§ 113A-123. Judicial review. - North Carolina Statutes

§113A‑123.  Judicial review.

(a)        Any person directlyaffected by any final decision or order of the Commission under this Part mayappeal such decision or order to the superior court of the county where theland or any part thereof is located, pursuant to the provisions of Chapter 150Bof the General Statutes. Pending final disposition of any appeal, no actionshall be taken which would be unlawful in the absence of a permit issued underthis Part.

(b)        Any person having arecorded interest or interest by operation of law in or registered claim toland within an area of environmental concern affected by any final decision ororder of the Commission under this Part may, within 90 days after receivingnotice thereof, petition the superior court to determine whether the petitioneris the owner of the land in question, or an interest, therein, and in case heis adjudged the owner of the subject land, or an interest therein, the courtshall determine whether such order so restricts the use of his property as to deprivehim of the practical uses thereof, being not otherwise authorized by law, andis therefore an unreasonable exercise of the police power because the orderconstitutes the equivalent of taking without compensation.  The burden of proofshall be on petitioner as to ownership and the burden of proof shall be on theCommission to prove that the order is not an unreasonable exercise of thepolice power, as aforesaid.  Either party shall be entitled to a jury trial onall issues of fact, and the court shall enter a judgment in accordance with theissues, as to whether the Commission order shall apply to the land of thepetitioner.  The Secretary shall cause a copy of such finding to be recordedforthwith in the register of deeds office in the county where the land islocated.  The method provided in this subsection for the determination of theissue of whether such order constitutes a taking without compensation shall beexclusive and such issue shall not be determined in any other proceeding.  Anyaction authorized by this subsection shall be calendared for trial at the nextcivil session of superior court after the summons and complaint have beenserved for 30 days, regardless of whether issues were joined more than 10 daysbefore the session.  It is the duty of the presiding judge to expedite thetrial of these actions and to give them a preemptory setting over all others,civil or criminal.  From any decision of the superior court either party mayappeal to the court of appeals as a matter of right.

(c)        After a finding hasbeen entered that such order shall not apply to certain land as provided in thepreceding subsection, the Department of Administration, upon the request of theCommission and upon finding that sufficient funds are available therefor, and withthe consent of the Governor and Council of State may take the fee or any lesserinterest in such land in the name of the State by eminent domain under theprovisions of Chapter 146 of the General Statutes and hold the same for thepurposes set forth in this Article. (1973, c. 1284, s. 1; c.1331, s. 3; 1977, c. 771, s. 4; 1987, c. 827, s. 1; 1989, c.727, s. 134.)