SC Administrative Law Court Decisions

This matter comes before the Administrative Law Judge Division upon the request of the Petitioner, W. Creed Daniels, for a contested case hearing on the denial of a permit to construct a footbridge. The application contemplates the construction of a footbridge leading from one side of the Petitioner's lot across a marsh to the other, for purposes of providing more direct access from the main house to a hot tub to be installed in a separate structure for Petitioner's therapeutic use. The Bureau of Ocean and Coastal Resource Management ("OCRM") of the South Carolina Department of Health and Environmental Control denied the permit because the area of the proposed construction is a critical area as well as a storm water buffer area in which construction is prohibited by a previous OCRM permit.

After notice to the parties, a contested case hearing was conducted on May 27, 1998. Based on the evidence presented and the applicable law, the application must be denied. Any issues raised or presented in the proceedings or hearing of this case not specifically addressed in this Order are deemed denied. ALJD Rule 29(C) (April 29, 1998).

I make the following Findings of Fact, taking into account the burden on the parties to establish their respective cases by a preponderance of the evidence and taking into consideration the credibility of the witnesses:

The Petitioner, W. Creed Daniels, owns property adjoining the marshes of Black Drum Creek at 13 Terrapin Lane, Kiawah Island, Charleston County, South Carolina.

The Petitioner suffers from severe physical ailments, which make walking difficult, and he anticipates that his health problems will progressively decrease his mobility necessitating the use of a wheel chair.

Because of his health concerns, the Petitioner plans to erect a one story 20' by 20' structure containing a hot tub for his therapeutic use and that of his family, which includes a son who is confined to a wheelchair.

The Petitioner applied for a permit to construct a footbridge over an area of tideland that recesses into the property. The footbridge is designed to connect the property's main house to the structure containing the hot tub.

Although the house has not been constructed, design of the primary residence with a therapeutic hot tub exceeded the restrictions imposed by the residential community. Therefore, Petitioner proposed the second structure.

If the footbridge is not constructed, accessing the hot tub from the main house would require traveling over steps and across a pine straw walkway around the edge of the tideland. If constructed, egress over steps would still be required; however, the route from the house to the hot tub would be more direct.

The proposed footbridge would be fifty feet long and four feet wide with handrails.

A stormwater permit for the subdivision where the Petitioner's property is located contains the following restriction: "No clear cutting, filling, excavation, or construction activity or other permanent structures shall be allowed in the buffer." This restriction applies to Petitioner's lot.

Petitioner proposes to construct the bridge off premises and then install it on the property on piling erected outside of the buffer zone to minimize any activity in the buffer zone and the marsh.

Petitioner made verbal requests of the Architectural Review Board for authorization to construct a walkway, three to four feet in width, from the residence to the building with the hot tub. Petitioner has never made a formal written request.

According to Petitioner, the informal request was verbally denied by the Architectural Review Board.

A policy of permitting structures such as the footbridge could have long-range, cumulative effects within the context of other possible development and the general character of the area.

Although the footbridge would represent a significant convenience to the Petitioner, the permitting of the footbridge leading to the hot tub would be improper. The State holds a significant interest in coastal zone management, which may outweigh the interests of private landowners. See McQueen v. South Carolina Coastal Council,___ S.C. ___, 496 S.E.2d 643 (S.C. Ct. App. 1998); Carter v. South Carolina Coastal Council, 281 S.C. 201, 314 S.E.2d 327 (1984); cf. S.C. Code Ann. § 48-39-30(1) (Supp. 1997). The Petitioner's proposed construction would infringe on the State's interest in coastal zone management primarily because the footbridge is a transportation structure involving construction on a critical area for which feasible alternatives exist.

The applicant failed to established that there are no feasible alternatives to construction in the critical area. The regulatory definition of "feasible alternatives" is quite broad, applying "both to locations or sites and to methods of design or construction, and includes a 'no action' alternative." 23A S.C. Code Ann. Regs. 30-1(C)(6) (Supp. 1997). Notably, the regulations require that "[t]he location and design of public and private transportation projects . . . avoid the critical areas to the maximum extent feasible. . . ." 23A S.C. Code Ann. Regs 30-12(F)(2)(b) (Supp. 1997) (emphasis added).

The evidence presented did not establish that no other locations or sites, methods of design or construction were feasible to the extent required by the regulations. Although a footbridge may be more convenient, the record does not demonstrate that the pine straw walkway around the edge of the tideland is not a "feasible" (as defined in the regulations) means of accessing the site of the hot tub. This is especially relevant considering that the design plans call for steps leading to the footbridge, which would prove as problematic as the current configuration for wheelchair access. In addition, the Architectural Review Board has the authority to allow Petitioner to use different materials in the construction of a walkway for use by a person with physical handicaps. The evidence established that Petitioner has not made a formal written application for the Board to consider but has only discussed the matter with the Board, which declined to allow a variance. These factors, amplified by OCRM's duty to consider the "long-range, cumulative effects of the project may result within the context of other possible development and the general character of the area," 23A S.C. Code Regs. 30-11(C)(1) (Supp. 1997), require that the project be denied at this time.

At this point there are other feasible alternatives since the Board has not formally considered a request from Petitioner and no formal denial of a variance has been issued. Once other available alternatives have been exhausted then Reg. 30-12(F)(2)(b) states that if tidelands cannot be avoided, bridging the area will be required. The project proposed by Petitioner would meet this criteria.

Respondent argues that even if no other configuration were feasible, the permit should be denied because of restrictions contained within a stormwater permit for the subdivision where the Petitioner's property is located. Those restrictions, placed on the final subdivision plat, state that "[n]o clear cutting, filling, excavation, or construction activity or other permanent structures shall be allowed in the buffer." The buffer serves to comply with state stormwater management regulations, and they represent a total prohibition on construction within the buffer zone. As proposed by Petitioner, the footbridge would be constructed off-site and installed on pilings placed outside of the buffer area. If Petitioner were able to accomplish the construction and installation of the footbridge outside of the buffer area, then the project would not be prohibited based upon the stormwater management requirements.

Based upon the Findings of Fact, I conclude as a matter of law the following:

The Administrative Law Judge Division has subject matter jurisdiction pursuant to S.C. Code Ann. § 48-39-150 (Supp. 1997) and the Administrative Procedures Act, S.C. Code Ann. § 1-23-310 et seq. (1986 & Supp. 1997).

"The construction of a statute by the agency charged with its administration will be accorded most respectful consideration and will not be overruled absent compelling reasons." Davis v. South Carolina Dep't of Pub. Safety, ___ S.C. ___, 493 S.E.2d 871, 873 (Ct. App. 1997).

The burden of proof generally rests with the party who asserts the affirmative of an issue. See Alex Sanders et al., Trial Handbook for South Carolina Lawyers § 9:1 (1994). Accordingly, the Petitioner bears the duty to establish his entitlement to the permit sought.

The proper standard of proof to be applied in a contested case conducted pursuant to the Administrative Procedures Act is a preponderance of the evidence. Anonymous (M-156-90) v. State Bd. of Medical Examiners, Op. No. 24754 (S.C. Sup. Ct filed January 26, 1998) (Davis Adv. Sh. No. 5 at 11); National Health Corp. v. South Carolina Dep't. of Health and Envt'l. Control, 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989).

Findings of fact based upon a "preponderance" of the evidence are those reflected by the greatest "weight, amount, credibility or truth" as reflected by the whole of the evidence before the court, or "evidence which convinces as to its truth." Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225, 235 (1955); Nettles v. Nettles, 138 S.C. 318, 136 S.E. 297 (1927).

The trier of fact must weigh and pass upon the credibility of evidence presented. See S.C. Cable Television Ass'n. v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). The trial judge is in the best position to weigh witnesses' demeanor and veracity and to evaluate their testimony. See McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982); Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973); Mann v. Walker, 285 S.C. 194, 328 S.E.2d 659 (Ct. App. 1985); Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Ct. App. 1984).

The purpose of the Coastal Zone Management Act is "[t]o promote economic and social improvement of the citizens of this State" while "protect[ing] the sensitive and fragile areas from inappropriate development and provide adequate environmental safeguards with respect to the construction of facilities in the critical areas of the coastal zone." S.C. Code Ann. § 48-39-30(1) (Supp.1997).

The State holds a significant interest in coastal zone management, which may outweigh the interests of private landowners. See McQueen v. South Carolina Coastal Council, ___ S.C. ___, 496 S.E.2d 643 (S.C. Ct. App. 1998); Carter v. South Carolina Coastal Council, 281 S.C. 201, 314 S.E.2d 327 (1984); cf. S.C. Code Ann. § 48-39-30(1) (Supp. 1997).

The location of the proposed construction is in a "critical area," as defined in S.C. Code Ann. § 48-39-10(J) (Supp. 1997). Critical areas are defined as "any of the following: (1) coastal waters, (2) tidelands, (3) beach/dune systems." 23A S.C. Code Ann. Regs. 30-1(C)(4) (Supp. 1997).

Tidelands are:

all areas which are at or below mean high tide and coastal wetlands, mudflats, and similar areas that are contiguous or adjacent to coastal waters and are an integral part of the estuarine systems involved. Coastal wetlands include marshes, mudflats, and shallows and means those areas periodically inundated by saline waters . . . [N]othing in this definition shall apply to wetland areas that are not an integral part of an estuarine system. . . . .

23A S.C. Code Ann. Regs. 30-1(C)(12) (Supp. 1997).

Any person wishing to erect a structure within a critical area must obtain a permit from OCRM. S.C. Code Ann. § 48-39-130(C) (Supp. 1997); 23A S.C. Code Ann. Regs. 30-2(B) (Supp. 1997).

The permit describes construction in a critical area; therefore, the Petitioners are required to obtain a permit from OCRM.

OCRM has authority to deny or approve permits for proposed activities within critical areas. S.C. Code Ann. §§ 48-39-50(G) & (V) (Supp. 1997); Grant v. South Carolina Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995).

S.C. Code Ann. § 48-39-150(A) (Supp. 1997) and 23A S.C. Code Regs. 30-11(B) (Supp. 1997) set forth the ten general considerations to be used in assessing the impact of a project in a critical area. Consideration and balancing of the ten general criteria does not prevent permitting the project.

"[T]he Department must . . . be guided by . . . [t]he extent to which long-range, cumulative effects of the project may result within the context of other possible development and the general character of the area." 23A S.C. Code Regs. 30-11(C)(1) (Supp. 1997).

"S.C. Code Ann. § 48-39-150(A)(9) provides that the Coastal Council must look at '[t]he extent to which all feasible safeguards are taken to avoid adverse environmental impact resulting from a project.'" Sierra Club v. Kiawah Resort Assocs., 318 S.C. 119, 456 S.E.2d 397, 401 (1995).

"The location and design of public and private transportation projects must avoid the critical areas to the maximum extent feasible. Where coastal waters and tidelands cannot be avoided, bridging rather than filling of these areas will be required to the maximum extent feasible." 23A S.C. Code Ann. Regs 30-12(F)(2)(b) (Supp. 1997) (emphasis added).

According to 23A S.C. Code Ann. Regs. 30-1(C)(6) (Supp. 1997),

feasibility is determined by the Department with respect to individual project proposals. Feasibility in each case is based on the best available information, including, but not limited to, technical input from relevant agencies with expertise in the subject area, and consideration of factors of environmental, economic, social, legal and technological suitability of the proposed activity and its alternatives. Use of this word includes, but is not limited to, the concept of reasonableness and likelihood of success in achieving the project goal or purpose. "Feasible alternatives" applies both to locations or sites and to methods of design or construction, and includes a "no action" alternative.

Construction of the footbridge as described in the permit would not comply with all requirements of 23A S.C. Code Ann. Regs. 30-12(F) (Supp. 1997) because it would not avoid the critical areas to the maximum extent feasible.

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

ORDERED, that the application of W. Creed Daniels to build a footbridge over part of the marshes of Black Drum Creek at Kiawah Island be denied.

AND IT IS SO ORDERED.

__________________________________

ALISON RENEE LEE

Administrative Law Judge

August 26, 1998

Columbia, South Carolina.