McIlhenny v. S.C. Dep't of Health
| Decision Date | 01 November 2022 |
| Docket Number | 21-ALJ-07-0114-CC |
| Parties | Clara Ann McIlhenny, Petitioner, v. South Carolina Department of Health and Environmental Control and David Burress, Respondents. |
| Court | South Carolina Administrative Law Court Decisions |
Counsel for Respondent South Carolina Department of Health and Environmental Control Bradley D. Churdar, Esq.
Counsel for Respondent David Burress Mary D. Shahid, Esq.
FINAL ORDER
This matter is before the Administrative Law Court ("ALC" or "Court") pursuant to Petitioner Clara Ann McIlhenny's ("McIlhenny" or "Petitioner") request for a contested case hearing seeking review of a decision of Respondent South Carolina Department of Health and Environmental Control's Office of Ocean and Coastal Resource Management ("OCRM" or the "Department") to issue OCRM02741 ("OCRM Permit") to Respondent David Burress (Burress or Respondent). The OCRM Permit authorizes construction of a 2-story residential structure at 416 Palmetto Boulevard Edisto Beach, South Carolina. The house will have 1,119 square feet of heated space on each floor, resulting in a total of 2,238 heated square feet. Presently, 416 Palmetto Boulevard is an undeveloped beachfront lot adjacent to the Atlantic Ocean. Ms. McIlhenny is the record owner of 415 Palmetto Boulevard (TMS 357-03-00-023.000), which is across Palmetto Boulevard from 416 Palmetto Boulevard (TMS 357-03-00-051.000). As a no site of the undeveloped status of 416 Palmetto Boulevard, Ms. McIlhenny has enjoyed a direct and unobstructed view of the Atlantic Ocean. Members of the public, ostensibly, to include Ms. McIlhenny, are able to walk through 416 Palmetto Boulevard to access the beach.
Ms. McIlhenny challenges the OCRM Permit because it authorizes construction seaward of what is known as the "baseline." [1] The baseline is one of two, invisible but recoverable (by survey) lines on the State's beachfront established by the Department in accordance with S.C. Code Ann. § 48-39-280.[2] The second line, also established by the Department, is called the setback line and it is located landward from the baseline. [3] The baseline and setback line represent the Department's efforts to accommodate for changing shorelines and to regulate construction along moving shorelines as it is charged to do under South Carolina law.
During the review of the Burress permit application, OCRM's project manager, Matt Slagel, identified a feature as the primary oceanfront sand dune on 416 Palmetto Boulevard at the location of an emergency berm, which had been constructed in January of 2018 after Hurricane Irma. The constructed dune has been in place for at least three years. Ms. McIlhenny disagrees with OCRM's identification of the primary oceanfront sand dune at this berm and believes that the correct location for this feature is the area adjacent to Palmetto Boulevard, where the baseline is located. Ms. McIlhenny disputes that a primary oceanfront sand dune may develop from an artificially constructed emergency berm. Instead, she insists that the primary dune is the area adjacent to Palmetto Boulevard, where she contends the "only historical primary dune exists on this lot.
A fully contested hearing in this matter was convened on November 19, 2021, at which time, all parties presented testimonial and documentary evidence. In lieu of closing arguments, the parties submitted proposed orders to the Court.
Petitioner Clara Ann McIlhenny, was not represented by counsel at this hearing and presented her case pro se. During her lifetime, Ms. McIlhenny has enjoyed the use of a home located at 415 Palmetto Boulevard built in 1956 by her grandfather. She and her husband, Tim McIlhenny, now own the property, which is located directly across from 416 Palmetto Boulevard, the lot at issue here. [4]
Ultimately, Ms. McIlhenny's position is grounded on her contention that the emergency berm constructed by the Town of Edisto Beach on 416 Palmetto Boulevard after Hurricane Irma cannot be appropriately identified as a primary oceanfront sand dune. Petitioner believes that the only historical primary dune at 416 Palmetto Boulevard is where the jurisdictional baseline is located. Ms. McIlhenny characterized 416 Palmetto Boulevard as "non-buildable" due to her belief that the entirety of the undeveloped lot is located seaward of the primary oceanfront sand dune and constitutes active beach which has already suffered significant erosion. Petitioner also contends that residential construction on this lot will have an adverse effect on protected sea turtles.
Through statements made while questioning Mr. Slagel, Petitioner explained her belief that the Department wrongly relied on the statutory definition of primary oceanfront sand dune found in S.C. Code Ann. § 48-39-10(1) to identify the primary dune on 416 Palmetto Boulevard. [5] Ms. McIlhenny believes that the regulatory definition of primary oceanfront sand dune found at S.C. Code Ann. Regs. 30-1(D)(44) should have been used for the purpose of identifying the primary oceanfront sand dune. Mr. Slagel testified, however, that the regulatory definition of primary oceanfront sand dune is not relevant to applications for Special Permits, as in this case. The express language of S.C. Code Ann. Regs. 30-1(D)(44) limits its application to establishing the jurisdictional baseline, which is not at issue here. Moreover, as Mr. Slagel further specified, an artificially constructed dune, such as the one identified as the primary oceanfront dune in this case, qualifies as a primary oceanfront sand dune since no South Carolina statute or regulation requires primary oceanfront sand dunes to be entirely naturally created.
The lot at issue here - 416 Palmetto Boulevard - was illustrated in several exhibits used during the hearing. [6] Respondent David Burress is the record owner of 416 Palmetto Boulevard with his brother, James Burress, through inheritance from their mother.[7] Mr. Burress has enjoyed many years of visits to Edisto Beach. However, he believes the property taxes on the property will likely double based upon the amount of time that has passed since he and his brother acquired the property through inheritance. This factor led the Burresses to list 416 Palmetto Boulevard for sale and, at the time of the contested case hearing, the property was under contract.
Matt Slagel is a beachfront permitting project manager and team leader within the critical area permitting section of OCRM. He has been employed with OCRM for 12 years and has worked exclusively on beachfront projects since January 2018. In August, 2020, Mr. Slagel visited 416 Palmetto Boulevard to identify a primary oceanfront dune for the purpose of the proper siting of the septic tank,[8] drainfield, and residential structure. [9] Bill Eiser, a former DHEC employee who now has his own consulting business to assist applicants seeking beachfront permits, accompanied, Slater the location.
Mr. Slagel confirmed that S.C. Code Ann. § 48-39-290 includes statutory provisions authorizing the "Special Permit" [10] process, which allows, subject to certain restrictions, for construction of residential structures seaward of the baseline. The area on the Atlantic Ocean shoreline subject to OCRM's permitting jurisdiction, from the setback line seaward, is known as the "beach/dune system." There are different rules for construction solely seaward of the setback line than the rules for construction seaward of the baseline.
Both Mr. Eiser and Mr. Slagel agree that the baseline was located for 416 Palmetto Boulevard during the 2008 establishment cycle and remained in the same location during the 2018 update timeframe. The position of the baseline (and setback line) is evaluated through a regular "establishment cycle" occurring every seven to ten years as required by S.C. Code Ann. § 48-39-280(C). S.C. Code Ann. § 48-39-280(C) does not address or otherwise require any other adjustment to the position of the baseline. As such, the location of the baseline was not at issue during the processing of the Burress Special Permit application and was not required to be considered by CRM.
Respondent Burress applied for, and was granted, the Special Permit to construct a two-story habitable structure or house on 416 Palmetto Boulevard. Mr. Slagel confirmed that he has personally issued approximately 8-10 Special Permits for houses seaward of the baseline statewide. The permit at issue is one of two Special Permits he reviewed and issued for Edisto Beach locations.
The intent of the Special Permit process is to allow reasonable use of property situated seaward of the baseline while still protecting the beach/dune system to the maximum extent possible. Along with the statutory requirement of avoiding the primary oceanfront sand dune, OCRM requires that any structure constructed under a Special Permit be located no closer to the ocean than the structures on either side. OCRM also limits the amount of heated square footage to 5,000 square feet or what is typical in the area. Every Special Permit also includes a condition requiring removal should the structure become located on the active beach. Mr. Slagel established that "active beach" is defined by statute and is the area from the ocean to the first line of stable, natural vegetation or the escarpment, whichever occurs first.
Based on the restrictions associated with a Special Permit, the primary oceanfront sand dune must be...
To continue reading
Request your trial