SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter is before me upon Petitioners' request for a contested case hearing to challenge Respondent South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management's (OCRM) issuance of a permit to Respondents Stancel E. Kirkland (Kirkland) and Robert L. Wolfson (Wolfson) to construct a timber footbridge crossing tidal wetlands on and adjacent to Brickyard Creek in Beaufort County, South Carolina. ⁽¹⁾ The proposed footbridge will be 5' x 843' and will connect Vivian's Island to Egret Island via a pathway crossing four small hummocks and densely vegetated tidal wetlands. ⁽²⁾ Jurisdiction over this contested case matter is granted to the Administrative Law Judge Division by S.C. Code Ann. §§ 48-39-150, 1-23-600(B), and 1-23-310 et seq. (Rev. 1986 & Supp. 1998).

After notice to the parties, a hearing was conducted on November 9, 1999 at the Administrative Law Judge Division. At the close of Petitioners' case, OCRM moved to dismiss Petitioners' case on the ground that Petitioners had failed to meet their burden of showing that the challenged permit was issued in violation of OCRM regulations. For the reasons that follow, OCRM's motion to dismiss Petitioners' case is granted.

FINDINGS OF FACT

Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this case, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence.

Respondent Kirkland applied to OCRM for a permit to construct a 12' vehicular access bridge crossing tidal wetlands on and adjacent to Brickyard Creek in Beaufort County, South Carolina. The purpose of the proposed project was to provide access to Egret Island from Vivian's Island, which is accessible to the mainland. The proposed project included the filling of approximately 270 square- feet of tidal wetlands. On March 17, 1998, OCRM denied Kirkland's application, providing the following explanation:

The applicant is requesting approval for three bridges totaling

800 feet in length and associated fill to provide access to a 3.06 acre

island for the purpose of constructing a home site in the future. The

proposed bridges would cross a series of upland hummocks and densely vegetated tidal wetlands. It has not been clearly established

whether or not this island can tie into existing sewer lines or qualify

for septic tank permits. Because the island is in close proximity of

Brickyard Creek and also near an unnamed tributary of Brickyard

Creek on its southernmost [sic], this project was reviewed with

consideration given to possible alternative access.

The proposed access to the island for residential development would require the crossing of extensive marsh areas and filling of adjacent tidal wetlands. The length of the proposed bridge relative to the size of the island does not appear to be appropriate for the proposed development. The existence of feasible alternatives for accessing the island with a dock eliminates the necessity for the proposed bridge and substantially reduces the impact to the marsh.

Kirkland subsequently requested a contested case hearing. The case was dismissed, however, upon agreement of the parties to allow Kirkland to file a new application with OCRM for a scaled-down project in the same location. See Kirkland Partnership v. S.C. Dep't of Health and Envt'l Control, Bureau of Ocean and Coastal Resource Mgmt., 98-ALJ-07-0197-CC (July 15, 1998 Order of Dismissal).

Respondents Kirkland and Wolfson then submitted a new application for a permit to construct a 6' x 843' timber bridge in the same location as that proposed in the previous application, as well as a bulkhead and joint-use dock at Egret Island. OCRM's Director of Permitting, Richard Chinnis (Chinnis) inspected the location of the proposed project, including Egret Island and the smaller hummocks that are part of Lot # 2 of Egret Island. On April 16, 1999, OCRM granted the permit with special conditions, but required the width of the bridge to be 5' instead of 6'. The special conditions include, but are not limited to, the establishment of a 50' buffer zone around Egret Island to preclude any disturbance of the portion of the island that is adjacent to tidal wetlands, incorporation of a Deed of Conservation Easement as an added protection for water quality in the surrounding environment, and the requirement that the applicants obtain the necessary authorization from the local government prior to construction. Additionally, the Department of Health and Environmental Control (DHEC) has required Kirkland and Wolfson to implement a stormwater management plan for Egret Island.

OCRM issued separate permits for the bulkhead and joint-use dock. Petitioners do not contest the issuance of those permits.

DISCUSSION AND CONCLUSIONS OF LAW

Based upon the Findings of Fact, I conclude, as a matter of law, the following.

Subject Matter Jurisdiction

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. (Rev. 1986 & Supp. 1998). Section 48-39-150 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. § 48-39-150 (Supp. 1998). As a state-wide administrative tribunal authorized to take evidence and determine contested case hearings, the Administrative Law Judge Division is the fact finder in this matter for purposes of administrative and judicial review. See Lindsey v. S.C. Tax Comm'n, 302 S.C. 504, 397 S.E.2d 95 (1990).

Section 48-39-50 provides the authority for DHEC to promulgate regulations carrying out the provisions of Chapter 39 of Title 48 of the Code. S.C. Code Ann. § 48-39-50 (Supp. 1998). OCRM is the subdivision within DHEC charged with implementing the state's coastal zone policies and issuing permits in coastal zone areas. OCRM's predecessor (the South Carolina Coastal Council) promulgated Regulations 30-1 through 30-20 as the applicable regulations governing the management, development, and protection of the "critical areas" of the coastal zone of the state. 23A S.C. Code Ann. Regs. 30-1 to -20 (1976 & Supp. 1998). The critical areas of the state include coastal waters, tidelands, beaches and the beach/dune system. S.C. Code Ann. § 48-39-10(J) (Supp. 1998).

Alteration of a Critical Area

Any person wishing to alter a critical area must obtain a permit from OCRM. 23A S.C. Code Ann. Regs. 30-2(B) (Supp. 1998). In determining whether a permit application is approved or denied, OCRM shall base its determination on the individual merits of each application and the policies specified in §§ 48-39-20 and 48-39-30, applying the ten general guidelines contained in § 48-39-150(A). S.C. Code Ann. § 48-39-150(A) (Supp. 1998). A portion of the proposed footbridge in the instant case is located over tidelands, as defined in the Coastal Zone Management Act and OCRM regulations. See S.C. Code Ann. § 48-39-10(G) (Supp. 1998); 23A S.C. Code Ann. Regs. 30-1(C)(12) (Supp. 1998).

Involuntary Nonsuit

At the close of Petitioners' case, OCRM moved to dismiss Petitioners' case on the ground that Petitioners had failed to meet their burden of showing that the challenged permit was issued in violation of OCRM regulations. Rule 52 of the Rules of Procedure for the Administrative Law Judge Division allows the South Carolina Rules of Civil Procedure to be applied, where practicable, in proceedings before the Division to resolve questions not addressed by the ALJD rules. The ALJD rules do not address what procedure applies for dismissing a matter at the close of a petitioner's case. Rule 41(b) of the South Carolina Rules of Civil Procedure provides guidance on that point:

. . . 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.

In Johnson v. J.P. Stevens & Co., Inc., 308 S.C. 116, 417 S.E.2d 527 (1992), the South Carolina Supreme Court explained the standard for a court, as the trier of fact, to consider a defendant's motion for involuntary dismissal. In Johnson, the Court held that:

Under Rule 41 in a nonjury trial, the trial judge clearly may dismiss the action even though the plaintiff may have established a prima facie case. 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.

With the above standard in mind and, after careful consideration of all of the testimony and documentary evidence presented in Petitioner's case, I find that Petitioners' case should be dismissed and the permit for Respondents' construction of a footbridge over Brickyard Creek should be granted.

Burden of Proof

In civil cases, generally, the burden of proof rests upon the party who asserts the affirmative of an issue. 29 AM. JUR.2d Evidence § 127 (1994); 2 AM JUR.2d Administrative Law § 360 (1994); Alex Sanders, ET AL., South Carolina Trial Handbook § 9:3 Party with Burden, Civil Cases (1994). In the present case, Petitioners claim that OCRM's issuance of permit number 98-1E-331-P violated Regulation 30-12(N); therefore, Petitioners assert the affirmative in the present case. Accordingly, Petitioners must prove, by a preponderance of the evidence, that OCRM's issuance of the permit violated Regulation 30-12(N). The preponderance of the evidence means "[t]he 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 the issue rather than the other." BLACK'S LAW DICTIONARY 1201 (7th ed. 1999).

Petitioners assert that OCRM's reasons for denying the 12' vehicular bridge permit are applicable to the permit application at issue in the instant case. Petitioners reason that the footbridge, which is characterized by Respondents as a "boardwalk," is more appropriately characterized as a "bridge." Neither term is defined in OCRM regulations or in the Coastal Zone Management Act. However, "boardwalk" is defined in the dictionary as "[a] walk made of wooden planks." American Heritage College Dictionary 154 (3d ed. 1993). "Bridge" is defined as "[a] structure spanning and providing passage over a gap or barrier." Id. at 174. Moreover, a "footbridge" is defined as "[a] bridge designed for pedestrians." Id. at 530. There is no question that the purpose and function of the proposed structure is to provide passage by foot over the tidal wetlands to Egret Island from Vivian's Island. Therefore, I find that the proposed structure may be fairly characterized as a bridge or a footbridge and that it should be subject to scrutiny under Regulation 30-12(N), which lists the factors for consideration of bridging to provide access to small islands.

I find, however, that consideration of the bridging project in the instant case does not automatically lend itself to the same reasoning used by OCRM to deny the previous permit application for a vehicular access bridge. In the present case, the proposed project does not include any filling of wetlands, as did the proposed project in the previous permit application. This is a significant difference, as OCRM regulations express a policy that discourages the permanent filling of wetlands. See 23A S.C. Code Ann. Regs. 30-12(F)(2)(b) (Supp. 1998) ("The location and design of public and private transportation projects must avoid the critical areas to the maximum extent feasible. Where coastal waters and tidelands cannot be avoided, bridging rather than filling of these areas will be required to the maximum extent feasible[.]"); 23A S.C. Code Ann. Regs. 30-12(G)(1) (Supp. 1998) ("Dredging and filling in wetlands can always be expected to have adverse environmental consequences; therefore, the Department discourages dredging and filling."); 23A S.C. Code Ann. Regs. 30-12(G)(2)(a) (Supp. 1998) ("The creation of commercial and residential lots strictly for private gain is not a legitimate justification for the filling of wetlands. Permit applications for the filling of wetlands and submerged lands for these purposes shall be denied, except for erosion control . . . or boat ramps. . . . All other dredge and fill activities not in the public interest will be discouraged[.]"); 23A S.C. Code Ann. Regs. 30-12(N) (Supp. 1998) ("To prevent inappropriate access to small islands, permanent filling for access is prohibited, except for the expansion of existing useable causeways.").

Furthermore, the width of the proposed bridge is a mere 5', as compared with the 12'-wide structure proposed in the previous application. As a practical matter, the reduced width of the bridge will prevent automobiles and trucks from crossing over the bridge. The 5' bridge will accommodate pedestrian traffic and possibly golf cart traffic. Petitioners, however, failed to introduce any evidence to show that any golf cart traffic across the bridge will exist in a quantity sufficient enough to trigger any concern for environmental impacts.

Additionally, with respect to burden of proof, Petitioners failed to present any persuasive testimonial or documentary evidence that a weighing of all of the factors listed in Regulation 30-12(N) requires denial of the permit in this case. Regulation 30-12(N) lists the specific factors that OCRM must consider in evaluating proposed bridging for access to small islands in the critical area. In particular, OCRM must consider (1) the distance of bridging required; (2) the type of bridging and dimensions of bridging requested; (3) configuration of the shoreline; (4) the size of the island for which access is sought, including the highland and critical area; (5) the existence of feasible alternative access; (6) public need; (7) impacts on protected resources; (8) the ability of the owner to tie into existing sewer utilities or meet DHEC standards for septic tanks; (9) the impact upon the values set forth in S.C. Code Ann. § 48-39-20(E); (10) whether the island is subject to OCRM's stormwater and management policies; and (11) the submission by the owner of a dock master plan and a development plan. 23A S.C. Code Ann. Regs. 30-12(N)(Supp. 1998).

In evaluating an application for a bridging permit, OCRM must weigh the considerations listed in Regulation 30-12(N) to determine if the proposed project is reasonable in light of the surrounding geography and the potential environmental impacts. In the case at bar, Petitioners presented no persuasive evidence to establish that the distance of the proposed bridging, when considered in light of the type and dimensions of the bridging requested, is inappropriate for the surrounding geography. Therefore, Petitioners failed to establish that consideration of factors 1 through 4 of Regulation 30-12(N) require denial of the permit in this case.

Petitioners also failed to carry their burden of showing the existence of feasible alternative access to Egret Island. The terms "feasible" and "feasible alternative" are defined in OCRM Regulation 30-1(C)(6) (Supp. 1998) as follows:

. . . [F]easibility is determined by the Department with respect to individual project proposals. Feasibility in each case is based on the best available information, including, but not limited to, technical input from relevant agencies with expertise in the subject area, and consideration of factors of environmental, economic, social, legal and technological suitability of the proposed activity and its alternatives. Use of this word includes, but is not limited to, the concept of reasonableness and likelihood of success in achieving the project goal or purpose. "Feasible alternatives" applies both to locations or sites and to methods of design or construction, and includes a "no action" alternative.

In the present case, the purpose of the proposed project is to gain access to Egret Island. Petitioners presented evidence that a dock extending to a tributary of Brickyard Creek would have been a feasible alternative to the previously proposed 12' vehicular access bridge, as stated by OCRM when it denied a permit for that project. That analysis, however, does not automatically carry over to the permit application at issue. As stated in OCRM regulations, feasibility is specific to individual project proposals. Further, the word "feasible" includes the concept of reasonableness. While OCRM determined that the 12' vehicular access bridge would have had a greater environmental impact than a dock, Petitioners have not shown that a 5' pedestrian bridge would have a greater environmental impact than a dock.

In fact, Petitioners failed to establish any adverse environmental impacts from the proposed bridge. Thus, they have failed to show that a "no action" alternative would be reasonable in the instant case. Additionally, access to the island by way of a dock would not provide the same quality of access as the proposed footbridge from Vivian's Island. Therefore, Petitioners failed to show that any existing alternatives for access to the island are reasonable.

Petitioners also failed to introduce any persuasive evidence pertaining to the remaining factors of Regulation 30-12(N). In fact, Petitioners' case in chief relied solely on testimony from Richard Chinnis, Director of OCRM. Chinnis testified that one of the impacts associated with the 12' vehicular access bridge originally proposed by Kirkland would be stormwater runoff. Chinnis stated that the 5' pedestrian bridge would not have the same impact, because a bridge of that width would not be conducive to automobile and truck traffic. Chinnis also stated that the reasonableness of the intended use of the 5' pedestrian footbridge, versus that of the 12' vehicular access bridge, was a distinguishing factor between the two permit applications. Chinnis testified that OCRM's evaluation of both applications involved balancing the reasonableness of the proposed project with any associated environmental impacts, and that it was more reasonable to allow a 5' pedestrian footbridge in the location.

Finally, Petitioners expressed concern over the possible clearing of all vegetation on the hummocks in the path of the proposed project. The Petitioners' concern is unfounded for the following reasons. First, since a hummock rises above the marsh, it does not fall within the critical area over which OCRM has jurisdiction. Further, the only testimony Petitioners elicited on this matter indicated that a gravel pathway would extend over these hummocks as part of the proposed project. No other testimony was presented to establish that the permit applicants have any plans for more extensive clearing. Finally, should any future clearing of vegetation on these hummocks cause any runoff into the adjacent marsh, DHEC would then regulate this activity under the Stormwater Management and Sediment Reduction Act, S.C. Code Ann. §§ 48-14-10 et seq. (Supp. 1998).

Based on the foregoing, I find that dismissal of this case pursuant to Rule 41(b) of the SCRCP is justified. See Johnson v. J.P. Stevens & Co., 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.").

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law,

IT IS HEREBY ORDERED that permit number 98-1E-331-P to construct a timber footbridge for access to Egret Island at Brickyard Creek, Beaufort County, South Carolina is sustained.

AND IT IS SO ORDERED.

____________________________

JOHN D. GEATHERS

Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667

December 1, 1999

Columbia, South Carolina

1. The proposed footbridge is characterized by Respondents as a boardwalk. For the reasons expressed in the Conclusions of Law, I find that the proposed project is more appropriately characterized as a footbridge.

2. A "hummock" is a tract of forested land that rises above an adjacent marsh. American Heritage College Dictionary 662 (3d ed. 1993).