ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before this tribunal pursuant to S.C. Code Ann. § 1-23-600(B) (Supp.
2003) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2003) for a contested case hearing
arising from Respondent South Carolina Department of Health and Environmental Control’s
(DHEC or Department) denial of an application for a septic tank permit. Petitioner Richard
Gofredo challenges the Department’s decision to deny a request for a septic tank permit for his
property located in the Litchfield Country Club in Georgetown County. In particular, Petitioner
contends that DHEC should be required to honor a “letter of commitment” issued by one of its
employees on November 14, 1996, in which the employee concluded that, based upon a
preliminary site evaluation of the property, a portion of the property was suitable for a septic
tank system. The Department, however, argues that the property is not suitable for a septic tank
system and that, despite the preliminary approval for a septic tank found in the 1996 letter, the
Department should not be estopped from denying Petitioner’s request for a septic tank permit for
the property.
After timely notice to the parties, a hearing of this case was conducted on October 19,
2004, at the South Carolina Administrative Law Court in Columbia, South Carolina. Based
upon the evidence presented at the hearing and upon the applicable law, I find that the
Department’s denial of Petitioner’s request for a septic tank permit must be sustained.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the
hearing of this matter, and taking into account the credibility and accuracy of the evidence, I
make the following Findings of Fact by a preponderance of the evidence:
1.The property in question in this matter is that property known as Lot 11 on
Sweetgum Drive in Section E of the Litchfield Country Club Subdivision in Georgetown
County, South Carolina, and also identified as TMS #04-182-083.00.00.
2.On November 13, 1996, at the request of the then-owner of the property in
question, Charles Graham, an environmentalist with the Department’s heath department in
Georgetown County, conducted a “preliminary evaluation” of the parcel to determine its
suitability for a septic system. During this evaluation, Mr. Graham took three soil borings on the
property: one to the left and rear of the property (if facing the property from Sweetgum Drive),
one to the right side of the middle of the property, and one to the left and front of the property.
While the soils in the front boring indicated a seasonal high water table some14 inches from the
surface, the middle and rear borings revealed a seasonal high water table of approximately 24
inches in depth. See Resp’t Ex. #8. Based upon this site evaluation, Mr. Graham concluded that
a 9-inch rock waste disposal system could be safely installed in the rear of the property to serve a
single-family dwelling. See Resp’t Ex. #8; Pet’r Ex. #2. In his letter informing the property
owner of his conclusion, Mr. Graham referred to his evaluation only as “a preliminary
evaluation” and noted that, before a permit to construct a septic system could be issued, a precise
site plan would have to be submitted to the Department and another site visit would have to be
conducted to confirm the location of the site. See Pet’r Ex. #2. Yet, notwithstanding this
conditional language, Mr. Graham referred to the letter as a “letter of commitment” within the
text of the letter. See Pet’r Ex. #2.
3.Despite this preliminary approval for a septic system, no septic system was
constructed on the property and the parcel remained undeveloped. In late 2001, Petitioner
Richard Gofredo and his wife, Judy Gofredo, purchased the lot in question. The Gofredos’
contract to purchase the property was conditioned upon the seller providing a “satisfactory perk
[sic] letter” to the buyers. See Pet’r Ex. #16, at 2. In satisfying this condition, the seller offered,
and the Gofredos accepted, Mr. Graham’s November 14, 1996 “letter of commitment” stating
the results of his preliminary site evaluation of the property. At the time of the purchase, the
Gofredos did not contact DHEC’s main office or the Georgetown County Health Department for
information regarding whether the property was suitable for the installation of a septic system;
rather, the Gofredos relied solely upon Mr. Graham’s letter as evidence that the Department
would issue a septic tank permit for the property. The Gofredos did not seek to install a septic
tank system after purchasing the property and, to date, have not developed the lot.
4.In early 2004, as part of a proposed sale of the parcel from the Gofredos to Lisa
Orr, Ms. Orr applied to the Department for a permit to install a septic tank system on the
property. In considering the application, M.R. Shaw, an environmental health supervisor in the
Georgetown County Health Department with twenty-seven years of experience with the
Department, conducted a site evaluation of the property on March 26, 2004. During the
evaluation, Mr. Shaw took three soil borings along the centerline of the property. Each boring
revealed a maximum seasonal high water table less than 12 inches from the surface and an
impermeable “color pan” at approximately 20 inches below the surface. See Resp’t Ex. #2.
Based upon these findings, particularly the shallow depth of the water table, Mr. Shaw
concluded that the property was not suitable for the installation of a conventional or modified
conventional septic system. Further, Mr. Shaw also concluded that, because of the relatively
small size of the lot, an experimental septic system could not be installed on the property without
violating various setbacks and other siting requirements for such systems. See Resp’t Ex. #3.
5.The Gofredos sought review of Mr. Shaw’s determination from the Department’s
Division of Onsite Wastewater Management. As part of the requested review, M. Reid Houston,
a DHEC environmentalist with twenty-two years of experience, conducted a site evaluation of
the property. Like Mr. Shaw, Mr. Houston took soil borings at three points along the centerline
of the parcel; and like Mr. Shaw, Mr. Houston found the maximum seasonal high water table in
those soils to be less than 12 inches from the surface and found impermeable layers of soil at less
than 20 inches below the surface. See Resp’t Ex. #6. Based upon this site evaluation, Mr.
Houston determined that, given the shallow depth of the seasonal high water table, the property
was not suitable for the installation of a conventional or alternative-type septic system, and that,
given the small size of the lot, the property would not accommodate an experimental septic
system.
See Resp’t Ex. #7. Further, at the hearing of this matter, Mr. Houston testified that,
even if the results reported from Mr. Graham’s 1996 soil borings are entirely accurate, there
would simply not be enough suitable soil between the locations of Mr. Graham’s borings and the
unsuitable soil at the center of the property to allow the installation of a septic tank system on the
property. Petitioner now seeks review of Mr. Houston’s determination before this tribunal.
6.Based upon the evidence presented at the hearing of this case, I find that the lot in
question is not suitable for the installation of a conventional or alternative-type septic system
because of the shallow depth of the maximum seasonal high water table on the property and that
the dimensions of the lot do not permit the installation of other, experimental septic systems.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
In the instant case, Petitioner essentially raises an estoppel argument. Petitioner contends
that the Department should be required to honor the preliminary approval for a septic system set
forth in Mr. Graham’s 1996 “letter of commitment” and issue a septic tank permit for the
property in question. In short, Petitioner argues that DHEC should be estopped from denying a
septic tank permit for his property based upon the unsuitability of the soils at the site. The
Department contends that it should not be estopped from denying a septic tank permit for the
property on two grounds: (1) estoppel will not lie against a governmental agency, like DHEC, to
deprive it of the due exercise of its police powers based upon the erroneous actions or statements
of one of its employees, and (2) even if estoppel were available to Petitioner, he cannot satisfy
the requirements for estoppel because he could not justifiably rely upon Mr. Graham’s
conditional preliminary site evaluation as a final approval of the property for a septic system.
Based upon the evidence presented and the applicable law, I find that Petitioner’s estoppel
argument must fail.
First, the doctrine of estoppel may not be used to prevent the Department from exercising
its basic powers to protect the public, particularly where the conduct or statements relied upon
for the estoppel were made by a Department employee acting outside the proper scope of his or
her authority. While the state may be subject to the estoppel doctrine in certain instances, the
doctrine “will not be applied to deprive the [s]tate of the due exercise of its police power or to
thwart its application of public policy.” Goodwine v. Dorchester Dep’t of Soc. Servs., 336 S.C.
413, 418, 519 S.E.2d 116, 118 (Ct. App. 1999); see also S.C. Dep’t of Soc. Servs. v. Parker, 275
S.C. 176, 178, 268 S.E.2d 282, 283 (1980). However,
[t]his does not mean that estoppel cannot apply against a government agency. A
governmental body is not immune from the application of the doctrine of estoppel
where its officers or agents act within the proper scope of their authority. The
public cannot be estopped, however, by the unauthorized or erroneous conduct or
statements of its officers or agents which have been relied upon by a third party to
his detriment.
S.C. Coastal Council v. Vogel, 292 S.C. 449, 453, 357 S.E.2d 187, 189 (Ct. App. 1987)
(citations omitted) (emphasis added); see also Serv. Mgmt. Inc. v. State Health & Human Servs.
Fin. Comm’n, 298 S.C. 234, 238, 379 S.E.2d 442, 444 (Ct. App. 1989).
A typical application of these principles can be found in Vogel, which, like the instant
case, involved an agency permitting matter. In that case, the Vogels claimed that an employee of
the South Carolina Coastal Council informed them, erroneously, that they could rebuild a deck at
their beach house without a permit from the Council. Vogel, 292 S.C. at 451, 357 S.E.2d at 188.
In an action by the Council to require the removal of the unpermitted deck, the Vogels argued
that the Council should be estopped from removing the deck based upon the prior
representations of its employee. Id. at 452, 357 S.E.2d at 188. The court of appeals rejected the
Vogels’ estoppel argument, holding that “a state agency cannot be estopped from the legitimate
exercise of its police power because of an error of its agent which has been relied on by a third
party to his detriment.” Id. In reaching its conclusion, the court reasoned that no Council
employee could authorize the construction of a deck without a permit where the regulations
require a permit, and therefore, that any such purported authorization by an employee would be
beyond the scope of the employee’s authority and would not provide a basis for an estoppel
claim. Id. at 453, 357 S.E.2d at 189.
In the case at hand, the evidence reveals that Petitioner’s lot does not meet the regulatory
requirements for the installation of a septic system.
Accordingly, Mr. Graham acted beyond the
scope of his proper authority when he erroneously concluded in his 1996 preliminary site
evaluation that Petitioner’s lot was suitable for the installation of a septic system under those
regulations. Therefore, the Department cannot now be estopped from denying a septic tank
permit for Petitioner’s property—an act necessary to protect the public health and welfare from
the potentially harmful consequences of an improperly sited septic system on Petitioner’s
lot—based upon the prior erroneous statements of one of its employees.
Second, even if Petitioner were able to overcome the general presumption against the
estoppel of a state agency in the exercise of its police powers for the protection of the public, he
cannot satisfy the requirements for estoppel against the state. In a recent opinion, the South
Carolina Supreme Court reiterated the legal standards controlling the estoppel of governmental
entities:
As a general rule, estoppel does not lie against the government to prevent the due
exercise of its police power or to thwart the application of public policy.
However, this does not mean that estoppel cannot ever apply against a
government agency. To prove estoppel against the government, the relying party
must prove: (1) lack of knowledge and of the means of knowledge of the truth as
to the facts in question, (2) justifiable reliance upon the government’s conduct,
and (3) a prejudicial change in position.
Greenville County v. Kenwood Enterprises, Inc., 353 S.C. 157, 171-72, 577 S.E.2d 428, 435
(2003) (citations omitted); see also Grant v. City of Folly Beach, 346 S.C. 74, 80, 551 S.E.2d
229, 232 (2001) (same). Here, Petitioner cannot estop the Department from denying his permit
based upon Mr. Graham’s letter, because Petitioner did not justifiably rely upon Mr. Graham’s
preliminary site evaluation as a final approval of his property for a septic system, and because he
did not lack the means to determine whether his property was suitable for a septic system as
stated by Mr. Graham.
Petitioner’s estoppel argument against the Department must fail because of his
unjustified reliance solely upon Mr. Graham’s letter as a final determination of the suitability of
his property for a septic system. While Mr. Graham does refer to his letter at one point within
the body of the letter as a “letter of commitment,” he identified the subject of the letter in the
reference line as “A Preliminary Site Evaluation” of the property in question and referred to “a
preliminary evaluation of the above referenced parcel of land” in the first line of the letter. See
Pet’r Ex. #2. Mr. Graham further notes in the letter that a legal description of the property must
be submitted to the Department and another site visit conducted by the Department “[b]efore a
permit to construct can be issued.” See Pet’r Ex. #2. Thus, despite some language referring to a
“commitment,” it is clear that this letter is only a memorialization of a preliminary site
evaluation of the property that would have to supplemented with other documentation and
investigation before a final permit to construct a septic system on the property could be issued.
As such, Petitioner could not justifiably rely upon the letter as a final approval of the property
for the issuance of a septic tank permit. Moreover, Petitioner did not lack the means of learning
whether his property was suitable for the installation of a septic system prior to purchasing his
property. Rather than relying solely upon a five-year-old preliminary site approval letter when
purchasing the parcel, Petitioner could have simply contacted the Department when he was
considering purchasing the property to inquire as to whether the property had final approval for
the installation of a septic system, and, if it did not have final approval, to inquire as to what
would be necessary secure that approval. However, Petitioner did not contact the Department
regarding the status of the property prior to purchasing it. In short, because Petitioner relied
exclusively upon Mr. Graham’s preliminary site evaluation as a final approval of the property for
a septic system, he cannot demonstrate the justifiable reliance and lack of knowledge necessary
to maintain an estoppel claim against the Department.
In conclusion, Petitioner’s property is not suitable for the installation of septic system
under the current regulatory guidelines, and Petitioner has not established that the Department
should be estopped from denying his request for a septic tank permit based upon the erroneous
preliminary site evaluation conducted by Mr. Graham in 1996. Therefore, the Department’s
decision to deny Petitioner’s request for a septic tank permit must be sustained.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated above,
IT IS HEREBY ORDERED that the Department’s denial of Petitioner’s request for a
septic tank permit for the property in question is SUSTAINED.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
January 5, 2005
Columbia, South Carolina |
