SC Administrative Law Court Decisions

Edisto Island Yacht Club (Club) filed an application with the South Carolina Department of Health and Environmental Control, Bureau of Ocean and Coastal Resource Management (OCRM) requesting permission to elevate an existing structure approximately ten feet to match the elevation of an adjacent sun deck. The structure is located on Big Bay Creek, 3768 Dock Site Road, Edisto Island, Colleton County, South Carolina. OCRM granted the permit with conditions but that decision has been challenged by Richard L. Embry (Embry) and Richard M. Sasnett, D.D.S. (Sasnett).

The challenge places contested case jurisdiction in the Administrative Law Judge Division under S.C. Code Ann. §§ 48-39-150 (Supp. 2000) and §§ 1-23-310 et seq. (Rev. 1987 & Supp. 2000). After conducting a hearing on September 17, 2001, receiving post-trial briefs on November 1, 2001, and considering the evidence and applicable law, I conclude the permit must be denied.

Can a "grandfathered," fully-walled, private club house be elevated approximately ten feet to match the elevation of an adjacent open-sided sun deck when doing so diminishes the enjoyment of the public trust property by adjacent neighbors and when doing so grants a permit to allow the elevation of a non-water dependent structure situated in a critical area?

1. Positions of Parties

Embry and Sasnett assert the permit is improper since the regulations governing construction over a critical area have not been satisfied. First, as to Regs. 30-11(B)(10), the allegation is that the permit should be denied since the construction will affect the value and enjoyment of adjacent owners by interfering with their view of the marsh and water. Second, as to Regs. 30-12 (M)(2), Embry and Sasnett argue the proposed construction is a non-water dependent structure which cannot be permitted over a critical area.

The Club and OCRM disagree with Embry and Sasnett. Both the Club and OCRM argue that the structure does not unnecessarily block the view of Embry and Sasnett. Further, both the Club and OCRM argue that no violation results from the elevation. Rather, they argue the structure is "grandfathered" and that the activity being undertaken is allowable as normal maintenance and repairs.

2. Findings of Fact

Based on the preponderance of the evidence, the following findings of fact are entered:

a. General Facts

In the latter part of 2000, the Club filed an application with OCRM to "rehabilitate" and raise the elevation of the existing club house at Big Bay Creek, 3768 Dock Site Road, Edisto Island, Colleton County, South Carolina. The club house was in existence before July 1, 1977. The requested construction will elevate the structure approximately ten feet to match the height of an adjacent sundeck.

After notice to the public and review by OCRM, the permit was issued. The current challenge to that permit brings this contested case here.

b. Facts Relevant to Regs.30-11(B)

Embry's residence is on the western side and adjacent to the Yacht Club. His view currently presents a vista both to his left and right of approximately 180 degrees. If the club house is elevated, his view will be diminished on his right. The loss of that view will result in a vista decreased to approximately 80 degrees.

Sasnett is the owner of residential property located on the eastern side of the Yacht Club. His view currently allows a vista over the club house down Big Bay Creek. Elevating the club house will diminish his total view of the marsh and creek by approximately 30%.

No evidence shows that the proposed elevation will reduce the value of the property of any neighbors. No sales in the market place of similar property adjacent to such structures as the club house demonstrate a loss of value due to the presence of the structure.

Elevating the structure will not add any additional square footage to the structure. Likewise, an increased elevation will not present an additional interference with daily living associated with a residential use beyond that already present. In addition, the elevation will not diminish either Embry's or Sasnett's access to the water.

c. Facts Relevant to Regs.30-12(M) and 30-5

The permit seeks to "rehabilitate" and elevate an existing four-walled structure used as a club house located above the waters of Big Bay Creek. The club house consists of approximately 1400 square feet supported by pilings. During the elevation, the club house will be removed from the pilings and the existing pilings will either be removed or used as "sister poles" for new pilings. The new pilings will be driven into the critical area to a depth likely greater than the original pilings due to the increased height of the elevated structure. When the new pilings are in place, the club house will be reattached to its new moorings and will have an elevation at least ten feet higher that the former elevation.

3. Conclusions of Law

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

a. Applicable Law

OCRM is 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 OCRM in accomplishing its permitting 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. 2000). Pursuant to that authority, OCRM promulgated regulations governing construction in critical areas. The relevant regulations involved in this case are 23A S.C. Code Ann. Regs. 30-11 (Supp. 2000), 30-12 (Supp. 2000) and 30-5 (Supp. 2000).

b. Regulations: 30-11

General guidelines for evaluation of any proposed project in a critical area are provided in Regs. 30-11(B) and (C). Of these guidelines only one is challenged by Embry and Sasnett.

i. Value and Enjoyment of Adjacent Property Owners: Regs. 30-11(B)(10)

OCRM is required to consider the impact the project will have on the adjacent owner's value and enjoyment. See S.C. Code Regs. 30-11(B)(10) ( OCRM "will be guided by" several considerations; while other meanings can be applied, "will" in its common understanding is used to convey certainty and carries the mandatory sense of "must." 94 C.J.S. Will (1956)). In considering this factor, OCRM must examine not only the project's impact on the adjacent owner's value and enjoyment of their private property but also the impact on the public property. Such an interpretation furthers the goal of S.C. Code Ann. § 48-39-30 (Supp. 2000) by focusing on public trust property and considering the extent to which the private use of public land may or may not impair the remaining trust property and water. 73B C.J.S. Public Lands § 178 (1983).

- Value -

As to value, the argument is that granting the permit will negatively impact the property value of neighboring properties. Under the facts of this case, I disagree.

Certainly, no doubt exists that a pleasant scenic view will have a positive impact upon the value of property in close proximity to that scenic view. See Long Cove Home Owners' Ass'n, Inc. v. Beaufort County Tax Equalization Bd., 327 S.C. 135, 488 S.E.2d 857 (1997) (where our Supreme Court quoted with approval from Lake County Board v. Property Tax Appeal Board, 91 Ill.App.3d 117, 46 Ill.Dec. 451, 414 N.E.2d 173 (Ill.App. 2 Dist. 1980) holding that "[i]t is apparent that property adjoining or in close proximity to a body of water, a park, golf course or other scenic view may well have an increased value because of its location."). However, deciding the impact on value from the loss of a pleasant scenic view is a factual determination. Cf. Andrews Bearing Corp. v. Brady, 261 S.C. 533, 201 S.E.2d 241 (1973) (where the court explained that no factual issue was presented since there was "no question of valuation being in issue.").

In making factual determinations the judge weighs the evidence and evaluates witness credibility. See Doe v. Doe, 324 S.C. 492, 478 S.E.2d 854 (Ct. App. 1996); Rogers v. Kunja Knitting Mills, Inc., 312 S.C. 377, 440 S.E.2d 401 (Ct. App. 1994), cert. dismissed, 318 S.C. 187, 456 S.E.2d 918 (1995). Weighing of evidence is a discretionary matter; for example, the judge is not required to accept even uncontradicted evidence if the evidence is unconvincing. All v. Prillaman, 200 S.C. 279, 20 S.E.2d 741 (1942). Likewise as to credibility; even for expert testimony, the judge must give the testimony the credibility the judge determines it deserves. Florence County Dep't of Social Serv. v. Ward, 310 S.C. 69, 425 S.E.2d 61 (1992); S.C. Cable Tel. Assn. v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992); Greyhound Lines v. S.C. Public Serv. Comm'n, 274 S.C. 161, 262 S.E.2d 18 (1980).

In the instant case, having weighed the evidence and evaluated the credibility of the witnesses, I conclude that the preponderance of the evidence does not establish that elevating the club house will impose a negative impact upon the value of adjacent property.

Here, I am not persuaded that the lot with a view of the club's elevated structure is less valuable than that same lot without such a view. At best, the evidence presented opinions of witnesses not certified as experts who dispute the impact on the value of property from being able to see such construction on a neighboring property. The lay opinion evidence is unconvincing when not supported by sales in the market place of similar property. In the absence of convincing evidence, the permit cannot be denied on the assertion that a loss of value will result from being able to view the elevated club house.

- Enjoyment -

Somewhat related to the value concern is the concern that the elevated club house will negatively impact the enjoyment experienced by the owners of the adjacent lots. Embry and Sasnett argue that the loss of a view is a basis for denying the permit.

When standing on the Club's property and facing Big Bay Creek, the adjacent property owner to the left is Embry and to the right is Sasnett. The specific issue is whether the elevated club house will interfere with the neighbors' view of the marsh and creek to an extent that warrants denying the permit. Under the facts of this case, the loss of enjoyment of the adjacent lots warrants a denial.

The regulations plainly impose a duty to consider the project's impact to the enjoyment of all adjacent owners. In determining the impact on adjacent owners, a balancing of the competing concerns of those owners must be made with the proposed use of the applicant and such balancing must be made in a fair and reasonable manner. Regs. 30-11(B)(10). In calculating that balance, at least two areas of impact must be considered: the degree to which the permit will impact the neighbors' use of their own private properties and the degree to which the permit will impact the neighbors' use of the public trust property. See S.C. Code Ann. § 48-39-30 (Supp. 2000) and 73B C.J.S. Public Lands § 178 (1983).

In arriving at the required balance of interests, OCRM exercises significant discretion. See 1 Am. Jur. 2d Administrative Law § 118 (1962) (where a statute provides controlling principles, an administrative agency may exercise a large measure of discretion within those principles.). However, in exercising that discretion, OCRM must reach a decision based upon a reasoned judgment supported by a rational basis; to do otherwise produces an arbitrary decision. Deese v. State Bd. of Dentistry, 286 S.C. 182, 332 S.E.2d 539 (Ct. App. 1985). In this case, OCRM's judgement is not supported by a rational basis and, therefore, results in an arbitrary decision.

Here, the enjoyment of the public trust property has been diminished for the adjacent property owners. Embry currently has a view of approximately 180 degrees. If the club house is elevated, that view is diminished to approximately 80 degrees. Sasnett's view currently allows a vista over the club house down Big Bay Creek. Elevating the club house will diminish his total view of the marsh and creek by approximately 30%. Given the demonstrated loss of enjoyment, the issue is what rational basis led OCRM to conclude that the loss can be offset by allowing the competing use of the public trust property by the Yacht Club. ⁽¹⁾ Under the facts of the case, no supportable basis exists.

Here, the club house is a non-water dependent structure since it is "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. 30-1(D)(32). In fact, a club house can operate on high land and has no functional need for access to coastal waters. Further, given the non-water nature of the club house, such a structure is improper in a critical area unless "there is no significant environmental impact, an overriding public need can be demonstrated, and no feasible alternatives exist." Regs. 30-12(M)(2). Since the club is a private club, it is incapable of demonstrating (and has not demonstrated) an overriding public need for the structure. Thus, the disputed structure sits in a critical area even thought it is a non-water dependent structure with no overriding public need. ⁽²⁾

Given that the club house is a non-water dependent structure, OCRM's plainly articulated policy is that such structures "are a serious threat to the values set forth in Section 48-39-20(E)." S.C. Regs. 30-12(M). Clearly, OCRM cannot be in the business of fostering or perpetuating what the General Assembly has identified as "a serious threat" to the coastal zone.

Therefore, no rational basis exists to support OCRM's conclusion that fostering the use of public trust property in a manner that is diametrically opposed to plainly stated public policy is a proper basis for allowing the diminishment of a legitimate use of the public trust property (the passive viewing of public trust property) by adjacent owners. Accordingly, OCRM disregarded its own existing policy standards governing permitting and thus issued an arbitrary permit which permit must now be denied. See Peterson Outdoor Advertising v. City of Myrtle Beach, 327 S.C. 230, 489 S.E.2d 630 (1997) (permitting agency failed to apply required criteria "thus rendering its decision arbitrary and an abuse of discretion.").

c. Regulations: 30-5 and 30-12

The structure must also be denied under the requirements of Regs. 30-5 and 30-12(M).

i. Normal Maintenance and Repair

OCRM asserted that it granted the permit since it determined that "[t]he elevation of this grandfathered structure is allowed under Reg. 30-5, as it falls under normal maintenance and repair." OCRM Br. p. 2. I cannot agree.

Regs. 30-5 states the following:

Normal maintenance and repair applies only to work on a structure which has been previously permitted or is grandfathered or exempted and is still generally intact and functional in its present condition. The work may only extend to the original dimensions of the structure, and any expansion, additions, or major rebuilding will require either a Department permit or documentation to and written approval from the Department.

Thus, Regs. 30-5(D) does not define normal maintenance and repair but instead identifies specific structures to which "normal maintenance and repair" applies. Once the structure is identified as one to which normal maintenance and repair applies, the definition of "normal maintenance and repair" is supplied by Regs. 30-1(D)(33) as:

work performed on any structure within the critical area as part of a routine and ongoing program to maintain the integrity of the structure provided that the structure is still generally intact and functional in its present condition and the work only extends to the original dimensions of the structure.

Thus, to be within the normal maintenance and repair provision of Regs. 30-5(D), the work undertaken must be "part of a routine and ongoing program to maintain the integrity of the structure." Here, elevating this structure fails this requirement. The evidence establishes that the elevation activity is not "routine" and is not part of an "ongoing program."

"Routine" as commonly understood means "of a commonplace or repetitious character; ordinary." Merriam-Webster's Collegiate Dictionary, http://www.m-w.com/cgi-bin/dictionary, November 14, 2001. "Ongoing" means "continuously moving forward." Merriam-Webster's Collegiate Dictionary, http://www.m-w.com/cgi-bin/dictionary, November 14, 2001. These criteria are not satisfied. Indeed, throughout the application process, the Yacht Club depicted the activity as anything but routine or ongoing. Rather, the work to be performed was characterized as "rehabilitation," a term commonly understood to mean "to restore to a former capacity." Merriam-Webster's Collegiate Dictionary, http://www.m-w.com/cgi-bin/dictionary, November 14, 2001. Rehabilitating a building is neither routine nor ongoing as required for normal maintenance and repair.

While certainly not controlling, other jurisdictions' use of the terms "rehabilitation" and "normal maintenance and repair" in a building context is helpful in concluding that the two terms are not synonymous. For example, see federal HUD regulations, 24 C.F.R. § 8.3 (where a definitional regulation finds that "remodeling, renovation, rehabilitation, [and], reconstruction" require more extensive work activity and thus "do[] not include normal maintenance or repairs." (emphasis added)). The same conclusion is reached in Oregon. See ORS 308.146(3)(a) (there "[n]ew construction, reconstruction, major additions, remodeling, renovation or rehabilitation of property" (emphasis added) are treated as new property or new improvements to property while new property or new improvements do not include "[g]eneral ongoing maintenance and repair."). Thus, at a minimum, the Yacht Club's assertion that it seeks rehabilitation is evidence that the activity is not that of normal maintenance and repair.

Consistent with the Yacht Club's assertion that it seeks to rehabilitate the structure, the facts of this case establish that the activity to be undertaken by the Yacht Club is neither within the required element of "routine" nor the element of "ongoing." Rather than routine, the activity is extraordinary; rather than ongoing, the activity is marked by singularity.

The activity sought to be permitted is a one time event: the elevation of a club house. During that single event, an entire 1400 square foot club house will be lifted from its pilings and removed. Further, the existing pilings will likewise either be removed or used as "sister poles" for new pilings being driven into the critical area. The new pilings will likely obtain a depth greater than the original pilings due to the increased height of the elevated structure. When the new pilings are in place, the club house will be reattached to its new moorings and will have an elevation at least ten feet higher that the former elevation.

In short, extensive work of a single nature will be accomplished which cannot be characterized as "routine" or "ongoing." Thus, the activity sought to be performed is not "normal repair and maintenance." Therefore, the permit cannot be granted as merely the allowance of normal repair and maintenance to a structure identified in Regs. 30-5.

ii. Expansion, Additions, or Major Rebuilding

Given that the activity sought to be performed by the Yacht Club is not normal maintenance and repair, Regs. 30-5 directs that for "any expansion, additions, or major rebuilding," permission must be obtained from OCRM. In the instant case, the Yacht Club needs OCRM's permission since the project it seeks is a major rebuilding.

Here, the evidence confirms a major rebuilding is sought. As discussed previously, an entire existing club house consisting of 1400 square feet is to be lifted from its pilings and the former pilings which supported that structure are to be either removed or used a supports for new pilings. The club house is to be elevated approximately ten additional feet from its current height above the water. Due to the increased height of the proposed elevated structure, new pilings will likely be driven to a depth greater than the original pilings and the club house will be reattached to its new moorings. Such a project is a major rebuilding.

Since this project is both a major rebuilding activity and a project that will alter the critical area by driving new piles, permission from OCRM must be obtained. See Regs. 30-5 ("any expansion, additions, or major rebuilding will require either a Department permit or . . . written approval."); see S.C. Code Ann. § 48-39-130(C) (permit is required if the activity is one that will "in any way alter any critical area."). In fact, OCRM agreed that a permit was required since it treated the application as a request for a permit, identified a number for the permit as P/N 2000-1D-598, and granted the permit authorizing the construction.

In addressing a request for a permit, OCRM is limited to the application of formalized regulations to the facts before it in deciding whether to grant of deny the request. S.C. Code Ann. § 48-39-130(B) (Supp. 2000) ("the department shall publish and make available the . . . regulations it will follow in evaluating permit applications."); Captain's Quarters v. S.C. Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1991) ("the legislature has expressly mandated Coastal Council promulgate regulations to govern the evaluation of permit applications."). When applying those regulations, OCRM cannot ignore mandatory regulations since no state agency can disregard its own regulations. See Triska v. Department of Health and Environmental Control, 292 S.C. 190, 355 S.E.2d 531 (1987).

Under the facts of this case, OCRM is bound by Regs. 30-12(M). That regulation prohibits a permit to a project that places a non-water dependent private club over a critical area. In clear terms, S.C. Regs. 30-12(M) recognizes that non-water dependent "structures are a serious threat to the values set forth in Section 48-39-20(E)." Consistent with that admonition, Regs. 30-12(M)(2) plainly prohibits non-water dependent structures in critical areas unless "there is no significant environmental impact, an overriding public need can be demonstrated, and no feasible alternatives exist."

In the instant case, as discussed in this decision under Enjoyment at section III.3.b.i, the club house is a non-water dependent structure since it is "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. 30-1(D)(32). In fact, a club house can function with no need for access to coastal waters. Further, the Yacht Club is a private club incapable of satisfying the requirement of demonstrating an overriding public need for the structure. Thus, the application is for a non-water dependent structure that has no overriding public need. Therefore, the permit cannot be granted.

iii. Grandfather Status

Finally, no different result occurs here merely because the existing structure is a "grandfathered" structure. Rather, "grandfathered" in this instance means only that the structure was in existence at the time Act 123 became effective on July 1, 1977. Indeed, the Act is prospective in nature and did not require the removal or modification of then existing structures even if those structures were incapable of being permitted if sought by a new applicant under the new regulations. See South Carolina State Ports Authority v. South Carolina Coastal Council, 270 S.C. 320, 242 S.E.2d 225 (1978) ("This act is prospective.").

Accordingly, since the Act was generally prospective and since existing structures were not required to be removed or modified, no need existed for extensive "grandfathering." Rather, "grandfathering" (which by definition is backward looking) means "to cover (a person) with the benefits of a grandfather clause" with a "grandfather clause" being "a statutory or regulatory clause that exempts a class of persons or transactions because of circumstances existing before the new rule or regulation takes effect." Black's Law Dictionary (7th ed. 1999).

For Act 123, the primary "circumstances existing before the new rule or regulation" of the act took effect were addressed in Section 13(C) of the Act (now codified as § 48-39-130(C)). See South Carolina State Ports Authority v. South Carolina Coastal Council, 270 S.C. 320, 242 S.E.2d 225 (1978) (explaining that Section 13(C) was "commonly called the Grandfather Clause"). There, Section 13(C) addressed the treatment of three specific instances (not relevant to the instant case) of "a person who has legally commenced a use" before the permitting requirements of July 1, 1977 became operative. Under the "Grandfather Clause" of 13(C) the legally commenced use was simply allowed to continue without the need to obtain a permit from OCRM.

However, while those uses were allowed to continue as "grandfathered" from OCRM's permitting requirements, nothing in the Act exempts the current application from the demands of Act 123. Thus, the current application is subject to the requirements of OCRM's permitting rules and fails to meet the demands of Regs. 30-5 and 30-12(M).

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:

OCRM shall deny Edisto Island Yacht Club's application for a permit seeking to elevate an existing ground level building to the height of an adjacent sundeck at Big Bay Creek, 3768 Dock Site Road, Edisto Island, Colleton County, South Carolina.

AND IT IS SO ORDERED.

_________________________________

RAY N. STEVENS

Administrative Law Judge

Dated: November 16, 2001

Columbia, South Carolina

1. The question is not whether the view of a private land owner can be diminished by OCRM. The answer to that question is "yes" since a private land owner does not acquire an easement providing an unobstructed ocean view, breeze, light or air over adjoining property. Hill v. The Beach Co. et al., 279 S.C. 313, 306 S.E.2d 604 (1983); Schroeder v. O'Neill, 179 S.C. 310, 184 S.E. 679 (1936). Thus, OCRM clearly can diminish such views. However, since OCRM has diminished the adjacent owners' view and since OCRM cannot make such decisions without balancing that loss against the competing uses of the public trust property, the question becomes what rational basis did OCRM rely upon in reaching the decision that the competing use justified the reduction in the adjacent owners' enjoyment of the public trust property.

2. The club house was in existence before Act 123 was enacted in 1977. Thus, the structure is not in its present location due to an error in permitting; rather, until the current application, the structure simply has not been required to meet the dictates of Act 123.