Anton v. South Carolina Coastal Council, 24408

Decision Date06 April 1995
Docket NumberNo. 24408,24408
Citation321 S.C. 481,469 S.E.2d 604
PartiesShickrey ANTON, Appellant, v. SOUTH CAROLINA COASTAL COUNCIL, and South Carolina Wildlife and Marine Resources Department, Defendants, of whom South Carolina Coastal Council is Respondent. . Heard
CourtSouth Carolina Supreme Court

A. Camden Lewis and Pete Kulmala, both of Lewis, Babcock & Hawkins, Columbia, for appellant.

Mary D. Shahid, of South Carolina Coastal Council, Charleston, for respondent.

FINNEY, Chief Justice:

This is an appeal from an order granting a motion to dismiss appellant Shickrey Anton's complaint for failure to state a cause of action. We affirm in part and reverse in part.

Appellant applied for a permit to place earth fill on his property located on Hilton Head Island. Appellant's property is under the jurisdiction of the Army Corps of Engineers (Corps) because part of his land has been declared jurisdictional wetlands. As a result, appellant is required to obtain a permit under Section 404 of the Federal Clean Water Act, 33 U.S.C. § 1344, for the placement of fill material. Additionally, since the property is located on the coast, it is regulated by the Coastal Zone Management Act (CZMA), 16 U.S.C. §§ 1451-1464. Before the Corps can issue a permit; a Certification of Consistency must be obtained from the South Carolina Coastal Council certifying that the proposed project is consistent with the State's federally approved Coastal Management Plan. 16 U.S.C. § 1456(c)(3)(A).

Coastal Council's Management Committee initially considered appellant's application and certified the project as being consistent with the state plan. On the following day at a meeting of the full Coastal Council, a member of the management committee stated that after the committee's vote he had acquired some new information which might have affected his vote. The certification was then returned from the full Coastal Council to the Management Committee for reconsideration. At a subsequent meeting the committee voted to deny certification. Coastal Council adopted the committee's decision. Coastal Council notified the Corps of its objection to the certification. The Corps denied appellant's Section 404 permit application. Appellant filed a petition with the U.S. Secretary of Commerce to override the denial. The Secretary of Commerce issued an order refusing to override the Coastal Council's objection.

Appellant brought suit against Coastal Council seeking mandamus and asserting ultra vires and inverse condemnation causes of action. Coastal Council filed a motion to dismiss pursuant to Rule 12(b), SCRCP. The special circuit judge issued an order dismissing the action. Appellant sought reconsideration and in response, the trial judge withdrew his initial order and substituted an order which reached the same result but based on a different analysis. 1

As an initial matter, appellant claims the order issued is null because the special circuit judge was not validly in office. Appellant asserts there must be a commission from the Governor to make Master-In-Equity Thomas Kemmerlin's appointment valid. He contends a special circuit judge can be commissioned only according to the provisions of S.C.Code Ann. §§ 14-5-170 and 180 (1977) pertaining to filling a vacancy or relieving an overcrowded docket. 2 We disagree.

The South Carolina Constitution gives the Chief Justice of the Supreme Court the power to "assign any judge to sit in any court within the unified judicial system." S.C. Const. art. V, § 4. Furthermore, where there is a conflict between the statute and the State Constitution, the Constitution overrides the statute. State v. Whitener, 225 S.C. 244, 81 S.E.2d 784 (1954) (legislature may not take away powers specifically granted to the Supreme Court by the Constitution). The Chief Justice has inherent power to assign judges within the unified judicial system. Accordingly, Judge Kemmerlin was lawfully presiding as special circuit judge and his order was validly issued.

On the merits, the trial judge concluded that while Coastal Council was the decision maker as to consistency certification any loss suffered by appellant resulted from the Corps' decision to deny appellant's application for a Clean Water Act permit. The trial judge found that the loss, if any, must be pursued by suing the U.S. Corps of Engineers. Accordingly, the trial court dismissed the action finding appellant failed to state a cause of action as the relief sought could not be granted in circuit court. We agree that to the extent appellant alleges inverse condemnation, relief from any loss should be pursued in federal...

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2 cases
  • Ogburn-Matthews v. Loblolly Partners
    • United States
    • South Carolina Court of Appeals
    • August 3, 1998
    ...(1991). In other words, the Agency action is somewhat less critical than the actual permitting itself. See Anton v. South Carolina Coastal Council, 321 S.C. 481, 469 S.E.2d 604 (1996) (Only when a federal permit is denied does a "taking" occur in any sense. Thus, no cause of action arises f......
  • Sea Cabins v. City of North Myrtle Beach
    • United States
    • South Carolina Supreme Court
    • June 11, 2001
    ...has reached a final decision regarding application of the regulations to the property at issue); Anton v. South Carolina Coastal Council, 321 S.C. 481, 469 S.E.2d 604 (1996) (taking does not occur until permit is 8. 83 Am.Jur.2d Zoning and Planning § 680 (1992) (ordinances which prohibit re......

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