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:
Lynn Block vs. SCDHEC, et al

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioners:
Lynn Block

Respondents:
South Carolina Department of Health and Environmental Control and Town of
Hilton Head Island
 
DOCKET NUMBER:
08-ALJ-07-0062-CC

APPEARANCES:
n/a
 

ORDERS:

ORDER

This matter came before me on Wednesday, October 15, 2008 at the Edgar A. Brown Building, 1205 Pendleton Street, Suite 224, Columbia, SC 29201 for a trial upon the issues. Present at that hearing was Petitioner Lynn Block (“Petitioner” or “Block”), appearing pro se. Elizabeth Applegate Dieck, Esq. appeared on behalf of the Office of Ocean and Coastal Resource Management (“OCRM”). Appearing for the Town of Hilton Head Island (“Town”) were Gregory M. Alford, Esq. and Scott M. Wild, Esq.. Also present were: Elizabeth Hixson (“Hixson”), a Lands End resident; William Eiser (“Eiser”), OCRM Staff Oceanographer; Scott Liggett (“Liggett”), Town Engineer; and Christopher Creed (“Creed”), Coastal Engineer. I listened to testimony, heard the arguments of counsel and viewed numerous exhibits proposed by the parties.

Petitioner challenges OCRM’s issuance of permit # 2007-067601ID to the Town. In that challenge, Petitioner requests that the Court force the Town to change its design for the rebuilding of the Lands End Groin at Lands End, Sea Pines Plantation, Hilton Head Island, Beaufort County, South Carolina.

The Petitioners in this case have has sued the Respondents alleging that the proposed design for the Lands End Groin would obstruct beach access, was not “narrow” within the meaning of S.C. Code Regs. § 30-1(D) (Supp. 2008), would erode nearby property values, and would be unsightly. OCRM contends the permit was properly and lawfully issued. The Town contends that its design has met the criteria as set forth by all applicable laws and regulations, has been approved by all appropriate entities, and is consistent with the character of the community[1]. Further, any delay in erecting the structure as now designed would have adverse environmental impacts. Finally, the Town contends that the structure has been designed to minimize its aesthetic impact without sacrificing any of the important design functions.

At the conclusion of Petitioner’s testimony, Respondents moved for a directed verdict based on Petitioner’s failure to put forth a legally cognizable claim. I denied that motion. Respondents renewed that Motion after Petitioner presented her case. I similarly denied that motion, and the Respondents put on their case.

FINDINGS OF FACT

The Lands End Groin was constructed at some point in the late 1970’s to prevent sand from flowing north along the beach on the landward side of Hilton Head Island and depositing at the mouth of Braddock Creek[2]. This structure was designed in what was state-of-the-art fashion at its time, but which design has since fallen out of use. Over time, this timber structure has deteriorated and has begun to lose its effectiveness[3]. This deterioration has allowed ever-increasing amounts of sand to pass through the structure and be deposited at the mouth of Braddock Creek. Such continued shoaling would eventually render the entranceway to Braddock Cove closed.

In furtherance of the Town’s coastal restoration efforts, the Town applied for a permit to replace the existing terminal groin structure with a new structure designed to improve the beach’s quality in that area and to reduce the shoaling of Braddock Creek. OCRM granted Permit # 2007-0676-1ID on December 13, 2007, such Permit being admitted into evidence without objection as Respondents’ Exhibit # 5.

Eiser presented testimony that he reviewed all factors necessary in considering whether to approve the permit as proposed, and found that the present groin’s failure, unless corrected, would eventually lead to a decrease in the nearby water’s quality and navigability[4]. This Court agrees with Mr. Eiser’s findings.

Creed’s testimony supported Eiser’s explanation that the structure was designed to meet the performance standards as he, the Town, and OCRM deemed advisable without being any larger or more intrusive than those performance standards would allow[5]. In particular, he stressed the following points:

1.      Stone is efficient , durable, and reasonably priced;

2.      The stone rip-rap and other materials would diffuse and absorb wave energy instead of repelling wave energy as does the current structure, thereby decreasing the stress on the underlying structure;

3.      Sand would penetrate this structure at a slower rate than it would the existing design; and

4.      No other design would more efficiently complete the charged task of:

a.       Reducing/eliminating the shoaling of Braddock Creek.

b.      Holding the sand onto the active beach.

This Court agrees with the testimony of Creed.

Finally, Liggett offered testimony about the Town’s commitment to its beaches and the groin’s place in that plan[6]. In order to have the proposed groin built without challenge and based on an attempt to address Petitioner’s concerns, the Town changed its intended design to specifically accommodate Petitioner’s request, adding an upland sand berm rooted with dune vegetation that would prevent the sand from blowing away[7]. I find that the Town gave all proper notices and followed all proper procedures in applying for and obtaining the OCRM permit.

STANDARD OF REVIEW

The standard of review to be applied in administrative challenges is a “preponderance of the evidence” standard. Anonymous (M-156-90) v. State Board of Medical Examiners, 329 S.C. 371, 375-76, 496 S.E.2d 17, 19 (1998); South Carolina Department of Health and Environmental Control v. Jean Townsend, 2008WL2517096 (S.C.Admin.Law.Judge.Div.). “The court may not substitute it judgment for the judgment of the agency as to the weight of the evidence on questions of fact.” S.C. Code Ann. § 1-23-380(5) (Supp. 2008). Therefore, the administrative findings of the agency must be supported unless it is more likely than not that OCRM made an error in weighing the facts when approving the permit.

CONCLUSIONS OF LAW

Petitioner cited to two sections of the South Carolina Code of Regulations that lay the foundation for her appeal to the permit. Section 30-1(D)(25) is the definitional section of the regulation. Block argues that because the groin is not “narrow” within the definition of “Groin” contained in § 30-1(D)(25), the permit should be revoked and a newer, narrower design be contemplated. She also cites to S.C. Code Regs. § 30-13(N)(1)(e) (Supp. 2008), which addresses public access requirements over and across structures of this kind. This Court finds that in the context of the beach, this particular design is “narrow” within the above-cited sections.

Respondents defended the permit on the grounds that it is in compliance with every factor contained within S.C. Code Regs. § 30-11(B) (Supp. 2008). In addition, Respondents argued that the proposed groin would further the broad policy guidelines of the Beachfront Management Act contained in S.C. Code Ann. § 48-39-30 (Supp. 2008), including, amongst other things, improving coastal resources, preservation of the existing state of the coastal zone, reducing erosion, and other similar goals. Respondents have cited to South Carolina Coastal Conservation League v. South Carolina Department of Health and Environmental Control, 354 S.C. 585, 589-90, 582 S.E.2d 410, 413 (2003) for the proposition that groins are specifically authorized by the Legislature and comport with the policies of both the Beachfront Management Act and the Beach Restoration and Improvement Trust Act.

I find that Petitioner’s appeal fails to prove beyond a preponderance of the evidence that OCRM did anything legally or factually improper. The unsupported lay conclusions offered as testimony by Petitioner and Hixson are insufficient to overcome her evidentiary burden of proof. In essence, the Petitioner’s complaints are speculative and almost purely based on aesthetics.

Eiser, on the other hand, testified that he considered each and every relevant factor contained in § 30-14, including the underlying basis for this appeal: aesthetics and access. He determined that the proposed groin would satisfy every factor in that regulation and determined that the proposed structure would foster the goals those considerations were designed to achieve. In particular, he concluded that the new groin would increase the value and enjoyment of the area for all surrounding owners, not just the Lands End subdivision, and would increase the water’s suitability to support navigation and wildlife.

Creed testified that the structure was as minimally intrusive as possible to achieve the desired effect. OCRM’s policy considerations were given full consideration in the design of this project, and that any other design or material alternative would not be feasible or efficient to meet the policy goals of OCRM while meeting the Town’s standards in protecting critical beach areas.

The testimony of all parties being considered, I do not find any particular merit to the arguments that the groin and berm as proposed would obstruct access to the property. Even if such was the case, Petitioner’s arguments regarding access were insufficient to meet the preponderance of the evidence standard. Further, the evidence before the Court shows that the access will be slightly different (i.e., now over a small dune rather than across a wood or rock structure), though there was no evidence presented to support the conclusion that access would be impaired.

Now having reviewed the documents of record and having heard and considered the arguments and testimony of the parties, I find and conclude as follows:

1)                  That OCRM has followed all applicable guidelines, procedure, and other requirements in issuing permit # 2007-067601ID;

2)                  That the proposed groin’s design is no larger than it must be to accomplish the Town’s preservation and cost goals;

3)                  That the groin was approved by Community Services Associates, Inc. and the Lands End Owners Association, Inc. from a functional and an aesthetic perspective;

4)                  That neither the public access nor residential access over and across the groin will be impeded by the groin or adjoining sand berm;

5)                  The proposed groin meets the criteria in S.C. Code Regs. 30-11(B);

6)                  The proposed groin comports with the policy guidelines set forth in S.C. Code Ann. § 48-39-20, et seq. (Supp. 2008); and

7)                  That the Town should be allowed to utilize its permit and build the proposed groin replacement at Lands End.

THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Town of Hilton Head Island shall be allowed to build the groin as designed and approved in the permit, for which the Town shall bear responsibility with regards to costs, liability, maintenance, and protection, now, and in perpetuity.

IT IS SO ORDERED.

___________________________

John D. McLeod

Administrative Law Judge

November 4, 2008

Columbia, South Carolina



[1]. Admitted into evidence without objection as Respondents’ Exhibit # 2 was a Groin Easement and Maintenance Agreement recorded in the Beaufort County Records in Book 2553 at Page 1329. Liggett testified that this agreement was executed by the Lands End Owners Association, Community Services Associates, Inc. (“CSA”), and the Town, the three entities responsible for the Lands End subdivision. CSA is a not-for-profit entity that is charged with administering the security and maintenance of the common properties within the Planned Unit Development known as Sea Pines Plantation.

[2]. Braddock Creek is a navigable waterway providing access to the interior of the island that is home to several marinas or docks and has been experiencing heaving shoaling at its junction with the Calibogue Sound.

[3]. Creed, Liggett, Hixson, and Petitioner presented extensive testimony regarding the present groin’s state of disrepair. Further, Creed and Liggett testified that the materials used for the existing groin design were experimental and inappropriate for long-term use considering the forces to which the groin shall be subjected over its life.

[4]. During his testimony, Eiser went through each of the factors he considered in approving the permit. In addition to finding the permit application met all the criteria, Eiser opined that if the permit were not issued and Braddock Creek were to become closed, there would be a significant decline in the marine life in that immediate area due to decreased oxygen levels in the water. He also concluded that allowing the Creek to shoal was contrary to the policies of OCRM, and that the proposed structure passed every criteria he was mandated to consider.

[5]. Creed, who was qualified as an expert witness in coastal engineering, was hired by the Town to conduct a coastal engineering study that formed the foundation of the Town’s understanding of the issues facing Lands End, the existing groin, and Braddock Creek, and which led to the adoption of the proposed groin challenged herein. Such study/permit was admitted into evidence without objections as Respondents’ Exhibit # 1.

[6]. The Town’s subtantial commitment to beach renourishment and preservation through various projects conducted across the island has a long, impressive, and successful history.

[7]. Petitioner presented testimony that she never gave final approval to the design, but Liggett testified that he understood these changes to fully appease Petitioner and alleviate all of Petitioner’s concerns regarding accessibility. In comparison to the existing groin, Liggett testified this berm would actually improve access across the groin.


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Brown Bldg.

 

 

 

 

 

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