.\nDefendants also argue in their brief that the trial court \u201cclearly erred in finding that [plaintiff] made a good faith effort to acquire all \u25a0 six lots by purchase as required by N.C.G.S. \u00a7 115C-517.\u201d Because, however, defendants did not assign this finding as error, we need not address this argument. N.C.R. App. P. 10(c)(1). For these reasons, the decision of the trial court is\nAffirmed.\nJudges LEWIS and MARTIN, MARK D., concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Kellogg, White, Evans and Gray, by Ronald E. DeVeau, for plaintiff-appellee.", "Vandeventer, Black, Meredith & Martin, by Norman W. Shearin, Jr., Robert L. O\u2019Donnell, and R. Gregory McNeer, Jr., for defendant-appellants." ], "corrections": "", "head_matter": "DARE COUNTY BOARD OF EDUCATION, a body of politic and corporate, Plaintiff v. ELPIS SAKARIA, Defendant DARE COUNTY BOARD OF EDUCATION, a body of politic and corporate, Plaintiff v. RAJ ALEXANDER TRUST, Elpis J.G.B. Sakaria, Trustee, Defendant DARE COUNTY BOARD OF EDUCATION, a body of politic and corporate, Plaintiff v. JERA ASSOCIATES, a Maryland Partnership, Defendant DARE COUNTY BOARD OF EDUCATION, a body of politic and corporate, Plaintiff v. JACK HILLMAN and wife, LILLIAN HILLMAN\nNo. COA94-739\n(Filed 2 May 1995)\n1. Eminent Domain \u00a7 24 (NCI4th)\u2014 condemnation of land for wetlands mitigation \u2014 action permitted by statute\nN.C.G.S. \u00a7 115C-517 permits a local board of education to condemn land solely for use as wetlands mitigation and a source of fill.\nAm Jur 2d, Eminent Domain \u00a7 19.\nEminent domain: Right to condemn property owned for used by private educational, charitable, or religious organization. 80 ALR3d 833.\n2. Schools \u00a7 90 (NCI4th); Eminent Domain \u00a7 24 (NCI4th)\u2014 condemnation of land for wetlands mitigation \u2014 no arbitrary abuse of discretion\nPlaintiff board of education\u2019s decision that defendants\u2019 lots were necessary for construction of its athletic facilities was not an arbitrary abuse of discretion where plaintiff was required to have additional lands for wetlands mitigation and as a source for fill; after plaintiff\u2019s first proposal was rejected, a committee was formed which considered forty-one sites, all of which were rejected because of cost, distance, or other reasons; in its second permit application, which was denied, plaintiff proposed areas of off-site mitigation which were also rejected by Coastal Management; and the U.S. Army Corps of Engineers and Coastal Management gave off-site mitigation a lower preference than on-site mitigation, rejected all of the off-site mitigations proffered by plaintiff, and encouraged the proposal involving defendants\u2019 lots.\nAm Jur 2d, Schools \u00a7 79.\nAppeal by defendants from judgment entered 27 April 1994 and corrected judgment entered 25 May 1994 in Dare County Superior Court by Judge Jerry R. Tillett. Heard in the Court of Appeals 23 March 1995.\nKellogg, White, Evans and Gray, by Ronald E. DeVeau, for plaintiff-appellee.\nVandeventer, Black, Meredith & Martin, by Norman W. Shearin, Jr., Robert L. O\u2019Donnell, and R. Gregory McNeer, Jr., for defendant-appellants." }, "file_name": "0609-01", "first_page_order": 641, "last_page_order": 648 }