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.
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.
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.
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. 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.
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. 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.
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
. 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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