Center for a Sustainable Coast v. Coastal Marshlands Protection Committee

670 S.E.2d 429, 284 Ga. 736, 2008 Fulton County D. Rep. 3665, 2008 Ga. LEXIS 985
CourtSupreme Court of Georgia
DecidedNovember 17, 2008
DocketS07G1745
StatusPublished
Cited by33 cases

This text of 670 S.E.2d 429 (Center for a Sustainable Coast v. Coastal Marshlands Protection Committee) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Center for a Sustainable Coast v. Coastal Marshlands Protection Committee, 670 S.E.2d 429, 284 Ga. 736, 2008 Fulton County D. Rep. 3665, 2008 Ga. LEXIS 985 (Ga. 2008).

Opinions

HINES, Justice.

This Court granted certiorari to the Court of Appeals in Coastal Marshlands Protection Committee v. Center for a Sustainable Coast, 286 Ga. App. 518 (649 SE2d 619) (2007) (“CMPC v. CSC”), to determine whether the Court of Appeals correctly construed the Coastal Marshlands Protection Act, OCGA § 12-5-280 et seq. (“CMPA”), as it relates to the regulation of certain activities in upland areas in conjunction with the regulation of activities in the marshlands. Finding that the Court of Appeals properly held that regulation under the CMPA does not extend to residential activities in upland areas, we affirm.1

Under the CMPA, the Coastal Marshlands Protection Committee (“Committee”) considers permit applications for projects in coastal marshlands. The Committee was created by the CMPA and is composed of the Commissioner of Natural Resources and four other persons selected by the Board of Natural Resources. See OCGA § 12-5-283. In 2005, the Committee issued a permit to Point Peter, LLLR a residential developer, which authorized Point Peter to construct and maintain three community day docks and two full service marinas on certain marshlands as part of a 1,014 acre residential development. The permit included various conditions designed to avoid unreasonable adverse impact to the marshlands.

The Center for a Sustainable Coast and other organizations (collectively “CSC”) challenged the permit on a variety of grounds, including that the Committee failed to regulate the upland portions of Point Peter’s development. An administrative law judge (“ALJ”) agreed with CSC as to this ground, and, inter alia, remanded this [737]*737permit issue to the Committee for further consideration. The Committee and Point Peter sought review in the Superior Court of Fulton County, which did not act upon the matter in the time specified by statute, and the ALJ’s decision was affirmed by operation of law. See OCGA § 12-2-1 (c). The Committee and Point Peter then sought, and were granted, discretionary appeal in the Court of Appeals, which affirmed in part and reversed in part the ALJ’s decision, holding that the permitting power of the Committee did not extend to regulating residential upland portions of the development. See CMPC v. CSC, supra. Further factual and procedural details can be found in the opinion of the Court of Appeals. Id.

1. Under OCGA § 12-5-286 (a), “[n]o person shall remove, fill, dredge, drain, or otherwise alter any marshlands or construct or locate any structure on or over marshlands in this state within the estuarine2 area thereof without first obtaining a permit from the committee . ...” As the Court of Appeals noted, the ALJ focused upon the term “otherwise alter” when ruling that the permit must be remanded to the Committee for consideration of whether the upland component of the development would adversely alter the marshlands by such processes as storm water runoff. And, the Court of Appeals was correct in holding that the use of the term “otherwise alter” in OCGA § 12-5-286 (a) is not authority for a determination that the Committee’s jurisdiction extends to the residential upland areas. Rather, OCGA § 12-5-286 (a) defines those activities in the marshlands that require that prior permits be obtained. Point Peter was required to secure a permit because it intended to place structures in the marshlands; the permitting process was not triggered because of any other activity that could be deemed to “otherwise alter” the marshlands.

In determining that the term “otherwise alter” did not extend the Committee’s jurisdiction to the residential uplands, the Court of Appeals used the statutory canon of construction “ejusdem generis.” Under this principle,

when a statute or document enumerates by name several particular things, and concludes with a general term of enlargement, this latter term is to be construed as being [738]*738ejusdem generis [i.e., of the same kind or class] with the things specifically named, unless, of course, there is something to show that a wider sense was intended. [Cits.]

Dept. of Transp. v. Montgomery Tank Lines, 276 Ga. 105, 106, n. 5 (575 SE2d 487) (2003). Thus, the Court of Appeals concluded that, since OCGA § 12-5-286 (a) reads “[n]o person shall remove, fill, dredge, drain, or otherwise alter any marshlands or construct or locate any structure on or over marshlands . .. ,”

to “otherwise alter” the marshlands in the statute refers to activities of the same kind or class as “remove, fill, dredge, [or] drain.” It follows that the CMPA can be construed to regulate storm water runoff into the marshlands under the “otherwise alter[s]” provision of OCGA § 12-5-286 (a) only to the extent that the runoff alters the marshlands in a direct physical manner akin to removing, filling, dredging, or draining the marshlands.3

CMPC v. CSC, supra at 528 (2). CSC disputes the Court of Appeals’s use of ejusdem generis, contending that the statute shows no ambiguity, and the canon is thus inapplicable. See Dept. of Transp., supra at 107 (1). CSC is correct that there is no ambiguity in the statute; however, considerable ambiguity would arise if the phrase “otherwise alter” was given the reading the ALJ applied.

The ALJ remanded this permit issue to the Committee to determine if construction of the upland portions of the project “otherwise alter[ed] any marshlands” through effects such as storm water runoff, and concluded that OCGA § 12-5-286 (a) mandated that such a consideration be part of the Committee’s review of a proposed project. But, as noted above, the statutory role of OCGA § 12-5-286 (a) is to set forth those circumstances in which a permit must be obtained from the Committee. If alteration of the marshlands through upland storm water runoff was within the meaning of “otherwise alter” in OCGA § 12-5-286 (a), it would require that any project, even an upland project located miles from the marshlands, would have to undergo the permitting process if it could be shown that storm water runoff from the project would affect the marshlands. And, such a reading would create an ambiguity when read with the CMPA’s direction that, “[i]f the project is not water related or dependent on waterfront access or can be satisfied by the use of an alternative nonmarshland site or by use of existing public facilities,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

CAZIER v. GEORGIA POWER COMPANY
883 S.E.2d 517 (Supreme Court of Georgia, 2023)
Kinslow v. State
860 S.E.2d 444 (Supreme Court of Georgia, 2021)
Inquiry Concerning Judge Robert M. Crawford
310 Ga. 403 (Supreme Court of Georgia, 2020)
Franklin v. Pitts.
826 S.E.2d 427 (Court of Appeals of Georgia, 2019)
C&M Enterprises of Georgia, LLC v. Williams.
816 S.E.2d 44 (Court of Appeals of Georgia, 2018)
Monumedia II, LLC v. Georgia Department of Transportation
806 S.E.2d 215 (Court of Appeals of Georgia, 2017)
Jerome Atkins v. State
Court of Appeals of Georgia, 2017
Atkins v. the State
803 S.E.2d 122 (Court of Appeals of Georgia, 2017)
York v. RES-GA LJY, LLC
799 S.E.2d 235 (Supreme Court of Georgia, 2017)
Montgomery County, Georgia v. S. Keith Hamilton
Court of Appeals of Georgia, 2016
Montgomery County v. Hamilton
788 S.E.2d 89 (Court of Appeals of Georgia, 2016)
Tibbles v. Teachers Retirement System of Georgia
775 S.E.2d 527 (Supreme Court of Georgia, 2015)
State of Georgia v. West
775 S.E.2d 153 (Court of Appeals of Georgia, 2015)
State v. West
775 S.E.2d 153 (Court of Appeals of Georgia, 2015)
Metropolitan Atlanta Rapid Transit Authority v. Reid
763 S.E.2d 695 (Supreme Court of Georgia, 2014)
Georgia River Network v. Turner
762 S.E.2d 123 (Court of Appeals of Georgia, 2014)
Cook v. Glover
Supreme Court of Georgia, 2014

Cite This Page — Counsel Stack

Bluebook (online)
670 S.E.2d 429, 284 Ga. 736, 2008 Fulton County D. Rep. 3665, 2008 Ga. LEXIS 985, Counsel Stack Legal Research, https://law.counselstack.com/opinion/center-for-a-sustainable-coast-v-coastal-marshlands-protection-committee-ga-2008.