ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This is a contested case arising from an enforcement action
brought by the S.C. Department of Health and Environmental Control (DHEC).
DHEC found that a private dock built by Philip Przyborowski (Respondent or
Przyborowski) pursuant to a permit issued by DHEC in 2000 is in excess of the
one thousand foot maximum allowed by regulation and that he has installed an
unauthorized floating jet dock. After Respondent filed timely notice of appeal
of the DHEC’s decision, a hearing was held before the Administrative Law Court on
August 28, 2007, in Columbia, South Carolina.
FINDINGS
OF FACT
Having
observed the witnesses and exhibits presented at the hearing and taking into
consideration the burden of persuasion and the credibility of the witnesses, I
make the following findings of fact by a preponderance of evidence:
1. Przyborowski
is the owner of property located at 2640 Bohicket Road, Johns Island, South
Carolina which fronts on the Bohicket River.
He purchased the property in 2000 for $140,000. At the time of his purchase of
the property, a permit application for a private dock for this site made by
Elizabeth Seabrook was pending before DHEC. The dock cost $85,000 to build.
Permitting
of Przyborowski’s Dock
Ms. Seabrook
applied to DHEC in May of 2000 for a critical area permit authorizing the
construction of a dock extending from what is now Mr. Przyborowski’s property
into Bohicket Creek. Mr. Michael Albenesius served as Ms. Seabrook’s
authorized agent in making that application. After Mr. Albenesius marked the
dock location with a string line, he requested a construction placard.
However, there is no document in the permit file evincing that DHEC ever
inspected and approved this location other than the issuance of the
construction placard. The application represented that the dock would be 850' in length as measured
from the critical area line with a 10' x 12' pier head and 20' x 20' floating
dock. The application also contained a certification provision which stated
that:
Application is hereby made
for a permit or permits to authorize the activities described herein. I
certify that I am familiar with the information contained in this application,
and that to the best of my knowledge and belief such information is true,
complete, and accurate. I further certify that I possess the authority to
undertake the proposed activities or I am acting as the duly authorized agent
of the applicant.
Respondent later
purchased this property in 2000 while a private dock permit application for the
site was pending before DHEC. The application was then assigned to Mr.
Przyborowski and review of the application was completed in his name.
On
July 18, 2000, critical area permit number OCRM-00-262-M was issued by DHEC to
Mr. Przyborowski. The work authorized under the permit is based on the
narrative description, drawings and conditions imposed by DHEC. The narrative
description contained in the permit provides:
The plans submitted by you, attached
hereto, show the work consists of the following: Constructing a private dock.
The proposed structure will have a 4' by 850' walkway that will lead to
a 10' by 12' fixed pierhead. Channel ward of the pierhead a ramp will lead to
a 10' by 20' floating dock. The purpose of the proposed activity is for the
property owner’s private, recreational use. (emphasis added).
The Permit also included,
in its “General Conditions” section, a reservation of a right to revoke the
permit if “the information and data which the permittee or any other agencies
have provided in connection with the permit application is either false,
incomplete or inaccurate” or “that the activity is not in compliance with the
drawings submitted by the applicant.” On the other hand, special condition
number four of the Permit stated that: “Provided the dock is staked in the
field, inspected, and approved in writing by OCRM staff prior to
construction.” The cover letter accompanying the permit also set forth that a
request for construction placard would be sent when the applicant was mailed
the “completed permit.” The applicant was instructed to return that card to
DHEC “before the time you wish to start construction. At that time a
construction placard will be sent to you to post at the construction site.”
Mr.
Przyborowski signed the permit with those conditions and it was issued in July
of 2000. After the dock was staked in the field, a request for a construction
placard was sent to DHEC. Thereafter, a construction placard was sent to the
Respondent indicating he could start construction. The dock was subsequently
built.
In
May of 2002, Mr. Przyborowski requested an amendment to the permit to allow the
addition of a floating dock. DHEC approved the amendment without conditions in
July of 2002. Notably, the drawings attached to the amendment request showed that
the existing structure consisted of a 987' walkway connected to a 12' x 14'
fixed pier with a 10' x 20' floating dock to the right side (when facing the
water) to which the additional float was to be added. The drawings thus
reflected that the existing dock structure was 999' in length. The existing
structure differed from the previously-issued permit not only in length but in size
of the pier (permitted at 10' x 12') and location of the float (permitted to be
placed in front of the pier). Specifically, the structure as set forth in the original
application was to have:
· An 850' walkway
· Connected to a 10' by 12' fixed pierhead
· Connected to a ramp extending channel ward of the pierhead
· Leading to a 10' by 20' floating dock.
However,
according to the 2002 amendment application, the dock as constructed had:
· A 987' walkway
· Connected to a 12' x 14' fixed pier
· Connected to a ramp extending perpendicular to the channel
· Leading to a 10' x 20' floating dock.
Despite these glaring
discrepancies, DHEC simply approved the amendment as requested on July 22, 2002.
Moreover, under DHEC policy, approval of the amendment constituted approval of
all modifications shown on the drawing attached to the request, including the
walkway length of 999'.
Length
of Przyborowski’s Dock
The
Przyborowski dock has been measured multiple times with varying results. The
length of Przyborowski’s dock was originally estimated by Mr. Albenesius, who
prepared the application for Ms. Seabrook and ultimately oversaw the
construction of the dock. To determine the length of the dock, Mr. Albenesius
used a 1,000' ball of twine, which was staked to the highland edge of the marsh. He then paddled through the marsh to
the Bohicket River and cut the rope. His measurement of the remainder of the
twine indicated that the dock would be 850' long. There is no contention or
evidence that Mr. Albenesius deliberately underestimated the length of the
dock. Furthermore, since DHEC did not require surveys at the time, I find that
the method used to calculate the length was reasonable under the circumstances.
After
Mr. Albenesius submitted the application, an OCRM project manager visited the
site to verify that the dock was being constructed in compliance with
applicable regulations. The project manager, who had reviewed a number of dock
permit applications in the area during the course of his career, walked out on
an adjacent dock and determined that the estimated length was a good
approximation. However, the project manager did not measure the length of the
dock from which he was viewing the site, nor did he consult aerial photography
to confirm the proposed length. Furthermore, after the location of the dock
was marked with a string line, no effort was made to verify the accuracy of the
dock’s length.
During
construction of the dock, Albenesius realized the permitted length of 850'
would be insufficient to reach Bohicket Creek and informed OCRM of his
predicament. Mr. Albenesius testified that thereafter the project manager came
to the site and told him to go ahead and complete the dock “to the water.” The
project manager, Fred Mallett, did not recall whether he revisited the site,
but denies he ever instructed Albenesius to simply “take it to the water.” I
find that Mr. Mallett verbally authorized an extension of the dock beyond 850'
of length authorized by the permit. However, he did not authorize that the
dock extend beyond 1,000'.[4]
Additionally,
the dock was presumably measured in May of 2002 when Mr. Przyborowski requested
an amendment to the permit. The drawings reflected that the walkway was 987' and
was connected to a 12' x 14' fixed pierhead. Therefore, according to that
submission, the dock was 999' in length.
The
next round of measurements began in late 2006, after DHEC received a survey
suggesting that Mr. Przyborowski’s dock, as well as another dock adjacent to
Mr. Przyborowski’s dock, might be in excess of 1,000' in length. After receiving that survey, DHEC
employee, James Trumbull, went to the site on December 21, 2006 and January 10,
2007 and, using a device he described as a “wheel”, determined the walkway was
1,022' long, the pier was 14' x 14', and the floating dock extended
approximately 5' in front of the pier, making the total length, by his
calculation, 1,041'. However, though Mr. Trumbull testified that he measured
“from the critical area line,” neither his testimony nor his exhibits identified
the specific location of that line. Nevertheless, it appears that he began his
measurement where the walkway commences. Following the two site visits, the
Notice of Violation was mailed on February 6, 2007 and the Administrative
Enforcement Order was issued on April 20, 2007. The effect of the
Administrative Order would be to reduce the Przyborowski dock to 1,000', which
would result in a walkway ending in the marsh. Since the regulations require
docks be for water access, reducing the Przyborowski dock to 1,000' would
require that the entire pier, floats and walkway be removed.
After the DHEC
determination that the dock was in excess of 1,000' in length, Mr. Albenesius
measured the Przyborowski dock. His measurement indicated the length of the
dock was between 1,022' and 1,030', starting on the landward side of the
walkway. However, he testified the walkway “comes into the yard a little bit”
so he had to pick where the “yard ends and the marsh starts” based on his
estimation of where the critical area began. DHEC conducted no survey of its own to confirm the exact length of the dock,
nor did it produce the original of the survey or the person who prepared the
survey at the hearing in this case.
Upon
returning from a business trip abroad, Mr. Przyborowski used a wheel to measure
the length of his dock and arrived at a distance of 999'. According to Mr. Przyborowski,
the substantial difference between his determination of the length of the dock
and the other measurements is the starting point of the measurement from the
critical line. In other words, the current discrepancy is a result of the
change of the critical area line between 2000 and 2007.
Mr. Przyborowski
explained that the critical area line established on his property in 2000 is
22' from where his walkway begins. He obtained that measurement by using a
tape measure to measure the length of walkway from the “critical area stake” to
where the walkway actually commences on the high ground and came up with a
distance of 22'. The “critical area stake” had been placed at the critical
line before the dock was constructed and has remained there since his purchase.
Furthermore,
Przyborowski elucidated that the change in the critical line was not just due
to natural erosion, but was also a result of the construction of his home and
the dock itself. When Mr. Przyborowski purchased the property, it was
unimproved and wooded. In clearing the lot for a home site and a dock access
point, he had a number of trees removed, including several pine trees along the
edge of the marsh. Later, the stumps of those pines along the edge of the
marsh were removed to facilitate construction of the dock. Przyborowski
contends that tidal flow into and out of the stump holes has caused the
critical area line to migrate landward since 2000.
Boat
Storage Dock
Przyborowski
currently has a boat storage dock (a/k/a jet dock) measuring approximately nine
feet by twelve feet. However, that boat storage dock was not authorized to be
built by DHEC.
Conclusion
The
determination of the facts in this case is quite difficult. There are several
versions of the length of this dock. Resolution of the issue is determined not
from a mere measurement of the length of the dock, but also from a
consideration of where the critical line was in 2000 and in 2002. The
credibility of Mr. Przyborowski’s assertion that the critical line has moved 22
feet in the past seven years is questionable. Furthermore, Mr. Przyborowski
testified there is no erosion between his yard and the marsh, which is
supported by the field observations of Mr. Trumbull. As explained by the
Manager of Critical Area Permitting for DHEC, Curtis Joyner, critical area
lines do not typically move significantly along shorelines protected by
expanses of marsh, as is the case at the Przyborowski lot. However, based on
photographic evidence of pine stumps that are landward of that stake referred
to by Mr. Przyborowski, it is not implausible that the ebb and flow of the tide
into the stump holes has caused the critical area line to migrate landward
since 2000.
Furthermore, though the
record does not reflect that DHEC had any indication that the dock was in
excess of 1000' prior to Mr. Trumbull initiating his investigation, DHEC’s
failure to document the location or exact length of the dock in 2000 or 2002
adds more difficulty to the determination of where the critical line existed in
the year the dock was built. Special condition four of the permit required the
dock’s location be staked in the field and inspected and approved in writing by
DHEC staff prior to commencing construction. To facilitate that approval, DHEC
requires the issuance of a “construction placard” which must be requested by
the permittee prior to beginning construction. Requesting the placard was a
“tool” for DHEC “to know that somebody’s actually performing work so that it
can be checked for compliance.”
In this case, there was
a signed construction placard in the file which would have been sent to the
applicant when a “card” is mailed to the agency. The project manager would
have been the one to perform the pre-construction inspection. In 2000, DHEC
did not have enforcement and compliance project managers, and it was the duty
of the permit project managers to insure structures complied with the permits
and their conditions. It was “typical” for the project manager or a member of
the compliance or enforcement staff to wait until the end of the construction
time frame and then visit the site to check for compliance. However, there is
no evidence that DHEC ever visited the staked site to confirm the length of the
dock. Moreover, DHEC’s staff never visited the dock subsequent to its original
construction, in the course of authorizing the amendment or at any time before
December of 2006.
Additionally, the
drawings submitted with the 2002 amendment request depicted a structure
different from that approved in the 2000 dock permit. As noted above, the
walkway was identified as being 987' long rather than 850', the pier head was
shown as 12' x 14' rather than 10' x 12', and the 20' floating dock was located
to the side of the pier instead of in front of it. This drawing served as
notice to the agency that the dock was longer than permitted. Nevertheless, no
staff visited the site to investigate the discrepancies in 2002, although,
according to Curtis Joyner, Manager of Wetland Permitting and Certification
Section, “that’s what’s supposed to happen.” It was not until DHEC received
was provided a survey in late 2006 that it investigated the length of
Przyborowski dock.
Finally, the
measurements of the dock in 2007 by the parties were made using a wheel
device. There is no evidence in this case of a measurement by a certified
survey. Nor is there any expert evidence establishing where the critical area
line was located on the Przyborowski lot in 2000.
Distilling these
concerns, I find that DHEC failed to prove that the dock was 1041' when it was
originally constructed. Rather, measuring from the critical line as it existed
in 2000, I find that:
· The walkway is 995' long[8]
· The pier is 14' x 14'
· The floating dock extends approximately 5' in front of the pier
Therefore, the
total length of the dock is 1,014'.[9]
Obviously, if the floating dock was placed parallel to the pierhead, the dock
would exceed 1,000' by 9' in length. Nevertheless, even though the dock
exceeds 1000' by that limited footage, it appears that the entire structure
would still have to be removed at a cost of approximately $20,000.
CONCLUSIONS
OF LAW
Based
upon the above Findings of Fact, I conclude the following as a matter of law:
1. The
South Carolina Administrative Law Court has subject matter jurisdiction in this
action as a contested case pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (Supp.
2006) and §§ 1-23-500 et seq. (Supp. 2006). Furthermore, S.C. Code Ann. §
48-39-150 (D) (Supp. 2006) specifically authorizes the Court to hear contested
cases arising under Chapter 39 of Title 48 of the 1976 Code.
2. In
reviewing this matter, the ALC serves as the finder of fact and makes a de novo
determination regarding the matters at issue. See S.C. Code Ann. §
1-23-600(B) (Supp. 2006); Brown v. S.C. Dep’t of Health & Environmental
Control, 348 S.C. 507, 512, 560 S.E.2d 410, 413 (2002). Furthermore, the
standard of proof in weighing the evidence and making a decision on the merits
at a contested case hearing is a preponderance of the evidence. Nat'l
Health Corp. v. S.C. Dep’t of Health and Environmental Control, 298 S.C.
373, 380 S.E.2d 841 (Ct. App. 1989). Because this is an action for the
enforcement of an administrative order, DHEC has the burden of proof. SCALC
Rule 29(B).
3. Permits
for the construction of private docks in the eight coastal counties are
governed by the South Carolina Coastal Zone Management Act, S.C. Code Ann. §§
48-9-10 et seq. (1987 and Supp. 2005) (the CZMA), and the regulations
promulgated pursuant to those provisions found at 23A S.C. Code Ann. Regs. 30-1
et seq. (Supp. 2005). In general, the CZMA provides that no person may perform
construction in the “critical area” of the “coastal zone”[10] unless “he has first
obtained a permit from the department.” S.C. Code Ann. § 48-39-130 (1987 and
Supp. 2005). DHEC is charged with determining the issuance of the permits for
docks and piers in the critical areas of the coastal waters and tidelands. 23A
S.C. Code Ann. Regs. 30-10(A)(1) (Supp. 2005); S.C. Code Ann. § 48-39-130 (1987
and Supp. 2005). DHEC is also is given the authority “[t]o revoke and suspend permits
of persons who fail or refuse to carry out or comply with the terms and
conditions of the permit.” S.C. Code Ann. § 48-39-50 (H) (Supp. 2005). Furthermore,
Section 48-39-150(E) provides that “[a]ny permit may be revoked for
noncompliance with or violation of its terms after written notice of intention
to do so has been given the holder and the holder given an opportunity to
present an explanation to the department.” This case is brought pursuant to
that authority.
In
its administrative order, DHEC determined that Respondent constructed a dock in
excess of 1,000' total length in 2000 and therefore the portion exceeding 1000'
must be removed. 23A S.C. Code Ann. Regs. 30-12(A)(1)(l) provides that: “Docks
longer than 1,000 feet over critical area are prohibited. This is inclusive of
pierheads, floats, boatlifts, ramps, mooring pilings and other associated
structures.” Respondent disagreed with DHEC’s assessment that the dock
exceeded 1,000' in length and also challenged DHEC’s authority to pursue this
action on several legal grounds.
Consideration
of Equitable Issues
4. Respondent
asserts that DHEC’s enforcement action is barred by both equitable estoppel and
laches. DHEC, on the other hand, contends that there are no time limitations
upon it in seeking enforcement of a violation of the CZMA. A threshold
question raised by DHEC is whether equitable defenses can properly be
entertained by the Administrative Law Court in a contested case. The ALC is a
statutory creation of the General Assembly and only possesses those powers
expressly provided or reasonably implied. See S.C. Code Ann. §
1-23-500 et seq.; Calhoun Life Ins. Co. v.
Gambrell, 245 S.C. 406, 411-12 (1965). The disputes arising before the ALC
predominately involve issues of law.
For instance, the issue in this case is the review of the administrative action
of DHEC under the CZMA and associated regulations, i.e. – a matter of
law.
Historically, the law
courts and the equity or chancery courts were separate courts. However, as in
many states, those separate functions no longer exist in South Carolina.
Nevertheless, “legal and equitable issues must be distinguished and decided by
the Court in the exercise of its distinct functions as a Court of law and a
Court of equity, and only those should be determined by the jury which are
properly triable by jury, while those which are properly triable in equity must
be determined by the Judge in the exercise of his chancery power.” Miller
v. British America Assur. Co., 238 S.C. 94, 119 S.E.2d 527 (1961); see
also Island Car Wash, Inc. v. Norris, 292 S.C. 595, 599, 358 S.E.2d
150, 152 (Ct. App. 1987) (“where legal and equitable issues or rights are
asserted in the same complaint, legal issues are for determination by the jury
and equitable issues for the court.”). Here, the necessity of guarding the
separate function is unnecessary, since the ALC serves the function as both
fact finder and arbiter of the law. Thus, the issue is simply whether in this
“action at law” the ALC can consider equitable defenses.
Laches
The Department, citing Sadler
v. Nicholson, 49 S.C. 7, 26 S.E. 893 (1897), argues that laches cannot be
imposed in any action at law. In Sadler, the S.C. Supreme Court held
that: “This was an action at law, brought within the period of the statutory
limitation, and the equitable defense of laches was not available.” 26
S.E. at 894 (emphasis added). This case certainly stands for the proposition
that laches cannot bar an action at law when brought within the period of the
statute of limitations. See also Twelfth RMA Partners, L.P.
v. National Safe Corp., 335 S.C. 635, 641, 518 S.E.2d 44, 47 (Ct. App.
1999) (“Laches within the period of the statute of limitations is no defense at
law.”); Treadaway v. Smith, 325 S.C. 367, 378, 479 S.E.2d 849, 856 (Ct.
App. 1996) (“[L]aches does not operate to bar a legal claim when the applicable
statute of limitations has not run.”), abrogated on other grounds by Carolina
Marine Handling, Inc. v. Lasch, 363 S.C. 169, 609 S.E.2d 548 (Ct. App. 2005).
However, the present case is distinguishable from Sadler’s holding
because, here, there is no applicable statutory time limitation to bringing
this case.
To the contrary, the
case law clearly supports the application of some equitable defenses in
“actions at law.” In Strickland v. Strickland, 375 S.C. 76, 85, 650
S.E.2d 465, 471 (2007), the S.C. Supreme Court held that: “The doctrine of
equitable estoppel may be enforced in a court of law as well as in equity
matters.” The Supreme Court also recently implicitly addressed this issue in
the context of laches. In RWE Nukem Corp. v. ENSR Corp., 373 S.C. 190,
644 S.E.2d 730 (2007), the respondent brought an action against the appellant
for breach of contract.
The appellant answered and asserted that the respondent’s claim was barred by,
among other things, the statute of limitations and laches. The respondent
moved for partial summary judgment on several issues, including the validity of
the appellant’s statute of limitations and laches defenses. On appeal, the
Supreme Court reversed the Circuit Court’s finding that the statute of
limitations and laches were not valid defenses. In doing so, the Supreme Court
held that the Circuit Court erred by dismissing the appellant’s laches defense
since factual questions existed regarding whether there was a delay in bringing
the case, whether the delay was reasonable and whether the delay prejudiced the
plaintiff. Thus, although the Supreme Court did not expressly state that the
defense of laches is applicable in cases at law, this principle is implicit in
its decision. See also Dep’t of Banking and Finance of State
of Neb. v. Wilken, 352 N.W.2d 145, 149 (Neb. 1984) (“The common-law rule is
that equitable defenses cannot be used to defeat an action at law based upon
contract; however, we have not accepted that position, but, on the contrary, we
have held that any defense, whether it be legal or equitable, may be set up in
any case.”); Regent Int’l Hotels, Ltd. v. Las Colinas Hotels Corp., 704
S.W.2d 101, 106 (Tex. App. 1985) (“Although some appellate courts have viewed
laches as a defense against the enforcement of equitable rights, the Texas
Supreme Court and many appellate courts have included legal rights as well…”); Chirco
v. Crosswinds Communities, Inc., 474 F.3d 227, 234 (6th Cir.
2007) (“Indeed, laches can be argued ‘regardless of whether the suit is at law
or in equity, because, as with many equitable defenses, the defense of laches
is equally available in suits at law.’”); Teamsters & Employers Welfare
Trust of Illinois v. Gorman Bros. Ready Mix, 283 F.3d 877, 881-882 (7th Cir. 2002); McDaniel v. Messerschmidt, 382 P.2d 304, 307 (Kan. 1963)
(the doctrine of laches may apply in pure actions at law). Nevertheless, this case
also raises the issue of whether laches may be applied to bar an action by a
department of the State of South Carolina. Historically, laches was not a
defense available against state governments. Matthews v. Davis, 124
S.C. 509, 117 S.E. 642 (1923); Monarch Mills v. S.C. Tax Comm'n, 149
S.C. 219, 146 S.E. 870 (1929), overruled in part by McCall by Andrews
v. Batson, 329 S.E.2d 741, 285 S.C. 243 (1985). The rule that laches does
not run against the sovereign originated from the doctrine of nullum tempus
occurrit regi (“time does not run against the king”). See Sessions'
Adm'rs v. Stevenson, 11 Rich. Eq. 282, 1860 WL 3887 (Ct. App. Eq. 1860) (“The
maxim nullum tempus occurrit regi rests not so much on prerogative as on
grounds of public policy, and the crown or government cannot be prejudiced by
lapse of time or the laches of its officers.”).
The rule of nullum tempus occurrit regi has existed as
an element of the English law from a very early period.... The common law fixed
no time as to the bringing of actions. Limitations derive their authority from
statutes. The king was held never to be included, unless expressly named. No
laches was imputable to him. These exemptions were founded upon considerations
of public policy. It was deemed important that, while the sovereign was
engrossed by the cares and duties of his office, the public should not suffer
by the negligence of his servants.... When the colonies achieved their
independence, each one took these prerogatives, which had belonged to the
crown; and when the national Constitution was adopted, they were imparted to
the new government as incidents of the sovereignty thus created.
State ex rel. Condon v. City of
Columbia, 339 S.C. 8, 18, 528 S.E.2d 408, 413 (2000) (quoting United States v. Thompson, 98 U.S. 486, 489-90 (1878)). However, the S.C. Supreme
Court found in Condon that “the abolition of the common law doctrine of
sovereign immunity signaled the end of the common law doctrine of nullum
tempus.” Id. In other words, because “the nullum tempus doctrine
is but an aspect of sovereign immunity,” the abolition of sovereign immunity
swept away the underpinnings of the doctrine. Id. at 19, 528 S.E.2d at
413. The court further explained that “applying the . . . statute of
limitations to the State as well as private individuals is proper because such
statutes are designed to promote justice by forcing parties to pursue a case in
a timely manner.” Id. Statutes of limitations also “embody important
public policy considerations in that they stimulate activity, punish
negligence, and promote repose by giving security and stability to human
affairs.” Id. at 19, 528 S.E.2d at 414 (citations and internal quotes
omitted). The court noted that “[t]hese principles ring true regardless of
whether the party is a private individual, a corporation, or a governmental
entity.” Id. According to the court, “[l]ong delays by the government
in instituting suit, of course, cause harm to the defendant and are in the
interest of no one.” Id. at 20, 528 S.E.2d at 414 (quoting Shootman
v. Dep't of Transp., 926 P.2d 1200, 1206 (Colo. 1996) (en banc)).
Here, since the general
preclusion of the application of laches against the State of South Carolina is also based upon the doctrine of nullum tempus, presumably the
abrogation of that doctrine also “swept away the underpinnings” of the
preclusion of applying laches against the State. Moreover, the theory of
applying a statute of limitations against the State of South Carolina equally
applies to the determination of whether to invoke laches. “Laches is neglect
for an unreasonable and unexplained length of time, under circumstances
affording opportunity for diligence, to do what in law should have been done.” Hallums
v. Hallums, 296 S.C. 195, 198, 371 S.E.2d 525, 527 (1988).
The doctrine of laches is based on the injustice which might
result from the enforcement of long-neglected rights, the difficulty, if not
the impossibility, of ascertaining the truth of the matters in controversy and
doing justice between the parties, and on grounds of public policy, its aim
being the discouragement, for the peace and repose of society, of stale and
antiquated demands. Laches is not based merely upon time, but also upon
changes in conditions or relationships involved with the claim, and the
consequent inequity of permitting the claim to be enforced.
30A C.J.S. Equity § 138 (2007).
Therefore, I find that in general the application of laches to governmental
actions by the State of South Carolina is not precluded.
More specifically,
“[l]aches may apply when the delay in bringing the suit was the fault of an
administrative agency.” 30A C.J.S. Equity § 141 (2007). Notably, in Weinberg
v. Com., State Bd. of Examiners of Pub. Accountants, 501 A.2d 239 (Pa. 1985), the Pennsylvania Supreme Court recognized that the defense of laches was proper against
the Commonwealth and other governmental units in a variety of situations.
Therefore, it approved the defense against the Commonwealth in an
administrative disciplinary proceeding by a licensing board under the caveat
that the court would require a stronger showing by a defendant who attempted to
apply the doctrine against the government. In City of Chicago v. Alessia,
807 N.E.2d 1150 (Ill. App. Ct. 2004), the Illinois Appellate Court also noted
its approval of the application of laches against governmental officers where “a
positive or affirmative act” was “taken by such officers, inducing the action
of the defendant under the circumstances and making it inequitable to permit
the governmental entity to retract what its officers had done.” 807 N.E.2d at 1159.
Though laches may bar governmental
actions in general, it is not available against all actions by the state. As
explained in George v. Ariz. Corp. Comm’n, 322 P.2d 369, 372 (Ariz. 1958), “[t]he doctrine of laches is a form of estoppel, and where the public interest
is involved neither estoppel nor laches can be permitted to override that interest.” See also 30A C.J.S. Equity § 141 (2007) (“[G]enerally, the
defense of laches is not available against the government, state or national,
in a suit by it to enforce a public right or to protect a public interest . .
.”). In regard to estoppel, the South Carolina Court of Appeals has succinctly
held that “[t]he doctrine of estoppel will not be applied to deprive the State
of the due exercise of its police power or to thwart its application of public
policy.” S.C. Coastal Council v. Vogel, 292 S.C. 449, 452, 357 S.E.2d
187, 189 (Ct. App. 1987). Estoppel also cannot be applied against the State
based upon “unauthorized or erroneous conduct or statements of its officers or
agents which have been relied on by a third party to his detriment.” 357
S.E.2d at 189. It logically follows that laches cannot be invoked to impede DHEC’s
due exercise of its police power. But see Indiana Real Estate
Comm'n v. Ackman, 766 N.E.2d 1269, 1273 (Ind. Ct. App. 2002) (“[W]e
conclude that where government acts to protect the public welfare, the doctrine
should not be permitted to frustrate the enforcement of a valid regulation
except in the clearest and most compelling circumstances.”).
Here, DHEC is at least
superficially exercising its “police powers” to fulfill its duty under the
State’s laws and regulations. Therefore, I find that laches cannot be invoked
to bar this action. Nonetheless, it is cases such as this one that raises the
hackles of its citizens and brings into question the unreasonable exercise of
its discretion. Here, DHEC carelessly supervised the building of the dock,
carelessly failed to take action shortly after its construction, carelessly
allowed the permit to be amended without recognizing its excessive length, but
now is the very party that seeks to have the dock removed in its entirety at a
considerable expense to the owner. Moreover, as set forth above, in the
intervening years the critical area line migrated shoreward due to erosion.
Consequently, it is impossible for any party to conclusively prove where the
critical area line was in 2000, or the extent to which it may have moved. The South
Carolina Court of Appeals, in explicating upon this problem in the context of a
statute of limitations, stated that:
[W]ith the passage of time, evidence becomes more difficult
to obtain and is less reliable. Physical evidence is lost or destroyed,
witnesses become impossible to locate, and memories fade. With passing time, a
defendant faces an increasingly difficult task in formulating and mounting an
effective defense.
City of North Myrtle Beach v.
Lewis-Davis, 360 S.C. 225, 231, 599 S.E.2d 462, 465 (Ct. App. 2004). It is
for these exact reasons that it is important that actions such as this one be
pursued expeditiously. Therefore, though I find that Respondent is barred from
using laches as a defense, if laches was a proper defense, I would find under
that doctrine that DHEC is barred from bringing this case.
Equitable
Estoppel
The Respondent also raised
the defense of equitable estoppel which traditionally requires satisfaction of
a multi-element test. See McCrowey v. Zoning Bd. of Adj. of
City of Rock Hill, 360 S.C. 301, 305, 599 S.E.2d 617, 619 (Ct. App. 2004).
However, it is unnecessary to evaluate this case under the basic estoppel test
because, as explained above, the defense cannot be utilized to bar a
governmental agency’s due exercise of its police power. Vogel, 357
S.E.2d 187.
Equal
Protection
5. Respondent
argues that DHEC’s action also violates his right to equal protection. In Weaver v. S.C. Coastal Council, 309 S.C. 368, 423 S.E.2d 340 (1992), the
South Carolina Supreme Court addressed a case in which a landowner applied for
a permit to construct a dock extending from her lot to a fixed pierhead and
floating dock resting in the Folly River. Coastal Council denied the permit
because it found that the proposed dock, which was to be located in the Folly
River Public Oyster Ground (POG), would cause a detrimental impact on the POG's
maintenance and environment. However, the Council had previously granted
permits to three other individuals under circumstances that were not
distinguishable from the landowner’s dock. The Supreme Court concluded that the
Council violated the equal protection and due process provisions of the state
and federal constitutions in treating the landowner in a manner different from
the other “similarly situated” applicants. Those applicants were granted
permits to construct docks that were similar to that proposed by the landowner,
that started from lots adjacent to her property and that reached the same POG
that her dock would affect.
Though the analysis in Weaver was limited solely to whether the landowner was denied a benefit granted to
others similarly situated, determination of whether Respondent was denied equal
protection also requires consideration of whether it was “arbitrary and
purposeful discrimination.” Following Weaver, the S.C. Supreme Court
issued a decision in TNS Mills, Inc. v. S.C. Dep’t of Revenue, 331 S.C.
611, 503 S.E.2d 471 (1998). There, the court, in finding that TNS failed to
prove an equal protection violation, found that in order to establish an equal
protection violation, a party was required to “show that similarly situated
persons received disparate treatment.” The court, without explanation, further
found that TNS failed to establish “arbitrary and purposeful discrimination” on
the part of the Commission. 503 S.E.2d at 479. Additionally, in Town of
Iva ex rel. Zoning Administrator v. Holley, 374 S.C. 537, 649 S.E.2d 108
(Ct. App. 2007), the South Carolina Court of Appeals found that: “One seeking
to show discriminatory enforcement in violation of the Equal Protection Clause
must demonstrate arbitrary and purposeful discrimination in the administration
of the law being enforced.” 649 S.E.2d at 111.[15]
Regarding U.S. Supreme
Court precedent in this area, in Village of Willowbrock v. Olech, 528
U.S. 562 (2000), the plaintiffs applied to the Village to connect their
property to the municipal water supply. The Village at first conditioned
approval of the connection on the plaintiffs granting a 33-foot easement to the
Village. The plaintiffs objected to the condition on the basis that the
Village required only a 15-foot easement from other property owners. After the
Village relented and agreed to provide water service to the plaintiffs with only
a 15-foot easement, the plaintiffs nevertheless filed a lawsuit seeking damages
against the Village because its initial demand of a 33-foot easement violated
the plaintiffs’ equal protection rights. On appeal, the U.S. Supreme Court noted
that “[o]ur cases have recognized successful equal protection claims brought by
a ‘class of one,’ where the plaintiff alleges that she has been intentionally
treated differently from others similarly situated and that there is no
rational basis for the difference in treatment.” Id. at 564. The
Supreme Court then held that the plaintiffs’ allegations were sufficient to
state a claim for relief under equal protection analysis. In doing so, the
Supreme Court stated:
Olech's complaint can fairly be construed as alleging that
the Village intentionally demanded a 33-foot easement as a condition of
connecting her property to the municipal water supply where the Village
required only a 15-foot easement from other similarly situated property owners.
The complaint also alleged that the Village's demand was “irrational and
wholly arbitrary” and that the Village ultimately connected her property after
receiving a clearly adequate 15-foot easement. These allegations, quite apart
from the Village's subjective motivation, are sufficient to state a claim for
relief under traditional equal protection analysis.
Id. at 565.
Here,
the document which triggered DHEC’s investigation is a survey which shows two
existing docks of equal length (Przyborowski and Albenesius docks). Both docks
were built at about the same time and though evidence was presented that
Albenesius’ dock was also greater than 1000' in length, the DHEC initiated this
case solely against Przyborowski. The DHEC staff offered no explanation as to
why they only sought action against Przyborowski and, more strikingly,
explained that no action was contemplated with respect to the Albenesius dock.
Additionally, Respondent’s dock extends no further channel ward than other
docks in the area and, if anything, the Albenesius’ dock is farther into the
channel. Therefore, Respondent is clearly being treated differently than
another “similarly situated” dock owner. Moreover, the fact that DHEC received
the information regarding both docks from the same survey yet instituted an
enforcement action against only one of the dock owners with no apparent
intention of bringing an action against the other owner reflects arbitrary and
purposeful discrimination in the administration of the law.
ORDER
Based upon the above
findings of fact and conclusions of law, it is hereby:
ORDERED that
Respondent remove the unpermitted boat storage dock from his structure. All
remaining enforcement issues are DISMISSED.
AND IT IS SO ORDERED.
______________________________
Ralph King Anderson, III
Administrative Law Judge
December 20, 2007
Columbia, South Carolina
As discussed above, “[l]aches is neglect for an unreasonable and
unexplained length of time, under circumstances affording opportunity for
diligence, to do what in law should have been done.” Hallums, 296 S.C. at198,
371 S.E.2d at 527. Here, six and a half years after issuing the permit is
simply too long a time for DHEC to wait to do what it should have done in the
summer of 2000. Furthermore, during that time an intervening amendment to the
permit was made to the permit giving yet another opportunity to develop
evidentiary support for forcing the removal of a dock which would be at a great
expense to the owner. In other words, the obscurity of the length of the dock
resulted from DHEC’s failure to more timely bring this case.
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