ORDERS:
FINAL DECISION AND ORDER
STATEMENT OF THE CASE
This matter comes before me pursuant to S.C. Code Ann. §§ 48-39-10 et seq. (Supp.1998) and 23A S.C. Code Ann.Regs.
30-1 to -20 (1976 & Supp.1998). Petitioners Catherine C. Grenhart and Gail K. Grenhart (collectively, Petitioners) request
a contested case hearing to challenge the Respondent South Carolina Department of Health and Environmental Control,
Office of Ocean and Coastal Resource Management's (OCRM) issuance of Permit Number (P/N) OCRM-99-054-G to
Respondent Lorenz Klein-Breteler. The permit allows Respondent Klein-Breteler to construct a bulkhead on his property at
Capri Island Creek at 205 Marsh Oaks Drive, Charleston, South Carolina. Petitioner Catherine C. Grenhart owns property
adjacent to Respondent Klein-Breteler where she resides with her daughter Petitioner Gail K. Grenhart. Petitioners allege
that the proposed bulkhead would divert water from Respondent Klein-Breteler's property onto their property, thereby
flooding and eroding their property.
After notice to the parties, a hearing was conducted on October 5, 1999 at the Charleston County Courthouse in North
Charleston, South Carolina. For the following reasons, OCRM's decision to grant P/N OCRM-99-054-G to Respondent
Klein-Breteler is sustained.
FINDINGS OF FACT
Based upon the evidence presented, I make the following findings of fact, taking into consideration the burden on the parties
to establish their respective cases by a preponderance of the evidence and taking into account the credibility of the witnesses.
Background
On April 1, 1996, Petitioners moved to the property located at 201 Marsh Oaks Drive, Charleston, South Carolina.
Petitioner Catherine C. Grenhart owns the property located at 201 Marsh Oaks Drive. She resides at this address with her
daughter Petitioner Gail K. Grenhart. When Petitioners moved to the property, they were aware of flooding and erosion
risks associated with the property. Consequently, as OCRM recommended, Petitioners implemented erosion control
measures (such as landscaping the property, planting sod, and using top soil and compost material) to elevate their high
ground and protect their property from flooding and erosion. Petitioners do not have a bulkhead on their property, and they
have not applied for a permit for a bulkhead from OCRM.
Adjacent to Petitioners' property, Respondent Klein-Breteler owns property located at 205 Marsh Oaks Drive, Charleston,
South Carolina. Although he owns the property, he resides permanently in Florida. At his property at 205 Marsh Oaks
Drive, Respondent Klein-Breteler recently constructed a dock, for which he obtained a permit from OCRM. More recently,
he has obtained a permit from OCRM to construct a bulkhead on his property as an erosion control measure.
Facts
On February 8, 1999, OCRM received Respondent Klein-Breteler's application for a permit to construct a bulkhead at his
property at 205 Marsh Oaks Drive. The proposed bulkhead was three-feet tall and eighty-nine-feet long. The construction
of the bulkhead was to serve as an erosion control measure. On February 18, 1999, there was public notice of his bulkhead
permit.
By letter dated March 1, 1999, Petitioners expressed to OCRM their concerns that the proposed bulkhead ended at their
property line, and the bulkhead would increase flooding on their property. Petitioners' theory stemmed from their
observation that flooding of their property increased after Respondent Klein-Breteler constructed a dock on his property.
Petitioners claimed that such flooding exceeded any flooding experienced prior to the dock construction, even during
"astronomical high tides." Petitioners speculated that the bulkhead would further aggravate the flooding conditions and
threaten the stability of their home and current landscaping that protects their property from flooding and erosion.
In their March 1 letter, Petitioners requested expert opinions and assurances from OCRM that the bulkhead would not so
impair their property. On March 18, 1999, OCRM conducted a site investigation. Without studying the cause of the
flooding at Petitioners' property, OCRM orally assured Petitioners that the bulkhead would not increase the flooding
problems.
By letter dated March 22, 1999, Respondent Klein-Breteler's counsel responded to Petitioners' March 1 letter. The March
22 letter stated that Respondent Klein-Breteler was unaware of a "generally accepted body of data or science that supports
[Petitioners'] theory that a dock alone can cause tidal water levels to increase. Furthermore, such increases would seem to
have minimal bearing on the consideration of the proposed bulkhead."
On April 13, 1999, OCRM issued P/N OCRM-99-054-G to Respondent Klein-Breteler to construct the bulkhead. The
permit contains special conditions that limit the length of the bulkhead with respect to the street side property line. Based on
a recommendation from the South Carolina Institute of Archaeology and Anthropology, the permit also contains a special
condition that the permittee must notify the Institute in the event that any archaeological or anthropological remains are
discovered. The South Carolina State Ports Authority and the South Carolina Department of Natural Resources have not
objected to the bulkhead.
Petitioners' appeal is predicated upon Regulation 30-12(C). See S.C. Code Ann.Regs. 30-12(C). In particular, Regulation
30-12(C)(1)(c) requires that the bulkhead "avoid sharp angle turns that may collect debris or cause shoaling or flushing
problems." S.C. Code Ann.Regs. 30-12(C)(1)(c). Regulation 30-12(C)(1)(d) further requires, among other things, that the
bulkhead be "discouraged . . . where adjacent property could be detrimentally affected by erosion . . . ." S.C. Code
Ann.Regs. 30-12(C)(1)(d). In their Notice of Intent to Appeal, Petitioners requested that: (1) OCRM, or the Army Corp. of
Engineers, provide them with documentation that the bulkhead would not violate Regulation 30-12(C); (2) OCRM suspend
or revoke the permit in the event that the bulkhead violate that Regulation; and (3) OCRM and Respondent Klein-Breteler be
responsible for any damages caused by the bulkhead to their property.
At the hearing, Gail Grenhart was the only witness to testify on behalf of Petitioners. She stated that, since Respondent
Klein-Breteler constructed his dock, water levels have risen and flooded her property. Photographs introduced into evidence
clearly depict flooding at Petitioners' property. She further testified that the bulkhead would similarly cause the water levels
to rise and flood her property. Gail Grenhart, however, was not qualified as an expert witness. This tribunal finds that
Petitioners have experienced increased flooding over the period of time that they have resided at the subject property;
however, the cause of the flooding cannot been ascertained from Ms. Grenhart's observations and photographs alone.
The only expert to testify at the hearing was Mark Caldwell on behalf of OCRM. Mr. Caldwell testified that the dock did
not cause water levels to rise or flood Petitioners' property. As for the bulkhead, only eight feet of the eighty-nine-foot
bulkhead fell within the jurisdiction of OCRM. OCRM considered whether the eight-foot section of the three-foot tall
bulkhead could "collect debris or cause shoaling or flushing problems" and whether any "adjacent property could be
detrimentally affected by erosion." See S.C. Code Ann.Regs. 30-12(C)(1)(c & d). OCRM found that there was no evidence
of wave energies that could cause the water to shift laterally to Petitioners' property. Also, OCRM determined that the
angle between the bulkhead and the shoreline conformed to current regulations; the angle also conformed to former
regulations under which OCRM was required to investigate further only if the angle exceeded 90 degrees. Overall, OCRM
concluded that the proposed bulkhead conformed to Regulation 30-12(C)(1).(1)
OCRM did not ascertain the actual cause of the flooding at Petitioners' property. Mr. Caldwell, however, testified that any
flooding would more likely be due to the settling of the property than either the recently-constructed dock or proposed
bulkhead. Mr. Caldwell further testified that Petitioners have stabilized their property by elevating the high ground with top
soil, fill and sod, and it is a natural occurrence for the high ground to crumble slowly into the marshes. Also, along tidal
waters, the saline water promotes vegetation growth, thereby causing the marshes to grow; as a result of the marshes
growing, the land becomes flooded by the waters. Without stabilization, the critical line at Respondent Klein-Breteler's
property has receded. In contrast, while OCRM has not recently determined the critical line at Petitioners' property, it
expects that their critical line would recede at a slower rate due to their stabilization attempts and the elevated high ground.
Without evidence to the contrary, Mr. Caldwell's testimony amply supports that flooding and erosion at Petitioners' property
would be due to natural settling of their property and erosion of the high ground -- not the recently-constructed dock or the
proposed bulkhead.
CONCLUSIONS OF LAW AND DISCUSSION
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
The South Carolina Administrative Law Judge Division has subject matter jurisdiction in this action pursuant to S.C. Code
Ann. §§ 48-39-10 et seq. (Supp.1998) and S.C. Code Ann. §§ 1-23-310 et seq. (Supp.1998). In particular, section 48-39-150 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.
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. OCRM is the subdivision within DHEC charged with implementing the
state's coastal zone policies and issuing permits in coastal zone areas. Regulations 30-1 through 30-20 were promulgated by
OCRM's predecessor (the South Carolina Coastal Council) 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).
A portion of the proposed bulkhead is located in a "critical area," as defined by the statute and regulations. See S.C. Code
Ann. § 48-39-10; 23A S.C. Code Ann.Regs. 30-1(C)(4 & 12) (Supp.1998). 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).
Regulation 30-12(C) provides the specific standards for construction of bulkheads and revetments for tidelands and coastal
waters. 23A S.C. Code Ann.Regs. 30-12(C) (Supp.1998). In particular, OCRM must consider (1) whether the bulkhead will
"avoid sharp angle turns that may collect debris or cause shoaling or flushing problems," and (2) whether the bulkhead
should be discouraged because an "adjacent property could be detrimentally affected by erosion . . . ." 23A S.C. Code
Ann.Regs. 30-12(C)(1)(c & d) (Supp.1998).
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 P/N OCRM 99-054-G violated Reg. 30-12(C)(1); 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 Reg. 30-12(C)(1).
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). "The preponderance of the evidence means such evidence as, when considered and
compared with that opposed to it, has more convincing force and produces in the mind the belief that what is
sought to be proved is more likely true than not true." Sanders, supra, § 9:5 Quantum of Evidence in Civil
Cases (1994), citing, Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225 (1955). In the present case, Petitioners have
failed to present any expert testimonial or documentary evidence to rebut the testimony of OCRM's expert
witness, Mr. Caldwell, that the proposed bulkhead conforms to Regulation 30-12(C)(1). Thus, Petitioners
have failed to show, by a preponderance of the evidence, that the proposed bulkhead violates Regulation 30-12(C)(1) or that OCRM should have denied the permit for the bulkhead.
As stated above, the only expert testimony came from OCRM's witness, Mr. Caldwell. "The qualification of
a witness as an expert in a particular field is within the sound discretion of the trial judge." Smoak v.
Liebherr-Am., Inc., 281 S.C. 420, 422, 315 S.E.2d 116, 118 (1984); see South Carolina Dep't of Highways and Pub.
Trans. v. Manning, 283 S.C. 394, 323 S.E.2d 775 (1984). Where the expert's testimony is based upon facts
sufficient to form the basis for an opinion, the trier of fact determines its probative weight. Berkeley Elec.
Coop. v. South Carolina Pub. Serv. Comm'n, 304 S.C. 15, 402 S.E.2d 674 (1991); Smoak, supra. Further, a trier of
fact may give it the weight and credibility he determines it deserves. Florence County Dep't of Social Serv.
v. Ward, 310 S.C. 69, 425 S.E.2d 61 (1992); Greyhound Lines v. South Carolina Pub. Serv. Comm'n, 274 S.C. 161,
262 S.E.2d 18 (1980). This tribunal finds no reason to question the testimony given by Mr. Caldwell in this
case.
Mr. Caldwell's testimony explains to the satisfaction of this tribunal that the proposed bulkhead will not
divert water to Petitioners' property. In Mr. Caldwell's opinion, the dock has not caused water levels to
rise or to flood the Grenharts' property. Further, OCRM considered whether the eight-foot portion of the
bulkhead, which was within OCRM's jurisdiction, could "collect debris or cause shoaling or flushing
problems" and whether any "adjacent property could be detrimentally affected by erosion." See 23A S.C.
Code Ann.Regs. 30-12(C)(1)(c & d). Mr. Caldwell explained that there was no evidence of wave energies that
could cause the water to shift laterally from Respondent Klein-Breteler's property to Petitioners'
property.(2)
Further, the angle between the bulkhead and the shoreline conformed to current regulations;
also, the angle did not exceed 90 degrees, which would trigger further investigation under OCRM's former
regulations. Overall, OCRM concluded that the three-foot-tall and eight-foot-long bulkhead conformed
to Regulation 30-12(C)(1).
Although OCRM did not ascertain the actual cause of the flooding at Petitioners' property, Mr. Caldwell
testified that it was more likely that any flooding would be due to the settling of the property and the
crumbling of the high ground into the marshes. Also, the salinity of the tidal waters promotes vegetation
growth, thereby causing the marshes to grow; as a result of the marshes growing, the land becomes flooded
with water. Stabilization retards but does not prevent such flooding and erosion. For these reasons, any
flooding or erosion at Petitioners' property would be due to the natural settling of their property and
erosion of the high ground -- not the recently-constructed dock or the proposed bulkhead.
Petitioners' case in chief relied solely on lay testimony from Petitioner Gail Grenhart and photographs. Ms.
Grenhart stated that the proposed bulkhead ended at their property line, and the bulkhead would increase
flooding on their property. Petitioners' reasoning was, in essence, that the water displaced by the bulkhead
must move somewhere, and that, in the present case, the water displaced would move to Petitioners'
property. Petitioners' reasoning has apparent logic. Their position, however, is not supported by the
evidence; contrary expert testimony indicates that the facts in this case do not support their theory.
In conclusion, the issue of whether OCRM properly issued P/N OCRM 9-054-G is before this tribunal. Mr.
Caldwell explained to the satisfaction of this tribunal that the proposed bulkhead conformed to
Regulation 30-12(C)(1). In light of Mr. Caldwell's testimony, Petitioners have failed to prove by a
preponderance of the evidence that the proposed bulkhead will "collect debris or cause shoaling or
flushing problems," that "an adjacent property could be detrimentally affected by erosion," or that
Regulation 30-12(C)(1) will otherwise be violated. 23A S.C. Code Ann.Regs. 30-12(C)(1) (Supp.1998).
Therefore, OCRM properly granted the permit to Respondent Klein-Breteler.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that Respondent Klein-Breteler's permit, P/M OCRM 99-054-G, to construct a
bulkhead for erosion control purposes at 205 Marsh Oaks Drive, Charleston, South Carolina is sustained.
AND IT IS SO ORDERED.
_______________________________
JOHN D. GEATHERS
Administrative Law Judge
October 22 , 1999
Columbia, South Carolina.
1. As stated by Mr. Caldwell, there are various situations where a bulkhead would cause water levels to rise and affect an adjacent property. For
example, water levels may rise where the bulkhead is located on property closer to either a running creek or boat traffic that could cause waves.
These are not the circumstances in the present case.
2. As Mr. Caldwell explained, there are several variables, such as wave energies and boat traffic, that affect water levels. Improper construction
of the bulkhead can also contribute to erosion at an adjacent property. See Bob L. Pruitt v. S.C. Dep't of Health and Envt'l Control (Office of
Ocean and Coastal Resource Management), Dkt. No. 96-ALJ-07-0289-CC (1997). In Pruitt, the bulkheads at issue were not aligned and were
instead constructed in a zig-zag pattern, and one of these bulkheads caused erosion to an adjacent property because it was improperly constructed.
The decision in Pruitt noted that a bulkhead, if properly constructed, should avoid future erosion. |
