This matter comes before the South Carolina Administrative Law Court (ALC or Court) pursuant to S.C. Code Ann. § 1-23-600(A) (Supp. 2008) and S.C. Code Ann. § 44-1-60(F)(2) (Supp. 2008) upon the request for a contested case hearing filed by Grand Bees Development, LLC (Grand Bees). Grand Bees contests the January 17, 2008 final agency decision of Respondent South Carolina Department of Health and Environmental Control (DHEC) to issue a modified permit (Modified Permit) to Respondent Charleston County (County) for the enlargement of the Construction, Demolition and Land-Clearing Debris (C&D) portion of its landfill, which is located at 1344 Bees Ferry Road in Charleston County, South Carolina (Landfill). Specifically, Grand Bees contends that the County’s proposed enlargement of the Landfill is inconsistent with local zoning ordinances and that DHEC’s granting of the Modified Permit therefore violated Section 44-96-290(F) of the South Carolina Code (2002).
A hearing on the merits of the case was conducted on January 13, 2009 and January 14, 2009 at the ALC in Columbia, South Carolina. Based upon all the testimony and exhibits introduced at the hearing, as well as applicable law, I conclude that DHEC’s decision to grant the Modified Permit should be reversed and that this matter should be remanded as set forth below.
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:
Background
Grand Bees is in the business of residential development. It is the owner of a tract of land of approximately 310 acres (Grand Bees Property), which is located off Bees Ferry Road in the City of Charleston (City), Charleston County. Grand Bees purchased the Grand Bees Property on November 15, 2004. The Grand Bees Property is zoned Planned Unit Development (PUD), designated for residential land use. The Grand Bees Property is part of a larger PUD in the City named Bees Landing which was first approved by City Council in March of 1993 and amended numerous times thereafter by City Council. The Bees Landing PUD is popularly known as Grand Oaks.
Charleston County owns a tract of land adjacent to Bees Ferry Road on which it operates the Landfill. The Landfill, which was originally permitted in the early 1970s, is used for the disposal of various types of solid waste. The Landfill and the Grand Bees Property share a common boundary at the Grand Bees Property’s southwest property line. The portion of the Landfill adjacent to the Grand Bees Property is operated as a C&D landfill. The Landfill is currently located in the Industrial “I” Zoning District of the County’s Zoning and Land Development Regulations (ZLDR), which were adopted by County Council on November 20, 2001.
In approximately February of 2006, Grand Bees obtained site plan approval from the City for its development of the Grand Bees Property. The approved site plan includes 507 residences. Grand Bees obtained this site plan approval prior to incurring expenses on the engineering for the infrastructure improvements to the Grand Bees Property. At the time of the contested case hearing, Grand Bees had invested between $7,000,000 and $8,000,000 in the acquisition and development of the Grand Bees Property.
In July of 2007, the County applied to amend its solid waste permit to expand the C&D portion of the Landfill. The County thereafter revised its application in November 2007. The County’s permit application seeks approval to enlarge the vertical height limitation of the C&D mound from 74 feet MSL to 168 feet MSL and to extend its footprint by 5.5 acres. As stated in its application, this increase in the permitted dimensions of the C&D mound would expand its disposal capacity from approximately 2.5 million cubic yards to 5.4 million cubic yards.
On January 17, 2008, DHEC issued the Modified Permit to the County. The Modified Permit granted the County’s requested enlargement of the Landfill in its entirety, authorizing the 5.5 acre footprint expansion and the vertical expansion to 168 feet MSL. According to the terms of the Modified Permit, the expansion of permitted capacity allowed thereunder was conditioned on and subject to the requirements of S.C. Code Ann. § 44-96-10 et seq.
Special Exception Review
At the time that Grand Bees purchased the Grand Bees Property, the Landfill was permitted by DHEC to a maximum elevation of 74 feet above mean sea level (MSL). E. Lee Barnes, then a principal of Grand Bees, conducted the due diligence for the Grand Bees Property purchase. As a part of his due diligence process, Barnes met with County solid waste officials to discuss current and future Landfill operations. County solid waste officials informed Barnes that the County was contemplating seeking a modification to the Landfill permit in the future, and they provided Barnes with engineering drawings that showed a potential height expansion of the Landfill to 90 feet MSL. The County solid waste officials did not mention that the County might seek to increase the elevation of the Landfill above 90 feet MSL.
Barnes also reviewed the provisions of the ZLDR pertinent to the regulation of the Landfill. Based on his review of the ZLDR, Barnes concluded that if the County sought to expand the Landfill beyond its currently permitted elevation or location (even to the 90 feet MSL depicted in the engineering drawings given to him by the County), the County would have to obtain a special exception from the County Board of Zoning Appeals (BZA). Under Article 3.6 of the ZLDR, the BZA is permitted to grant a special exception only after conducting a public hearing on the matter and upon making certain findings. See ZLDR §§ 3.6.4, 3.6.5.
However, prior to seeking the Modified Permit, the County never sought nor obtained a special exception from the BZA. The only notice of the permit application provided by the County to the public was the publication notice in the local newspaper on or about August 7, 2007 and December 5, 2007, as required by DHEC regulations.
Well after the issuance of the Modified Permit, Charleston County Council adopted Charleston County Ordinance 1567 on November 18, 2008, which was entitled “An Ordinance Adopting the 10-Year Update of the Charleston County Comprehensive Plan.” In it, County Council made a finding that, at the adoption of the ZLDR in 1999, the Landfill was zoned industrial and that the entire tract was permitted as a public solid waste landfill with no “use-specific conditions,” including but not limited to, the need for a special exception to modify any existing facility, area, or the C&D portion of the Landfill, except for any new property the County may acquire to expand the existing boundary of the tract. County Council made the further finding that the Landfill tract’s continued use as a public solid waste landfill without “use-specific conditions” was consistent with the previous versions of the Comprehensive Plan, the ZLDR, and the 10-Year Update of the Charleston County Comprehensive Plan.
CONCLUSIONS OF LAW
Based on the foregoing, I make the following legal conclusions:
Jurisdiction & Standard of Proof
The Administrative Law Court has jurisdiction over this contested case matter pursuant to S.C. Code Ann. § 1-23-600(A) (Supp. 2008) and S.C. Code Ann. §44-1-60(F)(2) (Supp. 2008). In contested case hearings involving environmental permitting matters, the Administrative Law Judge is the fact finder and makes a de novo determination regarding the matters at issue. Brown v. S.C. Dep’t of Health and Envtl. Control, 348 S.C. 507, 560 S.E.2d 410 (2002); Marlboro Park Hosp. v. S.C. Dep’t of Health and Envtl. Control, 358 S.C. 573, 595 S.E.2d 851 (Ct. App. 2004). Grand Bees, as the party challenging the issuance of the Modified Permit to the County, bears the burden of proving that DHEC erred by issuing the Modified Permit. Leventis v. S.C. Dept. of Health and Envtl. Control, 340 S.C. 118, 132-33, 530 S.E.2d 643, 651 (Ct. App. 2000).
Consistency with Local Zoning Ordinances
Section 44-96-290(F) of the South Carolina Code (2002) prohibits DHEC from issuing a permit to expand a solid waste management facility unless the expansion is consistent with local zoning, land use, and other applicable local ordinances. Specifically, it provides:
No permit to construct a new solid waste management facility or to expand an existing solid waste management facility within a county or municipality may be issued by the department unless the proposed facility or expansion is consistent with local zoning, land use, and other applicable local ordinances, if any….
S.C. Code Ann. §44-96-290(F) (2002) (emphasis added). Under Section 44-96-290(F), consistency with local zoning, land use, and other applicable local ordinances is a condition precedent to DHEC issuing a permit for an expansion of an existing solid waste facility. See Southeast Resource Recovery, Inc. v. S.C. Dept. of Health and Envtl. Control, 358 S.C. 402, 407-08, 595 S.E.2d 468, 471 (2004) (“DHEC cannot issue a permit unless the proposed facility is consistent with ‘local zoning, land use, and other applicable ordinances.’”).
In this case, the Landfill, when originally permitted in the early 1970s, did not require special exception approval. However, under Chapter 6 of the ZLDR, which was passed in 2001, a public solid waste landfill is only allowed in the I Zoning District if the use has received special exception approval in accordance with the ZLDR. See ZLDR Table 6.1-1, Utilities and Waste-Related Uses 6-6. As noted above, the County has never applied for nor obtained a special exception for any portion of the Landfill.
Nevertheless, the County contends that it was not required to seek and obtain a special exception for its proposed expansion of the C&D portion of the Landfill. In making this argument, it relies on the first sentence of Section 1.11.4(A) of the ZLDR. Section 1.11.4(A), which consists of two sentences, provides that:
Any use that was legally established before April 21, 1999, without Special Exception approval and which after April 21, 1999, is located in a zoning district that requires Special Exception approval for the subject use, shall not be considered nonconforming merely as a result of not having secured Special Exception approval. Expansions and modifications of such uses shall be subject to the Nonconforming Uses Section of Chapter 10.
ZLDR § 1.11.4(A). Because the Landfill was originally established prior to April 21, 1999, the County claims that the Landfill is not a nonconforming use and that special exception approval is therefore not required for the Modified Permit.
Grand Bees, on the other hand, points out that the second sentence of Section 1.11.4(A) states that “[e]xpansions and modifications of such uses shall be subject to the Nonconforming Uses Section of Chapter 10.” It further notes that Section 10.2.2 of the ZLDR provides that:
A nonconforming commercial or industrial use shall not be enlarged or expanded unless one of the following conditions exists:
A. Such expansion eliminates or reduces the nonconforming aspects of the situation; or
B. The expansion is into a part of the building or structure that was lawfully and manifestly designed or arranged for such use, provided that no such expansion shall be allowed if it displaces a conforming use.
ZLDR § 10.2.2 (emphasis added). According to Grand Bees, neither of the two exceptions set forth in Section 10.2.2 applies in this case.
“It is well settled that when interpreting an ordinance, legislative intent must prevail if it can be reasonably discovered in the language used.” Charleston County Parks and Recreation Comm’n v. Somers, 319 S.C. 65, 67, 459 S.E.2d 841, 843 (1995). “An ordinance must receive a practical, reasonable, and fair interpretation consonant with the purpose, design, and policy of the lawmakers.” Id. at 68; 459 S.E.2d at 843. “In construing ordinances, the terms used must be taken in their ordinary and popular meaning.” Id.
Here, all of the parties agree that the Landfill constitutes a use “that was legally established before April 21, 1999, without Special Exception approval and which after April 21, 1999, is located in a zoning district that requires Special Exception approval for the subject use.” Under the clear language of Section 1.11.4(A) of the ZLDR, expansions of “such uses” are subject to the Nonconforming Uses Section of Chapter 10. Under the facts of this case, I conclude that the actions contemplated by the Modified Permit would constitute an “expansion” of the Landfill such that the nonconforming uses section of Chapter 10 of the ZLDR applies. Although the term “expand” is not defined in the ZLDR, dictionaries define the term to mean “to increase the size, volume, quantity, or scope of.” American Heritage College Dictionary 481 (3rd ed. 1993); see also Merriam-Webster Online Dictionary, www.merriam-webster.com (last visited May 22, 2009) (defining “expand” to mean “to increase in extent, number, volume, or scope: enlarge”). In this case, under the Modified Permit, the Landfill’s footprint would increase in size by 5.5 acres and its height would increase from 74 feet MSL to 168 feet MSL. Overall, its disposal capacity would more than double. Clearly, such an increase in size constitutes an “expansion” under the plain and ordinary meaning of that term. DHEC’s contention that the use of the Landfill will not be expanded by the Modified Permit because the Landfill will still only be used for one purpose – the collection of solid waste for disposal – is unpersuasive. As detailed above, an expansion of a use means more than simply a change in purpose; it also encompasses increases in size and volume of the existing use. Furthermore, as to the exceptions set forth in Section 10.2.2, the County has not argued and, based on the Record, the Court does not find, that they apply in this case. Accordingly, the Court concludes that the County is required to obtain a special exception prior to expanding the Landfill as contemplated by the Modified Permit.
The stated policies of the ZLDR also support the Court’s conclusion in this case. Section 10.1.1 of the ZLDR provides that “[i]t is the general policy of the County to allow uses, structures, lots, signs and other situations that came into existence legally – in conformance with then-applicable requirements – to continue to exist and be put to productive use, but to bring as many aspects of such situations into compliance with existing regulations as is reasonably possible.” (emphasis added). It continues on to state that “[t]he regulations of this Chapter are intended to . . . [p]lace reasonable limits on the expansion of nonconformities that have the potential to adversely affect surrounding properties and the county as a whole.” (emphasis added). Additionally, Section 1.9.2 of the ZLDR expressly declares that “[i]f the provisions of this Ordinance are inconsistent with one another, or if they conflict with provisions found in other adopted ordinances or regulations of the County, the more restrictive provision will control.” (emphasis added). Moreover, our appellate courts have specifically held that “the intention of all zoning laws, as regards a nonconforming use of property, is to restrict and gradually eliminate the nonconforming use.” Christy v. Harleston, 266 S.C. 439, 443, 223 S.E.2d 861, 863 (1976); Clear Channel Outdoor v. City of Myrtle Beach, 360 S.C. 459, 467, 602 S.E.2d 76, 80 (Ct. App. 2004). (emphasis added).
Furthermore, the County’s proposed interpretations of Section 1.11.4(A) are flawed. For instance, the County claims that the last sentence of Section 1.11.4(A) is not applicable to the Landfill since the Landfill was not a nonconforming use. In order to accept this construction of Section 1.11.4(A), however, the Court would have to conclude that the reference to “such uses” in the last sentence of Section 1.11.4(A) is to nonconforming uses despite the fact the phrase “nonconforming uses” does not precede the phrase “such uses” in Section 1.11.4(A). In the Court’s view, a much more reasonable interpretation of the ordinance is that the reference to “such uses” in the last sentence of Section 1.11.4(A) is not to nonconforming uses, but to the uses described in the first sentence of Section 1.11.4(A), i.e., “any use that was legally established before April 21, 1999, without Special Exception approval and which after April 21, 1999, is located in a zoning district that requires Special Exception approval for the subject use.” Under the County’s proposed interpretation, the last sentence of Section 1.11.4(A) would be construed as merely providing that expansions and modifications of nonconforming uses are subject to the Nonconforming Uses Section of Chapter 10. However, since Chapter 10 of the ZLDR itself makes that clear, such a construction would violate the rule of statutory construction that requires that no sentence of a law be rendered superfluous. See, e.g., Matter of Decker, 322 S.C. 215, 219, 471 S.E.2d 462, 463 (1995) (“A statute should be so construed that no word, clause, sentence, provision or part shall be rendered surplusage, or superfluous....”); TNS Mills, Inc. v. S.C. Dep’t of Revenue, 331 S.C. 611, 620, 503 S.E.2d 471, 476 (1998) (“In construing statutory language, the statute must be read as a whole, and sections which are part of the same general statutory law must be construed together and each one given effect.”) (emphasis added).
Alternatively, the County construes the last sentence of Section 1.11.4(A) as merely prohibiting the County, absent special exception approval, from expanding the Landfill into newly-acquired parcels of land. However, the last sentence of Section 1.11.4(A) makes no reference to newly-acquired parcels of land. Thus, this interpretation would require the Court to read language into Section 1.11.4(A) that is simply not there. Moreover, if the County sought to add another tax map parcel to its Landfill, it would have to obtain special exception approval under Table 6.1-1 of the ZLDR, without reference to Section 1.11.4(A), since the new parcel was not being used as a solid waste landfill at the time of the adoption of the ZLDR (and thus would not be grandfathered in under the ZLDR). Thus, this construction of Section 1.11.4(A) would, like the County’s other interpretation of Section 1.11.4(A), render the last sentence of that section superfluous.
Finally, it must be noted that a county’s own consistency determination as to whether a proposed use complies with local standards as required by Section 44-96-290(F) is not controlling. See Southeast Resource Recovery, 358 S.C. at 408, 595 S.E.2d at 471 (“Although Section 44-96-290(F) requires a proposed facility comply with local standards, it does not designate the county as the final arbiter on whether the proposed facility complies with its local zoning, land use, and other ordinances.”). Rather, it is DHEC (and the ALC if a contested case hearing is held) which makes the determination as to whether the proposed expansion is consistent with local zoning, land use, and other applicable local ordinances. See id. (“DHEC, not the county, is charged with ensuring such facilities meet the requirements for permitting.”); Marlboro Park Hosp, 358 S.C. at 579, 595 S.E.2d at 854 (holding that ALC conducts “a de novo review” in contested hearings arising from decisions of DHEC). Accordingly, the findings of Charleston County Council set forth in Ordinance 1567 are not determinative as to whether the expansion of the C&D portion of the Landfill is consistent with local zoning and land use regulations as mandated by Section 44-96-290(F).
Conclusion
Given the plain language of the ZLDR, as well as its stated policies, I conclude that the ZLDR prohibits the County from enlarging or expanding the C&D portion of the Landfill without first obtaining a special exception for the expansion. The changes to the Landfill contemplated by the Modified Permit constitute an “expansion” of the Landfill under the plain and ordinary meaning of that term. Accordingly, because the proposed expansion of the Landfill is not compliant with local zoning and land use regulations, DHEC erred in granting the Modified Permit. S.C. Code Ann. §44-96-290(F); Southeast Resource Recovery, 358 S.C. at 407-08, 595 S.E.2d at 471.
ORDER
IT IS THEREFORE ORDERED that DHEC’s decision to grant the Modified Permit is vacated and this case is remanded for review in accordance with the ZLDR.
AND IT IS SO ORDERED.
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Ralph King Anderson III
Administrative Law Judge
June 2, 2009
Columbia, South Carolina
