STATE OF NORTH CAROLINA
COUNTY OF DUPLIN
MELODY ROGERS
Plaintiff
vs.
OFFICE OF ADMINISTRATIVE
HEARINGS
Defendant
IN THE GENERAL COURT OF JUSTICE
DISTRICT COURT DIVISION
No.: ___________
PETITION FOR REVIEW
NOW COMES, Petitioner, MELODY ROGERS, complaining of the Respondent, and
alleges and says:
1. The Petitioner is the owner and proprietor of a piece of land lot/parcel number
09-4436 on a 5 acres plot located on the right side of River Road, Wallace, NC.
2. The Respondent is an independent quasi-judicial agency that was established to
provide a source of independent Administrative Law Judges (ALJ) to preside in administrative
law contested cases.
3. On or about July 14, 2022, the Petitioner requested a permit to improve the parcel
for an individual residential home from the Duplin County Department of Public Health. The
request was denied as the department cited an evaluation carried out on July 13, 2022 that found
the site unsuitable for a wastewater flow of 600 gallons per day. The denial was based on 15A
NCAC 18A.1948. Rule 1940 and rule 1949 for the presence of wetness of the site.
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4. On or about May 19, 2022, Petitioner contracted Davey Resource Group to
perform a preliminary soil and site suitability Evaluation. Number S/S 1941 River Road
property, located near Wallace, Duplin County, NC. Parcel # 332500082786. The purpose of the
evaluation was to establish the suitability of the parcel for an onsite wastewater system for the
potential individual residential home.
5. Upon evaluation, the property was classified as unsuitable for onsite wastewater
subject to 1900 laws and rule 1942 (c), a fact that Petitioner does not dispute. The evaluation
found a possibility of the presence of a jurisdictional wetland in the site, but none was located
during the evaluation said site visit.
6. Later, on June 20, 2022, Corey Novac acting on behalf of the Davey Resources
Group, evidenced the presence of a wetland in the parcel.
7. In compliance with the State of North Carolina and Duplin county restrictions of
development subject to the action of the Health Director and Environment Health Director and
others acting on behalf of the Duplin County Department of Public Health and the North
Carolina Department of Health and Human Services (DHSS), Petitioner has yet to develop or use
any part of her property to benefit.
8. Petitioner does not dispute that these orders and denials were properly issued and
are necessary to protect public health, safety, and welfare, of the citizens and residents of North
Carolina and the County of Duplin, and to some extent, residents of Wallace. Water safety and
property sanitation is a matter that affects millions of residents of America and causes illness and
deaths, which can be mitigated with proper usage of land and sanitation.
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9. It is however Petitioner’s contention that Department of Health chose to restrict
the future development of the private property held by the Petitioner while allowing it to
continue incurring other costs.
10. Under threat and fear of penalties and criminal action, Petitioner has been
substantially denied the use of her Tangible Property and the physical location as it is effectively
taken to be part of public property without just and fair compensation.
11. As a result, the capital investment Petitioner placed in the property has been
severely constrained, and she is forced to immediately stop any beneficial use of the land to
recoup the same.
12. Accordingly, on or about August 17, 2022, Petitioner filed a Petition for a
Contested Case Hearing (“Petition”) at the Respondent’s office, appealing the denial of the
improvement permit.
13. On August 23, 2022, the Respondent issued Initial Forms and an Order for
Prehearing Statements to be delivered within 30 days, which Petitioner duly received.
14. However, Petitioner fell ill and was in no position to file the required Prehearing
Statements.
15. On September 22, 2022, the Department of Health filed their Prehearing
Statements.
16. The Respondent then issued another order for prehearing statements on or before
October 10, 2022, and notified Petitioner that sanctions, up to and including dismissal of the
Petition, would be imposed if Petitioner failed to file a Prehearing Statement.
17. On or about October 13, 2022, the Respondent issued its final decision.
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18. Petitioner hereby seeks a judicial review of the Respondent’s decision on the
grounds that the decision was arbitrary and capricious, and that the Petitioner was unwell, and
could therefore not file the Prehearing Statements.
19. Inadvertence and excusable neglect are recognized as sufficient grounds to seek
relief from an Order or Judgment. See for example, N.C. Gen. Stat. § 60(b). Further, a Court’s
Order or Judgment may be vacated for any other reason justifying relief from the operation of the
judgment. See N.C. Gen. Stat. § 60(b) (6).
20. N.C. Gen. Stat. § 60(b) has been described as a “`grand reservoir of equitable
power to do justice in a particular case.’" Goodwin v. Cashwell, 102 N.C. App. 275, 278, 401
S.E.2d 840, 842 (1991) (quoting Vaglio v. Town and Campus Int., Inc., 71 N.C. App. 250, 255,
322 S.E.2d 3, 7 (1984)). In addition, "[i]n order to be entitled to relief under Rule 60(b)(6) the
movant must show that (1) extraordinary circumstances exist and that (2) `justice demands’ such
relief." Id. (citing Vaglio v. Town and Campus Int., Inc., 71 N.C. App. 250, 255, 322 S.E.2d 3, 7
(1984)).
21. Petitioner therefore invokes the equitable power of this Honorable Court to vacate
the decision of the Respondent on the ground that she was unwell and could not adhere to the
Respondent’s deadlines for filing the Prehearing Statements.
22. It is also in the interest of justice to grant Petitioner’s relief herein and remand the
case for a fresh trial. Petitioner should not be punished for being sick. Notably, there is no other
explanation as to why Petitioner failed to adhere to the Respondent’s deadlines. Besides,
Petitioner’s property rights are in jeopardy, which explains the necessity and/or urgency why
Petitioner’s matter should be resolved by the Respondent.
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FIRST CAUSE OF ACTION
23. The allegations of paragraphs 1 – 22 are incorporated herein by reference as if set
forth fully.
24. The Respondent’s decision is arbitrary and capricious.
25. "A decision is arbitrary and capricious if it was `patently in bad faith’,
`whimsical’, or if it lacked fair and careful consideration." Teague v. Western Carolina Univ.,
108 N.C. App. 689, 692, 424 S.E.2d 684, 686 (1993); see also Whiteco Outdoor Adver. v.
Johnston County Bd. of Adjust., 132 N.C. App. 465, 468-69, 513 S.E.2d 70, 73 (1999).
26. The Respondent’s decision disregarded the substance of Petitioner’s case. It is
notable that on or about July 14, 2022, neither the Duplin County Department of Public Health
nor the North Carolina Department of Health and Human Services (DHSS) offered just
compensation for the taking in exchange for the total or substantial transfer of the property to the
public.
27. The orders and subsequent taking make it commercially impractical for Petitioner
to legally use the property belonging to her and inflict the very nearly same effect for
constitutional purposes as appropriating or destroying the property [the whole property]. See
Tenn. Scrap Recyclers Ass’n v. Bredesen, 556 F.3d 442, 455, (2009).
28. Notably, the property of the Petitioner which the Duplin County Department of
Public Health and the North Carolina Department of Health and Human Services (DHSS)
rendered unusable, including both the real property in which the land is located (physical
location) and the tangible property housed in such location- such as inventory tools, records,
tangible equipment.
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29. The denial and declaration of the said property as unsuitable for development due
to wetness and its effect on public waters constitute regulatory taking implemented for a purpose.
Therefore, the failure to pay just compensation contravenes the Taking Clause of the Fifth and
Fourteenth Amendments. Coalition for Gov’t Procurement v. Fed. Prison Indus., 365 F.3d 435,
478, (2004) see also Horne v. Dep’t of Agric., 576 U.S. 350, 135 S. Ct. 2419, 2426 (2015). The
government must pay the aggrieved or affected private property owners just compensation upon
invocation of the taking clauses.
30. It follows; through the denial orders, Petitioner(s) has also been effectively denied
an opportunity to exercise their most fundamental rights guaranteed to all citizens of the United
States and the State of North Carolina.
31. The Respondent’s decision is an arbitrary and capricious abuse of discretion and
should be overturned.
WHEREFORE, the Petitioner respectfully prays:
1. That the Respondent’s decision issued on October 13, 2022 be dismissed and/or vacated;
2. That the costs of this action be taxed against the Respondent;
3. For such and other further relief as to the Court seems just and proper
Respectfully Submitted,
__________________________
MELODY J. RODGERS
438 RIVER RIDGE DRIVE
WALLACE, NC 28540
Phone: (704) 771-3238
Email: melodyjrodgers@yahoo.com
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CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing was delivered upon the attorney for
Respondent in this action:
_____ Via U.S. mail
_____ Via facsimile
_____ Via hand delivery to the following address:
[ENTER RESPONDENT’S ADDRESS]
This the ______ day of __________, 2022.
__________________________
MELODY J. RODGERS
438 RIVER RIDGE DRIVE
WALLACE, NC 28540
Phone: (704) 771-3238
Email: melodyjrodgers@yahoo.com
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