In the Matter of a Complaint by FINAL DECISION


William Shia


Complainant Docket #FIC 86-67




Inland Wetlands Commission of the Town of Bethany and Chairman of the Inlands Wetlands Commission of the Town of Bethany


Respondents April 23, 1986


The above captioned matter was heard as a contested case on March 27, 1986 at which time the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint.


After consideration of the entire record the following facts are found:


1. The respondent is a public agency within the meaning of section 1-18a(a), G.S.


2. By complaint filed with the Commission, March 7, 1986, the complainant alleged that he had been denied his rights under the Freedom of Information Act.


#FIC 86-22 page 2


3. By letter dated October 7, 1985, the complainant requested the respondents provide notice to him concerning any action pending concerning a parcel of land adjoining his residence at 16 Oak Ridge Drive.


4. The complainant's written request was a follow-up on an oral request which had been made to the chairman of the respondent commission at an earlier date.


5. The complainant's October 7, 1985 letter was lost or misplaced, so that it did not reach the respondents until their December meeting, at which time the respondents granted a provisional permit for construction of a residence on the parcel which was the subject of the complainant's concern.


6. 1-21c provides in relevant part that:


The public agency shall, where practicable, give notice by mail of each regular meeting, and of any special meeting which is called, at least one week prior to the date set for the meeting, to any person who has filed a written request for such notice with such body, except that such body may give such notice as it deems practical of special meetings called less than seven days prior to the date set for the meeting. . . . Such public agency may establish a reasonable charge for sending such notice based on the estimated cost of providing such service.


7. It is found that the complainant's request for notice of actions concerning the lot next to his own was a request for notice within the meaning of 1-21c, G.S., and that respondents' failure to notify him was a violation of the notice requirements of that section.


8. The complainant requested that the Commission declare null and void the permit to develop lot #27 of Oak Ridge Acres, which was issued on December 23, 1985 and that it require that a public hearing be held concerning the development of the lot, and that a member of the staff of the Department of Environmental Protection be present at the hearing.


#FIC 86-22 page 3


9. 6.6b of the regulations of the respondent commission provides that it shall render a final decision within 65 days from the receipt of a complete application, unless a hearing is scheduled.


10. The application concerning the lot #27 was signed November 17, 1985.


11. It is clear that the respondent commission was not required to approve the application for a provisional permit on lot #27 at its meeting on December 16, 1985.


12. Respondents have assured this Commission that if they were to reconsider the application, the complainant would have an opportunity to address the respondent commission concerning the merits of the application.


13. It is found on the basis of the facts and law considered herein, that it is appropriate to declare the action of the respondent commission granting a permit to develop lot #27, null and void.


The following order by the Commission is hereby recommended on the basis of the record concerning the above captioned complaint.


1. The action of the respondent commission granting a provisional permit for the development of lot #27, Oak Ridge Acres, is hereby declared null and void.


Approved by order of the Freedom of Information Commission at its special meeting of April 23, 1986.


Karen J. Haggett

Clerk of the Commission