South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Richard Street Partners, et al vs. SCDHEC, et al

AGENCY:
S.C. Department of Health and Environmental Control

PARTIES:
Petitioners:
Richard Street Partners, LLC, Thaddeus Segars, Frederick Cerrato, Steven Cerrato, Kenneth Oliver, Lot 4 Singleton Beach, LLC, Patrick Donnelly-Rockview, Richard and Robin Greco, Snowgoose Developers, LLC, and
Wayzata Limited Partnership

Respondents:
S.C. Department of Health and Environmental Control and The Town of Hilton Head Island
 
DOCKET NUMBER:
04-ALJ-07-0304-CC

APPEARANCES:
Cotton C. Harness, III, Esquire and Amber S. Deutsch, Esquire for the Petitioners

Leslie S. Riley, Esquire for Respondent SC DHEC

Gregory M. Alford, Esquire for Respondent The Town of Hilton

Head Island
 

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.[1]

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[2]. 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



[1] This non-response by the Town leaves the lot owners in legal limbo. If the Town wants to take advantage of this code section, it should be incumbent upon the Town to issue a decision to the lot owners certifying that movement of the baseline is either 1. consistent or 2. not consistent with its local beachfront management plan.

[2] According to testimony at the hearing, this section of beach is set for review of the baseline placement in 2007 or 2008.


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