COASTAL CON. LEAGUE v. DEPT. OF HEALTH, No. 25944.

• Court: United States State Supreme Court of South Carolina
• Citation: 363 S.C. 67,610 S.E.2d 482
• Decision Date: 22 February 2005
• Docket Number: No. 25944.
• Parties: S.C. COASTAL CONSERVATION LEAGUE, Coastal Conservation Association — South Carolina, Beth Keyserling-Kramer, Frank DeMarco, Karen DeMarco, Joseph Mueller, Mary Mueller, Vicky Snowden, John Snowden, Janice Maize, John Maize, Kerry Solomon, Cindi Solomon, Julie Gautreaux, Wilson Gautreaux, and Gerald Hazin, Respondents, v. SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL, Office of Ocean and Coastal Resource Management, and LandTech of Charleston, L.L.C., Appellants.

363 S.C. 67
610 S.E.2d 482

S.C. COASTAL CONSERVATION LEAGUE, Coastal Conservation Association — South Carolina, Beth Keyserling-Kramer, Frank DeMarco, Karen DeMarco, Joseph Mueller, Mary Mueller, Vicky Snowden, John Snowden, Janice Maize, John Maize, Kerry Solomon, Cindi Solomon, Julie Gautreaux, Wilson Gautreaux, and Gerald Hazin, Respondents,
v.
SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL, Office of Ocean and Coastal Resource Management, and LandTech of Charleston, L.L.C., Appellants

No. 25944.

Supreme Court of South Carolina.

Heard October 20, 2004.

Decided February 22, 2005.

Rehearing Denied April 7, 2005.

363 S.C. 70

Leslie West Stidham, of Charleston, for Appellant South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management; Ellison D. Smith, IV, of Smith, Bundy, Bybee & Barnett, of Mt. Pleasant, and James B. Richardson, of Richardson & Birdsong, of Columbia, for Appellant LandTech of Charleston, L.L.C

G. Trenholm Walker and Amanda Rajsich Maybank, both of Pratt-Thomas, Epting & Walker, PA, of Charleston, for Respondents.

Neil C. Robinson, Jr. and Paul A. Dominick, both of Nexsen Pruet Adams Kleemeier, LLC, of Charleston, for Amicus Curiae South Carolina Tourism Council, Inc.

Justice PLEICONES:

This case involves a permit to build a concrete bridge for vehicular traffic over "critical area" as defined in South Carolina Code section 48-39-10(J).¹ The South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management (OCRM) granted the permit. After a contested hearing, the Administrative Law Judge Division (ALJD) upheld the grant. On appeal the Coastal Zone Management Appellate Panel of OCRM (the Panel) affirmed. The circuit court reversed and vacated the permit. We certified the case for review under Rule 204(b), SCACR. We reverse the circuit court's decision and reinstate the permit.

FACTS

LandTech of Charleston, L.L.C. (LandTech) applied to OCRM for a permit to build a bridge across the marshes of the Wando River to Park Island in the Town of Mt. Pleasant. OCRM staff deemed Park Island a small island and therefore considered the permit application governed by the access-to-small-islands regulation, Regulation 30-12(N) (Small Islands

363 S.C. 71

Regulation).² LandTech claimed that Park Island was not a small island and that the application was governed by the transportation-projects regulation, Regulation 30-12(F) (Transportation Regulation).³ OCRM disagreed and processed the permit application under the Small Islands Regulation, the criteria of which are more stringent than those of the Transportation Regulation. OCRM granted the permit

Respondents objected and requested a contested hearing before the ALJD. At the hearing, LandTech raised its argument that Park Island was not a small island and that the Transportation Regulation, not the Small Islands Regulation, governed. Respondents countered that Park Island was a small island and that the criteria for the grant of a permit for bridge access had not been met. OCRM staff agreed with Respondents that Park Island was a small island but argued that the Small Islands Regulation was satisfied.

The Administrative Law Judge (ALJ) observed that "small island" is not defined in the regulations and decided "there needs to be some standard to guide the OCRM in its application of its regulation dealing with bridges to islands." The ALJ compared Park Island only to other islands within the Wando River basin; islands in other coastal areas were not considered. Because Park Island was larger than eighty percent of the Wando River basin's islands, the ALJ found that Park Island was not a small island. He therefore adopted LandTech's position that the application was governed by the Transportation Regulation, not the Small Islands Regulation. He held that the Transportation Regulation was satisfied and upheld the permit.

Nevertheless, because OCRM staff had granted the permit under the Small Islands Regulation, the ALJ addressed whether the permit complied with that regulation assuming Park Island were small. He found that each factor in the regulation that OCRM must consider weighed in favor of granting the permit. He stated that even if the Small Islands Regulation were the governing regulation, its criteria had been satisfied.

363 S.C. 72

Respondents appealed to the Panel, which affirmed without analysis

Respondents then appealed to the circuit court, which reversed. With respect to the issue whether the Transportation Regulation or Small Islands Regulation governed, the court held that the ALJ erred by using a test not promulgated by regulation. The court deferred to OCRM staff and found that Park Island was in fact a small island and that the permit application was therefore governed by the Small Islands Regulation. The court held that the permit's issuance did not comply with that regulation's criteria.

In addition, the circuit court held that there was not substantial evidence to support the finding that the permit's issuance complied with the regulation requiring OCRM to consider the direct and cumulative effects of a project, Regulation 30-11 (Effects Regulation).⁴ The court vacated the grant of the permit.

LandTech appeals, arguing that the Transportation Regulation is the governing project-specific regulation and that its criteria are satisfied. OCRM also appeals, arguing that the Small Islands Regulation governs and that its criteria are satisfied. Both argue that the grant of the permit complies with the Effects Regulation.

ISSUES

I. Whether the Transportation Regulation or the Small Islands Regulation is the governing project-specific regulation.

II. Whether the grant of the permit complies with the governing project-specific regulation.

III. Whether the grant of the permit complies with the Effects Regulation.

STANDARD OF REVIEW

The ALJ presided as the finder of fact at the contested hearing. S.C.Code Ann. § 1-23-600(B) (Supp.2003).

363 S.C. 73

The Panel's review of the ALJ's decision was governed by South Carolina Code section 1-23-610(D).⁵ The circuit court's appellate review of the Panel's decision was governed by section 1-23-380(A)(6),⁶ which also governs this Court's review of the circuit court's decision. Brown v. Dep't of Health and Envtl. Control, 348 S.C. 507, 512, 560 S.E.2d 410, 413 (2002).

ANALYSIS

South Carolina Code section 48-39-30⁷ sets forth state policy with respect to development of critical area. Section 48-39-150⁸ lists general considerations for OCRM to consider when deciding whether to grant a permit. The Effects Regulation repeats these policies and considerations and further requires OCRM to consider the cumulative effects of a project in critical area. Regulation 30-12⁹ sets forth project-specific criteria for proposed construction in critical area, including transportation projects and projects for access to small islands.

363 S.C. 74

I. The Governing Project-Specific Regulation

The circuit court held that the Small Islands Regulation, not the Transportation Regulation, was the governing project-specific regulation. We disagree.

"As a creature of statute," OCRM has "only those powers expressly conferred or necessarily implied for it to effectively fulfill the duties with which it is charged." Captain's Quarters Motor Inn, Inc. v. S.C. Coastal Council, 306 S.C. 488, 490, 413...