ORDERS:
ORDER FOR TEMPORARY INJUNCTION
This matter is before the Administrative Law Judge Division pursuant to the motion of the Petitioners, Windell K. Drury and
Frances Drury, for a temporary injunction preventing the Respondent, John Perkins, from proceeding with construction of a
rock revetment and single family homes pursuant to permits issued by the Respondent, South Carolina Department of Health
and Environmental Control, Office of Ocean and Coastal Resource Management ("OCRM"). A hearing was held at the
offices of the Administrative Law Judge Division on March 28, 1999. For the following reasons, the temporary injunction is
hereby granted.
BACKGROUND
The Petitioners own Lot 6 on Seahorse Lane, Fripp Island, South Carolina. They purchased the lot and house in 1992.
The Respondent John Perkins ("Perkins") owns Lots 3 and 4 on Seahorse Lane, which are between the Atlantic Ocean and
the Petitioners' lot. Prior to passage of the 1988 Beachfront Management Act, the neighbors on either side of the Perkins
lots (Lots 2 and 5) built rock revetments.
The erosion on Fripp Island has been serious and the ocean has covered some portion of the Perkins lots until recent years.
Two events have occurred, however, which have allegedly rendered the Perkins lots buildable. First, the General Assembly
passed an amendment to the Beachfront Management Act by adding S.C. Code Ann. § 48-39-290(B)(2)(e) (Supp. 1998),
which provides:
Section (a) [forbidding the construction of new erosion control devices] does not apply to a private island with an Atlantic
Ocean shoreline of twenty thousand, two hundred ten feet of which twenty thousand, ninety feet is revetted with existing
erosion control devices and one hundred twenty feet of shoreline is not revetted with existing erosion control devices.
OCRM interprets this language to allow for construction of new erosion control devices on the beachfront at Fripp Island.
Second, the beach in the area of Perkins' lots has substantially accreted in recent years, with the result that the Perkins lots
are now several hundred feet from the mean high water mark of the Atlantic Ocean. As a result of these events, Perkins,
through Dennis Robinson of the Fripp Island Company, filed an application with OCRM for a permit to build a rock
revetment along a line to tie into the existing revetments on Lots 2 and 5, and to construct single family homes on the
Perkins lots. The permits were granted by OCRM.
The Petitioners filed this action based upon several theories of law, which include:
1. The law represents special legislation in violation of Article III, Section 34(IX) of the South Carolina Constitution.
2. OCRM is misinterpreting S.C. Code Ann. § 48-39-290(B)(2) to allow construction of new erosion control devices where
the beach is already revetted.
3. The issuance of the permit is repugnant to the policy of the Act and violates various regulations.
Petitioners filed an action for declaratory judgment in the Court of Common Pleas of Beaufort County concerning the first
two issues. After the issuance of the permits by OCRM, Petitioners also filed a request for a contested case hearing with the
Administrative Law Judge Division.
FINDINGS OF FACT
1. This Division has personal and subject matter jurisdiction.
2. Notice of the date, time, place and subject matter of the hearing was timely given to all parties.
3. The Petitioners, Windell K. Drury and Frances Drury, own Lot 6 with improvements thereon, on Sea Horse Road, Fripp
Island, South Carolina.
4. The Respondent, John Perkins, owns Lots 3 and 4 on Sea Horse Road, Fripp Island, South Carolina. These lots are
between the Atlantic Ocean and Lot 6.
5. Perkins, through Dennis Robinson of the Fripp Island Company, received permits (P/N # OCRM-98-431-H and P/N #
OCRM 98-441-H) to construct a rock revetment in front of Lots 3 and 4 along a line to tie into the existing rock revetments
on Lots 2 and 5. In addition, the permits allow for construction of single family homes.
6. I find that the Petitioners will be irreparably damaged if construction proceeds and no material harm will occur to the
Respondent during the pendency of these proceedings if a temporary injunction is issued.
7. The parties have agreed to an expedited hearing on the merits of this case.
CONCLUSIONS OF LAW
Based upon the foregoing Background Discussion and Findings of Fact, I conclude, as a matter of law, the following:
1. In 1988, the South Carolina General Assembly passed the Beachfront Management Act, which provides, inter alia, that
no new erosion control structures or devices are allowed seaward of a defined setback line along the ocean. See S.C. Code
Ann. § 48-39-290(B)(2)(a) (Supp. 1998).
2. In 1993, an amendment to the Beachfront Management Act relating to Fripp Island was passed which stated:
Section (a) [§48-39-290(B)(2)(a)] does not apply to a private island with an Atlantic Ocean shoreline of twenty thousand,
two hundred ten feet of which twenty thousand, ninety feet is revetted with existing erosion control devices and one hundred
twenty feet of shoreline is not revetted with existing erosion control devices.
3. I conclude that the Petitioners have demonstrated that they will be irreparably damaged by the construction of the
revetment and the two houses permitted by OCRM.
4. I conclude that the Petitioners have no available adequate remedy at law.
5. I conclude that by balancing the harms and the public interest, that a temporary injunction should be issued, restraining the
Respondent Perkins from constructing the structures authorized by the OCRM permits, in order to preserve the status quo
pending the completion of these proceedings. I make no determination on the merits of Petitioners' claims.
6. This Temporary Injunction shall remain in effect until further Order of the Court. A hearing on the merits of this case shall
be held at the Charleston County Courthouse, Charleston, South Carolina, at 10:00 a.m., June 30, 1999.
AND IT IS SO ORDERED.
_________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
May 27, 1999 |
