Hill v. South Carolina Dep't Of Health And Envtl. Control

• Decision Date: 23 August 2010
• Docket Number: No. 26873.,26873.
• Citation: 698 S.E.2d 612,389 S.C. 1
• Parties: C. Wayne HILL, Respondent,v.SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL, Bureau of Ocean and Coastal Resource Management, Appellant,andMarlon Weaver and South Carolina Coastal Conservation League, Intervenors,Of whom South Carolina Coastal Conservation League is Appellant.
• Court: South Carolina Supreme Court

389 S.C. 1

698 S.E.2d 612

C. Wayne HILL, Respondent,v. SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL, Bureau of Ocean and Coastal Resource Management, Appellant,andMarlon Weaver and South Carolina Coastal Conservation League, Intervenors,Of whom South Carolina Coastal Conservation League is Appellant.

No. 26873.

Supreme Court of South Carolina.

Heard June 25, 2010.

Decided Aug. 23, 2010.

COPYRIGHT MATERIAL OMITTED

Amy E. Armstrong and James S. Chandler, Jr., both of Pawleys Island, for Appellant South Carolina Coastal Conservation League.

General Counsel Carlisle Roberts, Jr., of Columbia, and Staff Attorney

Davis A. Whitfield-Cargile, of North Charleston, for Appellant South Carolina Department of Health and Environmental Control, Bureau of Ocean and Coastal Resource Management.

Kenneth R. Moss, of The McGougan Law Firm, of Little River, for Respondent.

Justice BEATTY.

C. Wayne Hill (“Hill”) was issued a notice of violation by the South Carolina Department of Health and Environmental Control, Bureau of Ocean and Coastal Resource Management (“DHEC”) for constructing a bulkhead that was not in compliance with a Critical Area Permit issued by the agency. DHEC and an intervenor, the South Carolina Coastal Conservation League (“League”), now appeal from a circuit court order that reversed an administrative law judge's (“ALJ”) determination that Hill had violated the terms of the permit. We reverse.

I. FACTS

Hill owns Lot 1, Block S2, on 55th Avenue in the Heritage Shores Subdivision of Cherry Grove in North Myrtle Beach, South Carolina. Hill's lot is a narrow parcel that is bounded to the south and to the west by a manmade canal that runs through the residential subdivision. In July 2002, Hill filed a Permit Application with DHEC for the construction of a 110' bulkhead ¹ for erosion control and 4' x 12' walkway (with handrails) leading to a 3' x 15' ramp and a 10' x 12' floating private residential dock.

On September 19, 2002, DHEC issued a Critical Area Permit to Hill for the construction of the bulkhead, walkway, ramp, and dock as requested by Hill (OCRM-02-668). The permit listed ten Special Conditions, including Special Condition 1, “that the proposed bulkhead is located within 1.5' from [the] escarpment.”

Work on the bulkhead began on or about July 15, 2003. DHEC inspected the site in July 2003 and asked Hill to cease all work after finding the bulkhead was not being constructed in accordance with Special Condition 1 of the issued permit. Hill stopped for approximately one week and then resumed construction, completing the bulkhead by August 4, 2003. Hill admittedly also “proceeded to backfill the area behind the newly constructed bulkhead.”

DHEC sent Hill a Notice of Violation, which stated the bulkhead as constructed was not in compliance with the permit issued for the tidelands critical area and was in “potential violation of the South Carolina Coastal Zone Management Act [CZMA], S.C.Code Ann. §§ 48-39-10 et seq. (Supp.2000).” Hill denied the violation, but offered to restore an area to offset any loss of wetlands that might have occurred during the construction of the bulkhead. DHEC thereafter sent Hill an Admissions Letter, along with Proposed Findings of Fact. Hill responded by denying any violation and asserting the bulkhead was constructed in accordance with the permit and applicable law.

DHEC issued an Administrative Enforcement Order in 2003, finding Hill had constructed a bulkhead in the tidelands critical area too far channelward and out of compliance with the issued permit. DHEC ordered Hill (1) to pay an administrative fine of $1,000; (2) to submit a work plan to DHEC within 30 days of the date of the order for the removal and reinstallation of the bulkhead in accordance with Special Condition 1 of the issued permit; and (3) to complete re-installation of the bulkhead in accordance with the permit within 90 days from the date of the order. It was further provided that if Hill did not either appeal the order or comply with it “within 30 days of receipt hereof,” DHEC would file an action in the circuit court to enforce the order.

Shortly thereafter, Hill filed a notice with DHEC seeking to challenge the Administrative Enforcement Order, and the matter was submitted for a hearing before an ALJ. The ALJ granted Marlon Weaver and the League permission to intervene.² The ALJ sustained the Administrative Enforcement Order, requiring Hill to relocate the bulkhead to comply with the terms of the permit and to pay an administrative fine of $1,000. The ALJ found that, “because the tidal marshland between the high ground of [Hill's] lot and the adjoining canals is a critical area within the coastal zone of the state, [Hill] was required to obtain-and did obtain-a permit from OCRM [DHEC] before constructing a bulkhead in that marshland.” The ALJ stated Hill's permit allowed him to construct a bulkhead 110' in length that would be within 1.5' of the escarpment on Hill's property. However, the bulkhead Hill constructed was actually 145' in length and was erected at distances ranging from 6.5' to 31' from the existing escarpment, which was “significantly out of compliance with the permit he was issued by [DHEC]” and in violation of the CZMA.

The ALJ further found that Hill's actions had “resulted in the improper filling of over 1000 square feet of marshland” and that “[t]his filling is considered a major violation of the” CZMA. The ALJ found Hill had “used the bulkhead and the accompanying backfill to significantly increase the size of his residential lot, far exceeding the amount necessary for erosion control.” The ALJ concluded DHEC's decision to assess a $1,000 fine and to require Hill to reconstruct the bulkhead so as to be in compliance with his issued permit and the CZMA “is an appropriate remedy for those violations.”

Hill filed a petition for review of the ALJ's order with the South Carolina Coastal Zone Management Appellate Panel (“Appellate Panel”). The Appellate Panel issued a written Final Administrative Order affirming the order of the ALJ and adopting the Findings of Facts and Conclusions of Law contained therein.

Hill next sought review from the circuit court. The circuit court reversed the order of the ALJ and simultaneously quashed DHEC's Administrative Enforcement Order. As an initial matter, the circuit court ruled the ALJ lacked subject matter jurisdiction to hear Hill's appeal of DHEC's Administrative Enforcement Order.

The circuit court further ruled the ALJ erred in (1) failing or refusing to address the issue of the impact of a quit-claim deed executed in favor of Hill's predecessor-in-title, which granted certain rights to dredge and deposit spoil material above an agreed high water mark; (2) using an incorrect Critical Area Line and in finding Hill had constructed the bulkhead too far into the critical area; and (3) failing or refusing to address Hill's argument that DHEC's Administrative Enforcement Order violated Hill's equal protection rights based on the allegation DHEC took no steps to remove the docks of neighboring property owners who would likewise be in violation if Hill's bulkhead was deemed in violation.

DHEC and the League now appeal from the circuit court's order. “DHEC” will be used hereinafter to refer to both the agency individually and collectively to the agency and its co-appellant, the League, where appropriate.

II. STANDARD OF REVIEW

This case involved multiple levels of review. Under the APA, the ALJ presides as the fact-finder in contested cases. Brown v. S.C. Dep't of Health & Envtl. Control, 348 S.C. 507, 560 S.E.2d 410 (2002). The proceeding before the ALJ was a de novo hearing, which included the presentation of evidence and testimony. Id.

Under the review procedure then in effect,³ the Appellate Panel could not make its own findings of fact and was authorized to reverse the ALJ only if the ALJ's findings were not supported by substantial evidence or were controlled by an error of law. Dorman v. S.C. Dep't of Health & Envtl. Control, 350 S.C. 159, 565 S.E.2d 119 (Ct.App.2002).

The circuit court's review, as well as this Court's, is limited to determining whether the findings were supported by substantial evidence or were controlled by an error of law. Responsible Econ. Dev. v. S.C. Dep't of Health & Envtl. Control, 371 S.C. 547, 641 S.E.2d 425 (2007); Jones v. S.C. Dep't of Health & Envtl. Control, 384 S.C. 295, 682 S.E.2d 282 (Ct.App.2009).

In determining whether the ALJ's decision was supported by substantial evidence, this Court need only find, looking at the entire record on appeal, evidence from which reasonable minds could reach the same conclusion that the ALJ reached. Jones, 384 S.C. at 304, 682 S.E.2d at 287. “The mere possibility of drawing two inconsistent conclusions from the evidence does not prevent a finding from being supported by substantial evidence.” Id. (quoting DuRant v. S.C. Dep't of Health & Envtl. Control, 361 S.C. 416, 420, 604 S.E.2d 704, 707 (Ct.App.2004)).

III. LAW/ANALYSIS

On appeal, DHEC raises four issues concerning the circuit court's decision. In addition, Hill raises two points that warrant separate consideration.

A. Findings of the ALJ

DHEC first contends the circuit court erred in improperly making new findings of fact and in overturning the ALJ's findings of fact in violation of the applicable standard of review.

Specifically, DHEC contends the circuit court erred in “overturn[ing] the ALJ's findings that the area between Hill's property and adjoining canals is tidal marsh; that OCRM accurately measured the alleged violations; that Hill improperly filled in excess of 1,000 square feet of critical area marsh; that Hill erected his bulkhead too far channelward of the escarpment; and that Hill's actions resulted in a permanent loss of productivity from the estuary.” DHEC asserts each of the ALJ's findings was fully supported by substantial evidence and these findings support the ALJ's conclusion that...