ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This
matter is a contested case arising from the issuance of an Order of Revocation by
the South Carolina Department of Health and Environmental Control (DHEC) to
Jean Townsend (Respondent) on September 6, 2007. DHEC’s order revoked the written
authorization it had previously given Respondent to perform maintenance and
repair work on an existing dock facility located on Adams Creek in Rockville, South Carolina. After Respondent properly exhausted her administrative review
before DHEC, she timely appealed the decision to the Administrative Law Court
(Court or ALC). A hearing was held before this Court on February 26, 2008, in Columbia, South Carolina.
DISCUSSION
Permits for alterations
to critical areas in the coastal zone are governed by the South Carolina
Coastal Zone Management Act, S.C. Code Ann. Sec. 48-39-10 et seq. (CZMA),
and the regulations promulgated pursuant to that Act. See 23A S.C. Code
Ann. Regs. 30-1 et seq. The CZMA was passed in 1977. See 1977
Act No. 123. It provides in part:
Ninety days after July 1, 1977 no
person shall fill, remove, dredge, drain or erect any structure on or in any
way alter any critical area without first obtaining a permit from the
department. Provided, however, that a person who has legally commenced a
use such as those evidenced by a ... United States Corps of Engineers ...
permit... may continue such use without obtaining a permit.
S.C. Code Ann §48-39-130(C) (2008)
(emphasis added).
This
section is significant because the dock in question has been in existence since
approximately 1948, and was constructed pursuant to a permit issued by the War
Department, the predecessor to the U.S. Army Corps of Engineers. Respondent and
her two sisters inherited the property upon the death of their mother in 1996.
The facility had been constructed and used as a commercial seafood and marine
repair operation until 1995.
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 the evidence:
Respondent and her two
sisters are the owners of property identified as 6840 McCants Road on Wadmalaw Island in Charleston County, South Carolina. The property is adjacent to Adams Creek.
A large docking facility, which was originally constructed by their father
pursuant to a permit issued by the United States War Department in 1948, is
located on the property. The facility was operated by their father as a
commercial seafood business for the mooring of shrimp boats, shrimp packing and
marine repairs. Upon their father’s disability and subsequent death, the
facility was leased by their mother to others who carried on the business. In
1994, the lease expired and was not renewed. The last apparent commercial use
of the dock was in 1995 when it was used as a set for the production of a
movie. In 1996, their mother passed away and the Townsend sisters inherited
the property.
After a portion of the
structure fell into a state of disrepair, Respondent contacted a reputable dock
builder in 2005, and requested that he obtain the permits or authorizations
necessary to preserve the “footprint” of the dock. The builder provided to DHEC
digital photographs along with a written request to “reconstruct a 5’ x 117’
damaged walkway.”
The photographs attached to the request show that the only things existing in
the area of reconstruction were several pilings with “stringers” attached to
them. No decking is visible across these “stringers.” Based on those
photographs, DHEC authorized the work without condition or restriction. DHEC specifically
determined that “[repair of a 5’by 117’ section of damaged walkway] conforms to
our Normal Maintenance and Repair criteria for existing, functional structures
where repair is required.” The letter further quoted the relevant maintenance
and repair provision of Regulation 30-5(D), which states that:
Normal maintenance and repair applies only to work on a
structure which has been previously permitted or is grandfathered or exempted
and is still generally intact and functional in its present condition. The
work may only extend to the original dimensions of the structure, and any
expansion, additions, or major rebuilding will require either a Department
permit or documentation to and written approval from the Department.
23A S.C. Code Ann. Regs. 30-5(D)
(Supp. 2007). However, DHEC did not: (1) conduct a site visit; (2) review its
prior permits for the site; or (3) consult the historic aerial photography
within its possession to confirm that Respondent’s proposed work would comply
with Regulation 30-5(D).
Based upon DHEC’s
written authorization to perform the repairs, Respondent’s builder placed four
to six pilings at the site and Respondent’s friends replaced the “stringers”
and decking. Although authorized to replace 117’ of the fixed walkway parallel
to the shore, Respondent only re-built 88’, deciding not to rebuild the
additional 29’ that had been authorized. The work was completed in early 2006.
Over a year and a half
after the authorized construction activities were completed and almost two
years after it had been approved, DHEC informed Respondent that it intended to
partially revoke the maintenance and repair authorization because staff had
since “determined that a 40' portion of this walkway . . . did not exist, while
a 24' portion of this walkway was non-functional due to a lack of connection to
the high ground.” These facts lead to DHEC’s determination that the portion of
the walkway in the area that “did not exist” was not grandfathered and thus
required a new permit to build that portion of the structure. DHEC also belatedly
determined that though the entire dock was built pursuant to one permit,[2] another 24'
portion constituted a separate docking structure which had fallen into such a
state of disrepair that it lost its grandfathered status.
DHEC later issued an
Order of Revocation of the maintenance and repair authorization on different
findings of fact. Interestingly, it found that “64' of this structure was
non-functional in that 20' never existed and 44' of unattached shore parallel
structure was non-functional” and thus requested that Ms. Townsend remove the
offending portion of the dock within forty-five days. It based the Order of
Revocation on the grounds that DHEC’s letter approving the maintenance and
repair request was issued in reliance on incorrect information provided to DHEC
by Respondent’s agent.
At the hearing
into this matter, DHEC argued that, at the time of Respondent’s maintenance and
repair request, Respondent’s dock was actually two distinct docks located at
either end of a shore indentation (designated as Indentation A on Petitioner’s Exhibit
4). According to DHEC, the two docks were never connected to each other.
Thus, DHEC claimed that, prior to the work done pursuant to Respondent’s maintenance
and repair request, there never existed a walkway that extended across Indentation
A. Additionally, DHEC contended that the upstream dock (i.e., the dock located
to the right of Indentation A) and its walkway were no longer intact and
functional, and thus could not be repaired. Therefore, DHEC asserted that it
did not matter whether the gap between the two docks was 20' or 40' since it was
seeking removal of the entire 64' portion of the renovated dock located upstream
from the point where the gap allegedly began.
Respondent, however, argued
that there is nothing in Regulation 30-5(D) that suggests that DHEC should
treat different portions of the same permitted structure as separate
structures. Indeed, on cross-examination, Curtis Joyner of DHEC admitted as
much. In fact, Mr. Joyner testified that he had, in the past, treated marinas
with a series of unconnected walkways as one structure. Moreover, Mr. Joyner
testified that, when reviewing maintenance and repair requests, he generally
looks to see whether the proposed work would constitute a “major” rebuilding of
the structure at issue. He also testified that, at the time of Respondent’s
request, he did not feel that the proposed work constituted a “major rebuild.”
There is no dispute
among the parties that some portion of the structure underlying this contested
case was present prior to 1977 when the CZMA was enacted. However, there are
portions of the renovated Townsend dock that DHEC asserts were not grandfathered
or lost their grandfathered status. The 1948 War Department permit authorized
the construction of “two wharves, a walkway and marine railway” at the location
underlying this contested case. The permit, however, did not provide details
as to the extent or location of the structure.
The configuration of
the dock, as it existed in 1977, appears to have been, as one faces Adams Creek
from the high ground of the property, as follows. To the left was a fixed pier
that extended into Adams Creek. The pier had a walkway attached to it that
extended parallel to the shore in both directions. The portion of the walkway
to the left extended approximately 125' in length. The portion of the walkway to the
right extended towards (but did not cross) Indentation A, and its rightmost
edge was attached to a perpendicular walkway that extended to the shore. On
the right side of Indentation A was another walkway that extended from the
shore out into Adams Creek. This walkway was connected to a perpendicular walkway,
which extended parallel to the shore to the right towards (but did not cross) a
second, larger shore indentation (labeled as Indentation B on Petitioner’s Exhibit
4).
DHEC presented
aerial photographs from various years between 1977 and 2004 in which no decking
is visible in the area crossing Indentation A (which is labeled as Section 8 on
Petitioner’s Exhibit 4). Nevertheless, it is reasonable to presume that,
although the decking is not visible on DHEC’s aerial photographs, at some point
in the past, there was no “gap” in the walkway. First and foremost, the
evidence showed that a piling existed in the center of the alleged gap at the
time Respondent’s request was made. This piling had the remains of a
“stringer” attached to it whose only purpose based upon the evidence presented would
have been to support decking. Second, while Mr. Joyner testified that there
are currently remnants of a marine railway in Indentation A, he also testified
that there are remnants of a marine railway in Indentation B as well. Notably,
the War Department permit appears to have only approved a single “marine
railway.” Thus, it is quite possible that the marine railway in Indentation A
was not part of the structure constructed pursuant to the War Permit. Lastly, the
aerial photographs reviewed by DHEC were taken in 1977, 1980, 1983, 1989, 1994
and 2004. Thus, of the 28 years over which these photographs were taken, there
are 22 years for which no photographs exist with gaps between photographs of
2-9 years. Even more importantly, there are no photographs for the years
between 1948 (the year the War Department permit was issued) and 1977.
Furthermore, the
walkway connecting the upstream portion of the pier to the high ground was
still useable, if one were very careful, as recently as 2004. To the contrary,
the evidence that DHEC presented to demonstrate the lack of functionality of the
upstream portion of the pier and its walkway (labeled as Sections 3, 5, 6 and 7
on Petitioner’s Exhibit 4) consisted primarily of aerial photographs. It is
therefore entirely reasonable that, had DHEC undertaken an in-depth analysis of
the dock’s condition at the time of the maintenance and repair request, the
question of functionality could have been explored in more detail, and Respondent
may have had the option of repairing the walkway to that pier. Moreover, due
to the passage of time and continuing deterioration of un-maintained portions
of the structure, Respondent is placed at an unfair disadvantage to prove the
condition of these other portions that may have been eligible for maintenance
and repair in 2005.
In
conclusion, I have made no determination as to whether a walkway ever extended
across Indentation A. Rather, I find that DHEC failed to meet its burden of
proving that Respondent provided materially erroneous information to DHEC or
that the renovations made to the dock violate Regulation 30-5(D). In making
this determination, I have given significant weight to the fact that the delay
in seeking this revocation placed Respondent at a distinct disadvantage in
responding to DHEC’s allegations. I have also taken into account the fact that
the information upon which DHEC now seeks to revoke the maintenance and repair
authorization was available to DHEC when it approved the project in 2005.
CONCLUSIONS
OF LAW
Based
upon the above Findings of Fact, I conclude the following as a matter of law:
1. The
ALC has subject matter jurisdiction to hear this action as a contested case pursuant
to S.C. Code Ann. §§ 1-23-310 et seq. (2005 & Supp. 2007). Furthermore,
S.C. Code Ann. § 48-39-150(D) (2008) 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. 2007); Brown v. S.C. Dep’t of Health & Envtl. 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 Envtl. 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. ALC Rule 29(B).
3. DHEC
contends that its authorization to approve the reconstruction of Ms. Townsend’s
dock should be revoked because she provided “materially erroneous”
information. 23A S.C. Code Ann. Regs. 30-8(A) (Supp. 2007) provides that
“[a]ll permits issued by the Department are revocable licenses.” Instances in
which a permit may be revoked include “where materially erroneous or fraudulent
information has been provided by . . . the permit applicant.” Id. DHEC may also revoke a permit “where the permittee is violating the terms
and/or conditions of the permit, has changed the use of the structure so as to
violate the policies or rules and regulations promulgated under the Act, and
for inappropriate violations of law.” Id.
DHEC’s revocation of
Ms. Townsend’s authorization is based upon two prongs. DHEC first contends
that Ms. Townsend erroneously characterized the work to Section 8 as
reconstruction of her dock when that area never had a walkway. However, Ms.
Townsend did not provide “materially erroneous” information regarding this
issue. In fact, Ms. Townsend provided photographs of the specific area she
sought to reconstruct. Those pictures accurately reflected the character of
the area. Furthermore, as conceded by DHEC, there is no evidence whatsoever
that Ms. Townsend sought to mislead DHEC. Although Respondent’s request letter
stated that she was seeking to “reconstruct a 5' x 117' damaged walkway,” there
is no evidence suggesting that, at the time of the application, either of the
parties believed that no walkway ever spanned Section 8. In fact, DHEC did not
reach its conclusion that there was no walkway spanning Section 8 until it
conducted an extensive review of its aerial photographs after the walkway had
been reconstructed with its approval.
More importantly, those
photographs did not sufficiently establish that a walkway never existed in the
area. DHEC’s photographs date back only to 1977. While the photographs
suggest that there was a “gap” in the walkway from 1977 to the date Respondent
sought approval to reconstruct the walkway, there was clearly a piling directly
in front of the “gap.” In fact, the rebuilt portions of the walkway were constructed
using, for the most part, the existing pilings in the area. Therefore, I find
that DHEC failed to establish that the walkway in Section 8 was not a
reconstruction of a walkway that was grandfathered. Likewise, I find that DHEC
failed to establish that Respondent provided DHEC with “materially
erroneous or fraudulent information.”
DHEC
also contends that the areas labeled as Sections 6 and 7 on Petitioner’s Exhibit
4 were not intact or functional structures. Here again, Respondent did not
provide any information to DHEC concerning the condition of Sections 6 and 7 other
than providing the photographs, which plainly and accurately reflected their
condition. Moreover, DHEC typically determines whether a dock is “still
generally intact and functional in its present condition” from the perspective
of the condition of the entire structure. In the present case, DHEC reached
its conclusion that the structure was not intact or functional based again upon
aerial photography that it examined well after it approved the reconstruction.
That photography raised the question as to whether the portion of the dock upon
which Section 6 and 7 were based were still functional and intact. However, DHEC
did not present any evidence as to the personal observations of its staff or
anyone else concerning whether the dock was functional or intact at the time of
the application for reconstruction. To the contrary, Ms. Townsend testified
that she believed that, at the time of the maintenance and repair request, the
dock could be used if one was “very careful.” I therefore find that the dock
was “generally intact and functional” at the time Respondent sought approval.
I also find that DHEC failed to establish that Respondent provided “materially erroneous or fraudulent information” to DHEC.
ORDER
Based upon the above
findings of fact and conclusions of law, it is hereby:
ORDERED that DHEC’s
request to require Respondent to remove Sections 6, 7 and 8 of her dock is
DENIED.
AND IT IS SO ORDERED.
______________________________
Ralph King Anderson, III
Administrative Law Judge
May 22, 2008
Columbia, South Carolina
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