ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before this tribunal pursuant to the request of Respondent C. Wayne Hill
for a contested case hearing to challenge an administrative enforcement order issued against him by
Petitioner South Carolina Department of Health and Environmental Control, Office of Ocean and
Coastal Resource Management (OCRM or Department). In the administrative order, issued on
October 30, 2003, the Department found that Respondent had violated the terms of his permit to
construct a bulkhead at his property in the Heritage Shores Subdivision in North Myrtle Beach by
erecting the bulkhead too far into the channel adjoining his property. Based upon this finding, the
Department fined Respondent $1000 and required him to relocate the bulkhead to conform with the
terms of his permit. By a letter dated November 7, 2003, Respondent requested a contested case
hearing before the South Carolina Administrative Law Court to challenge OCRM’s administrative
order. In particular, Respondent disputes the Department’s conclusion that his bulkhead, as
constructed, is not in compliance with his permit, and further argues that, even if the bulkhead is
improperly constructed, the sanctions and remedies proposed by the Department are disproportionate
to the alleged violation.
By an Order dated January 30, 2004, the South Carolina Coastal Conservation League, a
nonprofit environmental advocacy organization, and Marlon Weaver, a neighboring property owner,
were granted leave to intervene in this case in support of the enforcement action taken by OCRM.
A hearing of this matter was held on April 20, 2004, at the South Carolina Administrative Law Court
in Columbia, South Carolina. At the hearing, the caption of this case was amended to accurately
reflect the burden of proof in this matter by designating the Department as the Petitioner and Mr. Hill
as the Respondent. Based upon the evidence presented at the hearing and upon the applicable law,
I find that Respondent did construct his bulkhead in violation of both his permit and the applicable
regulations, that a $1000 fine is an appropriate sanction against Respondent for the violation, and
that the relocation of Respondent’s bulkhead is an appropriate remedy for the improper construction
of the bulkhead.
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.Respondent C. Wayne Hill owns the property identified as Lot 1, Block S2, 55th
Avenue North in the Heritage Shores Subdivision, which is located in the Cherry Grove area of
North Myrtle Beach in Horry County, South Carolina. The parcel is a narrow residential lot, roughly
rectangular in shape, that is bounded on its southern and western sides by two of the man-made
canals that run throughout the Heritage Shores Subdivision. Intervenor Marlon Weaver owns Lot
3 and Lot 5 of Block S2 on 55th Avenue North in the Heritage Shores Subdivision. Lot 3 adjoins
Respondent’s lot along the northern boundary of Respondent’s lot and is situated along one of the
canals that borders Respondent’s property.
2.On September 19, 2002, OCRM issued a critical area permit, number OCRM-02-668,
to Respondent for the construction of a bulkhead and a dock at his property. Specifically, the permit
authorized “the construction of a 110' irregular shaped bulkhead” and “the construction of a 4' x 12'
walkway (with handrails) leading to a 3' x 15' ramp and a 10' x 12' floating dock” for Respondent’s
“private, recreational use as well as for erosion control.” Pet’r Ex. #1, at 1. The permit also placed
ten Special Conditions and sixteen General Conditions upon Respondent’s proposed project. Among
the Special Conditions in the permit are the requirement that “the proposed bulkhead [be] located
within 1.5' of the escarpment” and the requirement that “the structures [be] constructed in accordance
with submitted drawings as shown on pages 4-8” of the permit. Pet’r Ex. #1, at 1. While the
diagrams accompanying the permit detail the construction of the dock and provide a cross-section
of the bulkhead’s construction, they do not set out a precise, surveyed drawing of the location of the
bulkhead on the property. Rather, the two drawings that depict the location of the bulkhead only do
so in rough form. See Pet’r Ex. #1, at 4, 9. Nevertheless, both drawings showing the bulkhead’s
location plainly indicate that the bulkhead is to be 110' in length. Pet’r Ex. #1, at 4, 9 (both
identifying the bulkhead with an arrow labeled “BULKHEAD 110'”).
3.Based upon this permit, Respondent constructed a bulkhead in the marshland between
the high ground of his property and the canals bordering the lot.
The construction of the bulkhead
wall was completed on August 4, 2003, and, on August 14, 2003, the marsh area between the high
ground and the bulkhead was “backfilled” with seventeen truckloads of fill dirt to complete the
bulkhead project. As constructed, Respondent’s bulkhead violates the terms of his permit from the
Department in at least two particulars:
(A)First, the bulkhead was erected too far channelward of the escarpment on
Respondent’s lot. During a site visit to the property on July 24, 2003, Cindy Fitzgerald, an
environmental manager with OCRM, took several measurements of the location of the bulkhead
relative to the escarpment on Respondent’s lot. These measurements, taken with the assistance of
Respondent, were made while the bulkhead was still under initial construction and the location of
both the bulkhead wall and escarpment were plainly visible. See Hr’g Tr. at 127; Pet’r Ex. #3A
through #3I; Resp’t Ex. #5. These measurements revealed that the bulkhead was 31' from the
escarpment at the southwestern corner of the property, 11.5' from the escarpment in the middle of
the lot along the main canal, and 6.5' from the escarpment at the northeastern end of the bulkhead.
Pet’r Ex. #12; Resp’t Ex. #5.
These distances between the escarpment and the bulkhead are plainly
in excess of the 1.5' maximum distance allowed under Respondent’s permit.
(B)Second, the length of the bulkhead exceeds the 110' length allowed under
Respondent’s permit. During a site visit to the property after the completion of the bulkhead, James
“Fritz” Aichele, a planner and staff cartographer with OCRM, took measurements of the dimensions
of the bulkhead. According to these field measurements, Respondent’s bulkhead is approximately
145' in total length. Pet’r Ex. #10; Hr’g Tr. at 23-24. Therefore, the length of Respondent’s
bulkhead, as constructed, exceeds the 110' permitted length by some 35'.
4.Prior to the construction of Respondent’s bulkhead, the tidal marshland between the
escarpment on Respondent’s lot and the location of the bulkhead contained spartina alterniflora
vegetation, which is the primary productivity plant in estuarine ecosystems and a key element in the
aquatic food chain. Hr’g Tr. at 64-65; Pet’r Ex. #3A through #3I. The backfilling of this area to
complete Respondent’s bulkhead project destroyed this vegetation and resulted in a permanent loss
of productivity from the estuary. Hr’g Tr. at 65. Based upon the measurements of the bulkhead’s
actual location described above, the total area of marshland improperly filled by Respondent behind
his bulkhead is well in excess of 1000 square feet. See Hr’g Tr. at 58-59; Pet’r Ex. #10.
5.During her site visit on July 24, 2003, Ms. Fitzgerald informed Respondent, after
taking measurements of the bulkhead’s location, that she believed he was constructing his bulkhead
too far from the escarpment on his property; accordingly, she advised Respondent to suspend
construction of the bulkhead until the issue of its proper location could be resolved. After
suspending construction for one week and failing to receive further contact from the Department,
Respondent completed the construction of the bulkhead wall. Ten days later, Respondent backfilled
the area between the high ground of his lot and the bulkhead. On September 10, 2003, the
Department sent Respondent a Notice of Violation letter regarding the improper location of his
bulkhead; in response to the letter, Respondent denied any violation of the terms of his bulkhead
permit. On September 22, 2003, the Department sent an Admissions Letter to Respondent
concerning the violation of his permit; in response to the letter, Respondent again denied any
violation of his permit. Consequently, on October 30, 2003, the Department issued an
Administrative Enforcement Order against Respondent for the violation. In the order, OCRM
concluded that Respondent’s bulkhead was constructed “too far channelward and out of compliance
with the issued permit.” Pet’r Ex. #9, at 1. As a remedy for this violation, the Department required
Respondent to pay an administrative fine of $1000 within thirty days of the date of the order, to
submit a work plan for the removal and re-installation of the bulkhead to the Department within
thirty days of the order, and to complete re-installation of the bulkhead in its proper location within
ninety days of the order. Pet’r Ex. #9, at 3. On November 7, 2003, Respondent timely filed a
petition for review of the Department’s administrative order before this tribunal.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
1.This tribunal has jurisdiction over this matter pursuant to S.C. Code Ann. § 1-23-600(B) (Supp. 2003) and 23A S.C. Code Ann. Regs. 30-8(F)(4) (Supp. 2003).
2.In this matter, OCRM seeks to enforce an administrative order against, and impose
sanctions upon, Respondent for a violation of his permit. Accordingly, the Department bears the
burden of proof in this case. See ALC Rule 29(B) (“In matters involving the assessment of civil
penalties, the imposition of sanctions, or the enforcement of administrative orders, the agency shall
have the burden of proof.”); 73A C.J.S. Public Administrative Law and Procedure § 128, at 35
(1983) (“It is also a fundamental principle of administrative proceedings that the burden of proof is
on the proponent of a rule or order . . . .”). Therefore, OCRM must demonstrate, by a preponderance
of the evidence, that Respondent’s bulkhead, as constructed, does not comply with the terms of his
permit. See Anonymous v. State Bd. of Med. Exam’rs, 329 S.C. 371, 375, 496 S.E.2d 17, 19 (1998)
(holding that the standard of proof in an administrative proceedings is generally the preponderance
of the evidence).
3.Prior to erecting any structure in or otherwise altering a critical area in the coastal
zone of South Carolina, see S.C. Code Ann. § 48-39-10(B), (J) (Supp. 2003) (defining “coastal
zone” and “critical area,” respectively), a person must obtain a permit from OCRM authorizing the
construction in or alteration to the critical area. See S.C. Code Ann. § 48-39-130(A), (C) (Supp.
2003). Further, with respect to critical area permits for the construction of bulkheads and
revetments, OCRM regulations set forth several permitting standards “[i]n an attempt to mitigate
certain environmental losses that can be caused by these structures.” 23A S.C. Code Ann. Regs. 30-12(C)(1) (Supp. 2003). Among these permitting standards is the requirement that, barring unusual
circumstances, bulkheads and revetments must be constructed within one and a half feet of the
existing escarpment; this provision reads, in full:
Structures [i.e., bulkheads and revetments] may be constructed up to 18 inches from
the existing escarpment. In situations where this is not feasible, Department staff
will determine the location of the bulkhead or revetment on a site by site basis.
23A S.C. Code Ann. Regs. 30-12(C)(1)(b) (Supp. 2003).
4.In the case at hand, because the tidal marshland between the high ground of
Respondent’s lot and the adjoining canals is a critical area within the coastal zone of the state,
Respondent was required to obtain–and did obtain–a permit from OCRM before constructing a
bulkhead in that marshland. Respondent’s permit provided for the construction of an irregularly
shaped bulkhead that would be 110' in length and would be constructed within 1.5' of the escarpment
on Respondent’s property. See Pet’r Ex. #1, at 1.
However, the bulkhead Respondent constructed
under his permit was a regularly shaped bulkhead squaring-off his lot that was approximately 145'
in total length and that was erected at distances ranging between 6.5' and 31' from the existing
escarpment.
See Finding of Fact #3, supra. Both in length and location relative to the escarpment,
Respondent’s bulkhead is significantly out of compliance with the permit he was issued by OCRM.
And, by constructing his bulkhead too far into the critical area marshland surrounding his property
in violation of the terms of his permit, Respondent not only violated that permit, but also violated
the provisions of the Coastal Zone Management Act. See S.C. Code Ann. § 48-39-130(C).
5.Under S.C. Code Ann. § 48-39-170(C) (Supp. 2003), the Department may assess a
civil penalty of up to one thousand dollars per day of violation against any person who it determines
to be in violation of the Coastal Zone Management Act. In addition to the assessment of civil
penalties, OCRM has the authority to order a person in violation of a statutory or regulatory
provision or a permit to comply with that provision or permit:
Whenever the [D]epartment determines that any person is in violation of any permit,
regulation, standard, or requirement under this chapter, the [D]epartment may issue
an order requiring such person to comply with such permit, regulation, standard, or
requirement, including an order requiring restoration when deemed environmentally
appropriate by the [D]epartment . . . .
Id. (emphasis added); see also 23A S.C. Code Ann. Regs. 30-8(F) (Supp. 2003) (“[T]he Department
may issue administrative orders requiring persons to comply with any permit, regulation, standard,
or requirement under the Act and to restore the environment when deemed appropriate.”) (emphasis
added).
6.In the instant case, I find that the enforcement actions taken by OCRM against
Respondent are appropriate for his violation. By constructing his bulkhead some 30' in excess of its
permitted length and at an average of over 16' from the escarpment on his property, Respondent
committed substantial violations of his critical area permit that resulted in the improper filling of
over 1000 square feet of marshland. This filling is considered a major violation of the Coastal
Management Act. See S.C. Code Ann. § 48-39-170(B) (Supp. 2003) (defining “minor violations”
of the Act as those violations involving 225 square feet or less of critical area). Further, because he
used the bulkhead and accompanying backfill to significantly increase the size of his residential lot,
far exceeding the amount necessary for erosion control, Respondent’s violation is not merely a
technical violation of the Act and its regulations, but is a violation that runs contrary to several
important policies in those statutory and regulatory provisions. See 23A S.C. Code Ann. Regs. 30-12(G)(2)(a) (Supp. 2003) (“The creation of commercial and residential lots strictly for private gain
is not a legitimate justification for the filling of wetlands.”); 23A S.C. Code Ann. Regs. 30-12(C)
(recognizing the “environmental losses” that can be caused by bulkheads and therefore prohibiting
their use except as a limited means of erosion control). Therefore, given the nature and extent of
Respondent’s violations, and in particular the degree to which those violations offend certain policies
in the applicable regulations, I find that the Department’s decision to assess a $1000 fine against
Respondent and to require him to re-construct his bulkhead so that it complies with both his permit
and the relevant regulations is an appropriate remedy for those violations.
7.Pursuant to ALC Rule 29(C), any issues raised in these proceedings, but not
addressed in this Order, are deemed denied.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated above,
IT IS HEREBY ORDERED that the Department’s Administrative Enforcement Order of
October 30, 2003, requiring Respondent to pay an administrative fine of $1000 and re-locate his
improperly constructed bulkhead so that it is in compliance with his permit, OCRM-02-668, and the
applicable regulations, is SUSTAINED.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
August 23, 2004
Columbia, South Carolina |
