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:
SCDHEC vs. Philip Przyborowski

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

PARTIES:
Petitioners:
S.C. Department of Health and Environmental Control

Respondents:
Philip Przyborowski
 
DOCKET NUMBER:
7-ALJ-07-0254-CC

APPEARANCES:
For Petitioner: Van Whitehead, Esq.

For Respondent: Christopher McG. Holmes, Esq.
 

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.[1] 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.[2] 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.[3] 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.[5] 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.[6] 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.[7]

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.[11] 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.[12] 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.[13]

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.[14]

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



[1] The application for Mr. Przyborowski’s dock identified the dock location as 2634 Bohicket Road, Lot A (TMS No. 257-0000-149) and subsequent permit related documents utilize the same reference, including a submittal on behalf of Mr. Przyborowski. However, it now appears the current street address is more correctly identified as 2640 Bohicket Road. There does not appear to be any dispute among the parties as to the location of Mr. Przyborowski’s property.

[2] The project manager testified that this type of special condition was not uncommon at the time this permit was approved, and that sometimes he would conduct a field inspection and sometimes he would not. When he did conduct a field inspection, sometimes he would provide written approval and sometimes he would not.

[3] This measurement was done in conjunction with applications for three proposed docks.

[4] Project managers or compliance staff were allowed to authorize “minimal” alterations on site without an after-the-fact permit, though those alterations were supposed to be in writing. However, in the past project managers have verbally approved modifications to permitted structures without requiring additional paperwork. Nevertheless, a blanket authorization to “hit the water” without some assurance that the dock would not be greater than 1000' in length does not appear credible. On the other hand, it also appears equally unlikely that the Mr. Przyborowski would make such drastic changes to the configuration of his dock as originally applied for without some attempt to obtain approval for that change.

[5] The other dock belonged to Mr. Albenesius. It was built at about the same time as Przyborowski’s dock.

[6] At the time of the Trumbell and Albenesius measurements, Przyborowski was out of the country. Therefore, he was not able to communicate with them concerning the original location of the critical line.

[7] As mentioned above, that survey also reflected that Albenesius’ dock, which was built at approximately the same time as, and in proximity to, Respondent’s dock was also greater than 1,000' in length. However, the DHEC staff offered no explanation as to why they only sought an enforcement action against Respondent. Moreover, no such action is contemplated with respect to the Albenesius dock.

[8] I reached this determination by taking Albenesius’ longest measurement of 1,030' and subtracting 14' for the pier head and 21' to reflect the change in the critical line since 2000.

[9] In making this determination, I have given great weight to the fact that seven years has past since DHEC approved the legitimacy of this permitted dock. In addition, during that time an intervening amendment to the permit was made giving DHEC yet another opportunity to develop evidentiary support for forcing the removal of a dock. In other words, obscurity of the length of the dock resulted from DHEC’s failure to more timely bring this case.

[10] See S.C. Code Ann. § 48-39-10 (B) and (J) (Supp. 2005) (defining “coastal zone” and “critical area.”).

[11] S.C. Code Ann. § 1-23-630(A), provides that an ALJ has “the same power at chambers or in open hearing as “circuit court judges” as well as the power “to issue those remedial writs as are necessary to give effect to its jurisdiction.” Therefore, the ALC has the authority to award equitable relief. However, the authority to grant equitable remedies is provided in connection with the ALC’s exercise of its jurisdiction over claims before the court. This provision does not provide general authority for the ALC to hear chancery claims. However, here the equitable relief is not a chancery claim, but rather an equitable defense posited within the framework of a legal claim.

[12] Clearly, “a claim based upon breach of contract is a legal as opposed to equitable claim.” Edens v. Edens, 312 S.C. 488, 492, 435 S.E.2d 851, 852 (1993).

[13] Other courts have also followed that reasoning. For instance, in Carney v. Newburgh Park Motors, 444 N.Y.S.2d 220 (N.Y. App. Div. 1981), the court held that though laches can be invoked against the sovereignty, the defense is limited to cases where the government acts in its private or proprietary capacity. The Indiana Court of Appeals has explained that laches may be used even where the government acts to protect the public welfare by enforcement of a valid regulation as a defense “in the clearest and most compelling circumstances . . . where extreme unfairness is shown.” Indiana Real Estate Comm'n v. Ackman, 766 N.E.2d 1269, 1273 (Ind. Ct. App. 2002); see also In re Sharena H., 852 N.E.2d 474 (Ill. App. Ct. 2006), appeal denied, 857 N.E.2d 672 (Ill. 2006) (laches may be imposed against a governmental entity in unusual, extraordinary, or compelling circumstances). The Federal Courts have also recognized laches as a proper defense in a Title VII and environmental litigation action in order to reach “a just result.” Whitfield v. Anheuser-Busch, Inc., 820 F.2d 243, 244 (8th Cir. 1987) (Title VII action); Environmental Defense Fund, Inc. v. Alexander, 614 F.2d 474 (5th Cir. 1980) (the court held in an environmental case that laches is “equally applicable to suits questioning public authority to act”).

[14] 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.

[15] An ALC decision has also found that a party making a claim of selective treatment in a proceeding before the ALC must show that the agency’s selective treatment was “motivated by an intention to discriminate on the basis of impermissible considerations, such as race or religion, to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the person” See Faith Cathedral Fellowship, Inc. v. S.C. Dep’t of Health and Environmental Control, 03-ALJ-07-0346-CC (July 12, 2005) citing, in part, State v. 192 Coin-operated Video Game Machines, 338 S.C. 176, 525 S.E.2d 872 (2000). However, in 192 Coin, the Supreme Court found that the lower court was correct in not finding the existence of “selective prosecution,” in part, because the appellant was “not being criminally prosecuted.” 525 S.E.2d at 885. In other words, the criteria to establish “selective prosecution” is not a requisite to establish a denial of equal protection in the administrative setting.


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