Weatherholtz v. South Carolina Department of Health and Environmental Control, 011917 SCALC, 13-ALJ-07-0494-A-CC

Docket Nº:13-ALJ-07-0494-A-CC
Opinion Judge:Deborah Brooks Durden, Judge S.C. Administrative Law Court
Party Name:James Weatherholtz, Petitioner, v. South Carolina Department of Health and Environmental Control, Respondent.
Attorney:For Petitioner: Mary D. Shahid, Esquire For Respondent: Bradley D. Churdar, Esquire
Case Date:January 19, 2017
Court:South Carolina Administrative Law Court Decisions
 
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James Weatherholtz, Petitioner,

v.

South Carolina Department of Health and Environmental Control, Respondent.

No. 13-ALJ-07-0494-A-CC

South Carolina Administrative Law Court Decisions

January 19, 2017

(Appellate Case No. 2014-001939)

For Petitioner: Mary D. Shahid, Esquire

For Respondent: Bradley D. Churdar, Esquire

FINAL ORDER AND DECISION ON REMAND

Deborah Brooks Durden, Judge S.C. Administrative Law Court

STATEMENT OF THE CASE

This matter is before the Court on remand from the South Carolina Court of Appeals. The Court of Appeals issued an unpublished opinion containing specific instructions for an additional finding of fact and related conclusions of law regarding the denial of a private recreational dock permit.

James Weatherholtz (Petitioner) filed an application for the dock permit with the South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management (Department or DHEC) on June 13, 2013. Petitioner wishes to construct a dock reaching from his property at 949 Compass Point on James Island in Charleston, South Carolina, over the marsh, to a small unnamed tributary of Kushiwah Creek. On August 7, 2013, the Department denied Petitioner's application on the grounds that the proposed dock did not meet regulatory requirements.

Weatherholtz filed a request for final review conference with the DHEC Board. The Board declined review and Weatherholtz filed a contested case with the ALC. The matter was assigned to the Honorable Carolyn Matthews. A contested case hearing was conducted on March 5, 2014, and an Amended Final Order and Decision was issued on August 12, 2014. Judge Matthews found that the creek in question did not meet the width requirements set forth by regulation1 and denied the permit. The order stated that DHEC staff measured the width of the creek at four places within Petitioner's extended property lines. The order did not contain a finding regarding whether any of these measurements were taken at the precise location Petitioner intended to build his dock. Weatherholtz appealed the decision to the Court of Appeals. In its per curium unpublished opinion, the Court of Appeals remanded the matter without affirming or reversing and provided the following instruction: "[W]e remand this case to the ALC for a specific factual finding as to whether DHEC staff measured the creek's width at the exact location of the proposed dock and not simply within the Appellant's property lines. The ALC should then apply that finding to subsection [(A)(2)(c)](i)." James Weatherholtz v. S.C. Dept. of Health & Envtl. Control, Op. No. 2016-UP-180 (S.C. Ct. App. April 20, 2016). A conference call was held on June 15, 2016 to discuss the scope and procedure on remand. The parties submitted briefs and...

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