Kiawah Dev. Partners v. S.C. Dep't of Health & Envtl. Control
| Decision Date | 27 February 2013 |
| Docket Number | No. 27065.,27065. |
| Citation | 401 S.C. 570,738 S.E.2d 455 |
| Parties | KIAWAH DEVELOPMENT PARTNERS, II, Respondent, v. SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL, Appellant. and South Carolina Coastal Conservation League, Appellant, v. South Carolina Department of Health and Environmental Control and Kiawah Development Partners, II, of whom South Carolina Department of Health and Environmental Control is, Appellant, and Kiawah Development Partners, II, is, Respondent. Appellate Case No. 2010–155629. |
| Court | South Carolina Supreme Court |
OPINION TEXT STARTS HERE
Background: Conservation organization and Department of Health and Environmental Control (DHEC) appealed order of Superior Court, Richland County, Ralph K. Anderson, III, Administrative Law Judge, reversing DHEC's partial denial of landowner's critical area permit application to construct revetment and bulkhead for erosion control on shoreline of river bordering barrier island in coastal zone.
Holdings: On rehearing, the Supreme Court, Toal, C.J., held that:
(1) administrative law court (ALC) did not exceed its authority in ordering approval of permit with modifications presented during review;
(2) substantial evidence supported ALC's findings that the proposed bulkhead/revetment complied with Coastal Zone Management Act (CZMA);
(3) substantial evidence supported ALC's findings that the proposed bulkhead/revetment complied with Coastal Zone Management Program (CZMP);
(4) DHEC did not have regulatory authority to deny critical area permit due to possible development outside critical area but within coastal zone; and
(5) substantial evidence supported ALC's findings that the proposed bulkhead/revetment met specific regulatory criteria for bulkheads and revetments.
Affirmed.
Pleicones, J., filed a dissenting opinion in which Hearn, J., concurred.Jaquelyn Sue Dickman and Bradley David Churder, of South Carolina Department of Health and Environmental Control, both of Columbia, Davis Arjuna Whitfield–Cargile, of McDougall Law Firm, of Beaufort, and Amy Armstrong, of Pawley's Island, for Appellants.
Gedney M. Howe, III of Gedney M. Howe III, PA, and George Trenholm Walker of Pratt–Thomas Walker, PA, both of Charleston, for Respondent.
Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Deputy Attorney General Robert Cook, Assistant Attorney General Parkin Hunter, all of Columbia, for Amicus Curiae of Savannah.
C. Mitchell Brown and A. Mattison Bogan, of Nelson Mullins Riley & Scarborough LLP, both of Columbia, for Amicus Curiae.
This case is an appeal from an administrative law court's (ALC) decision authorizing Kiawah Development Partners (Respondent) to construct a bulkhead and revetment on Captain Sam's Spit (the Spit) on Kiawah Island. We affirm.
Kiawah Island is a barrier island fronting the Atlantic Ocean with over ten miles of beachfront. The island is bounded on the south by the Atlantic Ocean, on the east by the Stono River Inlet, on the north by the Kiawah River, and on the west by the Kiawah River where the river enters the Atlantic through Captain Sam's Inlet. The Spit is located adjacent to Captain Sam's Inlet at the southwest end of Kiawah Island. The Spit is a sandy land formation surrounded on three sides by water—the Atlantic Ocean, Captain Sam's Inlet, and the Kiawah River. Respondent owns Captain Sam's peninsula.
In 1999, the Office of Coastal Resource Management (OCRM) of the South Carolina Department of Health and Environmental Control (DHEC) established a baseline and building set back line twenty feet landward based on information that the Spit had accreted, or grown, and had not been subject to any significant, measurable erosion between 1959 and 1999. The movement of the baseline prompted Respondent to consider development of the Spit. On February 29, 2008, Respondent submitted an application to DHEC for a permit to construct a combination bulkhead and revetment in the area. The application sought authorization to construct a 2,783 foot bulkhead and 2,783 foot by 40 foot articulated concrete block revetment on the shoreline of the Kiawah River.
On December 18, 2008, DHEC issued a conditional permit approving the construction of the erosion control structure for a distance of 270 feet. DHEC refused the permit request for the remaining 2,513 feet based on its concerns regarding cumulative negative impacts, including interference with natural inlet formation and possible adverse effects on wintering piping plovers. DHEC also determined that the project was contrary to the policies set forth in the Coastal Zone Management Program (CZMP). Respondent requested a final review conference by the DHEC Board (the Board), but the Board declined to hold a review conference.
Respondent then requested a contested case hearing before the ALC, and challenged the denial of the construction of a bulkhead and revetment along the remaining 2,513 feet. The Coastal Conservation League (CCL) opposed the construction of any bulkhead or revetment on the Spit, and also requested a contested case hearing challenging the decision to authorize the 270 foot structure, but supporting denial of the remainder. The cases were consolidated. The ALC granted Respondent's permit to construct the bulkhead and revetment, subject to certain conditions reducing and altering its size. DHEC and CCL (collectively, Appellants) appealed the ALC's order. This Court reversed the ALC and remanded the issue in a decision published November 21, 2011. We subsequently granted Respondent's petition for rehearing, and accepted an amicus brief from the Savannah River Maritime Commission (the SRMC). We now withdraw our initial opinion, and issue this opinion, affirming the decision of the ALC.
The issues in this case are consolidated and clarified as follows:
I. Whether the ALC erred in failing to defer to DHEC's interpretation of the applicable statutes and regulations and whether the ALC had the authority to modify the proposed bulkhead/revetment.
II. Whether substantial evidence supports the ALC's findings that the proposed bulkhead/revetment complies with the Coastal Zone Management Act (CZMA) and the CZMP.
III. Whether the ALC erred in concluding that potential long-range cumulative impacts on the adjacent upland area should not be considered in a critical area permitting decision pursuant to regulation 30–11 of the South Carolina Code of Regulations, and whether substantial evidence supports the ALC's finding that the proposed bulkhead and revetment comply with regulation 30–12 of the South Carolina Code of Regulations.
[1][2] In an appeal from an ALC decision, the Administrative Procedures Act (APA) provides the appropriate standard of review. S.C.Code Ann. § 1–23–610(B) (Supp.2011). This Court will only reverse the decision of an ALC if that decision is:
(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of the agency;
(c) made upon unlawful procedure;
(d) affected by other error of law;
(e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(f) arbitrary or capricious or characterized by an abuse of discretion or clearly unwarranted exercise of discretion.
Id. “The Court may not substitute its judgment for the judgment of the [ALC] as to the weight of the evidence on questions of fact.” Id. In determining whether the ALC'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 ALC reached. Hill v. S.C. Dep't of Health and Envtl. Control, 389 S.C. 1, 9–10, 698 S.E.2d 612, 617 (2010).
Appellants claim that the ALC erred in failing to defer to DHEC's conclusions in this case, and improperly focused on the fact that DHEC did not conduct a final review process formally adopting the “staff's” findings. Respondent and the SRMC, assert the challenged permitting decision was that of the DHEC staff, because the DHEC Board never acted on the permitting decision. Thus, the decision was not entitled to deference as a matter of law. We disagree.
[3][4] Courts defer to the relevant administrative agency's decisions with respect to its own regulations unless there is a compelling reason to differ. S.C. Coastal Conservation League v. S.C. Dep't of Health & Envtl. Control, 363 S.C. 67, 75, 610 S.E.2d 482, 486 (2005). “[The Board], not OCRM staff, is entitled to deference from the courts.” Id.Section 44–1–60(F) of the South Carolina Code provides, “If a final review conference is not conducted within sixty days, the department decision becomes the final agency decision, and an applicant ... may request a contested case hearing before the [ALC].” S.C.Code Ann. § 44–1–60(F) (Supp.2011).
In South Carolina Coastal Conservation League v. South Carolina Department of Health and Environmental Control, 363 S.C. 67, 70, 610 S.E.2d 482, 484 (2005), 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 Mount Pleasant. OCRM staff deemed Park Island a small island and determined the access-to-small islands regulation, regulation 30–12(N) of the South Carolina Code of Regulations, applied. Id. LandTech claimed that the application was governed by the transportation-projects regulation, regulation 30–12(F). Id. at 71, 610 S.E.2d at 484. OCRM disagreed, processed the application under the more stringent small island regulation, and granted the permit. Id. CCL objected and requested a hearing before the ALC. Id. The ALC held that the application was actually governed by...
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