State ex rel. Rhodes v. Gaskill, 91 N.C. App. 639 (1988)

Oct. 18, 1988 · North Carolina Court of Appeals · No. 873SC1125

91 N.C. App. 639

STATE OF NORTH CAROLINA, ex rel. S. THOMAS RHODES, Secretary, Department of Natural Resources and Community Development v. RALPH GASKILL

No. 873SC1125

(Filed 18 October 1988)

APPEAL by plaintiff from Reid, Judge. Order entered 19 August 1987 in Superior Court, Carteret County. Heard in the Court of Appeals 6 April 1988.

Attorney General Thornburg, by Assistant Attorney General J. Allen Jemigan, for the State.

Wheatly, Wheatly, Nobles & Weeks, by C. R. Wheatly, III, for defendant appellee.

PHILLIPS, Judge.

The State brought this action pursuant to G.S. T13-229 and G.S. 113A-126 to compel defendant to comply with the permit procedures of those statutes in connection with the construction of a duck pond upon his property, which the State alleges has destroyed approximately 6,580 square feet of “coastal wetlands” as defined in G.S. 113-230(a). Defendant never applied for a permit to undertake any development of his property and in his answer denies that his property is subject to the permit requirements mandated by statute as not being within the definition of coastal wetlands, on which factual issue he demanded a jury trial. The State moved to deny defendant’s request for a jury trial and the motion was denied.

The facts governing this appeal are not materially different from those recorded in State ex rel. Rhodes v. Simpson, 91 N.C. App. 517, 372 S.E. 2d 312 (1988), and for the reasons stated in that opinion the order appealed from is affirmed.

Affirmed.

Chief Judge HEDRICK and Judge EAGLES concur.