Appeal by plaintiff from an order entered 26 January 2001 by
Judge Howard E. Manning, Jr. in Superior Court, Wake County. Heard
in the Court of Appeals 24 April 2002.
Harris & Winfield, LLP, by R. Sarah Compton, for plaintiff-
appellant.
Attorney General Roy Cooper, by Special Deputy Attorney
General David Roy Blackwell and Assistant Attorney General
Jill B. Hickey, for defendant-appellees.
McGEE, Judge.
Godfrey Lumber Company, Inc. (plaintiff) is a North Carolina
corporation which operates a lumber mill and a wood chip mill in
Statesville, North Carolina. In late 1994, plaintiff decided to
construct another wood chip mill in Stokes County, North Carolina
and began making preparations for this construction, including
meeting in March 1995 with representatives of the Division of Water
Quality (DWQ) of the N.C. Department of Environment and Natural
Resources. DWQ told plaintiff that the only permit plaintiff wouldneed for the new facility was a general stormwater permit.
Plaintiff submitted an application to DWQ for a stormwater permit
on 4 April 1995. DWQ, through A. Preston Howard (Howard), issued
the permit on 14 July 1995.
Plaintiff began construction of its new chip mill in January
1997. Plaintiff had contacts with DWQ during the construction of
the mill. DWQ inspected plaintiff's mill on 21 November 1997.
After the inspection, Howard signed a letter revoking plaintiff's
permit on 24 November 1997 and cited non-compliance with the
conditions of applicable regulations and permits as the reason for
the revocation. Howard stated that the spraying of logs on
plaintiff's site would result in a wastewater flow that would reach
the area wetlands. The letter stated in order for plaintiff to
discharge wastewater into the wetlands, plaintiff needed to apply
for an individual permit. The letter provided appeal remedies if
plaintiff chose to dispute the revocation.
Plaintiff filed a petition for a contested case hearing on 22
December 1997. An administrative law judge issued a recommended
decision on 17 July 1998, determining the revocation was erroneous
and should be reversed. The Environmental Management Commission
adopted the recommended decision on 18 December 1998 and ordered
that the revocation be reversed. Plaintiff filed suit in this case
alleging a violation of due process and seeking to recover damages
incurred during the period its permit was revoked and was being
reviewed through the contested case hearing. On 18 September 2000,
plaintiff filed a motion for partial summary judgment anddefendants filed a motion for summary judgment. The trial court
granted defendants' motion for summary judgment on 26 January 2001.
Plaintiff appeals from this order.
I.
Plaintiff first argues the trial court erred in granting
defendants' motion for summary judgment because the trial court's
conclusions of law were not supported by its findings of fact.
Plaintiff contends that when Howard revoked the permit, this was a
final deprivation of the permit. Plaintiff contends the trial
court's conclusion that there was "no final deprivation" of
plaintiff's permit is not supported by the trial court's findings,
since the court found as a fact that Howard sent a letter to
plaintiff which stated, "I am hereby revoking" the permit. The
trial court concluded as a matter of law "that the safeguards of
[N.C. Gen. Stat. § 150B] provided [plaintiff] constitutionally
adequate due process of law and that there was no final deprivation
of [plaintiff's] Certificate of Coverage."
"While the United States Supreme Court has consistently held
that some form of hearing is required prior to a final deprivation
of a 'protected' property interest, the exact nature and mechanism
of the required procedure will vary based upon the unique
circumstances surrounding the controversy."
Peace v. Employment
Sec. Comm'n, 349 N.C. 315, 322, 507 S.E.2d 272, 278 (1998). The
due process clause encompasses
a guarantee of fair procedure. A § 1983
action may be brought for a violation of
procedural due process, but here the existence
of state remedies is relevant in a specialsense. In procedural due process claims, the
deprivation by state action of a
constitutionally protected interest in "life,
liberty, or property" is not in itself
unconstitutional;
what is unconstitutional is
the deprivation of such an interest without
due process of law. . . . The constitutional
violation actionable under § 1983 is not
complete when the deprivation occurs;
it is
not complete unless and until the State fails
to provide due process. Therefore, to
determine whether a constitutional violation
has occurred, it is necessary to ask what
process the State provided, and whether it was
constitutionally adequate. This inquiry would
examine the procedural safeguards built into
the statutory or administrative procedure of
effecting the deprivation, and any remedies
for erroneous deprivations provided by statute
or tort law.
Zinermon v. Burch, 494 U.S. 113, 125-26, 108 L. Ed. 2d 100, 114
(1990) (citations omitted) (emphasis added). Applying
Zinermon to
the case before us, we must determine if defendants provided due
process to plaintiff, and if that due process was adequate for
constitutional purposes. We determine that through its contested
case hearing, defendants did provide adequate constitutional due
process to plaintiff.
While plaintiff argues it was "deprived" of its permit when
Howard sent the revocation letter, we look to the language of
Zinermon and see that in the present case DWQ could not have
completed an unconstitutional violation at the moment the
revocation or "deprivation occurr[ed]."
Id. Under
Zinermon, DWQ
could only have committed an unconstitutional deprivation if it
failed to provide due process to plaintiff. In the case before us,
Howard explained the remedies available to plaintiff in the
revocation letter. Plaintiff followed the proper procedures inmaking its appeal, and eventually had its permit reinstated.
Furthermore, we note the record does not indicate that
plaintiff petitioned the administrative law judge for a stay of the
contested revocation pending the outcome of the contested case
hearing. N.C. Gen. Stat. § 150B-33(6) (1999) provides that the
administrative law judge may "[s]tay the contested action by the
agency pending the outcome of the case, upon such terms as [the
administrative law judge] deems proper, and subject to the
provisions of G.S. 1A-1, Rule 65[.]" Any additional remedies to be
afforded a party such as plaintiff should be addressed by the
legislature.
Therefore, plaintiff was never unconstitutionally deprived of
its permit as a result of DWQ failing to provide proper due
process. In fact, it was through due process provided by N.C. Gen.
Stat. § 150B that plaintiff's permit was reinstated. We overrule
this assignment of error.
II.
Plaintiff next argues that in the interest of judicial
economy, this Court should rule that defendants are not entitled to
qualified immunity. However, as we have determined the trial court
was correct in dismissing plaintiff's claim, we need not reach this
issue. We dismiss this assignment of error.
We affirm the trial court's grant of summary judgment for
defendants.
Affirmed.
Judges WALKER and CAMPBELL concur.
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