Dorman v. DEPT. OF HEALTH AND ENV.

• Decision Date: 28 May 2002
• Docket Number: No. 3502.,3502.
• Citation: 565 S.E.2d 119,350 S.C. 159
• Court: South Carolina Court of Appeals
• Parties: Paul Dexter DORMAN, II, and Charles R. May, III, M.D., Respondents, v. South Carolina DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL and Bureau of Ocean and Coastal Resource Management, and Frances Pate Adams, Defendants, of whom Frances Pate Adams is, Appellant.

350 S.C. 159

565 S.E.2d 119

Paul Dexter DORMAN, II, and Charles R. May, III, M.D., Respondents, v. South Carolina DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL and Bureau of Ocean and Coastal Resource Management, and Frances Pate Adams, Defendants, of whom Frances Pate Adams is, Appellant.

No. 3502.

Court of Appeals of South Carolina.

Heard April 17, 2002.

Decided May 28, 2002.

David J. Gundling, and Jeffrey J. Galan, both of Pawley's Island, for appellant.

Howell V. Bellamy, Jr., and Douglas M. Zayicek, both of Bellamy, Rutenburg, Copeland, Epps, Gravely & Bowers, of Myrtle Beach, for respondents.

STILWELL, Judge:

Frances Pate Adams appeals the circuit court's order reinstating the Administrative Law Judge's (ALJ's) denial of a dock permit, which was overturned on appeal by the Coastal Zone Management Appellate Panel (the Panel) of the Bureau of Ocean and Coastal Resource Management (OCRM).¹ We affirm in part, reverse in part, and remand.

FACTS/PROCEDURAL BACKGROUND

LaFon LeGette² applied for a critical area permit to build a boat dock with a roof and floating dock. OCRM initially granted the permit, but the neighbors on both sides, Dorman and May, objected and requested a contested case hearing because the proposed boat dock would crowd too close to their existing docks and because the roof would impinge on their view. Adams' lot is pie-shaped, with only 33 feet of water frontage, so any dock configuration will necessarily cross the extended property lines of the neighboring lots.

The ALJ reversed the OCRM staffs determination and denied the permit because the dock (1) would obstruct navigation and create problems with May's floating dock, (2) would cross extended property lines and no justification was given for an exception to the general rule, (3) would rest on the mud bottom at low tide, and (4) would diminish the use and enjoyment of neighboring lots. He stated none of these grounds individually was significant enough to deny the permit, but cumulatively they posed a serious problem. He ruled Regulation 30-12.A(2)(o), which requires that a lot have minimum water frontage of 50 feet to qualify for a dock permit, was not applicable, since the lot was platted prior to 1993. He did not directly rule on the issue of whether the dock roof would seriously impact views, but his ruling as to diminishment and enjoyment of neighboring lots effectively did so. He balanced the factors under S.C.Code Ann. § 48-39-150(A) to be considered in granting or denying a permit, which was within his discretion.

On appeal, the Panel reversed the ALJ and reinstated the grant of the permit. The Panel made its own findings of fact, on which it based its legal conclusions that the purpose and policy of the Regulation would not be undermined by granting the permit. The Panel concluded the ALJ incorrectly interpreted "navigation" within the meaning of the regulations. "It is the position of OCRM that any navigational issues between docks is a private property owner issue. It is not the policy of OCRM to police navigational disputes that should be dealt with among the adjacent property owners." The Panel also found, based on its own review of the record below, that the dock would not rest on the creek bottom at normal low tide and that the dock as permitted would not diminish the enjoyment or value of adjacent land owners. Finally, the Panel held that OCRM was properly before it as a party on appeal. The circuit court reversed the Panel, holding that it applied the wrong standard of review and improperly substituted its judgment for that of the ALJ. Alternatively, the circuit court held the petition for review was insufficient, and therefore the appeal should have been dismissed for lack of jurisdiction, and OCRM was not properly a party on appeal, since it did not appeal from the ALJ's order. The circuit court judge ruled the ALJ's interpretation of all subsections of Regulation 30-12.A(2) at issue were supported by substantial evidence, except subsection (o), which he held prohibited lots with less than fifty feet of water frontage from having a dock. Thus, the circuit court reinstated the ALJ's order as modified.

LAW/ANALYSIS

Standard of Review: Substantial Evidence Standard

As the parties acknowledge, the crucial and perhaps diapositive issue in this appeal revolves around applying the correct standard of review.

This case involves appearances before four tribunals and includes three levels of appellate review.... [T]he ALJ presided as the fact-finder ... [and] was not sitting in an appellate capacity and was not restricted to a review of OCRM's permit decision....

The first appellate review ... by the Board [was] under its limited scope of review set forth in § 1-23-610(D). The second appellate review [before] the circuit court ... is [governed by the standard] set forth in § 1-23-380(A)(6).... Our scope of review is the same as that established for the circuit court. § 1-23-380(A)(6).

Brown v. S.C. Dep't of Health & Envtl. Control, 348 S.C. 507, 512, 560 S.E.2d 410, 413 (2002). "[I]n environmental permitting cases, the ALJ presides as the finder of fact. § 1-23-600(B).... The Board, on the other hand, sits as a quasi-judicial tribunal in reviewing the final decision of the ALJ. § 1-23-610(A). As the `reviewing tribunal,' the Board is not entitled to make findings of fact...." Id., 348 S.C. at 520, 560 S.E.2d at 417; see also Converse Power Corp. v. S.C. Dep't of Health & Envtl. Control, 350 S.C. 39, 45, 564 S.E.2d 341, 345 (Ct.App. 2002)

.

On appeal, the standard for appellate review to the Panel is whether the ALJ's findings are supported by substantial evidence under S.C.Code Ann. § 1-23-610(D) (Supp. 2001).³ "`The "possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ's] finding from being supported by substantial evidence."'" Leventis v. S.C. Dep't of Health & Envtl. Control, 340 S.C. 118, 130-31, 530 S.E.2d 643, 650 (Ct.App.2000)cert. denied (June 13, 2000). Substantial evidence "is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion that the administrative agency reached...." Lark v. Bi-Lo, 276 S.C. 130, 135, 276 S.E.2d 304, 306 (1981). The Panel cannot reweigh the facts or make findings of fact in accord with its own view of the evidence. The Panel can validly reverse the ALJ based on an error of law under this appellate standard or if his findings are not supported by substantial evidence. The Panel stated the ALJ misinterpreted navigation in the regulations to include issues between neighbors. Thus, that portion of the Panel's order on OCRM policy underlying navigation and construing its regulation was proper.

Adams cites the recent cases of McQueen and Guerard, both issued since the creation of the Administrative Law Judge Division (ALJD) for the proposition that the Panel retains essentially a de novo standard of review and may make its own findings based on its own review of the evidence. McQueen v. S.C. Coastal Council, 329 S.C. 588, 496 S.E.2d 643 (Ct.App.1998), rev'd 340 S.C. 65, 530 S.E.2d 628 (2000), vacated and remanded by 533 U.S. 943, 121 S.Ct. 2581, 150 L.Ed.2d 742 (2001) in light of Palazzolo v. Rhode Island, 533 U.S. 606, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001). Guerard v. Whitner, 276 S.C. 521, 280 S.E.2d 539 (1981). Initially, we note that the first is on dubious legal footing and the second was decided well before the creation of the ALJD.

Adams misapprehends the operative date in these decisions. The key date is not when the decisions were published but when the cases were heard below and what procedure they followed. The ALJD was created by the Restructuring Act of 1993. 1993 Act No. 181, §§ 11-19 (eff. July 1, 1993), 1993 S.C. Acts 1407, 1433-1448 (codified as amended at S.C.Code Ann. §§ 1-23-310 to -660 (Supp.2001).) Both of these cases, though decided after the creation of the ALJD, were heard in the first instance by the Board as a contested case, and hence retained the old standard of review.

Under the applicable standard of review in cases heard by the ALJ, the Board or Panel must affirm the ALJ if the findings are supported by substantial evidence, not based on the Panel's own view of the evidence. To hold otherwise would contravene the clear mandate of § 1-23-610(D) and render the ALJ process a superfluous nullity.

I. Interpretation of Regulation 30-12.A(2)

On appeal, Adams challenges the interpretation and application of several subsections of Regulation 30-12.A(2)⁴ governing dock permits.

(a) Docks ... shall normally be limited to one structure per parcel and shall not impede navigation or restrict the reasonable public use of State lands and waters; ...

(n) Docks must extend to the first navigable creek ... and floating docks which rest upon the bottom at normal low tide will not normally be permitted.

(o) For lots platted and recorded after May 23, 1993, ... [l]ots less than 50 feet wide are not eligible for a dock.

(p) No docks ... should normally be allowed to be built closer than 20 feet from extended property lines....However, the Department may allow construction closer than 20 feet or over extended property lines where there is no material harm to the policies of the Act.

(r) Roofs on private docks will be permitted on a case-bycase basis, with consideration given to the individual merits of each application. Precedent in the vicinity for similar structures will be considered as well as the potential for impacting the views of others. Roofs which have the potential to seriously impact views will not be allowed, while those that have minimal impact may be allowed....

23A S.C.Code Ann. Regs. 30-12.A(2) (Supp.2001)

Initially, we address the circuit court's ruling that reversed both the ALJ and the Panel's finding that Regulation 30-12.A(2)(o) is inapplicable to this case because the lot in question was platted before 1993. By its clear terms, this subsection is...