ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before the Administrative Law Judge Division ("Division") pursuant to the Petitioner's request for a
contested case hearing following the Respondent South Carolina Department of Health and Environmental Control, Office
of Ocean and Coastal Resource Management's ("OCRM") issuance of two permits to the Respondents, Irene Booker
(OCRM-01-025-E) and David Smart, Jr. (OCRM-01-024-E). The Petitioner, the Town of Hilton Head Island ("the
Town"), requested contested case hearings on the issuance of both permits. The matters were transmitted to the Division
and were consolidated for hearing purposes on September 4, 2001.
After notice to the parties, a hearing was conducted on Wednesday, February 6, 2002, at the offices of the Administrative
Law Judge Division in Columbia, South Carolina. At the close of the Petitioner's case, Respondent OCRM moved for a
dismissal of the Petitioner's case on the grounds that Petitioner had failed to meet its burden of showing that the issuance of
these permits violated the applicable law. Respondent Booker also joined in that motion. For the reasons that follow,
OCRM's motion to dismiss pursuant to Rule 41(b), SCRCP is granted.
FINDINGS OF FACT
Having carefully considered the credibility of the testimony and accuracy of the evidence presented at the hearing and
taking into consideration the burden of persuasion by the parties, I make the following findings of fact by a preponderance
of the evidence:
- The Respondents Irene Booker and David Smart ("Booker and Smart") are the owners of real property located on
Hilton Head Island, Beaufort County, South Carolina. Respondent Booker owns lot 23, and Respondent Smart owns
Lot 21, both of which are located on Singleton Beach.
- The record reflects that oceanfront property on Singleton Beach is largely developed with oceanfront homes having
been constructed on the vast majority of the lots. The two lots in question are two of the lots that do not currently have
habitable structures. Adjacent to these lots is a habitable structure, which is located seaward of the current baseline.
The structure has existed on that lot since the 1970's and has not eroded away.
- On the Booker and Smart lots is a sand dune of approximately 14 feet in height, which is located toward the landward
end of the lots, adjacent to the access road at the landward side of the lots. OCRM has designated this dune as the
"primary oceanfront sand dune" for the purpose of establishing the setback and baselines. However, another secondary
sand dune has developed seaward of the current primary dune. The area between the landward, primary dune and the
seaward, secondary dune is large enough to contain a building footprint for the construction of a home on both of these
lots.
- Both Booker and Smart applied to OCRM for a permit to construct a habitable structure seaward of the baseline.
Respondent Smart applied in December of 2000 and Respondent Booker applied in January of 2001. Both applications
proposed the construction of a 32' wide by 50' long structure with three stories, for a total of 4,800 square feet of
enclosed living space on each lot.
- After the OCRM staff reviewed the applications and placed them on public notice, permit numbers OCRM-01-025-E
and OCRM-01-024-E were issued on June 26, 2001. Several special conditions were imposed on the permit, most
significant of which, for purposes of this appeal, are set forth below:
1(e). That no part of the structure is located on the primary oceanfront sand dune. However, the smaller, more seaward
dune on the lot may continue to accrete and eventually become the primary oceanfront sand dune.
- Provided that if the beach erodes to the extent that the structure becomes located on the active beach, the permittee
agrees to immediately remove the structure from the active beach if and when OCRM orders the removal.
- Provided that by acceptance of this permit the permittee acknowledges that OCRM in no way assures the suitability of
this lot for construction. In fact, the location of the baseline indicates that this may not be an appropriate place to build,
and therefore the permittee agrees to hold OCRM harmless from any and all claims or causes of action that may result
from issuance of this permit. Any construction is done at the risk of the permittee.
Therefore, if the secondary dune does not accrete to a height of 36 inches, pursuant to 23A S.C. Code Ann. Regs. 30-1(D)(40), Booker and Smart will not have a buildable footprint and may not begin construction on their lots.
- Charles Cousins, planning director for the Town of Hilton Head, testified on behalf of the Respondents. He has been
employed by the town for 13 years. Mr. Cousins testified that Beaufort County has a dune protection ordinance, which
protects both the primary and secondary dune from development. He stated that single-family homes are exempt from
these restrictions and thus Booker and Smart are not prohibited from building on their lots. Mr. Cousins further testified
that he is not aware of any other situation on Singleton Beach or on the adjacent subdivision, Palmetto Dunes, where the
Town of Hilton Head has denied a building permit for a residence on the oceanfront. He also was unaware of any
structures located seaward of the baseline on Hilton Head Island. However, the large majority of the shoreline is
protected by revetments, which is the location of the baseline. No structures could possibly be located seaward of a
revetment.
- Numerous photographs were introduced by the Petitioner at the hearing purporting to show that the secondary dune was
not in fact accreting but was eroding. The evidence in the record, however, shows that some of the photographs
depicting erosion were taken after a Hurricane brushed the South Carolina coast in September of 2001, and that this
event likely caused this episodic erosion.
- Erik Olsen, a consultant for the Town since 1986, supervised the Town's ongoing beach renourishment projects. He
testified about the renourishment projects, how they were accomplished, and the effect that they have had on the
beachfront. He noted that there have been two beach renourishment projects, one in 1990 and one in 1997. He stated
the Town anticipates another renourishment project in 2004. Also, the third renourishment appears likely to occur,
funds having been set aside. Singleton Beach has benefitted from the first two projects and the 2004 project will include
Singleton Beach.
- In Mr. Olsen's opinion, in the future, the primary dune at lots 21 and 23 will not accrete to 36 inches in height but will
actually erode. However, I find this testimony irrelevant to the question of whether the permit was improperly issued
because the permit does not allow for any construction on these two lots unless and until accretion actually occurs.
- A special permit, similar to the two in question before me, was issued by OCRM to Jonathan Francis in 1996. It
authorized the construction of a habitable structure on an oceanfront lot in the same general vicinity as these two lots.
The Petitioner did not object to the issuance of that special permit, although the planning director admitted that the
Town received public notice during the time period required by law.
CONCLUSIONS OF LAW
Based upon the foregoing findings of fact, I conclude, as a matter of law, the following:
- The Administrative Law Judge Division has subject matter jurisdiction in this proceeding pursuant to S.C. Code
Ann. §§ 1-23-600(B) and 1-23-310 et seq. (Supp. 2001). S.C. Code Ann. § 48-39-150 (Supp. 2001) specifically
authorizes the Administrative Law Judge Division to hear contested cases arising under Chapter 39 of Title 48 of
the Code.
- S.C. Code Ann. § 48-39-50 grants to DHEC the authority to promulgate regulations, which will enforce the
provisions of the Coastal Zone Management Act. OCRM is the agency within DHEC charged with implementing
the state's coastal zone policies and issuing permits for construction of structures within the coastal zone. 23A
S.C. Code Ann. Regs. 30-1 to -20 (Supp. 2001).
- S.C. Code Ann. §§ 48-39-250 to -360 (Supp. 2001), otherwise known as the South Carolina Beachfront
Management Act, was enacted in order to afford more protection to the beach/dune system, which allows the
Department to better "protect, preserve, and enhance" it.
- Regulation 30-15 sets forth the procedure for the issuance of special permits for activities seaward of the
baseline, as well as guidelines for the Department to consider. It provides as follows:
The Department shall consider applications for special permits. Special permits are to be used only in situations where
without such a permit, the property owner would have no reasonable use of his property, or when an overriding public
benefit can be demonstrated. When issuing special permits, the Department shall consider the legislative findings and
policies as set forth in Sections 48-39-30, 48-39-250 and 48-39-260. Specifically, the following criteria shall serve as
guidelines when issuing special permits:
(1) A structure cannot be constructed or reconstructed on a primary oceanfront dune or on the active beach, and in the
event that the beach erodes so that in the future the permitted habitable structure is located on the active beach, the property
owner agrees to remove the structure at his own expense.
(2) There shall be no adverse impact on the stated policies of the Beachfront Management Act, including the policies
protecting the sand dunes and preservation of the dry sand beach.
(3) The granting of a special permit shall not create a situation contrary to the public health, safety or welfare.
(4) In determining whether or not a permit is contrary to the public health, safety or welfare, the Department shall consider
a) the erosion rate at the site, b) how soon the structure will be located on the active beach, c) whether or not the proposed
structure meets American National Standards Institute building standards, and/or d) the potential cumulative effect that
similar structures will have upon the beach/dune system.
23A S.C. Code Ann. Regs. 30-15(F) (emphasis added). The Regulation provides guidelines that OCRM must consider in
the issuance of these permits. Although these guidelines are not absolute, they must be considered.
- 23A S.C. Code Ann. Regs. 30-1(D)(2) defines the "active beach" as "the area seaward of the escarpment or the
first line of stable natural vegetation, whichever first occurs, measured from the ocean landward." The record
reflects that at least some vegetation is being supported by the smaller sand dune and that the vegetation may
increase with the increase in the size of the dune. If the secondary dune accretes to a height of 36 inches, the
larger portion of the lots owned by Booker and Smart will no longer be on the active beach or the primary dune.
- Rule 68, SCRCP provides that the Rules of Civil Procedure applicable in the judicial branch may be applied in
proceedings before the Division (executive branch) where the Rules of the Division do not specifically address
the issue at hand. The Division's rules do not address the procedure for motions to dismiss following the
presentation of the Petitioner's case. I conclude Rule 41(b), SCRCP applies. That rule provides:
After the plaintiff in an action tried by the court without a jury has completed the presentation of his evidence, the
defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on
the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then
determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the
evidence.
- In civil cases, the burden of proof rests upon the party who asserts the affirmative of an issue. 2 Am. Jur. 2d
Administrative Law § 360 (1994); Alex Sanders, et al., Trial Handbook for South Carolina Lawyers § 9:3 Party
With Burden, Civil Cases (2000). That burden of proof is carried by a preponderance of the evidence. A
preponderance of the evidence means "the greater weight of the evidence," or "superior evidentiary weight that,
though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and
impartial mind to one side of an issue rather than the other." Blacks Law Dictionary 120 (7th ed. 1999).
- The Town of Hilton Head Island is the party asserting the affirmative in this case; therefore, the Town must
prove by a preponderance of the evidence that the issuance of these permits violates some provision of the law
applicable to the beachfront. The sole evidence the Petitioner entered into the record related to the question of
whether the secondary sand dune will or will not accrete to the requisite level of 36 inches. I conclude that the
conditions of the permit ensure that no construction will occur on either lot unless and until the conditions are
present. If the accretion does not occur, then the buildings may not be constructed.
The Respondents' lots are two of the last remaining private, undeveloped lots on Singleton Beach, if not on Hilton Head
Island. The remainder of the lots located on Singleton Beach is densely developed with many existing oceanfront homes.
Significantly, OCRM issued another permit for a lot on Singleton Beach in 1996, which permit is similar to these permit
requests; that prior request was not opposed by the Town.
If the Respondents, Booker and Smart, were not to receive a permit from OCRM, there would be no building footprint and
their lots would be considered useless. Reg. 30-15(F) provides for the issuance of special permits in those instances where
otherwise a property owner would not be able to otherwise construct on his lot. Further, the Petitioner has not shown that
the issuance of these permits will violate Section 48-39-290(d), which provides that "the use of the property authorized
under this provision, in the determination of the department, must not be detrimental to the public health, safety, or
welfare." Petitioner also has not demonstrated any injury, which would result from the issuance of these permits, which are
subject to conditions.
ORDER
Based on the foregoing findings of fact and conclusions of law,
IT IS HEREBY ORDERED that the Motion to Dismiss made pursuant to Rule 41(b), SCRCP by the Department of
Health and Environmental Control, Office of Ocean and Coastal Resource Management is granted.
IT IS FURTHER ORDERED that the issuance of permit numbers OCRM-01-025-E and OCRM-01-024-E is hereby
affirmed subject to the conditions contained therein.
AND IT IS SO ORDERED.
__________________________________
MARVIN F. KITTRELL
Chief Administrative Law Judge
April 15, 2002
Columbia, South Carolina |
