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:
Jim Crow et al. vs. SCDHEC et al.

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Jim Crow, Harriette Magee and Tim Osment

Respondent:
South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management, and Cheryl Caddell
 
DOCKET NUMBER:
00-ALJ-07-0036-CC

APPEARANCES:
n/a
 

ORDERS:

FINAL ORDER AND DECISION

I. Introduction



Upon concluding the hearing on the merits on April 20, 2000, this matter was taken under advisement. On May 9, 2000, the South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management (OCRM) filed a Motion to Re-Open the hearing. The Motion asked permission to submit a survey of the area in dispute. On May 15, 2000, an Order granted the motion and directed OCRM to file the survey by May 30, 2000. All parties were given until June 5, 2000 to respond to the survey and until June 12, 2000 to "object to any part or all of the written materials" submitted by the parties. (1)



OCRM provided the survey in a timely manner. The surveyor's written explanation accompanies the survey and identifies the location of the project, specifies the fill needed to complete the project, and discusses the impact of the project on the critical area. While Tim Osment chose to provide no additional information, on June 1, 2000, Jim Crow (Crow) timely filed his response to the survey. On June 14, 2000, late responses were filed by petitioner, Harriette Magee (Magee) and respondent, Cheryl Caddell.



Finally, on June 26, 2000, OCRM filed a response objecting to Magee's comments. OCRM did not object prior to June 26, 2000 since, having not been served with the Magee comments, OCRM learned of the comments sometime after Magee's filing with the ALJ.



In examining this case, two issues must be decided. The first issue is procedural: should the late responses of petitioner Magee and respondent Caddell be disregarded due to lateness. The second issue is on the merits: should the permit be granted.



II. Procedural Issue



I find the late responses of petitioner Magee and respondent Caddell should be disregarded.



The re-opening of a hearing is not obtained as an automatic right. Rather, granting a re-opening is a matter of discretion. Lites v. Taylor, 284 S.C. 316, 326 S.E.2d 173 (Ct..App. 1985) ("Such decisions are within the sound discretion of the trial judge and will not be disturbed on appeal absent an abuse of that discretion."). When granting a re-opening, the trial judge is entitled to establish the means for receiving additional evidence. Cf. Merrill v. Barton, 250 S.C. 193, 156 S.E.2d 862 (1967) (conduct of trial rests within sound discretion of trial judge).



Here, the means for receiving additional evidence explicitly imposed date limitations. Respondent, OCRM, had until May 30, 2000 to provide the survey. It complied. To assure fairness, all petitioners had until June 5, 2000 to respond to the survey, and further, any party had until June 12, 2000 to object to the evidence submitted during the re-opening. In the instant case, only Crow submitted a timely response to the survey. Accordingly, the late response by Caddell and Magee are not considered in deciding the merits of this dispute.



III. Merits Issue



The merits issue is whether Caddell should be granted a permit to allow the installation of a pipe in a tidal ditch in order to provide vehicular access to property located at 504 East Huron Street on Folly Beach in Charleston County. Under the facts as established in this case, the permit is proper.



A. Positions of Parties



Petitioners assert the installation of the pipe will restrict the tidal overflow, will impede outflow from the critical area resulting in stagnant water, will create additional erosion in the area, and is not essential for access to the property. Caddell and OCRM disagree and assert no detrimental impact will result to the area to a degree requiring a denial of the permit.



B. Findings of Fact



I find, by a preponderance of the evidence, the following facts:





1. Introductory Facts



The property impacted by the permit here under review is the property along an unpaved and unopened right of way which forms an extension of Huron Avenue, Folly Beach, South Carolina. Caddell seeks the permit so she can gain access to her residence from Huron Avenue rather than Hudson Street. On December 6, 1999, OCRM issued the permit requested by Caddell. When completed, the construction will allow vehicular access to Caddell's property from Huron Avenue.



2. Land Configuration



On the unopened extension of Huron Avenue, Caddell owns Lot 504B. She recently constructed her residence on the lot and, as currently configured, has access to 504B only through an easement across lot 504A, the lot immediately behind 504B. Lot 504A is owned by Karen Carr and that lot fronts on Hudson Street. Thus, current access to 504B is via Hudson Street, across the easement of 504A (the driveway serving 504A), and then onto the property of 504B.



The easement at 504A not only allows vehicular access to 504B through the driveway of 504A, but also allows Caddell to utilize the front yard of 504A for a tile field distribution for 504B's septic tank system. Once the septic tank system in installed, Carr will not be able to park in the front yard of 504A. Further, the vehicular access to 504B is through the driveway of 504A and that driveway is wide enough for only one vehicle.



3. Pipe and Fill Configuration



Other property owners along the opened portion of Huron Avenue have acquired vehicular access to their properties by the use of pipes placed within the ditch and the use of fill material. For example, such construction was employed to allow Crow to have access to property identified as TMS# 328-11-00-037 and to allow Moore to have access to property identified as TMS # 328-11-00-038. In particular, a recent OCRM permit granted Benjamin Fewell the right to install a pipe in the ditch and to place fill material in the ditch to allow access to his lot identified as TMS #328-11-036.



In this case, Caddell will place an L-shaped pipe configuration in the ditch. The short end of the L will be eight feet long and will allow tidal flows into and out of a bowl-shaped critical area near Lot 507, Magee's lot. The long end of the L will be twenty-four feet long and will operate as a continuation of the tidal flow into and out of the ditch itself. Fill will be used to cover and surround the pipes. The amount of the fill encompasses 130 square feet and consists of 10 cubic yards of material.



No portion of the fill will be deposited into the bowl-shaped critical area and that critical area will not be altered by the fill operation. Likewise, the construction of the driveway connecting Caddell's residence to the opened portion of Huron Street will not disturb the bowl-shaped critical area. The drive will be twelve feet wide, will cross the pipe in the tidal ditch, but will not encroach upon the bowl-shaped critical area. Finally, as an erosion control measure, rip-rap will be placed along the bank of the ditch at the mouth of the long end of the L-shaped pipe.



C. Conclusions of Law



Based on the foregoing Findings of Fact, I conclude the following as a matter of law:



Under the facts of this case, the issue becomes determining whether OCRM properly applied the applicable law in granting the permit. I conclude the permit is proper.



1. Applicable Law



OCRM is the division within DHEC charged with administering the State's coastal zone policies and issuing permits in coastal zone areas. S.C. Code Ann. §§ 1-30-45(B), 48-39-35, and 48-39-50(C). To assist in accomplishing its task, the General Assembly authorized OCRM to promulgate regulations governing the management, development, and protection of the coastal zone areas of the state. S.C. Code Ann. § 48-39-50(E) (Supp. 1999).



Pursuant to that authority, OCRM promulgated regulations establishing general guidelines applicable to all permits in critical areas. See 23A S.C. Code Ann. Regs. 30-11 (Supp. 1999). Further, OCRM adopted regulations addressing specific types of projects with one type of project being "transportation" construction. See 23A S.C. Code Ann. Regs. 30-12(F) (Supp. 1999). Here, the construction is to be built in a "critical area" as that term is defined in S.C. Code Ann. § 48-39-10 (J) (Supp. 1999), 23A S.C. Code Ann. Regs. 30-1(C)(4) and (12) (Supp. 1999) and Regs. 30-10(A) (Supp. 1999). Further, the project provides a transportation route. Accordingly, the regulatory provisions within OCRM's jurisdiction are applicable.



2. Regulations: General Guidelines For All Critical Areas



General guidelines for reviewing a permit request are established by Regs. 30-11(B). That regulation lists ten general considerations for evaluating any proposed project in a critical area. Of those ten general considerations, the dispute here is whether the project will alter the inflow and outflow in the tidal ditch so as to create stagnant water or cause erosion (Regs. 30-11(B)(4)).



Allowing the permit will not alter the inflow and outflow in the tidal ditch so as to create stagnant water. Rather, the L-shaped pipe configuration will allow flows to and from the bowl-shaped critical area. The survey drawing locates the short end of the L-shaped pipe in a location that will allow tidal inflows and outflows. No persuasive evidence establishes that the configuration will not work. Rather, the more persuasive evidence is that the piping will accomplish its drainage purpose.



Likewise, no persuasive evidence establishes a threat of erosion so significant as to warrant denying the permit. Here, the installation of the pipe is to be carried out in a manner that will minimize erosion. In fact, the permit is conditioned on utilizing best management practices during construction to minimize erosion. See "Special Condition" 3. In addition, the size of pipes will be 18 inches and 14 inches and thus large enough to carry the volume of water so as to eliminate excessive rates of flow. Finally rip-rap will be utilized to minimize the rate of flow concerns. Considering the evidence as a whole, no significant degree of erosion potential has been established.



3. Regulations: Transportation Construction



Under 23A S.C. Code Ann. Regs. 30-12(F)(2)(b) (Supp. 1999) "The location and design of public and private transportation projects must avoid the critical areas to the maximum extent feasible. Where coastal waters and tidelands cannot be avoided, bridging rather than filling of these areas will be required to the maximum extent feasible."



Here, the project provides a transportation route for Carr and utilizes fill material to accomplish its purpose. Thus, Caddell must establish the critical area is being avoided to the "maximum extent feasible" and that the use of fill instead of a bridge is proper. Here, Caddell has met these burdens.

In addressing these burdens, Caddell is aided by the definition of "feasible" under the regulations. Under Regs. 30-1(D)(20) "feasible" requires examining the "factors of environmental, economic, social, legal and technological suitability of the proposed activity and its alternatives." Further, the definition specifically requires applying "the concept of reasonableness and likelihood of success in achieving the project goal or purpose."



Under the facts of this case the project design used by Caddell avoids the critical area to the maximum extent feasible and demonstrates (under the facts of this case) that the use of fill is allowable when considered in light of the cost of a bridge. For example, here, the design avoids the bowl-shaped critical area totally. In fact, the most direct route for the driveway is to cross the bow-shaped area directly. However, to avoid the critical area, Caddell designed a plan that moves the driveway further north.



In addition, the only critical area impacted in this case is that of a tidal drainage ditch that has been the subject of several piping and fill operations by neighbors. To deny Caddell the opportunity to utilize a fill and piping design when neighbors have employed the same design would be inconsistent with the concept of "reasonableness" required in the definition of "feasible."



While the evidence is sparse, the conclusion is supported that the cost of constructing a bridge for a single driveway is a far more expensive project than is the cost of installing a pipe and placing fill in the tidal ditch. Accordingly, bridging is simply not feasible relative to filling when the cost of bridging is considered in light of the objective of providing vehicular access to a single lot.



Further, the easement across 504A does not present a feasible alternative when the hardships of utilizing that easemment are reviewed. The current easement provides vehicular access to 504B through a driveway that was designed to only service lot 504A and prevents the resident of 504A from parking in her own front yard. The single driveway is wide enough for only one vehicle and cannot be significantly expanded due to the location of the house and property line on 504A. Therefore, there are no feasible alternatives to the fill and piping proposed by Caddell.

IV. Order



The South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management is directed to grant to Cheryl Caddell a permit to allow the installation of a pipe in a tidal ditch in order to provide vehicular access to property located at 504B East Huron Street on Folly Beach in Charleston County.



AND IT IS SO ORDERED



______________________________

RAY N. STEVENS

Administrative Law Judge



This 30th day of August, 2000

Columbia, South Carolina



1. Wesley Moore (Moore), while being a concerned neighbor and having participated at the hearing as a witness, is not a party of record in this case. The Order granting the re-opening only allowed parties to submit additional evidence. Accordingly, Moore's submission is not before me.


Brown Bldg.

 

 

 

 

 

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