{ "id": 11202124, "name": "D. G. MATTHEWS & SON, INC. A North Carolina Corporation, Petitioner-Appellee v. STATE OF NORTH CAROLINA ex rel., R. WAYNE MCDEVITT, SECRETARY, DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, Respondent-Apellant", "name_abbreviation": "D. G. Matthews & Son, Inc. v. State ex rel. McDevitt", "decision_date": "1998-12-01", "docket_number": "No. COA98-279", "first_page": "520", "last_page": "524", "citations": [ { "type": "official", "cite": "131 N.C. App. 520" } ], "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": "308 S.E.2d 442", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 601", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4765014 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0601-01" ] }, { "cite": "250 S.E.2d 250", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "296 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566069 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0357-01" ] }, { "cite": "244 S.E.2d 386", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562180 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0236-01" ] }, { "cite": "403 S.E.2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 651", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2538925 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0651-01" ] }, { "cite": "452 S.E.2d 337", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "344" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 556", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526015 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc-app/117/0556-01" ] } ], "analysis": { "cardinality": 546, "char_count": 11611, "ocr_confidence": 0.76, "pagerank": { "raw": 2.0446031217563963e-07, "percentile": 0.7483505795125507 }, "sha256": "475fddde88374317154841e729708dc2b3b542a3eebb5d909af33aef11b792cc", "simhash": "1:704a7263e87924d9", "word_count": 1863 }, "last_updated": "2023-07-14T20:31:28.584435+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge EAGLES and Judge TIMMONS-GOODSON concur." ], "parties": [ "D. G. MATTHEWS & SON, INC. A North Carolina Corporation, Petitioner-Appellee v. STATE OF NORTH CAROLINA ex rel., R. WAYNE MCDEVITT, SECRETARY, DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, Respondent-Apellant" ], "opinions": [ { "text": "SMITH, Judge.\nThis case is one of first impression with respect to proper interpretation of the North Carolina Scrap Tire Disposal Act (the Act). N.C. Gen. Stat. \u00a7\u00a7 130A-309.51-63 (1997). Specifically, the issues presented involve the proper construction of subsections (a) and (b) of N.C. Gen. Stat. \u00a7 130A-309.60 (1997).\nIn July 1987, two years prior to enactment of the Act, appellee, D.G. Matthews, Inc. (Matthews), purchased the \u201cTaylor Farm.\u201d On the date of purchase approximately twenty-thousand scrap tires were located on the property. Appellee was aware of these tires, and after buying the land he allowed no further disposal of tires but took no action to remove those existing. On 28 March 1994, appellant, Department of Environment and Natural Resources (DENR), issued Matthews a notice stating that the tires violated Title 15A N.C. Admin Code 13B.1105(a). DENR demanded the tires be removed pursuant to N.C. Gen. Stat. \u00a7 130A-309.60. Matthews responded stating that under the statute it was not the \u201cperson responsible for the nuisance.\u201d On 19 May 1995, DENR delivered a compliance order to Matthews mandating cleanup of the site and threatening a daily, non-compliance penalty of up to five-thousand dollars. After further correspondence regarding the \u201cperson responsible for the nuisance,\u201d Matthews petitioned DENR for a declaratory ruling interpreting the provisions of N.C. Gen. Stat. \u00a7 103A-309.60.\nOn 5 August 1996, State Health Director, Dr. Ronald H. Levine, issued the declaratory ruling. The ruling specifically did not address the issue of whether Matthews was the \u201cperson responsible for the nuisance.\u201d It did state, however, that a lien against the real property containing scrap tires may be instituted irrespective of the current owner\u2019s fault or responsibility in creating the nuisance. Matthews petitioned the Superior Court for judicial review of the declaratory ruling. On 13 June 1997, Judge Farmer reversed the declaratory ruling and entered judgment for Matthews. On 19 December 1997, Judge Farmer entered an amended judgment striking his previous judgment. In his amended judgment, he found:\n1. The statute under review, G.S. \u00a7 130A-309(b), distinguishes between the \u201cowner of the property\u201d on which a tire site is located and \u201cthe person responsible for the nuisance.\u201d\n2. The responsibility for remediating [sic] a nuisance pursuant to the statute devolves upon \u201cthe person responsible for the nuisance\u201d and not the \u201cowner of the property.\u201d\n3. The responsibility for repaying costs incurred by the State pursuant to the statute devolves upon \u201cthe person responsible for the nuisance\u201d and not the \u201cowner of the property.\u201d\nBased on the foregoing findings, Judge Farmer concluded in pertinent part:\n1. G.S. \u00a7 130A-309.60(b) does not allow the imposition of a lien on the owner\u2019s property irrespective of fault or responsibility of the current owner of the property for creating the nuisance. The lien arises only when the \u201cowner of the property\u201d is identical to \u201cthe person responsible for the nuisance.\u201d\nThe amended judgment disallowed a lien on Matthews\u2019 real property. Respondent appeals.\nN.C. Gen. Stat. \u00a7 150B-4(a) (1997) permits review of an agency\u2019s declaratory ruling in the same manner as that of an order in a contested case. Therefore, the standard of review for DENR\u2019s ruling is determined by N.C. Gen. Stat. \u00a7 150B-51 (1997). Under section 150B-51, a reviewing court is permitted to reverse or modify the agency\u2019s decision if the rights of the petitioners may have been prejudiced because the agency\u2019s findings, inferences, conclusions, or decisions are affected by error of law. Because appellee alleged in his petition for judicial review that appellant erroneously construed section 130A-309.60(b), our standard of review is de novo. See Friends of Hatteras Island v. Coastal Resources Comm., 117 N.C. App. 556, 452 S.E.2d 337 (1995). In de novo review, an appellate court may substitute its judgment for that of the agency. See id. at 567, 452 S.E.2d at 344.\nWhen construing a statute, this Court\u2019s primary task is to ensure that the legislative intent is accomplished. See Electric Supply Co. v. Swain Electrical Co., 328 N.C. 651, 403 S.E.2d 291 (1991); In re Banks, 295 N.C. 236, 244 S.E.2d 386 (1978). If the language of a statute is free from ambiguity and expresses a single, definite, and sensible meaning, judicial interpretation is unnecessary, and the plain meaning of the statute controls. See Mazda Motors v. Southwestern Motors, 296 N.C. 357, 250 S.E.2d 250 (1979). Where the words of a statute have not acquired a technical meaning, they must be construed in accordance with their common and ordinary meaning unless a different meaning is apparent or readily indicated by the context in which they are used. See State v. Koberlein, 309 N.C. 601, 308 S.E.2d 442 (1983).\nCareful examination of N.C. Gen. Stat. \u00a7 130A-309.60 leads us to determine that subsections (a) and (b) are unambiguous and that \u201cowner of the property\u201d and \u201cperson responsible for the nuisance\u201d are not synonymous. We further conclude that the phrase \u201cperson responsible for the nuisance\u201d is obviously intended to refer to the persons causing the tires to be amassed and that DENR must exhaust its remedies against the \u201cperson responsible\u201d before imposing a lien against the situs of a scrap tire nuisance.\nSubsection (a) of section 130A-309.60 assigns the task of determining whether a tire collection site is a nuisance to DENR. The section also provides the means by which DENR can abate such nuisances. Accordingly, DENR must first request that the \u201cperson responsible\u201d for the nuisance abate the nuisance within ninety days. If the nuisance is not abated in that time, DENR is empowered to order the \u201cperson responsible\u201d to abate the nuisance. The statute then prescribes, \u201cif the person responsible for the nuisance is not the owner of the property on which the tire collection site is located, the Department may order the property owner to permit abatement of the nuisance.\u201d N.C. Gen. Stat. \u00a7 130A-309.60(a) (1997) (emphasis added). This sentence is free from ambiguity. We see no indication that these phrases have acquired a technical meaning nor is a different meaning apparent or readily indicated by the context of the Act. Accordingly, they must be construed as their common and ordinary meaning directs. See Koberlein, 309 N.C. 601, 308 S.E.2d 442. The purpose of the sentence quoted above is to allow DENR or the \u201cperson responsible\u201d access to property upon which a nuisance exists in order to abate the nuisance. More importantly, the sentence indicates the intention that \u201cowner of the property\u201d and \u201cperson responsible for the nuisance\u201d are not to be used synonymously nor interchangeably. The sentence, however, does not preclude a determination that the owner of the property is in fact the person responsible for the nuisance. To the contrary, the language indicates three germane classifications: 1) those who are persons responsible but not owners, 2) those who are owners but not persons responsible, and 3) those who are persons responsible and owners.\nSubsection (b) of \u00a7 130A-309.60 sets forth the means by which DENR can recover its costs when it has abated a nuisance. DENR may request that a civil suit be initiated by the Attorney General to recover actual costs, administrative costs, and legal expenses from the person responsible for the nuisance, not the owner of the property. Subsection (b), when read in context with the body of section 130A-309.60, establishes that an owner, who is not the \u201cperson responsible,\u201d is not liable in a civil action by the Attorney General.\nAs we have stated, the \u201cperson responsible\u201d is primarily liable for the costs and expenses of abatement. Recognizing, however, that the person responsible for the nuisance might be unavailable for the recovery of costs, the legislature provided a secondary mechanism by which DENR could recover its actual costs of abatement. The last sentence in subsection (b) permits DENR to impose a lien on real property from which DENR has removed scrap tires. The amount of the lien is limited to the \u201cactual cost\u201d of removal. Furthermore, this provision specifically provides that a lien may be imposed only after nonpayment of actual costs by the \u201cperson responsible.\u201d\nIt is our opinion that DENR must determine the \u201cperson responsible\u201d prior to issuing abatement orders or instituting any civil action to recover the cost of DENR\u2019s abatement. Once that determination is made, they must pursue the \u201cperson responsible\u201d for the costs and expenses of abatement. Only when that avenue of collection has proven unsuccessful can DENR impose a lien in the amount of actual costs of abatement on the real property situs of the nuisance. In this case, Dr. Levine\u2019s declaratory ruling made no determination whether Matthews was the \u201cperson responsible\u201d or not. For this reason, the factual question of whether Matthews is the \u201cperson responsible\u201d is not before us. However, we do hold that absent other indicia of responsibility, mere ownership is inadequate to justify such a determination.\nFinally, we note that the original judgment entered by Judge Farmer expressed concern for the lack of procedural due process rights afforded by this statute. As his judgment was amended and that concern was not ultimately included, that issue is not before this Court. However, we emphasize this Court\u2019s continuing dedication to the preservation of those rights and believe that appellant will take any necessary steps to ensure that procedural due process rights of appellee, if any, are not violated.\nIn summary, we affirm Judge Farmer\u2019s interpretation of subsection (a) of section 130A-309.60 as enumerated in his findings above. However, we reverse his conclusion that under subsection (b) a \u201clien arises only when the \u2018owner of the property\u2019 is identical to \u2018the person responsible for the nuisance.\u2019 \u201d We thus affirm in part, reverse in part, and remand for further remand to DENR for additional proceedings consistent with this opinion.\nAffirmed in part, reversed in part, and remanded for further remand to DENR.\nChief Judge EAGLES and Judge TIMMONS-GOODSON concur.", "type": "majority", "author": "SMITH, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Lauren Murphy Clemmons, for the State.", "Batts, Batts & Bell, L.L.P., by Jeffrey A. Batts, for appellee." ], "corrections": "", "head_matter": "D. G. MATTHEWS & SON, INC. A North Carolina Corporation, Petitioner-Appellee v. STATE OF NORTH CAROLINA ex rel., R. WAYNE MCDEVITT, SECRETARY, DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, Respondent-Apellant\nNo. COA98-279\n(Filed 1 December 1998)\nEnvironmental Law\u2014 scrap tire disposal \u2014 lien on real property\nA trial court judgment concluding that the Scrap Tire Disposal Act did not allow the imposition of a lien on the current owner\u2019s property irrespective of fault or responsibility of the current owner and that a lien arises only when the owner of the property is identical to the person responsible for the nuisance was affirmed in part, reversed in part, and remanded. DENR must determine the person responsible prior to issuing abatement orders or instituting any civil action to recover the cost of DENR\u2019s abatement; once that determination is made, they must pursue the person responsible for the costs and expenses of abatement and can impose a lien on the real property only when that avenue of collection has proven unsuccessful. N.C.G.S. \u00a7 130A-309.60(a) and (b).\nAppeal by the State from judgment entered 19 December 1997 by Judge Robert L. Farmer in Wake County Superior Court. Heard in the Court of Appeals 26 October 1997.\nAttorney General Michael F. Easley, by Assistant Attorney General Lauren Murphy Clemmons, for the State.\nBatts, Batts & Bell, L.L.P., by Jeffrey A. Batts, for appellee." }, "file_name": "0520-01", "first_page_order": 554, "last_page_order": 558 }