SC Administrative Law Court Decisions

Janet Devereux (Devereux) requested a permit from the South Carolina Department of Health and Environmental Control, Bureau of Ocean and Coastal Resource Management (OCRM). The request was for a permit allowing Devereux to construct an open deck and an enclosed addition to an existing restaurant. If granted, the new construction would tie into an existing boardwalk owned by the City of Georgetown. OCRM granted a permit but with significant alterations and restrictions varying from that requested. Devereux has brought this contested case seeking to reverse OCRM's position. ⁽¹⁾

After a hearing on the merits on July 30, 2001, the parties submitted post-trial briefs on August 17, 2001. Upon reviewing the evidence and the arguments, the permit granted by OCRM with the conditions and restrictions as imposed in permit number 2000-1E-539-P as issued on March 6, 2001 for Devereux's property located at 911, 913, and 917 Front Street is upheld.

1. Is OCRM correct in its decision to restrict Devereux's construction permit by prohibiting any portion of the proposed deck and any portion of the proposed enclosed building from extending over the critical area?

2. Is OCRM's restricting of Devereux's request while granting unrestricted permits to others a violation of Devereux's right to the equal protection of the laws?

1. Positions of Parties

Devereux argues that her restaurant construction should be allowed to extend over critical areas since her structure is a water dependent structure. Second, and in any event, she argues that the location of her property allows her to extend over critical areas since the Georgetown SAMP boundaries have been amended to include her property, which is in the 900 block of Front Street.

OCRM disagrees. It argues that the restaurant is a non-water dependent structure forbidden from extending over critical areas. In addition, OCRM argues the location of Devereux's property, which is in the 900 block of Front Street is not included in the Georgetown SAMP boundaries and that those boundaries have not been amended to include that property.

2. Findings of Fact

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

a. Background Facts

On March 6, 2001, OCRM issued permit number 2000-1E-539-P to Devereux. The permit authorizes the construction of an open deck and an enclosed building addition on property located in downtown Georgetown, South Carolina. The property borders Front Street on the front (identified as 911, 913, and 917 Front Street) and the Sampit River on the rear.

Along the Sampit River side of the property is a boardwalk owned by the City of Georgetown. The boardwalk provides public access to the river and in many areas provides access to the rear entrances of many of the Front Street buildings.

Several of the Front Street buildings provide waterfront restaurants and shopping. In fact, Devereux intended for the addition of an open deck and an enclosed building to provide a waterfront restaurant. The open deck is designed to be a waiting area for the restaurant with the proposed enclosed addition being a part of the restaurant's dining room. If granted without restrictions, the open deck and an enclosed addition would allow for a fairly broad area connecting to the existing boardwalk and extending over a critical area.

However, the permit is restricted and, while a connection to the existing boardwalk can be made, the size of the deck and the size of the enclosed addition are more limited than that sought by Devereux. In general, the restrictions limit the size of the deck and the enclosed addition by prohibiting any portion of the deck or the enclosed building from being over the critical area. More specifically, instead of the deck dimensions sought by Devereux, the deck near the critical area will be limited to a five foot wide wrap-around walkway parallel to an existing bulkhead. Further, instead of the enclosed building dimensions sought by Devereux, the building will be "clipped" on the east side to avoid crossing into the critical area.

Devereux suggests the existence of the Georgetown SAMP impacts her permit request.

b. SAMP Facts

In the mid 1980's, leaders in the Georgetown area determined that steps were needed to revitalize the Front Street area of Georgetown. As a result, on July 16, 1987, the Management Council of the then South Carolina Coastal Council approved a plan designated as the Central Business District / Sampit River Special Area Management Plan (Georgetown SAMP or plan). The plan covered the following area:

[T]wo blocks of downtown Georgetown located on the Sampit River, ... bounded on the north by Front Street, Orange Street to the west, Screven Street and Lafayette Park to the east, and the northern edge of the Sampit River channel... to the south.

The "two blocks" identified in the plan are the 700 and 800 blocks of Front Street.

The economic development sought for these two blocks depended significantly upon the construction of a public boardwalk. Indeed, the linchpin of the plan was a boardwalk described in the plan as follows:

The principle (sic) impetus behind the economic revitalization of the study area, and arguably the entire downtown, will be construction of a 1,000 l.f. public boardwalk. . . . Orange Street Park will serve as the northwestern terminus of the boardwalk, with Lafayette Park serving as the southeastern terminus. Francis Marion Park will anchor the midpoint of the boardwalk.

On April 17, 1987, the South Carolina Coastal Council (Coastal Council) issued permit number 86-3E-268-P to the City of Georgetown authorizing construction of the boardwalk. The boardwalk would have one terminus at a proposed Orange Park very near Orange Street with the other terminus at Screven Park very near Screven Street. Any amendment to the plan required the approval of both the City of Georgetown and the Coastal Council.

On March 15, 1988, an additional permit, 87-3E-301-P, was issued to the City of Georgetown. The new permit authorized decks and finger piers extending from and to the boardwalk. Since the time of issuance of that permit, numerous decks and piers have been constructed within the authorized area.

Finally, in 1995, permit number 95-1E-118-P authorized the City of Georgetown to extend the boardwalk an additional 500 linear feet. The extension has been completed and begins on the prior western terminus of Orange Street Park and runs in a westerly direction so as to now provide a boardwalk along the rear of the 900 block of Front Street. Neither the City of Georgetown nor OCRM has ever presented an amendment to the Georgetown SAMP which would include the 900 block of Front Street within the SAMP. Rather, during the application stage in January 2001, Devereux admits to OCRM that she knew her property at "911-917 Front Street, . . . is outside of the area covered by the Georgetown special area management plan." However, she requested that her proposal be approved as submitted.

3. Conclusions of Law

a. Prohibition On Structures Extending Over Critical Areas

i. Introduction

DHEC, through OCRM, is charged with the duty of approving or denying permits for activities within the coastal zone as covered by Chapter 39 of Title 48 of S. C. Code Ann. (Rev. 1987 and Supp. 2000). See S. C. Code Ann. § 48-39-50(G)(Rev. 1987 and Supp. 2000). The decision to grant or deny a permit is based upon numerous policies established by statutes, regulations, and management programs all designed to provide coverage over the coastal zone.

In particular, S.C. Code Ann. § 48-39-30 (Rev. 1987 and Supp. 2000) establishes the policies the state seeks to apply in governing the coastal zone. These policies are carried out in part by statutes that establish factors to be considered when OCRM is asked to grant a permit, such as S. C. Code Ann. § 48-39-150 (Rev. 1987 and Supp. 2000) which provides ten "general considerations."

In addition, S. C. Code Ann. § 48- 39-50(C) and § 48-39-80 (Rev. 1987 and Supp. 2000) authorize OCRM to develop and implement a comprehensive coastal management program for managing the coastal zone. State management programs are to be developed in light of the national policy of the United States "to encourage the preparation of special area management plans which provide for increased specificity in protecting significant natural resources, [and] reasonable coastal-dependent economic growth, . . . ." 16 USC § 1452(3). Accordingly, South Carolina's management program recognizes the Special Area Management Plans (SAMP).

ii. Special Area Management Plans

A SAMP allows coordinated local and state government (along with input from interested citizens) to create a plan that will control development of specific sites in the coastal zone. Such a plan was adopted for the Georgetown area on July 16, 1987, by the Management Council of the then South Carolina Coastal Council with that plan designated the Central Business District / Sampit River Special Area Management Plan (Georgetown SAMP).

The 1987 Georgetown SAMP allows construction over critical areas and anticipates that many of the structures will be non-water dependent structures extending over critical areas. ⁽²⁾ For example, the Georgetown SAMP lists various uses for the area with such uses ranging from armories to restaurants to theaters. Devereux's intended use is that of a restaurant.

- Introduction to Non-water Dependent Structures -

In the instant case, OCRM imposed restrictions on Devereux's permit in order to prevent her from extending her restaurant building over a critical area. OCRM reached its position since it believes the structures to be built by Devereux are non-water dependent and it believes non-water dependent structures are prohibited by Regs. 30-12(M) from extending over critical areas.

In response, Devereux does not disagree with OCRM's analysis that the Georgetown SAMP allows non-water dependent structures to extent over critical areas while non-water dependent structures not within a SAMP are subject to Regs. 30-12.M. However, she argues that her restaurant is water dependent and thus Regs. 30-12(M) is not applicable to her. I cannot agree; on the contrary, a restaurant is non-water dependent structure. ⁽³⁾

- Definition and Application of Non-Water Dependent Structures -

A non-water dependent structure is a "a facility which cannot demonstrate that dependence on, use of, or access to coastal waters is essential to the functioning of its primary activity." Regs. 30-12D(32). Applying the definition requires a two-fold inquiry: what is the "function" of the facility and is dependence on, use of, or access to coastal waters essential to that function.

The function of a restaurant is to provide meals to patrons. See restaurant in Merriam-Webster, Collegiate Dictionary, on-line version, m-w.com/cgi-bin/dictionary ("a business establishment where meals or refreshments may be purchased."). That function is obviously not dependent upon coastal waters since a restaurant is quite capable of providing meals to customers entirely separated from the presence or absence of coastal waters.

Devereux argues that access to coastal waters is essential to a restaurant in the 900 block of Front Street since other restaurants in the 700 and 800 blocks have such access. Her argument is that a restaurant in the 900 block cannot be successful without access to coastal waters.

Such an argument is misplaced for two reasons. First, it confuses "function" with "success." Nothing in the definition attempts to measure the degree of wealth or income that a facility will produce if it has access to coastal waters as opposed to being without such access. Rather than success, the issue is functionality: what is the purpose for which the facility is designed, not whether it will be successful. Second, no persuasive evidence establishes that the previous restaurant at Devereux's location was unsuccessful due to lack of coastal water access. Numerous factors from management to menu may have accounted for the restaurant's closure. Thus, even if success could be a basis for examining non-water dependent functions, Devereux has failed to establish that the previous restaurant's lack of success was due to the lack of access to coastal waters.

Having established that a restaurant is a non-water dependent facility, I conclude that the permit restrictions are a proper means to prevent a violation of Regs. 30-12M's prohibition on non-water dependent facilities extending over critical areas.

b. Amendment of the Georgetown SAMP

In an effort to find a means to allow the planned restaurant to extend over a critical area, Devereux argues that the SAMP boundaries have been amended by oral agreement to include the 900 block of Front Street. I disagree.

True, a written contract may be modified by oral agreement even if the contract expressly states that all changes must be in writing. Lazer Constr. Co. v. Long, 296 S.C. 127, 130, 370 S.E.2d 900, 902 (Ct.App.1988). However, such a result cannot be achieved unless the parties to the contract have agreed to the change. Id.

Here, the change to the contract for which agreement is being suggested is the expanding of the SAMP's boundaries to include the 900 block of Front Street. The parties to the contract are OCRM and the City of Georgetown. OCRM has not agreed to any change.

On the contrary, OCRM's actions have consistently represented a view that the SAMP has not been amended. Indeed, OCRM has argued extensively to Devereux and to the ALJD that it will not and cannot agree to a change in the SAMP except by means of an amendment made pursuant to the SAMP process of public notice and input from interested persons.

Further, the mere act of granting a permit to lengthen the existing boardwalk is not an act amounting to an amendment to the SAMP. First, because the boardwalk is a water dependent structure, it is not necessary for an amendment to the SAMP to be in place before a permit to extend the boardwalk into the 900 block is issued. Further, the past history of permits and SAMP approval shows the pattern of agreement employed by these parties. The original permit for the boardwalk was issued on April 17, 1987. That permit was followed by the later issuance of the SAMP on July 16, 1987. Accordingly, the reasonable expectation is that the intent of the parties is to follow the same pattern for the extension of the boardwalk; i.e., first obtain the permit and then amend the SAMP as desired. The permit has been issued, but amendment remains for future consideration.

Accordingly, no amendment has been made by the parties to the SAMP and the 900 block of Front Street is not covered by the Georgetown SAMP.

1. Positions of Parties

Devereux argues that the OCRM restrictions and conditions placed upon her permit constitute a denial of her rights to the equal protection of the law since other permits have been obtained without restrictions. OCRM disagrees and argues that the conditions on her permit are warranted since her property is not similarly situated with property not having restrictions.

2. Findings of Fact

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

Property owners in the 700 and 800 Blocks of Front St. have obtained permits to built additions to commercial structures with the additions used as restaurants and waiting areas for restaurants. Those permits have allowed additions to extend over critical areas. Properties in the 700 and 800 Blocks of Front Street are covered by a SAMP.

Devereux seeks to build an addition in the 900 block of Front Street which addition is very similar to the restaurant additions permitted in the 700 and 800 blocks. If permitted as requested, Devereux's addition would extend over a critical area. Properties in the 900 block of Front Street are not covered by a SAMP.

3. Conclusions of Law

OCRM permitting decisions are subject to equal protection analysis. See Weaver v. South Carolina Coastal Council, 309 S. C. 368, 423 S. E. 2d 340 (1992). Similarity is the essence of such a challenge since "[t]he sine qua non of an equal protection claim is a showing that similarly situated persons received disparate treatment." Grant v. South Carolina Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995). Accordingly, if Devereux is not similarly situated to others who have obtained unrestricted permits along the boardwalk, then OCRM's restrictions on a permit to Devereux do not violate Devereux's rights to equal protection.

Here, no doubt exists that property owners in the 700 and 800 Blocks of Front St. have obtained permits to built additions to commercial structures for restaurants. Likewise, no doubt exists that Devereux's requested addition is substantially the same as additions made by many others in the 700 and 800 Blocks of Front Street. However, the difference between Devereux's planned addition and those made by others is that Devereux's addition is requested for the 900 block of Front Street, not the 700 or 800 Blocks of Front Street. Such a difference is critical.

Property in the 700 and 800 blocks are covered by a SAMP while properties in the 900 block are not. Coverage under a SAMP allows a property owner to build non-water dependent structures which may extend over critical areas while such structures in an area not within a SAMP may not extend over critical areas. Here, Devereux's property is not within a SAMP and yet she seeks a permit to construct a non-water dependent structure extending over a critical area. Accordingly, given the difference between Devereux's "non-SAMP property" and the "SAMP property" to which she seeks to be compared, Devereux is not similarly situated with other permit holders. Thus, the restrictions imposed on the permit issued to Devereux are not a denial of her equal protection rights.

OCRM's granting of Devereux's request to construct an open deck and an enclosed addition to a building owned by her at 911, 913, and 917 Front Street is upheld with the conditions and restrictions as imposed in permit number 2000-1E-539-P as issued on March 6, 2001.

AND IT IS SO ORDERED

______________________

RAY N. STEVENS

Administrative Law Judge

Dated: September 7, 2001

Columbia, South Carolina

1. OCRM's disagreement with Devereux's determination places jurisdiction in the Administrative Law Judge Division (ALJD). See S.C. Code of Laws, Sections 48-39-10, et seq., and S.C. Code Ann. Reg. 30-1 through R.30-20, Rules and Regulations for Permitting in the Coastal Zone.

2. As clarification, two issues are explicitly not raised and not ruled upon. First, no issue raises the validity of a SAMP adopted prior to the 1993 adjustments to the South Carolina Coastal Management Program (which adjustments specifically addressed SAMPs). Rather, the parties premised this case on SAMPs prior to 1993 being valid. Second, no issue asks whether a SAMP can allow structures over critical areas for non-water dependent structures irrespective of the requirements of Regs. 30-12M. Rather, this case was tried on the premise that a SAMP allows such structures. Nothing in this decision expresses any view on either of these issues.

3. Our Supreme Court in 330 Concord Street Neighborhood Ass'n v. Campsen, 309 S.C. 514, 424 S.E.2d 538 (Ct. App. 1992) has essentially held that a restaurant is a non-water dependent structure. However, the language used by the Court leaves the issue conceivably still open since the Court addressed the matter by stating that "[t]he parties agree the restaurant is a 'nonwater dependent structure' as defined by Coastal Council regulations."