{ "id": 8520148, "name": "ORIN HAYWOOD WEEKS, JR. v. NORTH CAROLINA DEPARTMENT OF NATURAL RESOURCES AND COMMUNITY DEVELOPMENT and NORTH CAROLINA COASTAL RESOURCES COMMISSION", "name_abbreviation": "Weeks v. North Carolina Department of Natural Resources & Community Development", "decision_date": "1990-02-06", "docket_number": "No. 893SC495", "first_page": "215", "last_page": "226", "citations": [ { "type": "official", "cite": "97 N.C. App. 215" } ], "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": "160 S.E.2d 881", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1968, "pin_cites": [ { "page": "886" }, { "page": "886" } ], "opinion_index": 0 }, { "cite": "273 N.C. 581", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575798 ], "year": 1968, "pin_cites": [ { "page": "588" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0581-01" ] }, { "cite": "258 S.E.2d 444", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "451" } ], "opinion_index": 0 }, { "cite": "298 N.C. 207", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569787 ], "year": 1979, "pin_cites": [ { "page": "218" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0207-01" ] }, { "cite": "302 S.E.2d 204", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "210" } ], "opinion_index": 0 }, { "cite": "308 N.C. 255", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4710415 ], "year": 1983, "pin_cites": [ { "page": "264" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0255-01" ] }, { "cite": "388 S.E.2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1989, "opinion_index": 0 }, { "cite": "325 N.C. 714", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2489393, 2488819, 2489452, 2492647 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/325/0714-01", "/nc/325/0714-03", "/nc/325/0714-04", "/nc/325/0714-02" ] }, { "cite": "384 S.E.2d 8", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "page": "14" }, { "page": "15" }, { "page": "19" } ], "opinion_index": 0 }, { "cite": "325 N.C. 352", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2489703 ], "year": 1989, "pin_cites": [ { "page": "363" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0352-01" ] }, { "cite": "126 S.E.2d 732", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "pin_cites": [ { "page": "737-38", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "257 N.C. 507", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568936 ], "year": 1962, "pin_cites": [ { "page": "514", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/257/0507-01" ] }, { "cite": "265 S.E.2d 155", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "160" } ], "opinion_index": 0 }, { "cite": "300 N.C. 126", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559865 ], "year": 1980, "pin_cites": [ { "page": "133" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0126-01" ] }, { "cite": "289 S.E.2d 363", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 1982, "pin_cites": [ { "page": "366" }, { "parenthetical": "citation omitted" }, { "page": "366" }, { "page": "369-70" }, { "page": "366" }, { "page": "370" }, { "page": "366" } ], "opinion_index": 0 }, { "cite": "305 N.C. 366", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569908 ], "year": 1982, "pin_cites": [ { "page": "369" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0366-01" ] } ], "analysis": { "cardinality": 984, "char_count": 26423, "ocr_confidence": 0.767, "pagerank": { "raw": 4.658990868581424e-07, "percentile": 0.9275654681025804 }, "sha256": "5871d3cac036884f1ccc49ea246cdcfbd7c6df9da8e7afeebb0bdab7e16b3705", "simhash": "1:3fdb8b62346fdae2", "word_count": 4303 }, "last_updated": "2023-07-14T17:09:00.422652+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BECTON and PHILLIPS concur." ], "parties": [ "ORIN HAYWOOD WEEKS, JR. v. NORTH CAROLINA DEPARTMENT OF NATURAL RESOURCES AND COMMUNITY DEVELOPMENT and NORTH CAROLINA COASTAL RESOURCES COMMISSION" ], "opinions": [ { "text": "GREENE, Judge.\nPlaintiff-petitioner appeals the trial court\u2019s grant of summary judgment for the State. The undisputed facts show that plaintiff is a littoral property owner on Bogue Sound who applied for a major development permit to build a 900-foot-long pier to reach deep waters in which to dock his sailboat. Bogue Sound is a portion of Atlantic Ocean waters subject to the ebb and flow of the tide. Defendants are administrative bodies of the State of North Carolina. North Carolina Department of Natural Resources and Community Development (\u201cNRCD\u201d) is the administrative body administering the Coastal Area Management Act (\u201cCAMA\u201d), pursuant to N.C.G.S. \u00a7 113A-100, et seq. North Carolina Coastal Resources Commission (\u201cCommission\u201d) is the administrative arm of NRCD, established by the General Assembly to designate areas of environmental concern and to consider applications for development in these areas. N.C.G.S. \u00a7\u00a7 113A-104 (1983), 113A-113 (1983), 113A-118 (1987). Plaintiff applied for a major development permit to build the pier pursuant to N.C.G.S. \u00a7 113A-118(d)(l). N.C.G.S. \u00a7 113A-120 provides:\n(a) The responsible official or body shall deny the application for permit upon finding:\n(5) In the case of areas covered by G.S. 113A-113(b)(5), that the development will jeopardize the public rights or interests specified in said subdivision.\nN.C.G.S. \u00a7 113A-120(a)(5) (1987). N.C.G.S. \u00a7 113A-113(b)(5) provides that the Commission can designate as areas of environmental concern \u201cwaterways and lands under or flowed by tidal waters or navigable waters, to which the public may have rights of access or public trust rights . . .\u201d N.C.G.S. \u00a7 113A-113 (1983). The Commission considered and denied plaintiff\u2019s application.\nWithout appealing the Commission\u2019s findings pursuant to N.C.G.S. \u00a7 113A-123(a), plaintiff filed a complaint in the Superior Court requesting the relief provided in \u00a7 113A-123(b), alleging that the Commission\u2019s actions were an unreasonable exercise of police power. N.C.G.S. \u00a7 113A-123 (1983).\nIn his complaint, plaintiff alleges:\n7. At periods of high water the area of approximately 600 feet from the shoreline of the land of the Plaintiff is not navigable except by shallow draft vessels. [Emphasis added.]\n8. That the Plaintiff advised the [Commission] that he wished to keep a small sailboat in front of his house, that is why he needed to get to at least 3V2 feet of water.\n15. That the final order of the Coastal Resources Commission so restricts the use of Plaintiff\u2019s property, as to deprive him of the practical\u2019 uses thereof.\n16. That the actions of the Defendants are an unreasonable exercise of police power, and the order constitutes the equivalent of a taking without compensation.\nN.C.G.S 113A-123(b) provides in pertinent part:\n[T]he [superior] court shall determine whether [the Commission\u2019s final] order so restricts the use of [plaintiff\u2019s] property as to deprive him of the practical uses thereof, being not otherwise authorized by law, and is therefore an unreasonable exercise of the police power because the order constitutes the equivalent of taking without compensation. . . The burden of proof shall be on petitioner as to ownership and the burden of proof shall be on the Commission to prove that the order is not an unreasonable exercise of the police power, as aforesaid. Either party shall be entitled to a jury trial on all issues of fact . . . The method provided in this subsection for the determination of the issue of whether such order constitutes a taking without compensation shall be exclusive and such issue shall not be determined in any other proceeding. . . .\nThe State answered plaintiff\u2019s complaint and moved for summary judgment on the grounds that plaintiff alleged no property interest in submerged tidal lands superior to the State\u2019s ownership of lands held in the public trust, plaintiff only owned a qualified right of access over tidal waters subject to public trust rights, CAMA dictated denial of the application because public trust rights were jeopardized by the proposed pier, plaintiff failed to obtain judicial review of the Commission\u2019s findings of fact in its denial of plaintiff\u2019s application and was bound by the findings, and the denial of plaintiff\u2019s application was neither an unreasonable exercise of police powers nor a deprivation of the practical uses of plaintiff\u2019s property. In support of its motion, the State offered the Commission\u2019s findings of fact in its order denying plaintiff\u2019s application. Those findings in pertinent part are as follows:\nFindings of Fact\n1. Description of Proposed Project:\nd. The site of the proposed pier is located in the public trust, coastal wetlands, and estuarine waters areas of environmental concern, as designated by the Coastal Resources Commission pursuant N.C G.S. 113A-113. . . .\ne. The proposed pier would have a footprint shadow of approximately 5,700 square feet (900' long by 6' wide with a T-head platform measuring 15' by 20'). Approximately 120 feet of salt marsh cord grass and 5,700 square feet of black needle rush would be shaded by the proposed pier. The project would involve approximately 5,580 square feet of surface water and bottom land, as well as submerged aquatic vegetation. . . .\nf. The petitioner [plaintiff] applied for a 900 foot long pier so that it would extend to the area in front of his property where the water depth first reached 372 to 4 feet mean low water. He intends to use the pier to dock his 23 foot sail boat which has a fixed keel requiring minimum water depth of 3V2 feet. . . .\n2. Inconsistency of Proposed Pier with CAMA Guidelines\na. The proposed pier would be several times longer than the majority of piers authorized under CAMA which are generally under 200 feet in length. The proposed pier would be significantly longer than any pier previously permitted by CAMA on this shoreline. Piers in the vicinity of the proposed project extend 150-250 feet into Bogue Sound. . . .\nb. Coastal Resources Commission guideline 15 NCAC 7H.0208(b)(e) requires that piers not extend beyond the established pier length along the same shore line for similar uses.\nc. Expert testimony from the Assistant Director for DCM [Division of Coastal Management] established that \u201csimilar use\u201d within the meaning of 15 NCAC 7H.0208(b)(6)(e) properly refers to the type of use of the adjacent property, i.e. single family residential, commercial, etc. \u201cSimilar use\u201d does not refer to the size of the boat owned by the applicant or type of recreational activity desired by the applicant. . . .\nd. The \u201csame shoreline\u201d for purposes of 15 NCAC 7H.0208(b)(6)(e) is established by the DCM staff on a case by case basis; in doing so, DCM considers shoreline features, such as geography, land use factors, and public uses of the shoreline and waters. . . .\nh. The only two piers of a length similar to the length of the pier proposed by the petitioner, shown to have been permitted by DCM[,] are distinguishable. First, they are in entirely different areas of the State, and thus are not located on the same shoreline or body of water. Second, the two piers permitted, Rogers Bay and Edgewater, extend less than 200 feet and less than 50 feet[,] respectivelyf,] over open water. The two structures are located primarily over irregularly flooded marsh, which is not entirely submerged even when flooded by the tide. The piers were allowed for pedestrian use, rather than to dock boats, and will protect the marsh grass from the heavy foot traffic which would otherwise occur. The proposed pier would cover open, navigable water for the entire span of the pier at high tide and would shade shellfish beds rather than thick marsh grass. . . . [Emphasis in original.]\nj. All evidence presented in the record indicates that the Division of Coastal Management has applied the guidelines adopted by the CRC [Commission] for public trust AECs [areas of environmental concern] and for piers and docks consistent with the geographic circumstances. No CAMA major development permit has ever been issued which allows a pier to extend as much as 900 feet over open water at mean high tide.\nk. The only expert testimony presented at the hearing established that the pier as proposed is inconsistent with CRC guidelines and may not lawfully be permitted under CAMA. [Emphasis in original.]\n3. Bogue Sound and Public Uses:\nb. Bogue Sound as a navigable body of water is \u201cnavigable\u201d to the high water mark at mean high tide. . . .\nc. Bogue Sound is a wide, relatively shallow, body of water regularly and commonly used by the public between the high water mark and the federally maintained channel. . . .\ng. The 600 foot area of shallow water in front of the property is not regularly exposed at low tide. The presence of eel grass in the area is inconsistent with regular exposure of the area at low tide. This evidence refuted any showing by the petitioner that tended to show the area was regularly exposed at low tide and not navigable in that area. . . .\nh. At high tide, Bogue Sound is navigable to the shore by small boats of 16 to 20 feet in length. Bogue Sound is commonly navigated by smaller vessels within 500 to 900 feet of the shore at low tide, and to the high water mark at high tide. . . .\ni. Bogue Sound, in the immediate area of the proposed pier, is commonly and heavily used by members of the public, including other riparian owners, for net fishing, scalloping and clamming. . . .\nj. Bogue Sound in the immediate area of the proposed pier is heavily used by local families and campers at a church camp for various recreational activities including small sailboats, skiffs, waterskiing, and fishing. . . .\nk. The predominant land use on the shoreline of this area of Bogue Sound is single family residential. . . .\nl. Several adjacent riparian [sic] landowners and public users from the immediate area of Bogue Sound objected to the proposed permit because of concern over the length of the proposed pier and detrimental impacts the pier would have on their uses of the waters of Bogue Sound for navigation, fishing, and recreation. . . .\nm. The proposed pier would obstruct navigable waters for a distance of 900 feet at high tide. The proposed pier would extend such a distance into open waters that it represents a high potential for substantial impairment of traditional public uses and rights in this area of Bogue Sound. During periods of rough weather and periods of heavy traffic times on the Intercoastal Waterway by large boats, the near shore area is used for navigation by shallow draft boats to avoid the hazards to navigation caused by either rough weather or waves from large boats. The area is also used at night for safe navigation. . . .\nn. Petitioner would have access to navigable waters with a pier of 400 feet in length. . . .\np. There is no evidence in the record tending to show that petitioner holds any easement or grant to the submerged lands on which the proposed pier would be built that would give petitioner any property interest in those submerged lands. Petitioner has shown only that he has a riparian [sic] property owner\u2019s qualified right of access to navigable waters. . . .\nq. The DCM did carefully and properly consider the petitioner\u2019s qualified right of riparian [sic] access and balanced this right against the traditional public uses of the waters of Bogue Sound in making the decision to deny the permit application.\nCountering the State\u2019s evidence, plaintiff offered his affidavit, setting forth one contention:\n5. That by Motion for Summary Judgment, Respondent [State] has stated that the Coastal Resources Commission has determined that Petitioner could obtain a CAMA major development permit for the construction of a pier of up to 400 feet in length. That said statement is erroneous in that the Commission simply denied Petitioner\u2019s request for a permit, thus preventing Petitioner from having any pier at all.\nThe issues presented are whether I) the Judicial Review statute, N.C.G.S. \u00a7 113A-123(b), provides that jury trial is the exclusive method of determining the \u2018takings\u2019 issue, (A) precluding the trial court from ruling on the State\u2019s summary judgment motion or (B) considering the Commission\u2019s prior findings of fact in ruling on a question of law; and II) the Commission\u2019s findings established that the State was entitled to summary judgment.\nI\nPlaintiff first contends that jury trial is the only method available by statute to protect his \u201clandowner rights\u201d from being \u2018taken\u2019 without compensation, and that the trial court\u2019s grant of summary judgment renders the statutory provision for jury trial \u201cmeaningless.\u201d We disagree with plaintiff\u2019s contentions for the reasons listed below.\nA\nThe judicial review statute provides that \u201c[e]ither party shall be entitled to a jury trial on all issues of fact. . .\u201d N.C.G.S. \u00a7 113A-123(b) (emphasis added). Summary judgment is appropriate if only questions of law are raised, which do not require jury trial. Lowe v. Bradford, 305 N.C. 366, 369, 289 S.E.2d 363, 366 (1982). Thus, the device of summary judgment allows the court to \u201cpierce the pleadings\u201d to discern whether the parties\u2019 forecast of evidence reveals that more than questions of law are involved. Id. (citation omitted). Such a device is consistent with the statute and does not render the statute meaningless.\nB\nPlaintiff also contends that the jury trial provision became meaningless when the trial court allowed the State to introduce the Commission\u2019s factual determinations to support its motion for summary judgment. We disagree with plaintiff\u2019s contention for two reasons.\nFirst, plaintiff\u2019s argument runs counter to established principles of law regarding administrative fact-finding. \u201cThe general rule is that an essential issue of fact which has been litigated and determined by an administrative decision is conclusive between the parties in a subsequent action.\u201d Maines v. City of Greensboro, 300 N.C. 126, 133, 265 S.E.2d 155, 160 (1980). The Commission made these findings after hearing expert testimony and any evidence plaintiff cared to present in support of his application. Plaintiff failed to object to or seek judicial review of the Commission\u2019s findings of fact pursuant to \u00a7 113A-123(a) and the findings are binding on plaintiff in this proceeding filed pursuant to \u00a7 113A-123(b). Id.\nSecond, plaintiff misperceives the issue at the heart of the judicial review statute. The statute provides that \u201c[t]he method provided in this subsection [b] for the determination of the issue of whether [the Commission\u2019s] order constitutes a taking . . . shall be exclusive . . .\u201d Plaintiff argues that if we give effect to the legal principle protecting administrative fact-finding, the Commission\u2019s previous final decision denying his application was an \u2018other proceeding\u2019 determinative of the \u2018taking\u2019 issue for which the statute provides the \u2018exclusive method.\u2019 As discussed above, the statute\u2019s \u2018method\u2019 contemplates both legal and factual determinations only of whether a \u2018taking\u2019 occurred. The Commission made its findings of fact solely in determination of whether to grant plaintiff\u2019s permit application. The Commission\u2019s findings certainly bear on the Commission\u2019s bases for denying the application, but they are not dispositive of the \u2018taking\u2019 issue. We note that the Commission also made Conclusions of Law in its order, including the conclusion that \u201c[d]enial of petitioner\u2019s request for a 900 foot pier does not constitute a denial of opportunity for petitioner to exercise his common law right of riparian [sic] access, therefore, as a matter of law, there was no \u2018taking\u2019 of exercise of eminent domain by [the Commission's permit denial.\u201d The State admits, and the statute provides, that such conclusions of law by the Commission on the \u2018takings\u2019 issue have no weight.\nPlaintiff has the right to use the statutory method for determining whether a \u2018taking\u2019 occurred, and within that method can seek jury trial on the \u2018takings\u2019 issue if he presents an unresolved issue of fact, but he is barred from relitigating the same issues of fact that the Commission resolved after hearing evidence concerning plaintiff\u2019s application. Plaintiff seeks to avoid the effects of his failure to request judicial review of the findings in the Commission\u2019s order as provided by section (a) of the statute, but the statute does not require the superior court to conduct pointless jury trials if no issue of fact supports plaintiff\u2019s claim.\nII\nPlaintiff next contends that the trial court improperly entered summary judgment for the State because he raised a material issue of fact that the Commission\u2019s denial of his permit is \u201can unreasonable exercise of police power,\u201d constituting a \u2018taking\u2019 without compensation.\nSummary judgment is proper when there is no genuine issue of material fact and a party is entitled to judgment as a matter of law. N.C.G.S. \u00a7 1A-1, Rule 56; Lowe, at 369, 289 S.E.2d at 366. The movant has the burden of forecasting evidence showing that there are no material issues of fact and that it is entitled to judgment as a matter of law. Id. If the movant for summary judgment is not the party with the burden of proof of the claim, the movant\u2019s burden consists of (1) proving the lack of an essential element of the nonmovant\u2019s claim or (2) using discovery to show that the nonmovant cannot produce evidence to support an element of his claim. Id., at 369-70, 289 S.E.2d at 366. If the movant fails to carry its burden, the nonmovant need not respond and summary judgment is improper, regardless of whether the nonmovant responds. Id. If, however, the movant carries its burden, the opposing party must respond with specific facts showing there is a genuine issue for trial or with an excuse for not doing so. Rule 56; Id., at 370, 289 S.E.2d at 366. The opposing party cannot rely on the bare allegations of his complaint if the movant supports its motion by affidavit or otherwise. Id.\nIn the grant of summary judgment presented for our review, the State is movant and plaintiff is the opposing party. Therefore, the State has the burden of proving that plaintiff\u2019s claim lacks an essential element. To satisfy this burden, the State offered the Commission\u2019s Findings of Fact to support its motion. The record shows no evidence plaintiff presented at the summary judgment hearing to dispute these findings, although he offered his affidavit, as shown above. Because plaintiff is not permitted to rely on his pleadings to rebut these facts and offered no excuse for not doing so, the only issue for our review is whether these undisputed facts entitle the State to judgment as a matter of law.\nThe law of the case is that damages resulting from a reasonable, or proper, exercise of police power are noncompensable. Barnes v. Highway Comm., 257 N.C. 507, 514, 126 S.E.2d 732, 737-38 (1962) (citations omitted). The test for a reasonable exercise of a police power rule or regulation is known as the \u201cends-means\u201d test. Finch v. City of Durham, 325 N.C. 352, 363, 384 S.E.2d 8, 14, reh. denied, 325 N.C. 714, 388 S.E.2d 452 (1989). In evaluating the regulation\u2019s effect, one first looks to the \u2018ends,\u2019 or goals, of the legislation to determine whether it is within the scope of the police power, and second, to the \u2018means,\u2019 to determine whether the interference with the owner\u2019s right to use his property as he deems appropriate is reasonable. Id. A failure in either \u2018ends\u2019 or \u2018means\u2019 results in a taking. Id.\nWithin the second prong of the \u2018takings\u2019 analysis, the \u2018reasonable means\u2019 prong, a statute works a \u2019taking\u2019 of property if it (1) deprives the owner of all practical use of the property and (2) renders the property of no reasonable value. Id., at 364, 384 S.E.2d at 15, citing Responsible Citizens v. City of Asheville, 308 N.C. 255, 264, 302 S.E.2d 204 (1983). Mere restriction of \u2018practical uses\u2019 or diminishment of \u2018reasonable value\u2019 does not result in a \u2018taking.\u2019 Id., at 364, 302 S.E.2d at 210, quoting A-S-P Associates v. City of Raleigh, 298 N.C. 207, 218, 258 S.E.2d 444, 451 (1979).\nPlaintiff directs his contentions only to the first part of the two-part \u2018reasonable means\u2019 inquiry, whether the Commission\u2019s denial of his pier development permit deprived him of a \u2018all practical use\u2019 of the property. Specifically, he argues that because the tidal waters overlying the submerged land was not \u201cusable\u201d in navigation for mooring his boat, the Commission\u2019s denial was a \u2018taking\u2019 of the practical use of his property. We disagree.\nAs a littoral proprietor, plaintiff\u2019s rights derive from two distinct properties: 1) the principal estate of land extending to the shoreline of Bogue Sound, and 2) the appurtenant estate of submerged land in Bogue Sound benefiting the principal estate. Capune v. Robbins, 273 N.C. 581, 588, 160 S.E.2d 881, 886 (1968); see also Black\u2019s Law Dictionary at 94 (\u201cA thing is deemed . . . appurtenant to land when it is by right used for its benefit, as in the case of a . . . water-course . . .\u201d (emphasis in original)). However, the plaintiff\u2019s status as a littoral property owner does not guarantee him an absolute right to access over the tidal area of Bogue Sound because this right is \u201csubject to such general rules and regulations as the Legislature, in the exercise of its powers, may prescribe for the protection of the public rights in rivers or navigable waters.\u201d Capune, at 588, 160 S.E.2d at 886. Thus, plaintiffs right in the appurtenant submerged land is subordinate to public trust protections, such as those evinced in N.C.G.S. \u00a7 113A-120(a)(5) (permits may be denied upon a finding that the \u201cdevelopment will jeopardize the public rights and interest\u201d in the waterways and lands \u201cunder or flowed by tidal waters or navigable waters, to which the public may have rights of access or public trust rights\u201d). The Legislature\u2019s authority to protect public trust rights always is limited by plaintiff\u2019s right to retain some use or value of his property.\nThe issue is whether plaintiff is left with some practical use of his appurtenant interest. That the denial of the 900-foot pier permit restricts plaintiff\u2019s use of his interest in the submerged property to some degree and prohibits him from developing it as he may wish is immaterial. See Finch, at 371, 384 S.E.2d at 19. The Commission determined that the building of a 900-foot pier would \u201cjeopardize the public rights and interest\u201d and did not address, as it was not raised by the plaintiff, what length pier would be consistent with \u201cpublic rights and interest.\u201d Not only does plaintiff have the right to petition the Commission for a pier of some length less than 900 feet, but the Commission\u2019s findings show that the shallow tidal water covering the submerged land has many recreational uses, including boating by \u201csmall boats of 16 and 20 feet in length, fishing, scalloping and clamming\u201d and waterskiing. Furthermore, plaintiff has the current use of his principal estate of land and does not argue that there has been any taking of this property interest, apart from his appurtenant use in the submerged land. Accordingly, we determine that the State has met its burden of showing at the summary judgment hearing that plaintiff was not deprived of all practical uses of his property by the Commission\u2019s denial of his application to build a 900-foot pier.\nAffirmed.\nJudges BECTON and PHILLIPS concur.\n. Although the terms \u201criparian\u201d and \u201clittoral\u201d are often used interchangeably, plaintiff is a littoral proprietor. A \u201criparian\u201d right is one \u201c[b]elonging or relating to the bank of a river or stream . . . The term is sometimes used as relating to the shore of the sea or other tidal water . . . [b]ut this is not accurate. The proper word to be employed in such connections is \u2018littoral.\u2019 \u201d Black\u2019s Law Dictionary 1192 (5th ed. 1979).", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Wheatly, Wheatly, Nobles, Weeks & Wainwright, P.A., by C. R. Wheatly, III, for plaintiff-appellant.", "Lacy H. Thornburg, Attorney General, by Robin W. Smith, Assistant Attorney General, for the State." ], "corrections": "", "head_matter": "ORIN HAYWOOD WEEKS, JR. v. NORTH CAROLINA DEPARTMENT OF NATURAL RESOURCES AND COMMUNITY DEVELOPMENT and NORTH CAROLINA COASTAL RESOURCES COMMISSION\nNo. 893SC495\n(Filed 6 February 1990)\n1. Administrative Law \u00a7 5 |NCI3d)\u2014 denial of development permit \u2014 appeal to superior court \u2014 availability of summary judgment\nThe trial court did not err by granting summary judgment for the State where the Coastal Resources Commission denied plaintiff a major development permit to build a 900-foot-long pier in Bogue Sound and plaintiff filed a complaint in superior court alleging an unreasonable exercise of police power and requesting relief under N.C.G.S. \u00a7 113A-123(b) rather than appealing the Commission\u2019s findings pursuant to N.C.G.S. \u00a7 113A-123(a). Although plaintiff contended that the grant of summary judgment rendered the statutory provision for a jury trial meaningless, the device of summary judgment allows the court to pierce the pleadings to discern whether the parties\u2019 forecast of evidence reveals that more than questions of law are involved. Plaintiff has the right to use the statutory method for determining whether a taking occurred, and within that method can seek a jury trial on the takings issue if he presents an unresolved issue of fact, but is barred from relitigating the same issues of fact that the Commission resolved after hearing evidence concerning plaintiff\u2019s application.\nAm Jur 2d, Summary Judgment \u00a7 4.\n2. Constitutional Law \u00a7 23.1 (NCI3d); Waters and Watercourses \u00a7 6.1 (NCI3d)\u2014 pier in Bogue Sound \u2014 permit denied \u2014 not a taking\nThe trial court did not err by granting summary judgment for the State where plaintiff contended that the Coastal Resources Commission\u2019s denial of a major development permit constituted a taking without compensation where the Commission denied the permit; plaintiff filed an action in superior court without appealing the Commission\u2019s findings; the State introduced the Commission\u2019s findings; plaintiff presented no evidence at the summary judgment hearing to dispute the findings; and the evidence showed that plaintiff was not deprived of all practical uses of his property by the denial of his application to build a 900-foot pier into Bogue Sound.\nAm Jur 2d, Wharves \u00a7\u00a7 8, 25.\nAPPEAL by plaintiff from order entered 21 February 1989 by Judge Charles B. Winberry in CARTERET County Superior Court. Heard in the Court of Appeals 8 November 1989.\nWheatly, Wheatly, Nobles, Weeks & Wainwright, P.A., by C. R. Wheatly, III, for plaintiff-appellant.\nLacy H. Thornburg, Attorney General, by Robin W. Smith, Assistant Attorney General, for the State." }, "file_name": "0215-01", "first_page_order": 243, "last_page_order": 254 }