ORDERS:
FINAL ORDER AND DECISION
This
contested case was filed by the Petitioners seeking review of The SCDHC Office
of Ocean and Coastal Resource Management’s (hereinafter referred to as “OCRM”)
2004 decision which allowed movement of the baseline on two lots in Singleton
Beach, Hilton Head Island.
Although
OCRM had determined the baseline could be moved, it refused to do so because
the Town of Hilton Head would not approve the change. In addition, OCRM maintained
that any appeal of the location of the baseline was untimely.
This
case has a tortuous and lengthy procedural history. The Petitioners (originally
the Developer J.J. Development) requested a contested case hearing before the Administrative Law Court in September 2004. In October 2004, the Town of Hilton Head moved
to intervene in order to oppose any movement of the baseline by OCRM. Each
party filed a Motion for Summary Judgment. On February 17, 2005, a hearing on
these motions was held. A consent order allowing the Town to intervene and
agreeing to hold the case and all pending motions in abeyance until March 2005 was
filed February 25, 2005.
In
the spring of 2005, the parties again agreed to hold the matter in abeyance
anticipating that they would be able to resolve the issues. After the parties
informed this Court that they were unable to agree, this Court issued an Order
denying the Motions for Summary Judgment on August 2, 2006. A hearing on the
merits was held on November 28—29, 2006. Based on the evidence before me, I
find that the petition is denied and the baseline should not be relocated.
BACKGROUND
Movement
of the baseline was originally proposed by J.J. Development, developer of the
ten lots, after OCRM issued two special permits in 2001 to lot owners Booker
and Smart under Section 43-39-290 for construction of habitable structures
seaward of the statutory “baseline.” Those two permits would have allowed
leveling a large existing sand dune, as soon as a smaller dune, located closer
to the ocean accreted to a height of 36 inches.
On
March 11, 2004, Mr. Eiser of OCRM wrote a memorandum to J.J. Development agent
Ed Flynn and Steve Riley of the Town of Hilton Head, approving the movement of
the baseline approximately 40 feet seaward if the town of Hilton Head Island
would “certify that the adjustment is consistent with the objectives and
policies of its local comprehensive beachfront management plan.” It is
undisputed that the Town never responded to that Memorandum.
The
Petitioners then attempted to enforce OCRM’s decision by appealing the location
of the existing baseline under § 48-39-280 (E). On August 20, 2004 OCRM refused
to hear the appeal, because Reg. 30-14 (F)(1) prevents the agency from hearing
appeals more than one year after the baseline is set.
The
Petitioners next requested a contested case hearing at the ALC, pursuant to SC
Code Ann. §§ 48-39-280 (E) and 48-39-280 (A), arguing that under either code
section the movement of the baseline had been approved by the OCRM and should
be enforced by the Administrative Law Court.
The Beachfront Management Act was enacted in 1988 and amended in 1990. It granted
authority to OCRM to establish “Baselines” and “Setback Lines” for the purpose
of regulating the saltwater ocean front beaches in the state. On beaches
within inlet zones, such as the subject beach, the Baseline is defined as
follows:
“The most landward
point of erosion at any time during the past forty years, unless the best
available scientific and historical data ... indicate that the shoreline is
unlikely to return to its former position.” § 48-39-280 (A) (2).
The
statute allows OCRM to consider beach nourishment to make a decision on
locating the baseline, § 48-39-280 (A) (4). OCRM locates baselines and setback
lines and has sole authority to do so. The lines must be set no less than
every eight (8) years but no more than every ten (10) years after each
preceding revision, § 48-39-290 (C).
The
baseline on the subject beach was initially set in 1990 and reset in 1999.
OCRM determined that the baseline should be moved on the Booker-Smart lots, in
part because it was consistent with the law and regulation, and in part because
it avoided impact to a large dune on the seaward side of the lots. § 48-39-280
(E) in pertinent part states:
A landowner claiming
ownership of property affected who feels that the final or revised ... baseline
or erosion rate as adopted is in error, upon submission of substantiating
evidence, must be granted a review ... The requests must be ... handled in
accordance with the department’s regulation on appeals.
In
addition to this avenue for appeal, the Petitioners may also request movement
of the baseline based on changed circumstances resulting from a renourishment
project. § 48-39-280 (A) (4) provides:
Notwithstanding any
other provision of this section, where a department-approved beach nourishment
project has been completed, the local government or the landowner, with notice
to the local government, may petition the Administrative Law Judge to move the
baseline...as far as the post project baseline, as determined by the department
in accordance with Section 48-39-280 (A) (1) by showing that the beach has been
stabilized by department-approved beach nourishment. If the petitioner is
asking that the baseline be moved seaward pursuant to this section, he must
show an ongoing commitment to renourishment which will stabilize and maintain
the dry sand beach at all stages of the tide for the foreseeable future.
Under
this section the law assumes that the review will occur when OCRM refuses to
move the baseline as requested. The Court would then look to insure that
(a) The
renourishment project has stabilized the beach; and
(b) There is an
ongoing commitment to renourish for the foreseeable future.
.
Under
§ 48-39-280 (E), the procedure for appealing is specified in Reg. 30-14 (F).
The language is virtually identical to the Act except that the landowner must
make the appeal “within one year of the revision date.” Because the baseline
was set in December 1999, this section would make any appeal to OCRM or this
court untimely after December 2000.
Under
§ 48-39-280 (A) (4), the procedure for appeals is provided in R. 30-14 (G) (1).
It states in pertinent part:
The Petition cannot
be submitted until the permitted Beach Nourishment Project, which must have a
minimum five-year design life, has been completed. The local government
must certify to the Department that the proposal to move the baseline is
consistent with the objectives and policies of its local comprehensive
beachfront management plan. [emphasis added]
Thus,
the regulation adds the requirement that the local government approve moving
the baseline.
Based
on the arguments before me, the evidence taken and the legal principles cited,
I find as follows, by a preponderance of the evidence:
SUMMARY
OF FACTS
The
Petitioner, J.J. Development Corp., is the developer of lots 1-10 at Singleton Beach, on Hilton Head Island, South Carolina. OCRM initially was willing to grant
Petitioner’s request to move the baseline for a small portion of the property if
the Town of Hilton Head Island’s approved, as required by Reg. 30-14(G)(1).
However, the Town did not approve the movement of the baseline. The Town’s
refusal to support Petitioner’s request was based upon the Town’s Beach
Management Plan (the “Plan”) and its Land Management Ordinance (the “LMO”),
which set a policy of building as far landward as practical for erosion control
and to comply with the State’s Setback Lines and “Forty Year Retreat Policy”.
Petitioner
wrote OCRM on September 1, 2004, notifying the Department that JJ Development was
petitioning the Administrative Law Court to enforce OCRM’s March 11, 2004 memorandum
allowing movement of the baseline.
STATUTES
IN ISSUE
This
appeal involves interpretation and application of the Beachfront Management Act, S.C. Code Ann. §48-39-200 et seq. (Supp. 2005). The Act, now
subsumed within the Coastal Zone Management Act,
S.C. Code Ann. §48-39-10 et seq. (Supp. 2005), gives OCRM the authority to
regulate activity on the beachfront and to set baselines and setback lines which
implement the Act’s policy of retreat. The extent and type of construction
permitted is dictated by the location of these lines. The Act and regulations
promulgated thereunder establish procedures by which OCRM sets those lines
along the coast, including public review and input. S.C. Code Ann. §48-39-280
(Supp. 2005) requires that OCRM set the baseline in each standard erosion zone;
that it hold public hearings; and provide an appeals process. (Section 280(E)).
Section 48-39-280(E) provides as follows:
Any landowner
claiming ownership of affected property who feels that the final or revised
setback line, baseline, or erosion rate as adopted is in error, upon submittal
of substantiating evidence, must be granted a review of the setback line,
baseline, or erosion rate, or a review of all three. The requests must be
forwarded to the Coastal Zone Management Appellate Panel and handled in
accordance with the department’s regulations on appeals.
S.C.
Code Ann. Reg. 30-14(F) more specifically addresses the procedure for appeals.
The language is virtually identical, except for the imposition of a time limit:
Any landowner
claiming ownership of affected property who feels that the final or revised
setback line, baseline, or erosion rate as adopted is in error, upon submittal
of substantiating evidence, within one year of the revision date, must
be granted a review of the setback line, baseline, or erosion rate, or a review
of all three. [Emphasis added]
The
other relevant code section is S.C. Code Ann. §48-39-280(A)(4), which provides
the following:
Notwithstanding
any other provision of this section, where a department approved beach
nourishment project has been completed, the local government or the landowners,
with notice to the local government, may petition an Administrative Law Judge
to move the baseline as far seaward as the landward edge of the erosion control
structure or device or, if there is no existing erosion control structure or
device, then as far seaward as the post project baseline as determined by the
department in accordance with Section 48-39-280(A)(1) by showing that the beach
has been stabilized by the department-approved beach nourishment. If the petitioner
is asking that the baseline be moved seaward pursuant to this section, he must
show an ongoing commitment to renourishment which will stabilize and maintain
the dry sand beach at all stages of the tide for the foreseeable future…
Reg.
30-14(G)(1), Procedure for Movement of Baseline After Renourishment, fleshes
out this procedure:
The Department
must receive a petition from the local government; or the landowners with
notice to the local government, before the baseline can be moved pursuant to
Section 48-39-280(A)(4). The petition cannot be submitted until the permitted
beach nourishment project, which must have a minimum five-year design life, has
been completed. The local government must certify to the Department that
the proposal to move the baseline is consistent with the objectives and
policies of its local comprehensive beachfront management plans. [Emphasis
added.]
The
beachfront property owner thus has two options regarding an objection to the
location of the baseline. The first is to appeal the location of the baseline
within one year of the Department’s decision. The second, in areas where the
beachfront has been renourished, allows the property owner to petition the
Department to move the baseline if the local government supports the petition.
The
Town adopted the “Forty Year Retreat Policy” in its Plan for the purpose of
managing not only existing land use along the beach, but future use also,
particularly in areas experiencing high rates of erosion. The Plan states:
Since the South
Carolina Coastal Council’s Setback Line is based on the potential 40 year
erosion rate along the beach, any structures or vacant parcels of land located
seaward of this line are in an area of potentially high risk for damage if
erosion rates continue. This risk is even greater considering that the S.C.
Beach Management Act’s regulations severely limit the ability to rebuild any
erosion control structures that become damaged.
The
Town’s Land Management Ordinance (LMO), Title 16 of the Municipal Code of the
Town of Hilton Head Island (1983), as amended, also pertains to matters
involving its beaches. LMO Sec. 16-1-103 states its general purpose:
This Title is
adopted for the purposes of guiding development in accordance with the Town’s
Comprehensive Plan and existing and future needs of the Town in order to
protect, promote and improve the public health, safety, morals, convenience,
order, appearance, prosperity and general welfare.
LMO
Sec. 16-6-301 states the specific purpose of the LMO as it relates to beaches:
The purpose of
this section is to promote protection and stabilization of existing beaches on Hilton Head Island.
Although
this Court is not bound by the local ordinance, reference to that ordinance is
nonetheless relevant. Its stated purpose clarifies the Town’s refusal to
approve Petitioners’ request to move the baseline seaward. Any seaward movement
of the baseline is inconsistent with the Town’s policies, and the Town would be
“adversely affected” if Petitioner succeeded in moving the baseline seaward.
STATUTORY
INTERPRETATION
“The
cardinal rule of statutory interpretation is to ascertain the intent of the
legislature.” State v. Scott, 351 S.C. 584, 588, 571 S.E. 2d 700, 702
(2002). A statute should be given a reasonable and practical construction
consistent with the purpose and policy expressed in the statute. Davis v. NationsCredit Fin. Servs. Corp., 326 S.C. 83, 484 S.E. 2d 471
(1997). All rules of statutory construction are subservient to the one that
legislative intent must prevail if it can be reasonably discovered in the
language used, and that language must be construed in the light of the intended
purpose of the statute. McClanahan v. Richland County Council, 350 S.C.
433, 567 S.E. 2d 240 (2002). The determination of legislative intent is a
matter of law. Charleston County Parks & Recreation
Comm’n v. Somers, 319 S.C. 65, 459 S.E.2d 841 (1995).
The
legislature’s intent should be ascertained from the plain language of the
statute. State v. Landis, 362 S.C. 97, 606 S.E. 2d 503 (Ct. App.
2004). The language used should be given its plain and ordinary meaning
without resort to subtle or forced construction to expand or limit the scope of
the statute. Berkebile v. Outen, 311 S.C. 50, 426 S.E. 2d 760 (1993).
The language must also be read in a sense which harmonizes with its subject
matter and accords with its general purpose. Mun. Ass’n of South Carolina v. AT&T Communications of Southern States, Inc., 361 S.C. 576, 606
S.E. 2d 468 (2004). “Once the legislature has made [a] choice, there is no
room for the courts to impose a different judgment based upon their own notions
of public policy.” South Carolina Farm Bureau Mut. Ins. Co. v.
Mumford, 299 S.C. 14, 382 S.E. 2d 11, 14 (Ct. App. 1989). “The Court
should not consider the particular clause being construed in isolation, but
should read it in conjunction with the purpose of the whole statute and the
policy of the law.” State v. Gordon, 356 S.C. 143, 152, 588 S.E. 2d
105, 110 (2003).
“Where
a statute is ambiguous, the Court must construe the terms of the statute.” Wade
v. Berkeley County, 348 S.C. 224, 229, 559 S.E. 2d 586, 588 (2002). In
construing a statute, the court looks to the language as a whole in light of
its manifest purpose. Adams v. Texfi Industries, 320 S.C. 213, 464 S.E.
2d 109 (1995). An ambiguity in a statute should be resolved in favor of a
just, beneficial and equitable operation of the law. State v. Hudson,
336 S.C. 237, 519 S.E. 2d 577 (Ct. App. 1999).
The
construction of a statute by the agency charged with its administration will be
accorded the most respectful consideration and will not be overruled absent
compelling reasons. Brown v. South Carolina Dep’t of Health and
Environmental Control, et al., 348 S.C. 507, 560 S.E. 2d 410 (2002) (citing Dunton v. South Carolina Bd. of Examiners in Optometry, 291 S.C. 221,
223, 353 S.E.2d 132, 133 (1987)). Where the construction of the statute has
been uniform for many years in administrative practice and has been acquiesced
in by the General Assembly for a long period of time, such construction is
entitled to weight, and should not be overruled without cogent reasons. Etiwan
Fertilizer Co. v. South Carolina Tax Comm’n, 217 S.C. 354, 60 S.E.2d 682
(1950). While the Court typically defers to the Board’s construction of its
own regulation, where the plain language of the statute is contrary to the
Board’s interpretation, the Court will reject its interpretation. Brown,
supra at 415.
An
agency cannot pass a regulation if it extends or modifies the underlying statute.
See Society of Prof’l Journalists v. Sexton, 324 S.E. 2d 313 (1984); Banks
v. Batesburg Hauling Co., 202 S.C. 273, 24 S.E. 2d 496 (1943). The Court
has stated emphatically that agencies have no power to modify, alter or amend
the governing statute by regulation. Although a regulation has the force of
law, it must fail when it alters or adds to a statute. Milliken and Company
v. South Carolina Department of Labor, 269 S.E. 2d 763 (1980) (citing Lee
v. Michigan Miller Insurance Company, 158 S.E. 2d 15 (1968)(“it is well
settled that an administrative order [regulation] which materially alters or
adds to the law is void”)); Heyward v. South Carolina Tax Commission,
126 S.E.2d 15 (1962)(“An agency has no authority to enact new laws in the form
of a regulation to satisfy its theory of how the law should be carried out”); Banks
v. Batesburg Hauling Company, infra, (“Clearly a rule cannot be made
by an administrative body which would materially alter or add to the law; a
rule, to be valid, may only implement the law”).
The
Department, pursuant to §48-39-50, has the authority to promulgate the
necessary rules and regulations to carry out the provisions of the chapter, but
not to alter the material intent of the provisions.
TIMELINESS
OF THE APPEAL
The
Petitioners challenge the agency’s authority to specify in a regulation a time
limit for appeal. The Petitioners maintain that because the underlying statute
does not specify any time limit for an appeal of the location of the baseline,
the Petitioners can appeal at any time. This argument, however, must fail.
“The
power of an administrative agency to administer a congressionally created
program necessarily requires the formulation of policy and the making of rules
to fill any gap left, implicitly or explicitly, by Congress.” Chevron v.
Natural Resources Defense Council, 467 U.S. 837, 843, 104 S. Ct. 2778, 2782
(S.Ct. 1984), quoting Morton v. Ruiz, 425 U.S. 199, 231, 94 S.Ct. 1055,
1072 (1974). As the South Carolina Supreme Court stated in McCummins v.
South Carolina Dep’t of Corrections, 319 S.C. 440, 462 S.E.2d 271 (1995),
“the lack of any express limitation on time for filing a petition… does not
evince a legislative intent that the time be limitless” [Emphasis added].
“We hold that in the absence of an agency rule specifying a time
limit, parties have thirty days after a final agency decision to petition
the agency for rehearing or appeal the decision to the circuit court” [Emphasis
added]. Id. at 441, 272.
Logically,
agencies have the power to set time limits for initial appeals of their
decisions, particularly when agencies use their discretion to extend the
amount of time allowed for an appeal. According to the Supreme Court, “an
administrative regulation is valid as long as it is reasonably related to the
purpose of the enabling legislation.” McNickel’s Inc. v. South Carolina
Dep’t of Revenue, 331 S.C. 629, 634, 503 S.E. 2d 723, 725 (1998). Here,
the twin purposes of the enabling legislation are (1) to provide OCRM with a
procedure for establishing a final and reliable baseline to prevent
environmental damage and (2) to provide a reasonable means for appealing OCRM’s
decision regarding the location of that baseline. In setting a one-year time
limit, OCRM gives landowners ample opportunity to appeal while ensuring that the
baseline is final after one year, and that affected parties can rely upon it.
Because the state Constitution places a premium on notice of agency decisions,
the one-year time limit gives landowners ample opportunity to find out the
location of the setback line and baseline and challenge these lines.
According
to the Supreme Court, timely service of a Notice of Intent to Appeal is a
jurisdictional matter, and no court has the power to relax the requirements of
the applicable rule or regulation. Botany Bay Marina v. Townsend, 296
S.C. 330, 372 S.E. 2d 584 (1988), overruled on other grounds by Woodward
v. Westvaco Corp., 319 S.C. 240, 460 S.E.2d 392 (1995). See also Mears
v. Mears, 287 S.C. 168, 169, 337 S.E.2d 206, 207 (1985) (holding that
“[t]his Court has no authority to extend or expand the time in which the notice
of intent to appeal must be served.”).
In
the instant case, the Petitioners filed their appeal four and one-half years
after receiving constructive notice of the agency’s decision. Thus, this
appeal falls well outside the time allowed by OCRM’s regulation and should be
dismissed.
Even
if the time limit established by R.30-14 (F) were invalid, the default time
frame is no better for the Petitioners. Contested case hearings are governed
by Rules of Procedure for the Administrative Law Court. See S.C. Code Ann.
§1-23-650 (Supp. 2005). Under those rules, a party affected by an agency
decision must file a notice of intent to appeal within 30 days of receiving
actual or constructive notice of the decision. ALC Rule 11. In the instant
case, there is no dispute that OCRM gave public notice when it initially
proposed the location of the baseline, including newspaper publication and a
public hearing, as required by S.C. Code Ann. §39-48-280(C) (Supp. 2005).
Thus, all affected parties were on constructive notice as of the last baseline
revision in December of 1999. Petitioners’ appeal, therefore, is untimely both
under OCRM’s time frame or pursuant to the thirty days allowed by this Court’s
rules and the Administrative Procedures Act.
REGULATION
30-14(G)
The
Petitioners’ alternative argument is that the requirements of R.30-14(G) do not
apply to them; thus, they should be permitted to move the baseline based solely
on OCRM’s approval. Even though the regulation clearly requires the local
government’s approval and support of any petition to move a baseline after
renourishment (see Reg. 30-14(G)(1), as quoted in the “Beachfront
Management” section of this memorandum), the Petitioners take the position that
Reg. 30-14(G)(1) exceeds the Department’s authority. Applying the principles
of statutory construction to §48-39-280, the Court finds that the intent of the
legislature was to have the Petitioners prove that the level of “ongoing
commitment” was sufficient to ensure a “dry sand beach at all stages of the tide
for the foreseeable future.” Reg. 30-14(G)(1) requires that the local
government certify that movement of the baseline is consistent with its Beach
Management Plan. This Court believes this is an appropriate regulatory
mechanism to verify the level of the ongoing commitment to renourishment and
thus finds the Regulation, as applied, to be valid. Since the Petitioners have
not received such certification from the Town, the regulatory requirement has
not been satisfied.
Further,
assuming arguendo that Petitioners were correct and that Reg.
30-14(G)(1) is invalid because it unlawfully exceeds the Department’s regulatory
authority, the Petitioners’ argument must fail because Petitioners cannot meet
the requirements of S.C. Code Ann. §48-39-280, which requires Petitioners to
show “an ongoing commitment to renourishment which will stabilize and maintain
a dry sand beach at all stages of the tide for the foreseeable future.” This
Court received ample evidence of the Town of Hilton Head Island’s substantial
and ongoing commitment to renourishment. However, the Town’s expert, Mr. Eric
Olsen, stated that despite the Town’s commitment to renourishment, the area in
question, which is an inlet zone, has not stabilized and a 25 year or 50 year
storm event, would return the property to its pre-1986, pre-renourishment
status. In other words, this area may never be “stabilized,” even after
renourishment.
The
Petitioners point to OCRM’s approval of a prior owner’s request to move the
baseline on a small portion of the property, referred to as the two “Booker-Smart
lots,” as evidence that the area in question met OCRM’s criteria for movement
of the baseline for the entire property. However, OCRM’s explanation of why it
approved the movement of the baseline for the Booker-Smart lots clearly
demonstrates that the baseline movement was only for those two lots
(which constitute a very small portion of the ocean frontage) and was based on special
circumstances related only to those two lots.
Bill
Eiser, OCRM’s representative, testified that the reason OCRM endorsed limited
movement of the baseline for the Booker-Smart lots was to avoid a total taking
of the property and/or the destruction of a large sand dune pursuant to a
special use permit issued previously by OCRM. Mr. Eiser also testified that
the Booker-Smart lots had been recently combined with adjacent landward
property and reconfigured by the developer so that construction on all the lots
could take place, thus eliminating OCRM’s prior concern of a “takings” claim
and on the final need for the movement of the baseline. Thus, the fact that
OCRM endorsed moving the baseline for the Booker-Smart lots, as configured in
2004, does not establish by a preponderance of the evidence that the entire beach
is sufficiently stable to warrant movement of the baseline for all ten lots in
the subdivision.
There
is substantial evidence in the record that the Town is committed to
renourishment. However, it is clear that the area in question, an inlet zone,
is not sufficiently stabilized and that a 50 year or 25 year storm would return
the area to its pre-renourishment condition. Further, Petitioners offered no evidence
that the Town’s ongoing commitment to renourishment would “stabilize and
maintain a dry sand beach at all stages of the tide for the foreseeable
future.” Therefore, the Petitioners have failed to meet their burden under
S.C. Code Ann. §48-39-280.
IT
IS HEREBY ORDERED that the petition of J.J. Development and the individual
lot owners is denied and the baseline shall remain in its current
configuration.
______________________________
CAROLYN
C. MATHEWS
Administrative
Law Judge
April 30, 2007
Columbia, SC
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