RALEIGH – After the state legislature fired most of its members this summer, a short-handed N.C. Coastal Resources Commission will meet today in a special session to decide whether to appeal a court decision over a variance to the state’s policy on sandbags on the beach.
If everyone joins the conference-call meeting, only four CRC members will be present. They survived the mass firing, but have yet to be joined by nine new appointees. Today’s meeting, then, raises questions whether the commission can legally muster a quorum to conduct business.
The special session was called to address an Aug. 6 ruling by the state Court of Appeals in favor of the owners of The Riggings, a Kure Beach condominium complex, whose owners challenged the CRC’s order to remove sandbags that have been in place since 1985. In its ruling, the Court of Appeals sent the case back to the CRC for review. The commission must make a decision whether to appeal the decision by Sept. 10. Its next regularly scheduled meeting isn’t until Sept. 24.
But in order to call the meeting, state officials first had to consider whether the commission could take action, given that it is operating with only a fraction of its membership. Provisions in the state budget passed by the Republican-controlled legislature ended the terms of all but four of the 15 CRC members and reduced the board to 13. The budget bill also eliminated seats designated for representatives of conservation groups and local governments.
Gov. McCrory, a Republican, signed the budget bill, which took effect July 31.
The legislation states that for the new commission “a majority of the Commission shall constitute a quorum.” That would mean that at least seven members would be needed for a quorum. But officials with the state Department of Environmental and Natural Resources said last week they are relying on the CRC bylaws, which establish a quorum as a majority of the “duly-appointed” members. Under that standard, only three of the four remaining members would be needed. The other members of the reconstituted CRC have either not been appointed yet or are undergoing ethics review.
Michelle Walker, a DENR spokeswoman, said the quorum issue was cleared by the department’s attorneys last week. She said the term “duly appointed” applies to the sitting four members — Bob Emory of New Bern, Renee Cahoon of Nags Head, Ben Simmons of Fairfield and Lee Wynns of Colerain — but not to two appointments made to the commission by Sen. Phil Berger, the state Senate’s president pro-tem, at the close of the legislative session.
Berger appointed Caswell Beach Mayor Harry Simmons and Marc Hairston of Onslow County to the commission under the new appointment criteria spelled out in the budget bill.
Walker said the two won’t be considered “duly-appointed” until their appointments pass through a required state ethics review and they are officially sworn in.
House Speaker Thom Tillis and McCrory have yet to announce their appointments, and Walker said it is still unclear when the rest of the commission members will be appointed and sworn in.
With CRC facing a deadline to decide on the appeal in the Riggings case, she said, the decision was made to move ahead with the meeting.
Todd Miller, the executive director of the N.C. Coastal Federation, said environmental advocates warned about the consequences of removing most CRC members at the same time. The sandbag issue, he noted, is a long-running dispute on whether the state has the authority to order removal of a temporary barrier. The outcome could have far-reaching effects on the state’s beaches.
“The commission must decide if it should defend our state’s long-standing ability to protect the public trust rights on our oceanfront beaches,” Miller wrote in an email response. “Before state lawmakers and the governor fired all but four of the existing Coastal Resource Commission members, a broader balance of coastal stakeholders would have met to decide whether or not to appeal this bad legal ruling that will make it very difficult for the state to safeguard its beautiful beaches for future generations.”
Bob Emory, one of the four remaining members and the CRC chair until the McCrory designates a new one, said the commission had little choice considering the timetable for appeal.
Emory, who recently told Coastal Review Online he was worried about the quorum issue in the wake of the budget bill provisions, said he was comfortable with the advice from DENR that the commission could meet under its existing by-laws.
“This is a time-sensitive matter and we’re going to go ahead and give it consideration,” Emory said. “We don’t have any options.”
Emory said he expects all four members to be at the closed meeting, which will include a briefing on the ruling and discussion of legal strategy with CRC attorneys.
“Fortunately, the people who are taking part are all seasoned veterans members of the commission,” Emory said.
Miller said he expects the move to face legal questions of its own. “It was never the intent of the law for four people to decide such a critical coastal management decision,” Miller said. “If the CRC votes to appeal this case, I’m sure its decision will be challenged on whether or not it was made with a legal quorum.”
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