SC Administrative Law Court Decisions

This case is a challenge by Thomas M. Anderson, George R. Browner, Jr., and John W. Castles (collectively, the Petitioners) to an amended permit granted by the South Carolina Department of Health and Environmental Control, Bureau of Ocean and Coastal Resource Management (OCRM) to Anthony T. Winn (Winn). The challenge places contested case jurisdiction in the Administrative Law Judge Division under S.C. Code Ann. §§ 48-39-150 (Supp. 2001) and §§ 1-23-310 et seq. (Rev. 1987 & Supp. 2001). After a hearing conducted on August 1, 2002 and, after considering the evidence and applicable law, I conclude the permit must be granted.

• Does OCRM have the authority to grant an "after-the-fact" permit to an applicant who constructs a dock in a manner that fails to comply with the terms of an existing permit?



• Does Winn meet the general guidelines of 23A S.C. Code Ann. Regs. 30-11 (Supp. 2001) and the specific regulatory requirements of 23A S.C. Code Ann. Regs. 30-12(A) (Supp. 2001) applicable to all permits for additions made in critical areas?

1. Positions of Parties

The Petitioners argue that OCRM has no authority to allow Winn to amend his permit after Winn constructed a dock in a manner that was in violation of an existing permit. Rather, the argument is that OCRM must revoke the existing permit. OCRM disagrees and argues that revocation is not mandated when one builds a dock not in compliance with an existing permit. Instead, OCRM may impose a fine along with other requirements which force the violating party into compliance.

2. Findings of Fact

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

On February 14, 2000, OCRM issued permit number OCRM-99-1312 to Winn authorizing the construction of a private recreational dock on and adjacent to the Colleton River at lot 46, Callawassie Island Drive, Callawassie, Beaufort County, South Carolina. The structure being permitted was a 4' x 590' walkway leading to a 10' x 16' fixed pierhead. A 3' x 24' ramp was to lead to a 10' x 20' floating dock on one side of the pierhead and a 12' x 12' boat lift was to be located on the other side. However, the permit was subsequently amended twice.

The first amendment, granted on February 25, 2002, added a 6' x 9' float and increased the pierhead size from 10' x 20' to 10' x 30' and allowed switching the floating dock and boat lift from one side to the other. In addition, the amendment required locating the dock equidistant between Winn's extended property lines.

During construction of the dock Winn failed to end the walkway at the permitted 590 feet. Rather, the walkway extended an additional 222 feet to a length of 812 feet. OCRM became aware of the unpermitted lengthening of the walkway and informed Winn on March 26, 2002 that a violation of the permit had occurred due to "extending the dock length prior to obtaining the amendment." OCRM and Winn ultimately resolved the matter by Winn agreeing to pay a fine of $100 and agreeing to obtain an amendment to the existing permit.

Indeed, an application seeking to amend the permit to allow the extended length had been previously filed on March 5, 2002. That application provided the second amendment to the permit. The request was an after-the-fact request asking that the already completed extension of the walkway to 812 feet be approved. On April 25, 2002, OCRM granted the requested amendment. It is that decision by OCRM that has brought this dispute before the ALJD.

3. Conclusions of Law

Based on the foregoing Findings of Fact, I conclude the following as a matter of 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). Consistent with that mandate, a party may not erect any structure on or in a critical area unless OCRM issues a permit to that party. S.C. Code Ann. § 48-39-130(C) (Supp. 2001). Moreover, once a permit is issued, statutory language explains that the "powers and duties" of OCRM include action to "revoke and suspend permits of persons who fail or refuse to carry out or comply with the terms and conditions of the permit." S.C. Code Ann. § 48-39-50(H) (Supp. 2001).

Based on the above, Petitioners present the following syllogism:

Structures not built in compliance with the issuing permit must be revoked.

Winn's structure was not built in compliance with the issuing permit.

Winn's permit must be revoked.

While the formal logic is impeccable, the conclusion is flawed. Rather, the major premise is incorrect since building a structure that is not in compliance with an issuing permit does not require a revocation of the violated permit. Rather, to find that non-compliance with a permit requires revocation is to read the revocation statute without consideration for other statutory authority.

For example, other statutory authority of OCRM holds that "[w]henever the department determines that any person is in violation of any permit, regulation, standard, or requirement under this chapter, the department may issue an order requiring such person to comply with such permit." (Emphasis added). S.C. Code Ann § 48-39-170(C) (Supp. 2001). Thus, OCRM has statutory authority to direct the party to "comply with such permit." Obviously, the mere existence of such discretionary authority presents a conflict with the Petitioners' mandatory revocation view. Indeed, the mandatory duty of revocation under § 48-39-50(H) would eliminate the permit and thereby never allow the use of the discretionary power provided in § 48-38-170(C) which would require the continuing existence of the permit in order for OCRM to compel compliance. Therefore, reading the statute as suggested by Petitioners leads to an absurd result making the discretionary statute of § 48-38-170(C) a nullity.

When confronted with views on statutes that are in apparent conflict, the adjudicating body must harmonize the two statutes whenever possible and must do so in a manner that prevents an interpretation leading to an absurd result. Hodges v. Rainey, 341 S.C. 79, 91, 533 S.E.2d 578, 584 (2000). In making such a harmonization, the primary function is to carry out the intent of the legislature. Langley v. Pierce, 313 S.C. 401, 438 S.E.2d 242 (1993). In the instant case, the two statutes can be read together so as to avoid an absurd result and eliminate any apparent conflict.

The opening language of § 48-39-50 explains that the South Carolina Department of Health and Environmental Control (of which OCRM is a part via §1-30-45(B)) "shall have the following powers and duties:" Powers are discretionary. See "Power" Black's Law Dictionary (7th ed. 1999) ("The ability to act or not act."). Duties are mandatory. See "Duty" Black's Law Dictionary (7th ed. 1999) ("A legal obligation that is owed or due to another and that needs to be satisfied;"). Thus, the General Assembly in § 48-39-50 intended the list to include both provisions of powers and provisions of duties. Accordingly, reading the revocation provision of § 48-39-50(H) as a "power" eliminates the apparent conflict with § 48-39-170(C) since the power to revoke is discretionary in the same manner as a decision to impose a fine. ⁽¹⁾

Therefore, given the above reconciliation, OCRM had no mandatory duty to revoke Winn's permit. ⁽²⁾ Hence, OCRM did not err by failing to revoke the permit. ⁽³⁾

1. Positions of Parties

Even if revocation is not required, the Petitioners assert the permit is improper in any event since the regulations governing docks have not been satisfied. As to Regs. 30-11 the allegation is that denial is warranted since the dock could affect existing public access to navigable waters (Regs. 30-11(B)(5)); the dock would adversely affect the value and enjoyment of adjacent owners (Regs. 30-11(B)(10); and the dock will have a negative long-range, cumulative effect on the area. Regs. 30-11(C)(1).

Further, the Petitioners assert the permit is improper under the provisions of Regs. 30-12. In particular, the Petitioners are concerned that the construction violates the terms of the permit since it is too far channelward and is inconsistent with the regulations in that the dock is too long (Regs. 30-12(2)(l)); the dock will impede navigation (Regs. 30-12(2)(a)); and the dock is improperly constructed over tidelands utilized for shellfish (Regs. 30-12(2)(j)).

As one might expect, Winn and OCRM disagree. They argue that all provisions of the permit and the regulations have been satisfied.

2. Findings of Fact

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

a. General Facts

The dock with accompanying walkway, floats, boatlift, and pierhead is located on and adjacent to the Colleton River at lot 46, Callawassie Island Drive, Callawassie, Beaufort County, South Carolina. The structure consists of a 4' x 812' walkway leading to a 10' x 16' fixed pierhead. A 3' x 24' ramp leads to a 10' x 30' floating dock on one side of the pierhead and a 12' x 12' boat lift on the other side.

b. Facts Specific to Disputed Factors of Regs.30-11(B) & (C)

On the seaward side of lot 46, the area here under review is a marsh area covering the adjoining seaward areas on the Colleton River. That area is both drained and inundated with the ebb and flood of the tide. While standing on Winn's dock and facing the river, several tidal inlets are to the left.

Current access in this area of the Colleton River is by boat. After completion of the walkway and dock, access to the river and access to the inlets will not be blocked. Rather, the tidal area is inundated at mid-tide and is currently accessible by small water craft. Likewise, the area will continue to be so after completion of the dock. Thus, the dock will not block the public's access to any currently accessible water body.

As to value, no sales in the market place of similar property adjacent to docks have been presented and thus no evidence demonstrates a loss of value due to the presence of a dock. Likewise, no testimony of qualified appraisers based on market data establishes a loss of value.

As to enjoyment, at least one resident of the area, George R. Browner, Jr., built his home to provide a maximum view of the marsh. There are currently a limited number of docks in the immediate area. Further, Browner is approximately a nine lot span from Winn's lot and thus the dock is a meaningful distance away.

Except for the potential loss of view, no evidence establishes that the dock will interfere with daily living associated with a residential use including outside recreational activities as well as the rest and quiet of home life. Likewise, the dock will not diminish any local resident's access to the river or marsh. These findings are especially true since the proposed dock is over 600 feet from the community dock and no persuasive testimony demonstrates how the dock will interfere with the three future proposed docks in the area.

The area is not heavily populated with docks. Rather, when on Winn's dock and facing the river, a community dock is to the right and is the only dock in the immediate area. Plans exist for a potential of three docks to the left of Winn's dock, but of these only one will be on the river with two others to terminate on tidal creeks within the marsh. Finally, no evidence demonstrates how the approval of Winn's dock will produce a proliferation of docks in the area. Thus, no persuasive evidence establishes a potential for long-range, cumulative effects resulting from Winn's dock.

c. Facts Specific to Disputed Factors of Regs.30-12

The walkway and pierhead for Winn's dock will not exceed 1000 feet. Rather, the walkway and dock have been substantially completed and are at a length of 812 feet. In addition, the placement of the pierhead in relation to the channel of the Colleton River is consistent with the placement of the adjacent community dock. That is, Winn's dock is no closer to the channel of the river than is the community dock.

Here, Winn's dock provides access to the Colleton River. At the terminus of the dock, the Colleton River is approximately six feet deep at mean low water and approximately thirteen feet at mean high tide. Thus, both the pierhead and the floats will rest over open water and no float will rest upon the bottom at normal low tide.

The distance across the river from the pierhead is over 1000 feet. In reaching the pierhead, the structure crosses a marsh area that is inundated by tidal inflows during mid-tide and high tide. During such times, the inflows provide a depth of water that will allow small pleasure boats to navigate in the tidal waters.

However, in gaining access to the river, the proposed structure does not cross any creeks with defined channels. Rather, the area over which the structure passes is relatively flat with little or no significant drops in grade from the surrounding marsh. In the instant case, no measurements of channels were taken, no measurements of drops in grade were made, and no points were identified at which the dock crosses a channel.

Here, the dock will not impede navigation. Those wishing to navigate in the tidal areas fronting along the river will not have their navigation impeded. Rather, the tidal area is inundated at mid-tide and is currently accessible by small water craft. This tidal area has at least four inlets into the marsh through which existing small pleasure craft will be able to access the area. The fact that a number of points of access exists provides ample avenues for navigation so that no impediment to navigation is created by the dock. In addition, water craft operating along the river will have significant room for navigation since the river is over 1000 feet wide at the pierhead. Thus, navigation is not impacted since boats using the river will have ample room to by-pass the structure and the number of inlets will allow small water craft into the marsh area.

The walkway crosses a shellfish area. However, the area is not an active shellfish bed but rather is primarily dormant. Consistent with the limited shellfish activity, the Department of Natural Resources did not object to the permit but instead advised that any impacts to shellfish should be minimized. Such advice was followed since the only disturbance to the shellfish area is from the driving of pilings to support a portion of the walkway. Overall, the impact on any active shellfish area is minimal.

3. Conclusions of Law

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

a. Applicable Law

Since OCRM is charged with administering the State's coastal zone policies and issuing permits in coastal zone areas, 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. 2001). Pursuant to that authority, OCRM promulgated regulations governing permits for docks.

For docks in critical areas, two specific regulations are pertinent: the general guidelines applicable to all permits in critical areas, 23A S.C. Code Ann. Regs. 30-11 (Supp. 2001) and the specific regulations governing docks, 23A S.C. Code Ann. Regs. 30-12(A) (Supp. 2001). Here, the structure is to be built in a "critical area" as that term is defined in S.C. Code Ann. § 48-39-10 (J) (Supp. 2001), 23A S.C. Code Ann. Regs. 30- 1(C)(4) and (12) (Supp. 2001) and Regs. 30-10(A) (Supp. 2001). Accordingly, OCRM's regulatory provisions apply to the instant case.

b. Regulations: 30-11 -- General Guidelines For All Critical Areas

General guidelines for evaluation of any proposed project in a critical area are provided in Regs. 30-11(B) and (C). Of these guidelines several are challenged by Petitioners. Each is addressed in turn.

i. Access to Existing Area: Regs. 30-11(B)(5)

Regs. 30-11(B)(5) is concerned with the extent to which the development could affect existing public access to tidal lands and navigable waters. Here, the only existing access to the marsh and river area under review is by boat. The dock will not cross an area that will block access to the public to any currently accessible water body. Thus the dock will not deny existing access to members of the general public.

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

OCRM is required to consider the factor of what impact a dock will have on the adjacent owner's value and enjoyment. See S.C. Code Regs. 30-11(B)(10) (regs. state that 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 impact of the dock on the adjacent owner's value and enjoyment of their private property but also consider the impact on the value and enjoyment of the public property. Such an interpretation furthers the goal of S.C. Code Ann. § 48-39-30 (Supp. 2001) by focusing on public trust property and also considers 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).

Finally, in considering the view issue, 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, the agency must apply the statutory principles in 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). Here, both the value and enjoyment considerations do not warrant denying the permit.

- 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 an 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, equally as true is the conclusion that valuing real property creates 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 that factual determination the judge must both weigh the evidence and evaluate 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 purely a discretionary matter for the judge; for example, even when evidence is uncontradicted, the trial judge is not required to accept such evidence if the judge finds the evidence 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 the dock here will impose a negative impact upon the value of adjacent property.

One potential impact upon value is determining whether a lot with no view of a neighbor's dock is more valuable than a lot with such a view. Here, I am not persuaded that the lot with a view of a neighbor's dock is less valuable than that same lot without a view of a neighbor's dock.

In this case, at best, the evidence presented opinions of witnesses not certified as experts. Further, the opinion evidence is not supported by sales in the market place of similar property adjacent to docks. In the absence of convincing evidence, the permit cannot be denied on the unproven assertion that a loss of value will result from being able to view the dock of an adjacent property owner.

- Enjoyment -

Somewhat related to the value concern is the concern that the presence of the dock will negatively impact the enjoyment experienced by the adjacent lots. The specific issue is whether the dock will improperly interfere with the neighbor's view of the marsh and river.

While the regulations clearly impose a duty to consider the enjoyment of all adjacent owners, that duty requires balancing the competing concerns of those owners 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 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. 2001) and 73B C.J.S. Public Lands § 178 (1983).

Here, as to the use of the private property, the dock will not interfere with daily living associated with a residential use such as outside recreational activities or the rest and quiet of home life. Rather, the protest is that the dock will block the neighbors' view of the marsh and river. It is true that the evidence establishes that at least one neighbor some nine lots away designed and constructed his residence to maximize the view of the marsh and the river. Likewise, as to the public trust property, the objection is that the dock will diminish the enjoyment of the marsh and river since the marsh and river will be obstructed by the dock.

Under the facts of this case, I conclude that the visibility of the proposed dock does not present a degree of obstruction to the neighbors' use of their private property or to the neighbors' use of the public trust property that is so detrimental as to warrant denying the permit. For instance, as to the private use, the distances, the alignment of the dock, and the general terrain do not present a structure that improperly impacts the neighbors' enjoyment of their own private property. Rather, the area already has a community dock and thus is not a pristine unaltered vista.

As to the enjoyment of the public trust property, the essence of the Petitioners' argument is that the owners purchased their properties with an existing view and anticipated that such a view would remain essentially intact over time. However, the law in South Carolina is to the contrary.

A private land owner does not acquire an easement that provides 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, no reasonable expectation existed at the time of purchase that the then existing view would remain the view over time. Instead, especially for a view overlooking public trust property, no inherent right to a continued view exists. Rather, OCRM, the agency charged with overseeing the State's coastal public trust property, must balance all of the legitimate uses of the public trust property. Accordingly, while the neighbors have every right to position their homes in a manner that provides an extensive view of the public trust property, such a positioning is not a sufficient basis for denying a dock which seeks access to the public trust property.

iii. Cumulative, Long-Range Effect: Regs. 30-11(C)(1)

Regs. 30-11(C)(1) explains that consideration should be given to "[t]he extent to which long-range, cumulative effects of the project may result within the context of other possible development and the general character of the area." Here, the "cumulative effects" concern is that granting this dock will encourage others to obtain docks.

Here, the evidence establishes that an additional three docks are planned for the immediate area and that the building of these docks will not be affected by the dock here under review. Accordingly, the concern of creating a precedent is not a valid basis for concluding that the "long-range, cumulative effects" (Regs. 30-11(C)(1)) are negatively impacted. Indeed, just the opposite is true since OCRM is already encouraged to weigh individual requests (Regs. 30-12(A)(2)(p)). Thus, Regs. 30-11(C)(1) is not a basis for denying the Winn permit.

c. Regulations: 30-12 -- Docks in Particular

Even if one satisfies the general guidelines of Regs. 30-11, a dock permit must still meet the requirements of 23A S.C. Code Ann. Regs. 30-12(A) (Supp. 2001). The Petitioners maintain that several of the requirements of 30-12 are not satisfied.

i. Physical Structure

The challenge by Petitioners to the physical structure of the dock is that it is simply too long. While the distance covered of 812 feet is longer than many docks, Regs. 30-12(A)(2)(l) does not deny a dock based on length unless the dock will be longer than 1,000 feet. Thus, the mere length in this case is not sufficient for denying the permit.

Petitioners also argue that the dock is constructed more channelward than the adjacent community dock. While such a factor is not specifically listed in Regs. 30-12, this factor is a part of the conditions to the permit. Here, the evidence by testimony and by photographs demonstrates the placement of the pierhead in relation to the channel of the Colleton River is consistent with the placement of the adjacent community dock. That is, Winn's dock is no closer to the channel of the river than is the community dock.

ii. Impediment

Petitioners assert that the dock will be an impediment to navigation. For the facts of this case, I disagree.

Under Regs. 30-12(A)(2)(a) docks shall not impede navigation and shall not restrict the reasonable public use of State lands and waters. Here, the tidal area is inundated at mid-tide and is currently accessible by small water craft. At least four inlets into the marsh exist and these entrances are available to allow small pleasure craft to access the area. The mere existence of a number of points of access provides avenues for navigation so that no impediment is created by the dock. Further, since the river is over 1000 feet wide at the pierhead, water craft along the river will not be impeded by the dock. Thus, navigation is not impacted since boats using the river will easily by-pass the structure and the number of inlets will allow small water craft into the marsh area.

iii. Shellfish

Regs. 30-12(A)(2)(j) directs OCRM to consider the rights of the public prior to approval of a dock that will be constructed over tidelands utilized for shellfish culture. Here, the walkway crosses a shellfish area and thus, OCRM must give consideration to that fact in its approval of the permit. OCRM has met that duty.

The area over which the dock extends is primarily a dormant shellfish bed. As such, the Department of Natural Resources did not object to the permit but instead advised that any impacts to shellfish should be minimized. As the facts here show, that advice was followed since the only disturbance to the shellfish area is from the driving of pilings to support a portion of the walkway. Accordingly, the overall impact on shellfish is minimal and forms no basis for denial of the permit.

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

OCRM shall grant Anthony T. Winn's application for a dock on the Colleton River, at lot 46, Callawassie Island Drive, Callawassie, Beaufort County, South Carolina.

AND IT IS SO ORDERED.

_________________________________

RAY N. STEVENS

Administrative Law Judge

Dated: August 13, 2002

Columbia, South Carolina

1. OCRM's discretion to fine rather than revoke is made plain by Regs. 30-4(I). That provision authorizes OCRM to approve an after-the-fact application as long as all fines are paid, the activity to be undertaken "appears to be routine," and any existing violation is corrected

2. I recognize that General Condition 11 states that "[f]ailure to build in accordance with the plans and drawings attached hereto, . . . shall result in the revocation of this permit." However, revocation is not required. First, "[a]ll permits issued by the Department are revocable licenses." S.C. Code Ann. Regs. 30-8(A). Thus, OCRM may revise conditions imposed on a permit and, in this case, such a revision was accomplished through the agreement of OCRM and Winn by Winn agreeing to pay a $100 fine and to "[a]mend the permit." Second, General Condition 13 allows OCRM to "modify this permit in the event. . . that the activity is not in compliance with the drawings submitted by the applicant." Thus, OCRM was permitted to "modify" the permit by requiring an amendment instead of a revocation.

3. The Petitioners have not made the argument that OCRM abused its discretion by imposing a fine of only a $100. Rather, as addressed in the body of this order, the Petitioners argued that OCRM was required to revoke the permit instead of impose a fine. Thus, the issue of the amount of the fine is not before me.