Section 8: Variances & Appeals
If your application for a CAMA permit is denied, or if you find the conditions on a permit unacceptable, you may petition the Coastal Resources Commission for a variance, or you may appeal the permit decision. If other parties find a permit or its conditions objectionable, they may request from the CRC Chairman an opportunity to appeal the permit decision.
You may petition the CRC for a variance to undertake a project that is prohibited by CAMA or the CRC's development standards. Applying for a variance means that you recognize the legal restrictions as valid, but request an exception to the restrictions because of hardships resulting from unusual conditions. You must have received a permit decision before you can seek a variance.
To apply for a variance, you must file a petition for a variance with the Division of Coastal Management Director and the State Attorney General's Office on a standard form, which must be accompanied by additional information on the nature of the project and the reasons for requesting a variance. The petition must be received six weeks before the next scheduled CRC meeting for it to be eligible to be heard at that meeting.
To be granted a variance, you must show that:
Strict application of the CRC's development standards would result in or unnecessary hardships.
These hardships result from conditions peculiar to the property, such as its location, size or topography.
The hardships did not result from actions taken by the petitioner.
The requested variance is consistent with the spirit, purpose and intent of the CRC's development standards; will secure public safety and welfare; and will preserve substantial justice.
How variances are considered
There are two procedures for consideration of variances:
If the facts are undisputed, an attorney from the Attorney General's Office will work with you in developing a set of stipulated facts. Your variance petition, the stipulated facts and a recommendation developed by DCM and the Attorney General's Office stating the positions of each party and recommending grant or denial of the variance request are submitted directly to the CRC for a decision. An attorney from the Attorney General's Office represents the DCM staff before the CRC at the hearing. Petitioners may represent themselves or be represented by counsel.
If the facts are disputed, the variance request goes to a contested case hearing before an administrative law judge in the Office of Administrative Hearings. The administrative law judge determines the facts in the case and transmits the official record to the CRC. This process normally takes approximately one year. The CRC then holds a variance hearing, during which it reviews the record transmitted from the Office of Administrative Hearings and considers arguments made by the parties.
The CRC may deny a variance, grant the variance as requested, or grant the variance with a set of specific conditions. The decision will be set out in a formal order signed by the chairman, which will be sent to you following the hearing. If the CRC grants a variance, you may present the order to DCM or the local permit officer, who will issue a permit. You must receive that permit before you can begin work on your project.
If the CRC denies the variance, you may appeal the decision to Superior Court within 30 days of receipt of the CRC's Order.
The Commission's rules regarding variance requests are located at 15A NCAC 7J .0700 et seq. and can be found on this web site by clicking "Current Rules." You are encouraged to review the rules for a complete description of the variance process.
Note: The CRC is not allowed to discuss specific variances or other contested cases before it makes a decision. Do not attempt to contact CRC members to discuss your case.
The Coastal Area Management Act and the N.C. Dredge and Fill Law grant an automatic right of appeal to the permit applicant and to the secretary of the Department of Environment and Natural Resources. You must file a petition for a contested case in the Office of Administrative Hearings on an approved form within 20 days of the permit decision if you plan to appeal.
Other directly affected people or groups may request a hearing on the permit decision. This petition for a third-party hearing must be received by the director of DCM within 20 days of the permit decision. Within 15 days of receiving the request, the chairman of the CRC will decide if a petitioner is entitled to a third-party hearing. To get a hearing, a petitioner must:
Allege that the permit decision is contrary to a statute or rule.
Show that the petitioner is directly affected by the permit decision.
Demonstrate that the appeal is not frivolous.
If the CRC chairman grants a hearing, you may file a Petition for a Contested Case Hearing in the Office of Administrative Hearings. You must carefully follow detailed procedures and forms required by the state Administrative Procedure Act. Further information on filing appeals is available from the Office of Administrative Hearings or DCM. Parties to the hearing may be represented by attorneys, or may represent themselves. After the hearing, the judge issues a decision. Contested cases that commence on or after Jan. 1, 2012 will no longer be returned to the CRC for a final agency decision. The Administrative Law Judge’s decision will be the final decision.
You may appeal the Administrative Law Judge’s final decision to Superior Court within 30 days of the decision.
Note: The CRC is not allowed to discuss specific appeals or other contested cases before it makes a decision. Do not attempt to contact CRC members to discuss your case.