ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This contested case proceeding arises from an appeal taken by the Petitioner, the Town of Kiawah Island, following the
Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management's (OCRM)
issuance of Permit No. OCRM-00-017-M to Respondent Jeffrey Graves. The permit allows for the construction of a
bulkhead for the purpose of erosion control at Lot 5, Shell Creek Landing Road, Kiawah Island, Charleston County, South
Carolina. A hearing was held before me on February 12, 2002, at the offices of the Administrative Law Judge Division in
Columbia, South Carolina.
DISCUSSION
Permits for the construction of bulkheads for erosion control in the coastal zone are governed by S.C. Code Ann. §§ 48-39-10, et seq. (1987 & Supp. 2000) and 23A S.C. Code Ann. Regs. 30-1, et seq. (Supp. 2000). More specifically, the
regulatory policies governing permit decisions and project standards for bulkhead and erosion control measures not on the
oceanfront are found at 23A S.C. Code Ann. Regs. 30-12(C )(Supp. 2000). At the close of the Petitioner's case,
Respondent OCRM moved for a dismissal of the Petitioner's case on the grounds that the Petitioner had failed to meet its
burden of showing that the issuance of this permit violated the applicable law(s). Respondent Graves also joined in that
motion. For the reasons that follow, the Respondents' motion for an involuntary nonsuit is granted.
FINDINGS OF FACT
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 Findings of Fact by a preponderance of
evidence:
1. Respondent Jeffrey Graves applied to OCRM for a permit to construct a bulkhead to control erosion at Lot 5, Shell
Creek Landing Road, Kiawah Island. The Town of Kiawah Island (Town) received public notice of the application and
submitted a letter of objection. OCRM issued permit number OCRM-00-017-M in March 2001 to Jeffrey Graves, for the
construction of the bulkhead. Nevertheless, pursuant to the Town's objection, the permit contained the following Special
Condition Number One: "[p]rovided the Permittee obtains the necessary approvals from the Town of Kiawah Island for
any erosion control measures prior to issuance of the construction placard. A copy of the Town authorization must be
provided." The Town received notice that the permit had been issued and did not request an appeal at that time.
2. Subsequent to the issuance of the permit, Respondent Graves requested that Special Condition Number One be deleted
from the permit on the ground that there was no legal basis to require the Town's approval. This condition was removed
by OCRM on May 31, 2001. However, upon the amendment of the permit in May, OCRM failed to give direct notice to
the Town. OCRM informed Respondent Graves that it had given notice to the Town that the permit amendment removing
the special condition had been issued. Consequently, after the time for appeal of the removal of the amendment had
lapsed, Respondent Graves began constructing his bulkhead. The Town of Kiawah Island discovered that Graves was
proceeding with construction of the bulkhead when construction was almost complete. The Town promptly notified
OCRM of its objection to the bulkhead, and thereafter filed this appeal on September 11, 2001.
3. The Town does not object to the removal of Special Condition Number One, but rather argues that the permit should be
denied and the bulkhead removed because Graves has constructed the bulkhead beyond the escarpment line. Special
Condition Number Two of the permit requires that the bulkhead must be "constructed at the erosional escarpment as it
exists at the time of construction." This condition was placed in the permit to ensure that the bulkhead is placed properly.
However, the Special Condition Number Two acknowledged that the escarpment is subject to erosion and might change
from the time the application was submitted.
4. The Petitioner's evidence questioned whether the bulkhead is built in compliance with the permit. However, no
evidence was submitted that the permit was improperly issued.
CONCLUSIONS OF LAW
Based on the foregoing findings of fact, I conclude the following as a matter of law:
1. 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. (1986 & Supp. 2000). Furthermore, S.C. Code Ann. § 48-39-150 (1987 & Supp. 2000)
specifically authorizes the Administrative Law Judge Division to hear contested cases arising under Chapter 39 of Title 48
of the Code.
2. S.C. Code Ann. § 48-39-50 (1987 & Supp. 2000) gives DHEC the authority to promulgate regulations, which carry out
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 within the coastal zone. 23A S.C. Code Ann. Regs. 30-1,
et seq. (Supp. 2000). The Coastal Zone Management Act and the regulations promulgated thereunder govern the issuance
of permits for bulkheads and other erosion control structures in the coastal zone.
3. In civil cases, the burden of proof rests upon the party who asserts the affirmative of an issue. 29 Am. Jur. 2d Evidence
§ 127 (1994); Alex Sanders, et al., South Carolina Trial Handbook § 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." Black's Law
Dictionary 120 (7th ed. 1999).
4. At the close of the Petitioner's case, the Respondents made several motions: first, that the appeal was untimely and
should be dismissed; second, that the appeal should be limited to the issue of whether the amendment was properly issued;
third, that this Court order an involuntary nonsuit; and fourth, that the appeal be dismissed based on lack of standing. I
conclude that the Respondents' motion for an involuntary nonsuit must be granted.
5. With regard to the untimeliness of the appeal, the Respondents' motion to dismiss must be denied. The Petitioner did
not receive proper notification of the amendment and filed this appeal promptly after it became aware of OCRM's removal
of the condition. Therefore, I conclude that the appeal was not untimely.
6. S.C.R.C.P. Rule 52 provides that the Rules of Civil Procedure may be applied in proceedings before the Division where
the Rules of the Administrative Law Judge 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. Therefore, I find that
application of SCRCP Rule 41(b) is proper in this case. That rule sets forth the following:
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 the trier of 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.
7. The only issue raised by Petitioner that is supported by any evidence in the record is that the bulkhead is not being
constructed in compliance with the permit as issued. However, the Petitioner's allegation that the construction of the
bulkhead is inconsistent with the terms of the permit does not specify any wrongdoing on the part of OCRM in issuing the
permit. If construction under the permit is not consistent with the permit as issued, OCRM may have grounds to take an
enforcement action against Respondent Graves. However, this case concerns the issuance of the permit and not whether
Mr. Graves is in compliance with the permit. Therefore, I find that dismissal of this case pursuant to Rule 41(b) of the
SCRCP is justified. See Johnson v. JP Stevens & Company, Inc., 308 S.C. 116, 417 S.E.2d 527 (1992) ("Rule 41(b)
allows the Judge as the trier of facts to weigh the evidence, determine the facts and render a judgment against the Plaintiff
at the close of his case if justified").
8. Because I conclude that the motion for involuntary nonsuit is granted, I find that there is no need to rule on the motion to
dismiss for lack of standing.
ORDER
Based upon the foregoing finding of facts and conclusions of law,
IT IS ORDERED that OCRM's decision to issue Permit No. OCRM-00-017-M to construct an erosion control bulkhead
at Lot 5, Shell Creek Landing Road, Kiawah Island, Charleston County, South Carolina, is upheld.
AND IT IS SO ORDERED.
Ralph King Anderson, III
Administrative Law Judge
April 5, 2002
Columbia, South Carolina |
