CITIZENS FOR RESPONSIBLE ROAD-WAYS, TOWN OF SUMMERFIELD, WILLIAM
E. KNOX, AMY LIXL-PURCELL, GAY E. CHENEY, and THE NORTH CAROLINA
ALLIANCE FOR TRANSPORTATION REFORM, Plaintiffs, v. NORTH CAROLINA
DEPARTMENT OF TRANSPORTATION and DAVID McCOY, in his official
capacity, Defendants
Administrative Law--agency decision--judicial review--connector roadway improvements
The trial court did not err by granting defendants' motion to dismiss plaintiff's complaint
seeking injunctive relief from defendant Department of Transportation's adoption of a
transportation improvement program regarding connector roadway improvements and its
approval of an environmental assessment, because: (1) plaintiff's failure to comply with the
judicial review provisions of N.C.G.S. § 113A-13 within thirty days of the agency decision
waived their right to seek judicial review under N.C.G.S. § 150B-45; and (2) plaintiffs waited
over four years after the finding of no significant impact was issued to file their petition with the
Court of Appeals.
Plaintiffs appeal from order entered 11 April 2000 by Judge
Steve A. Balog in Guilford County Superior Court. Heard in the
Court of Appeals 18 April 2001.
Smith, James, Rowlett & Cohen, L.L.P., by Norman B. Smith,
for plaintiffs-appellants Citizens for Responsible Roadways,
William E. Knox, Amy Lixil-Purcell, Gay E. Cheney, and the
North Carolina Alliance for Transportation Reform; William
B. Trevorrow, for the plaintiff-appellant Town of
Summerfield.
Attorney General Michael F. Easley, by Assistant Attorney
General Fred Lamar, for defendants.
TYSON, Judge.
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I. Facts
The North Carolina Department of Transportation (“NCDOT”)
determines future transportation needs and alternatives through
adoption of a Transportation Improvement Program (“TIP”). N.C.
Gen. Stat. § 143B-350 (1998). A TIP project, designated as R-
2413 (“Connector”), consisted of: (1) connector roadway
improvements to US Highway 220 beginning in Rockingham County,
just north of Guilford County, and (2) a portion of the newcontrolled access roadway between N.C. Highway 68 and US Highway
220 in Guilford County connecting to N.C. Highway 68 south.
NCDOT prepared and approved an environmental assessment
(“assessment”) on 14 September 1993, as required by the North
Carolina Environmental Policy Act (“NCEPA”), N.C. Gen. Stat. §
113A-4 (1992), and associated regulations. N.C. Admin. Code tit
1, r. 25.0401(a). The assessment consisted of environmental and
area impacts for various proposed alternatives of R-2413.
After approval, NCDOT submitted the assessment to the State
Clearinghouse. The Clearinghouse circulates assessment documents
to state and local officials for comments and provides notice to
the public of the availability of the assessment for review and
comment. N.C. Admin. Code tit. 1, Chapter 25. Public notice
requirements and opportunities for comments were provided in
accordance with the statutes and the Administrative Code.
Comments from agencies and the public were received. After
receipt of the comments, NCDOT issued a Finding of No Significant
Impact (“FONSI”), on 31 March 1995. A FONSI is NCDOT's finding
that a full Environmental Impact Statement (“EIS”) is
unnecessary. A design public hearing was scheduled and held for
the interested public shortly after the issuance of FONSI. In
November 1995, the United States Congress directed that the
Connector road be part of the future I-73/I-74 north-south
corridor.
Over four years after the FONSI was issued, plaintiffs filed
a complaint on 24 May 1999 seeking injunctive relief, alleging
that defendants failed to comply with NCEPA by: (1) failure toprepare a sufficient assessment, (2) failure to prepare an
environmental impact statement, and (3) violation of certain
statutory standards of NCEPA.
Defendants answered and filed a motion to dismiss on the
grounds of Rule 12(b)(1) and/or 12(b)(2), lack of subject matter
and/or personal jurisdiction, and Rule 12(b)(6) plaintiffs'
failure to state a claim upon which relief can be granted. N.C.
R. Civ. P. 12.
The trial court granted defendants' motion to dismiss on 11
April 2000 for (1) lack of subject matter and personal
jurisdiction; (2) plaintiffs' failure to comply with the judicial
review provisions of N.C. Gen. Stat. § 150B-43 et seq.; (3)
plaintiffs' failure to comply with the judicial review provisions
of N.C. Gen. Stat. § 113A-13, waiving their right to seek review
under N.C. Gen. Stat. § 150B-45; and (4) plaintiffs' failure to
state a claim upon which relief may be granted. Plaintiffs
appeal. We affirm the trial court's decision.
The issue is whether plaintiffs' complaint states a claim
for relief, if plaintiffs did not timely exercise their right to
judicial review under G.S. § 150(B)-43.
[i]t is the policy of this State that any
dispute between an agency and another person
that involves the person's rights, duties or
privileges ... should be settled through
informal procedures ... [i]f the agency and
the other person do not agree to a resolutionof the dispute through informal procedures,
either the agency or the person may commence
an administrative proceeding to determine the
person's rights, duties, or privileges, at
which time the dispute becomes a 'contested
case.'
N.C. Gen. Stat. § 150B-22 (1998). Chapter 150B also “establishes
a uniform system of administrative rule making and adjudicatory
procedures for agencies” and “applies to every agency,” unless an
agency is expressly exempted. N.C. Gen. Stat. Sec. 150B-1
(1995). “The Department of Transportation, except as provided in
G.S. 136-29 (construction contract claims)” is expressly exempt
from the contested case provisions. N.C. Gen. Stat. Sec. 150B-
1(e)(8)(1995). Plaintiffs cannot petition for a hearing before
the Office of Administrative Hearings (“OAH”) in this case.
This Court has held that judicial review of agency decisions
in Superior Court, pursuant to 150B-43, was proper in cases where
no prior proceeding was held before the OAH. See, e.g., Empire
Power Co. v. N.C. Dept. Of E.H.N.R., 112 N.C. App. 566, 572, 436
S.E.2d 594, 598 (1993)(citations omitted) (“although there was no
hearing before an ALJ, there was an agency proceeding . . .
determining the rights of a party”), rev'd on other grounds, 337
N.C. 569, 447 S.E.2d 768 (1994); Charlotte Truck Driver Training
School v. N.C. DMV, 95 N.C. App. 209, 212, 381 S.E.2d 861, 862-63
(1989)(finding that interview and investigation by agency hearing
officer is a contested case); Hedgepeth v. North Carolina Div. of
Servs. for the Blind, 142 N.C. App. 338, 345, 543 S.E.2d 169,
173-74 (2001)(proceeding before an agency hearing officer and
review by director became the final agency decision to constitute
a contested case for judicial review). Once a final decision isserved, a party may petition for judicial review. N.C. Gen.
Stat. § 150B-43 (1985). N.C. Gen. Stat. § 150B-45 (1987) states
that:
[t]o obtain judicial review of a final
decision under this Article, the person
seeking review must file a petition in the
Superior Court of Wake County or in the
superior court of the county where the person
resides. The person seeking review must file
the petition within 30 days after the person
is served with a written copy of the
decision. A person who fails to file a
petition within the required time waives the
right to judicial review under this Article.
For good cause shown, however, the superior
court may accept an untimely petition.
(emphasis supplied.)
“Administrative and judicial review of an environmental document
is incidental to, and may only be undertaken in connection with,
review of the agency action. No other review of an environmental
document is allowed.” N.C. Gen. Stat. § 113A-13 (1992).
Plaintiffs' failure to comply with the judicial review
provisions of N.C. Gen. Stat. § 113A-13 within thirty days of the
agency decision waived their right to seek judicial review under
N.C. Gen. Stat. § 150B-45. This failure to comply with NCAPA's
administrative review requirements is sufficient to affirm the
trial court's decision.
Plaintiffs rely on Orange County v. North Carolina
Department of Transportation, 46 N.C. App. 350, 265 S.E.2d 890
(1980) in support of their position that their complaint was
timely filed. That reliance is misplaced. Orange is inapposite
to these facts. The Orange court held that the proposed I-40 project was not
administratively processed pursuant to an approved “action plan.”
The court could not determine at what stage in the action plan
the Board's action was taken, which in turn prevented a
determination of finality of the board's action. If no final
decision was made, the statute of limitations never actually
began to run.
In this case, NCDOT prepared and approved an assessment on
14 September 1993. After approval, NCDOT submitted the
assessment to the Clearinghouse for outside agency and public
hearing review. NCDOT issued a FONSI on 31 March 1995. NCEPA
provides that once a state agency issues a FONSI, the
clearinghouse circulates these documents to state and local
officials for comments and provides notice to the public of the
availability of the environmental documents for comment and
review. After the requisite review period, and based upon the
comments received, the clearinghouse advises the project agency
on the sufficiency of information provided in the FONSI and
whether or not the documents can support the conclusions of the
project agency. N.C. Admin. Code tit 1, r. 25.0506(c). Further
environmental review is not required. N.C. Gen. Stat. § 113A-9.
Plaintiffs waited over four years, after the FONSI was
issued on 31 March 1995, to file their petition with the court.
Affirmed.
Judges WALKER and HUNTER concur.