ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before this tribunal upon Petitioners’ request for a contested case hearing to
challenge Respondent South Carolina Department of Health and Environmental Control’s (DHEC
or Department) denial of their request for a permit to construct a septic tank on their property on
Lake Murray in Saluda County, South Carolina. Here, Petitioners do not argue that their lot is
suitable for a septic tank under current regulatory guidelines; rather, they contend that, under both
State law and DHEC policies, and under principles of basic fairness, a septic tank permit for their lot
should be “grandfathered” into the current regulatory scheme because of the Department’s issuance
of general septic tank approval for the Tanglewood subdivision in 1972. The Department, however,
contends not only that Petitioners’ property is unsuitable for a septic tank under current law, but also
that Petitioners’ argument that they have a grandfathered permit is without merit.
After timely notice to the parties, a hearing of this case was conducted on November 13,
2003, at the Administrative Law Judge Division in Columbia, South Carolina. Having fully
considered the evidence and arguments presented by the parties at the hearing, I find that the
Department’s denial of Petitioners’ application for a septic tank permit must be sustained.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the hearing
of this matter, and taking into account the credibility and accuracy of the evidence, I make the
following Findings of Fact by a preponderance of the evidence:
1.The property in question in this matter is that property known as Lot 4 of the
Tanglewood Subdivision on Lake Murray in Saluda County, South Carolina, and identified as TMS
#205-41-00-004.
2.At the request of the Davis-Fowler Company, the initial developer of the Tanglewood
Subdivision, Robert E. Collingwood, Jr., a registered land surveyor, conducted a percolation test on
the property on March 1, 1972. Based upon the results of this “perc” test, Mr. Collingwood
concluded that, under 1972 regulatory requirements, the lot was suitable for the installation of a
septic tank. Subsequently, on October 16, 1972, the Department granted the Davis-Fowler Company
approval to develop the Tanglewood Subdivision. Under this approval, the eleven lots of the
subdivision would be served by an approved community water system and would dispose of sewage
through individual septic tanks.
(Pet’r Ex. #10.) Over the intervening years, the Tanglewood
Subdivision has been developed, with houses constructed on ten of the eleven lots, each disposing
of sewage through a permitted septic tank system. Lot 4, however, has remained undeveloped.
3.Petitioners purchased the property in question on September 3, 1998. At the time of
the purchase, Petitioners were aware of the 1972 percolation test and the restrictive covenant
requiring the use of a septic system for sewage disposal. However, beyond the “perc” test and the
covenants, Petitioners had no other information, and did not seek any further information, regarding
the property’s suitability for a septic tank or the Department’s ability to issue a permit for the
property.
4.Petitioners did not build on the lot and, in April 2003, entered into a contract to sell
the property. This contract was conditioned upon DHEC’s approval of a septic tank permit for the
lot. Accordingly, on May 1, 2003, Petitioners submitted an application for a septic tank permit to
the Department for the property in question.
5.Petitioner’s permit application was evaluated by William Burriss, a DHEC
Environmental Health Manager in the Saluda County Health Department. In conducting his review
of the application, Mr. Burriss visited the property on May 8, 2003, and took three soil borings at the
site to determine the depth of the water table and evaluate the composition of the soils under the
property. These soil borings indicated a seasonal high water table of twenty-three inches, and two
of the borings revealed a layer of dense clay between twenty-two and twenty-nine inches below the
surface. Given these conditions, Mr. Burriss determined that the lot was unsuitable “for the
placement of any conventional, modified, alternative, or experimental [septic] system” and therefore
denied Petitioners’ permit request. (Resp’t Ex. #3, at 1.)
6.Petitioners’ appealed this determination to the Department’s central office, where the
denial was reviewed by M. Reid Houston in the Department’s Division of Onsite Wastewater
Management. As part of this review, Mr. Houston conducted another site evaluation of the property
on May 19, 2003. Present during this site visit were Mr. Houston, Mr. Burriss, and Mark Marriner,
representing DHEC, and Petitioner Juris Gulbis and Teresa Shepherd, representing Petitioners.
During the visit, a backhoe was used to dig five pits from which soil samples were collected to
determine the depth of the water table and evaluate the composition of the soils under the property.
The soil samples gathered from these test pits indicated a seasonal high water table between seventeen
and thirty-three inches below the surface, and confirmed the presence of dense layers of clay and rock
at shallow depths beneath the property. Mr. Houston determined that these conditions “prevent[] the
site from meeting the requirements of Regulation 61-56 or any of its related standards for a
conventional, or alternative type system,” and further concluded that the unsuitable soil conditions,
particularly the dense clay and rock, “render the site unacceptable for the installation of an
experimental system.” (Resp’t Ex. #7, at 2.) Therefore, by a letter dated May 29, 2003, Mr.
Houston reaffirmed the denial of Petitioners’ application for a septic tank permit. On June 13, 2003,
Petitioners requested a contested case before this tribunal to challenge the Department’s final denial
of their permit request.
7.Because of the shallow depth of the water table and the composition of the soils under
Petitioners’ lot, Petitioners’ property is not suitable for the installation of any sort of septic tank
system under current statutory and regulatory guidelines.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
As noted above, the issue presented by this case is not whether Petitioners’ property qualifies
for a septic tank permit under current regulatory standards: Petitioners concede, and the evidence
presented by the Department demonstrates, that the water table and soil conditions under the lot do
not allow for the construction of a septic tank.
Rather, the issue at hand is whether a septic tank
permit for Petitioners’ property should be “grandfathered” into the current regulatory scheme. Petitioners put forth a three-part argument in favor of such a grandfathered permit. First,
Petitioners contend that the subdivision approval letter issued by the Department in 1972 acts as a
septic tank permit for the property that must be recognized as valid under S.C. Code Ann. § 44-55-710 (2002). Second, Petitioners argue that, even if the subdivision approval letter is not considered
a permit, the Department should be required to issue a permit for the property under a policy
announced in a memorandum issued by the Department in 1990, which suggested that permits should
be granted under such approval letters despite changes in permitting standards. Third, Petitioners
maintain that, even if the Department is not compelled to issue a permit by statute or policy, basic
principles of fairness and equal protection require the Department to issue a permit for the lot because
neighboring and nearby properties have been granted septic tank permits. Each argument will be
addressed in turn.
Section 44-55-710/The McLeod Act
S.C. Code Ann. § 44-55-710 (2002), also known as the McLeod Act, provides that “[s]eptic
tank permits issued prior to the effective date of this section [June 1, 1983] under Title 44 of the 1976
Code shall continue to be valid unless the physical character of the property for which they were
issued changes, provided the conditions of the original permit are met.” Id. (emphasis added).
Petitioners argue that this provision requires the Department’s 1972 septic tank approval for the
Tanglewood Subdivision to be honored as a septic tank permit for their individual lot. However, this
argument conflates subdivision approvals under Regulation 61-57 with actual septic tank permits
under Regulation 61-56.
Under the version of Regulation 61-57 in effect at the time the Tanglewood Subdivision was
initially developed and at the time Petitioners purchased the property,
developers of residential
subdivisions were required to seek approval from the Department for the proposed water supply and
sewage disposal systems for the subdivisions. See 24A S.C. Code Ann. Regs. 61-57 (1992). As part
of this approval process, developers had to demonstrate that each lot in the subdivision was “of
sufficient size and ha[d] suitable soil conditions to meet the requirements of Regulation 61-56 and
related standards.” Id. § IV(B)(1). In short, before the Department could grant approval for
development of a subdivision under Regulation 61-57, each parcel in the subdivision had to be
individually analyzed for suitability for a septic tank. Id.
Yet, despite this requirement that each lot in a proposed subdivision be examined for septic
tank suitability, a subdivision approval granted under Regulation 61-57 in both its pre-2000 and
current forms does not constitute a septic tank permit for any particular piece of property. This
distinction between a subdivision approval and a septic tank permit is recognized in Regulation 61-57
itself, which provides that “[a] written permit shall be obtained from the Department prior to
beginning construction of water supply and/or sewage treatment/disposal systems.”
24A S.C. Code
Ann. Regs. 61-57 § III(B) (1992) (emphasis added). Thus, Regulation 61-57 implicitly acknowledges
that a written permit from the Department beyond a mere subdivision approval is required before the
actual construction of a septic tank system on a particular lot. Further, Regulation 61-56, which
governs the permitting and construction of individual sewage treatment and disposal systems,
prohibits the construction of “an individual sewage treatment and disposal system unless a valid
permit has been issued by the Health Authority for the specific construction proposed.” 24A S.C.
Code Ann. Regs. 61-56 § IV(B)(1) (1992) (emphasis added). Under the plain terms of Regulation
61-56, a septic tank permit is a specific document authorizing the construction of a particular sewage
disposal system on a particular piece of property, not a general document approving the basic
development of an entire subdivision. Id.; see also id. § II(F) (defining a septic tank “permit” as “[a]
written statement issued by the Health Authority permitting the construction of an individual sewage
treatment and disposal system under this regulation”) (emphasis added).
It is clear, then, that, under the Department’s regulatory scheme, a subdivision approval issued
under Regulation 61-57 is not equivalent to a septic tank permit under Regulation 61-56 and does
not authorize the construction of septic tanks on individual lots. Rather, even after a subdivision is
approved for development with septic tanks, each lot must be individually evaluated and permitted
before a septic tank can be constructed on the property. See 24A S.C. Code Ann. Regs. 61-56 §§
III, IV (1992). Therefore, while the Department approved the Tanglewood Subdivision for
development with septic tanks in 1972, that approval does not constitute a septic tank permit for
Petitioners’ individual lot. And, in fact, no septic tank permit has ever been issued for Petitioners’
property. Accordingly, as no septic tank permit has been issued for Petitioners’ property, either
before or after June 1, 1983, there is no “original permit” to be grandfathered into the current
regulatory scheme under Section 44-55-710.
The Hatfield Memorandum
Petitioners next argue that, even if the Department is not required to issue them a
grandfathered permit under the McLeod Act, the Department should be bound by a 1990 internal
memorandum, which suggested that unconditional subdivision approvals for septic tanks should be
treated like individual septic tank permits and honored under the McLeod Act. This argument is, in
essence, an estoppel argument. However, because Petitioners were not aware of, and did not rely
upon, DHEC’s memorandum at the time they purchased the property, Petitioners’ estoppel argument
must fail.
The DHEC memorandum in question is a memorandum dated October 4, 1990, issued by
Richard Hatfield, Director of the Department’s Division of On-Site Wastewater Management, to
DHEC’s District Environmental Health Directors. The memorandum describes the requirements of
the McLeod Act and the policies to be used by the Department to bring the Act into effect:
[The McLeod] Act requires that preexisting septic tank permits be honored, provided
certain provisions are met, even if present evaluation methods indicate that the site is
unsuitable for a septic tank system. Our legal office has also suggested that letters
from the health department to developers, which grant unconditional approval of a
subdivision for septic tanks, shall be handled in the same manner as permits as far as
Section 44-55-710 of the 1976 Code of Laws of South Carolina, as amended, is
concerned. Conditional, tentative, or conceptual letters of commitment should also
be honored, provided conditions required by the letters are met.
(Pet’r Ex. #2, at 1.) While the copy of the memorandum introduced by Petitioners is clearly marked
as a “draft,” the Department’s witness, Reid Houston, testified that the policies set forth in the
memorandum were put into effect by the Department. However, he further testified that the policies
stated in the memorandum have since been rescinded and that the Department no longer grants septic
tank permits based upon subdivision approval letters. Regardless of the current status of the
memorandum, Petitioners contend that the Department should be estopped from departing from the
policies in the memorandum and should be required to issue a septic tank permit for their property
based upon the original subdivision approval letter.
In a recent opinion, the South Carolina Supreme Court reiterated the legal standards
controlling the estoppel of governmental entities:
As a general rule, estoppel does not lie against the government to prevent the due
exercise of its police power or to thwart the application of public policy. However,
this does not mean that estoppel cannot ever apply against a government agency. To
prove estoppel against the government, the relying party must prove: (1) lack of
knowledge and of the means of knowledge of the truth as to the facts in question, (2)
justifiable reliance upon the government’s conduct, and (3) a prejudicial change in
position.
Greenville County v. Kenwood Enterprises, Inc., 353 S.C. 157, 171-72, 577 S.E.2d 428, 435 (2003)
(citations omitted); see also Grant v. City of Folly Beach, 346 S.C. 74, 80, 551 S.E.2d 229, 232
(2001) (same). In the case at hand, even if Petitioners were to overcome the general presumption
against the estoppel of a state agency in the exercise of its police powers for the protection of the
public, see, e.g., S.C. Dep’t of Soc. Servs. v. Parker, 275 S.C. 176, 268 S.E.2d 282 (1980), their lack
of reliance upon the Department’s memorandum causes their estoppel argument to fail.
When they purchased their property in 1998, Petitioners relied solely upon the 1972
percolation test conducted by the developer and the restrictive covenants of the subdivision in
concluding that the lot was eligible for a septic tank permit. At the time of the sale, Petitioners
admittedly neither sought, nor received, any information from the Department concerning the lot’s
suitability for a septic tank permit. In fact, Petitioners did not become aware of the Hatfield
Memorandum–the document upon which they base their estoppel argument–until they undertook the
present matter.
In short, Petitioners did not rely upon any actions, statements, or conduct by the
Department, including the Hatfield Memorandum, in reaching their conclusion that the lot they
purchased was entitled to a septic tank permit. Therefore, because Petitioners’ mistaken assumption
about the suitability of their property for a septic tank did not arise from any conduct of the
Department, they cannot establish an estoppel claim against the Department for the issuance of a
septic tank permit on that basis.
Equal Protection
Lastly, Petitioners argue that the Department’s refusal to issue a septic tank permit for their
lot, while having issued such permits for other neighboring and nearby lots, violates fundamental
principles of fairness. To Petitioners, the Department’s disparate treatment of these similarly situated
properties is a violation of their equal protection rights under both the United States and South
Carolina constitutions.
However, because Petitioners failed to establish that these other lots are, in
fact, similarly situated to their lot, their equal protection claim must also fail.
“The sine qua non of an equal protection claim is a showing that similarly situated persons
received disparate treatment.” Grant v. S.C. Coastal Council, 319 S.C. 348, 354, 461 S.E.2d 388,
391 (1995); see also TNS Mills, Inc. v. S.C. Dep’t of Revenue, 331 S.C. 611, 626, 503 S.E.2d 471,
479 (1998) (same). To support their equal protection claim in the instant case, Petitioners introduced
four recent permits for the construction of septic tanks on lots in George Estates, a nearby
subdivision, and testified that the other ten lots in the Tanglewood Subdivision, the subdivision in
which Petitioners’ property is located, have been issued septic tank permits. Petitioners did not,
however, present any other evidence regarding the nature of these properties or their similarity to
Petitioners’ lot, beyond mere geographic proximity. In particular, Petitioners did not present
evidence of the depth of the water table or of the composition of the soils beneath these properties.
Petitioners simply failed to demonstrate that the nearby properties approved for septic tank permits
are similar, in any relevant way, to their property. Accordingly, their claim that the disparate
treatment of those lots and their own violates their equal protection rights cannot be sustained.
In sum, Petitioners concede, and the evidence demonstrates, that their property is not suitable
for a septic tank under current statutory and regulatory guidelines. Further, Petitioners have failed
to establish that a septic tank permit for their lot should be “grandfathered” into the present
regulatory scheme. Therefore, the Department’s decision to deny Petitioners’ application for a septic
tank permit must be sustained.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated above,
IT IS HEREBY ORDERED that the Department’s denial of Petitioners’ application for a
septic tank permit for Lot 4 of the Tanglewood Subdivision in Saluda County, South Carolina, is
SUSTAINED.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
December 2, 2003
Columbia, South Carolina |
