Legal Qualifications of Landscape Architects to Design Street and Storm Water Drainage Systems

Re: Advisory Opinion -Legal qualifications of landscape architects to design street and storm water drainage systems

Dear Mr. Carter:

We are responding to your letter dated December 11, 2000, requesting an opinion whether landscape architects are legally qualified to design street and storm water drainage systems, specifically including the subsurface systems and the structural design components of each.

BACKGROUND

Based on the information and documents you and David Tuttle have provided, it appears that this question has been a major point of disagreement between the Board of Landscape Architects and the Engineering Board for over 20 years. The Engineering Board contends that providing street and storm water system design is clearly within the statutory definition of the practice of engineering. It does not recognize an overlap with the practice of landscape architecture in this regards. The Board of Landscape Architects disagrees with this position. In May 1997, then Chief Deputy Attorney General Andrew A. Vanore, Jr. stated in a letter to your outside legal counsel that the extent to which the design of such systems should be restricted to professional engineers was a matter of legislative determination. In August 1997, the General Assembly amended the statutes related to landscape architecture (Session Laws 1997-406). Unfortunately, the changes did not put the issue to rest. You have advised that the Engineering Board and the Board of Landscape Architects have been unsuccessful in their attempts to resolve their differences. By statute, the Attorney General’s Office serves as the legal advisor to both boards. N.C.G.S. § 114-4.2G and N.C.G.S. § 89C-23.

Jerry T. Carter March 22, 2001 Page Two

FACTS

Most recently, this issue has arisen in the case of Brian C. Sigmon, a registered Landscape Architect in Charlotte. The pertinent facts as we understand them are as follows: A developer submitted a set of subdivision plans to the City of Gastonia. The plans contained storm water drainage and roadway design information sealed by Mr. Sigmon. The water and sewer plans were sealed by a professional engineer. The City Engineer questioned whether Mr. Sigmon could seal the plans because there is an ordinance requiring the seal of a professional engineer on all subdivision plans. Ultimately, the engineer sealed all the subdivision plans. A charge was subsequently filed with the Engineering Board.

The Engineering Board conducted an investigation. The Engineering Board, upon the recommendation of its Review Committee, recommended that Mr. Sigmon be advised to cease and desist from the practice of engineering without a license. The Attorney General’s Office declined to send a “cease and desist” letter to Mr. Sigmon because it represents both boards.

The Board of Landscape Architects reviewed the subdivision plans submitted by Mr. Sigmon and concluded that the work was that which can be conducted by a registered landscape architect. Further, in its view, it is inappropriate for the Engineering Board to investigate such matters and determine whether or not a registered landscape architect can perform various design services.

STATUTES

Landscape Architecture

The profession of landscape architecture has been recognized in North Carolina since 1964. It is governed by Chapter 89A of the North Carolina General Statutes. Prior to 1997, it was a “title act.” In other words, only those persons registered with the Board of Landscape Architects could use the title “Landscape Architect.” Now a person may not engage in the practice of landscape architecture or use the title unless duly registered and licensed. N.C.G.S. § 89A-4(a). “Landscape architecture” is defined by statute as:

The preparation of plans and specifications and supervising the execution of projects involving the arranging of land and the elements used thereon for public and private use and enjoyment, embracing drainage, soil conservation, grading and planting plans and erosion control, in accordance with the accepted professional standards of public health, safety and welfare.

N.C.G.S. § 89A-1(3). The Board of Landscape Architects grants certificates on the basis of demonstrated knowledge acquired by professional education and/or practical experience. N.C.G.S. Jerry T. Carter March 22, 2001 Page Three

§ 89A-1(2). It is a misdemeanor to hold oneself out as a registered landscape architect without being duly registered. N.C.G.S. § 89A-8(a). The profession is not without limitation. Nothing in Chapter 89A is to be construed to authorize a landscape architect to practice architecture, engineering, or land surveying. N.C.G.S. § 89A-2(b)(i). In addition, nothing in the chapter is to be construed as authorizing the use or acceptance of the seal of a landscape architect instead of, or as a substitute for, the seal of an architect, engineer, or land surveyor. N.C.G.S. § 89A-2(c).

The American Society of Landscape Architects (“ASLA”) describes the profession as:

. . . the art and science of analysis, planning, design, management, preservation and rehabilitation of the land. The scope of the profession includes site planning, garden design, environmental restoration, town or urban planning, park and recreation planning, regional planning, and historic preservation. Practitioners share a commitment of achieving a balance between preservation, use and management of the country’s resources.

Landscape architecture is further described by the ASLA as “a diverse profession, a broad, interdisciplinary field with links to many other professions.” Landscape architects work with other professionals, such as architects and civil engineers, on the design of all types of outdoor space. However, ASLA states that clear differences exist between landscape architects and the other design professionals. Depending on the size of a project, landscape architects may plan the entire arrangement of a site, including location of buildings, grading, storm water management, construction, and planting. They may also coordinate teams of design, construction and contracting professionals.

Engineering

Engineering is governed by Chapter 89C. This is a “practice act.” Only persons duly licensed by the Engineering Board are authorized to practice engineering or offer to practice engineering as defined in the statute or to hold themselves out as an engineer. N.C.G.S. § 89C-23. The purpose of the Act is to safeguard life, health, and property, and to promote the public welfare. N.C.G.S. § 89C-2. The practice of engineering is defined as:

Any service or creative work, the adequate performance of which requires engineering education, training, and experience, in the application of special knowledge of the mathematical, physical, and engineering sciences to such services or creative work as consultation, investigation, evaluation, planning, and design of engineering works and systems, planning the use of land and water, engineering surveys, and the observation of construction for the purposes of assuring compliance with drawings and specifications, including the consultation, investigation, evaluation, planning, and design for either private or public use, in connection with any utilities,

Jerry T. Carter March 22, 2001 Page Four

structures, buildings, machines, equipment, processes, work systems, projects, and

industrial or consumer products or equipment of a mechanical, electrical, hydraulic,

pneumatic or thermal nature, insofar as they involve safeguarding life, health or

property, and including such other professional services as may be necessary to the

planning, progress and completion of any engineering services.

N.C.G.S. § 89C-3(6)a. An engineer is defined as a person who, by reason of special knowledge and use of mathematical, physical and engineering sciences and the principles and methods of engineering analysis and design, acquired by engineering education and experience, is qualified to practice engineering. N.C.G.S. § 89C-3(2). A professional engineer is a person who has been duly licensed by the Engineering Board. N.C.G.S. § 89C-3(8). It is unlawful to practice or offer to practice engineering without being licensed. N.C.G.S. § 89C-23. Chapter 89C is not to be construed to prevent or affect the practice of, among others, landscape architecture. N.C.G.S. § 89C-25(1). Chapter 89C also governs land surveying. The statute also states that the practice of land surveying shall not be construed to permit the design or preparation of specifications for, among others, streets or storm sewer systems except as incidental to a subdivision. N.C.G.S. § 89C-3(7)(b).

ANALYSIS

The crux of the issue is whether the phrase “embracing drainage” in the definition of landscape architecture includes the design of street and storm water drainage systems, specifically including the subsurface systems and the structural design components of each. The enabling legislation for both engineers and landscape architects state that the Acts are not to be construed to authorize a person licensed by one board to practice the other discipline. Likewise, it is a general principle of statutory construction that when multiple statutes address a single matter or issue, they must be construed together (“in pari materia”) to determine the legislature’s intent. Conflicting interpretations are to be avoided and the statutes reconciled with each other whenever possible. Hunt v. Reinsurance Facility, 302 N.C. 274, 288, 275 S.E.2d 399, 405 (1981).

First and foremost, it must be emphasized that it is up to the legislature to define the practice of landscape architecture and the practice of engineering. Furthermore, these governing bodies for these two professions are the most appropriate entities to settle any conflicts arising from the existing statutory definitions of their professions.

With those provisos in mind, it is our opinion that detailed design plans and accompanying calculations for street design and storm drainage systems, including subsurface structures, appear to require engineering knowledge and to extend beyond the statutory definition of landscape architecture. The practice of landscape architecture includes the “arranging of land and the elements used thereon for public and private use and enjoyment, embracing drainage, soil conservation, grading and planting

Jerry T. Carter March 22, 2001 Page Five plans and erosion control. . . .” The definition references surface design. It does not refer to subsurface drainage, or drainage structures such as piping. In comparison, the definition of engineering refers to the application of special knowledge of the mathematical, physical, or engineering sciences to the design of, among others, hydraulic systems. There is a difference in our minds between using landscape architect principles to arrange the surface land to best accommodate a road (taking into account such factors as erosion control, storm drainage and sedimentation control) and using the mathematical and engineering science to design how the road is to be constructed. Further, it would appear that the design of storm drainage systems, including subsurface structures, constitutes more than arranging elements on the land. The fact that the engineering statute specifically omits the design or preparation of specifications for streets or storm sewer systems (except as incidental to a subdivision), from the definition of land surveying, also suggests that this activity is the practice of engineering.

CONCLUSION

For the foregoing reasons, and with the stated provisos, it is our opinion that the detailed drawings and accompanying calculations of street design and storm drainage systems, including subsurface systems and component structures, is within the definition of the practice of engineering and not within the definition of landscape architecture.

We trust that this advisory opinion will be helpful. Please call Robert Crawford if you would like to discuss this matter further.

cc: David S. Tuttle, Board Counsel