SC Administrative Law Court Decisions

This contested case proceeding arises from a decision of the South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management (OCRM), to issue a permit to Respondents Melissa Adams (Adams) and Philip Rhodes (Rhodes) (or collectively Respondents) allowing the construction of a private dock from their property in Charleston County, South Carolina, to an unnamed tributary of Big Bay Creek. Petitioner Mary Jo Robbins (Robbins) filed a notice of appeal of OCRM's decision to issue this permit. Afterwards, Edisto Island Open Land Trust (EOLT) made a Motion to Intervene as a Petitioner. That Motion was granted on July 19, 2001 and the caption of this matter was amended to reflect the addition of EOLT as a party. A hearing was held before me on November 6, 2001 at the offices of the Administrative Law Judge Division (Division) in Columbia, South Carolina.

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion by the parties, I make the following Finding of Facts by a preponderance of the evidence:

1. Respondents Adams and Rhodes are the owners of a 1.5 acre lot located in The Neck subdivision at 8795 Palmetto Road Extension, Colleton County, South Carolina. The lot is described as Lot 7A, Tract "E," and is designated as Tax Map Number 360-00-00-008. The Respondents purchased this property on October 27, 1997.

2. On May 15, 2000, the Respondents filed a permit application with OCRM seeking a permit to construct a dock for private recreational use on and adjacent to an unnamed tributary of Big Bay Creek. The proposed structure is a 4' x 400' walkway leading to a 10' x 10' covered fixed pier head and a 6' two-pile boat cradle on the upstream side of the pier head. The permit application indicated that the "adjoining property owners" were W.L. McRoy (McRoy), with a mailing address listed as 8793 Palmetto Road Extension, Edisto Island, S.C. 29438, and Mary Jo Robbins, with a mailing address listed as 714 Yakin Street, Kingsport, Tennessee 37660. ⁽¹⁾

3. In order for the Respondents to construct their dock, the proposed 4' x 400' walkway would pass on and over the marshland between the Respondents property and the creek. The EOLT contends that it holds title to those marshlands. Robbins also contends that the marshlands were protected. However, at the hearing, Robbins did not offer any testimony that the proposed dock violated any of the dock regulations, nor did she present the Court with any evidence that the proposed dock will cause her any individual harm.

4. The EOLT is an I.R.C. 501(c)(3) charitable organization whose purpose is to preserve the scenic views and vistas of Edisto Island. Jenks Mikell, President of the EOLT, testified that on or about December 16, 1994, David Lybrand, on behalf of his company, Edisto Sales & Rentals Realty, Inc., executed a "limited warranty deed" purporting to convey 318 acres of marshland in The Neck to the EOLT. ⁽²⁾ The Petitioners contend that the "limited warranty deed" conveys the marshland between the Adams and Rhodes property and the unnamed tributary of Big Bay Creek from Mr. Lybrand to the EOLT.

David Lybrand d/b/a Sea Island Resorts, Inc., developed The Neck subdivision. However, the "limited warranty deed" did not warrant that Mr. Lybrand held title to the marshland, but only bound Mr. Lybrand to defend the EOLT's purported title to the marshland against Mr. Lybrand, his successors and personal representatives. Moreover, other than the executed "limited warranty deed," the EOLT offered no other evidence in support of its claim that it owned the marshland in The Neck.

5. Mr. Mikell was informed in a telephone conversation with Mary Shahid, legal counsel for OCRM, that in order for there to be private ownership of marshland, the EOLT had to obtain a judicial declaration of its title by bringing a lawsuit against the State of South Carolina. It is not clear from the record the exact date of this conversation.

6. On November 4, 1996, a dock permit was issued to George H. Walter, the owner of 8837 Palmetto Extension Road, Lot 1, Block DB, in The Neck subdivision. That dock has been constructed and passes over the marshland claimed by the EOLT. This property is adjacent to property being developed by Doris Lybrand, the wife of EOLT board member David Lybrand. On February 17, 2000, a public notice was issued for a dock permit application of W.L. McRoy at 8793 Palmetto Extension Road. This proposed dock would also pass over the marshland claimed by the EOLT. Finally, a dock permit was advertised at Palmetto Extension Road, Lot 33, (TMS 360-00-00-096), with this proposed dock passing over EOLT-claimed marshland.

7. McRoy and Robbins own highland which adjoins the Respondents' property. On June 8, 2000, written notice of the permit application was given directly to Robbins and McRoy by OCRM by way of a document entitled "SCDHEC Office of Ocean and Coastal Resource Management Permit Application Public Notice." Additionally, on June 23, 2000, public notice of the Respondents' dock permit application was properly published in "The Press and Standard," a newspaper of general circulation in Colleton County, South Carolina.

On October 16, 2000, OCRM issued dock permit number OCRM-00-278-M to the Respondents. The dock permit reduced the size of the fixed pier head to 5' x 10' and deleted the requested boat lift. On October 25, 2000, OCRM gave Robbins notice that the dock permit had been issued and advised Robbins she had fifteen (15) days to file a written notice of appeal. Robbins appealed the dock permit by letters dated October 30, 2000 and December 8, 2000. Robbins' position in her appeal is that she considers the construction of the dock "to be a destruction and violation of protected critical area marshland."

The EOLT did not receive written notice directly from OCRM of the issuance of the Respondents' dock permit. Nevertheless, on June 10, 2000, Robbins contacted David Lybrand, who was not only the developer of The Neck subdivision but was also serving on the board of the EOLT at that time. She told Mr. Lybrand that her next door neighbor had applied for a dock permit and asked him if there was any legal document that protected the marshland in front of her property from being developed. Mr. Lybrand told her there was no such document.

Lybrand was an appropriate person to receive notification on behalf of the EOLT. Therefore, I find that Mr. Lybrand and consequently the EOLT had actual notice of the Respondents' dock permit application on June 10, 2000, which was during the public comment period. In fact, Mr. Mikell wrote to Curtis Joyner of OCRM on June 13, 1995 and provided Mr. Joyner with a copy of Lybrand's "limited warranty deed." Mr. Mikell asked Mr. Joyner that "[i]f you have any request[] for dock permits in these areas, please notify me immediately."

Additionally, in October 2000, Robbins personally spoke with Mr. Mikell and told Mikell that she objected to the Adams and Rhodes dock permit because Robbins believed the marshland was protected. Furthermore, approximately sixty (60) days before the hearing in this case, Mr. Mikell, on behalf of the EOLT, received written notice from OCRM of the Respondents' dock permit application for the construction of a dock which would have passed over the marshland claimed by the EOLT in The Neck. Nevertheless, the EOLT has not filed any action against the State in which the EOLT has alleged any claim to private ownership of the marshland.

8. On July 5, 2001, the Respondents' attorney, Mark A. Mason, notified Mikell that if the EOLT claimed an interest in the marshland over which Adams and Rhodes had obtained a permit to construct their dock, the EOLT should intervene in this case. Thereafter, the EOLT moved to intervene as a Petitioner in this action on July 6, 2001. This motion was granted on July 19, 2001.

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

1. The South Carolina Administrative Law Judge Division has subject matter jurisdiction in this action pursuant to S.C. Code Ann. §§ 1-23-310, et seq. (1986 and Supp. 2000), and §§ 1-23-500, et seq. (1986 and Supp. 2000). Furthermore, S.C. Code Ann. § 48-39-150 (D) (1987 and Supp. 2000) specifically authorizes the Division to hear contested cases arising under Chapter 39 of Title 48 of the South Carolina Code.

2. The standard of proof in weighing the evidence and making a decision on the merits at a contested case hearing is a preponderance of the evidence. Nat'l Health Corp. v. S.C. Department of Health and Environmental Control, 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989).

3. Permits for the construction of private docks in the coastal zone are governed by the South Carolina Coastal Zone Management Act, S.C. Code Ann. §§ 48-39-10, et seq. (1987 and Supp. 2000), and the regulations promulgated pursuant to those provisions found at 23A S.C. Code Ann. Regs. 30-1, et seq. (Supp. 2000). Those regulations govern the management, development, and protection of the critical areas and coastal zone of the State. Furthermore, OCRM is charged with carrying out South Carolina's coastal zone policies and issuing permits for docks and piers in the critical areas of the coastal waters and tidelands. 23A S.C. Code Ann. Regs. 30-10(A)(1) (Supp. 2000); S.C. Code Ann. § 48-39-130 (1987 and Supp. 2000).

The property of the Respondents is located in a critical area as defined in Section 48-39-10 and Regulation 30-1(C)(4) and (12). Any person wishing to construct a dock in a critical area must apply for and receive a permit.

4. The Respondents argue that 23A S.C. Code Ann. Regs. 30-2(I) (Supp. 2000) exceeds the statutory scheme under which the regulation was enacted. They contend that nothing in S.C. Code Ann. § 48-39-140 (1987 & Supp. 2000) suggests that OCRM must notify alleged landowners of critical areas of dock applications. Section 48-39-140 provides that "[t]he department within thirty days of receipt of an application for a permit shall notify, in writing . . . all adjoining landowners . . . and shall indicate the nature of the applicant's proposal." Regulation 30-2 (I) delineates the notice requirements of "adjoining landowners" to require that an "alleged adjoining landowner of [a] critical area" over which the permittee intends to build its dock/walkway must be notified. Therefore, the Respondents contend that provisions of Regulation 30-2(I)(2) increase the threshold requirements of Section 48-39-140 and thereby unlawfully alter or amend the statute.

Although a regulation has the force of law, it may not alter or add to a statute. Goodman v. City of Columbia, 318 S.C. 488, 458 S.E.2d 531 (1995). Nevertheless, in Heyward v. South Carolina Tax Commission, 240 S.C. 347, 126 S.E.2d 15 (1962) the South Carolina Supreme Court held that:

It is well settled that while the Legislature may not delegate its power to make laws, in enacting a law complete in itself it may authorize an administrative agency or board 'to fill up the details' by prescribing rules and regulations for the complete operation and enforcement of the law within its expressed general purpose.

Therefore, while the General Assembly did not define "adjoining landowners" by statute, it has implicitly authorized the Department to interpret and clarify that term by authorizing the Department to promulgate regulations governing coastal permits. Regulation 30-2 (I) basically interprets "adjoining landowner" to include a landowner of the critical area over which an applicant intends to place a dock/walkway upon their property. I find that the inclusion of an "alleged adjoining landowner of [a] critical area" in the definition of "adjoining landowner" is a proper exercise of the Department's regulatory function.

5. The EOLT argues that it is an "adjoining landowner" and that as an adjoining landowner it was entitled to receive actual written notice of the dock permit application pursuant to Section 48-39-140(C) and Regulation 30-2(C). The EOLT contends that if it had received the required written notification it would have then had thirty (30) days after the receipt of public notice of the permit application from the Department to file written comments pertaining to the application and that it could have availed itself of S.C. Code Ann. § 49-38-220 (1987 & Supp. 2000) and filed an action against the State to attempt to establish its claim to ownership of the marshland, thereby automatically staying the processing of the permit application until the ownership of the marshland was judicially determined. The EOLT principally relies upon 23A S.C. Code Ann. Regs. 30-2(I) (Supp. 2000) entitled "Applications Involving Adjoining Landowners Claiming Ownership of Critical Areas" which provides, in relevant part, as follows:

(2) The alleged adjoining landowner of critical area must be notified pursuant to the provisions of Section 48-39-140(C) and R.30-2.

(3) If the alleged adjoining landowner of critical area files a written objection to the permit application within the period prescribed in Section 48-39-140 (15 days for minor and 30 days for major permits) based upon a claim of ownership and indicates an intention to file a court action pursuant to Section 48-39-220, the application will be deemed incomplete and further processing of the permit will not take place until a final judicial decision is rendered by a court of competent jurisdiction. However, written proof of filing a court action pursuant to Section 48-39-220 must be received by the Department within 30 days of the date of the expiration of the comment period. If no such written proof is timely received, the permit will be processed pursuant to law.

Regulation 30-2 establishes two separate notice procedures. When an individual files a permit application, the Department must give public notice to all of the "adjoining landowners"of "the nature and extent of the applicant's proposal." See Regulation 30-2 (C). Additionally, notice of an individual's permit application must be published "at least once in a newspaper of local circulation in the county of the proposed activity." 23A S.C. Code Ann. Regs. 30-2(B)(7)(a) (Supp. 2000).

The EOLT argument is based upon the assumption that the only acceptable notice of the Respondents' intent to construct a dock/walkway was written notice from the Department strictly pursuant to the terms of Regulation 30-2 (C). In other words, that it must receive: (1) written notice; (2) during the comment period before the permit was issued. However, "[n]o one needs notice of what he already knows." Strother v. Lexington County Recreation Commission, 324 S.C. 611, 626, 479 S.E.2d 822, 830 (Ct. App. 1996) (quoting Dicks & Gillam, Inc. v. Cleveland, 295 S.E. 124, 128, 367 S.E.2d 430, 433 (Ct. App. 1988)).

The purpose of the notice provisions in this case are three fold. First, in cases involving minor permit applications, all "adjoining landowners . . . and other interested persons" are given fifteen (15) days after the receipt of the public notice of permit application to file written comments concerning the application. The comments received within the fifteen (15) days must be considered in the Department's decision on a permit application. See Regulation 30-2 (C). Therefore, the notice insures that the comments of parties that are timely received will be considered by the Department in making its determination. Additionally, the notice grants parties an opportunity to request subsequent notice from the Department of its decision on a permit application. Id. Finally, an adjoining landowner who claims ownership of the critical area can stay the processing of the permit if the landowner files a written objection to the permit application within fifteen (15) days (for minor permits) based upon a claim of ownership and, thereafter, files proof "within 30 days of the date of the expiration of the comment period" with the Department that an action has been initiated in circuit court pursuant to Section 48-39-220. ⁽³⁾ See Regulation 30-2 (I)(3). The Department will then delay the processing of the application until "a final judicial decision is rendered by a court of competent jurisdiction." Id.

The notice received by the EOLT complies with the purposes of Section 48-39-140 and Regulation 30-2. The EOLT had actual notice of the Adams and Rhodes dock permit application on June 10, 2000, which was during the public comment period. Additionally, approximately sixty (60) days before the hearing in this case, the Department notified the EOLT of the Respondents' dock permit application for the construction of a dock which would pass over the critical area claimed by the EOLT. Moreover, the EOLT was admitted as a party in this case on July 19, 2001. Therefore, the EOLT was not only given the opportunity to make meaningful comment to the Department concerning this case but, more importantly, it has been permitted to litigate its concerns in this contested case proceeding.

Furthermore, the EOLT exists to protect the marshland through its claim of title. It is charged with knowledge of the law in this State which presumes that ownership of marshland is held by the State in trust for the public, unless a private person claiming ownership brings an action against the State pursuant to Section 48-39-220 and obtains a final judicial declaration quieting title in the private person. Moreover, OCRM's counsel specifically advised Mr. Mikell of this requirement. Therefore, the EOLT was placed upon notice of the need to file an action in circuit court to establish title to the marshland. That action could have been filed prior to the EOLT intervening in this action. Certainly, once it intervened and was made a party to this action, the EOLT had an obligation to assert and protect its claim. ⁽⁴⁾

The cardinal rule in statutory construction is to give effect to the legislative intent, if the same can be discerned from a reading of the statute. Bankers Trust of South Carolina v. Bruce, 275 S.C. 35, 267 S.E. 2d 424 (1980). A statute as a whole must receive a practical, reasonable, and fair interpretation consistent with the purpose, design, and policy of the lawmakers. State v. Baker, 310 S.C. 510, 427 S.E. 2d 670 (1993). Since, the EOLT has both failed to file an action to adjudicate the ownership of the critical area and failed to present sufficient evidence to establish a likelihood that the EOLT owns the critical area, any further stay of the processing of this permit based upon Regulation 30-2 (I) would not comply with the purpose and intent of the regulation.

6. Petitioner Robbins argues that she will suffer harm if a dock is built over what she claims is the property of the EOLT. Her appeal must fail for all of the same reasons that the EOLT did not prevail - that being that the EOLT has never properly established that it is the owner of the disputed marshland. Additionally, Robbins has no standing to raise this argument in her own behalf. The Supreme Court of South Carolina has determined that to have the constitutional minimum necessary for standing, one must meet the test promulgated by the Supreme Court of the United States in Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130, 119 L.Ed.2d 351 (1992), which consists of the following three elements:

First, the plaintiff must have suffered an 'injury in fact'- an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not 'conjectural' or 'hypothetical'. Second, there must be a causal connection between the injury and the conduct complained of- the injury has to be "fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court." Third, it must be 'likely,' as opposed to merely 'speculative,' that the injury will be 'redressed by a favorable decision.'

Sea Pines Ass'n for the Protection of Wildlife v. S.C. Department of Natural Resources, 345 S.C. 594, 602, 550 S.E.2d 287, 291 (2001) (quoting Lujan, (internal citations omitted)).

The first element requires Petitioner Robbins to suffer an injury in fact, which must be concrete and particularized, actual or imminent, and not conjectural or hypothetical. A party seeking to establish standing has the burden of proving each of three elements under Lujan. Sea Pines, 550 S.E.2d at 291. Though Robbins is an adjoining landowner who has standing to present the claims that impact her property, Robbins presented no such evidence. Rather, her claim that the critical area is property of the EOLT does not set forth an actual and particularized injury in fact to her that is not hypothetical in nature. Additionally, she offered no evidence that the proposed dock and walkway failed to comply with S.C. Code Ann. Regs. 30-12(A) and 30-11(C); S.C. Code Ann. §§ 48-39-10, et seq.; 23A S.C. Code Ann. Regs. 30-1, et seq.; any Coastal Management Act Program policies; the ten general considerations governing permit decisions under the Coastal Management Act; and whether the DHEC/OCRM properly implemented the policies of the South Carolina Management Program designed to protect shellfish areas as Geographic Areas of Particular Concern, as contended in her Amended Prehearing Statement dated June 1, 2001.

This Court realizes that South Carolina case law specifically recognizes that an individual's aesthetic and recreational interests in observing wildlife is a judicially cognizable injury in fact. Sea Pines, supra, 550 S.E.2d at 291-292. See also S.C. Wildlife Fed'n v. S.C. Coastal Council, 296 S.C. 187, 371 S.E.2d 521 (1988). However, Robbins has not shown the required actual and imminent "injury in fact" element necessary under the Lujan test since she presented no evidence that the construction of the dock and walkway would negatively impact her ability to observe wildlife or even have any detrimental impact on the marsh habitat that could cause her an actual or imminent injury that was particular and concrete. Any potential impact on the habitat is uncertain since Petitioner Robbins presented no evidence on the subject and, therefore, any injury to Robbins therefrom is conjectural and hypothetical per se.

Addressing the final two elements under the Lujan test are unnecessary by this Court since Robbins has failed to prove the first 'injury in fact' element required under that test.

7. The proposed dock complies with all of the statutes and regulations pertaining to dock permits.

Based upon the above Findings of Fact and Conclusions of Law:

IT IS HEREBY ORDERED that OCRM dock permit number OCRM-00-278-M issued to Melissa Adams and Philip Rhodes is hereby affirmed and Melissa Adams and Philip Rhodes are hereby authorized to construct the dock as permitted.

AND IT IS SO ORDERED.

________________________________

Ralph King Anderson, III

Administrative Law Judge

February 28, 2002

Columbia, South Carolina

1. McRoy owns a 1.5 acre tract of highland at 8793 Palmetto Road Extension which is designated as Tax Map Number 360-00-00-009. Robbins owns a 1.5 acre tract of highland at 8797 Palmetto Road Extension which is designated as Tax Map Number 360-00-00-162.

2. Mr. Lybrand also obtained a charitable tax deduction for having made the gift of land to the EOLT. When he made that conveyance, he was also serving a life term on the board of the EOLT.

3. 23A S.C. Code Ann. Regs. 30-1 (D)(31) (Supp. 2000) defines "minor development activity" as "the construction, maintenance, repair or alteration of any private pier or erosion control structure, the construction of which does not involve dredging."

4. The EOLT received actual notice and failed to timely file an action pursuant to Section 48-39-220 to seek to obtain a judicial declaration that it owned the marshland even if the thirty (30) day time period for the filing of the judicial declaration was computed from the date the EOLT intervened in this action, which would be the most liberal construction of the time requirements.