Neal v. Brown

• Decision Date: 13 July 2007
• Docket Number: No. 4275.,4275.
• Citation: 649 S.E.2d 164
• Court: South Carolina Court of Appeals
• Parties: David NEAL, Appellant, v. Don H. BROWN and South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management, Respondents.

649 S.E.2d 164

David NEAL, Appellant, v. Don H. BROWN and South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management, Respondents.

No. 4275.

Court of Appeals of South Carolina.

Heard October 10, 2006.

Decided July 13, 2007.

Rehearing Denied August 24, 2007.

Michael A. Molony and Lea B. Kerrison, of Charleston, for Appellant.

Andrew K. Epting, Jr., Clayton B. McCullough, and Leslie S. Riley, of Charleston, for Respondents.

BEATTY, J.

This appeal arises out of David Neal's second permit application for a dock. Neal appeals the circuit court's order affirming the Office of Ocean and Coastal Resource Management's (OCRM's) Coastal Zone Management Appellate Panel's (Appellate Panel's) decision that had the effect of denying him the dock permit. We reverse.

FACTS

In 1997, three adjacent parcels of land, located at 111 Hibben Street (the property), in Mount Pleasant, were conveyed to Neal Brothers, Inc., a company in which Neal was a part owner. The three parcels had all been owned by the McIver family since 1930. The property had a five foot wide by one hundred and nineteen foot long strip connecting the inland property to Charleston Harbor. Neal had the property surveyed as required by his title insurance company prior to purchase. The survey, which indicated the three parcels were one lot, was recorded at the Charleston County Register of Mesne Conveyances on September 10, 1997. Shortly after it was recorded, Neal Brothers transferred title of the property to Tompkins and Company, LLC (Tompkins).¹

In 1998, Neal first applied for a critical area permit to build a dock off of the property's five feet of waterfront access. OCRM denied the first application stating: "Your dock is proposed to extend from a 5' wide access path. This lot was apparently replatted in February, 1997 as a combination of 3 lots. As such, this lot does not meet the minimum lot width standard in order to qualify for a single family dock." Neal initially appealed the denial, but the appeal was dismissed without prejudice after an agreement with OCRM that allowed Neal to reapply for a permit.

In September 1999, Amy Willis, the property owner adjacent to the property, filed suit against Neal and Tompkins, claiming ownership of the five feet by one hundred and nineteen feet strip of land extending from the property to Charleston Harbor. The disputed property included Tompkins' five feet of waterfront access. The trial court examined both chains of title, moved the property line nine inches, but otherwise determined the property in question belonged to Tompkins in fee simple absolute.

In June 2001, Neal applied a second time for a critical area permit to build a dock off of the five feet of waterfront access. At the time Neal applied for the second dock permit, the regulation controlling dock permits provided:

For lots platted and recorded after May 23, 1993, before a dock will be permitted, a lot must have 75 feet of water frontage along the marsh edge and at least 75 feet of frontage between extended property lines. . . . Lots less than 50 feet wide are not eligible for a dock.²

23A S.C.Code Ann. Regs. 30-12(A)(2)(o) (Supp.2001). OCRM granted the permit application despite much public opposition, including from property owners adjacent to Neal. One of those adjacent owners, Don Brown, appealed the issuance of the permit to the administrative law court (ALC), arguing the property was not platted and recorded in its current form until 1997, and therefore, it must comply with regulation 30-12(A)(2)(o) (the regulation).

A hearing was held before the ALC. Neal's neighbors, Brown and Willis, testified regarding their opposition to the dock. In addition to his own testimony, Neal presented the testimony of Richard Chinnis, the Director of Regulatory Programs at OCRM. Chinnis testified that he drafted the regulation that was adopted by the General Assembly. Chinnis stated that he was incorrect in his initial belief that the property had been "resubdivided" when he denied Neal's first application for a permit to build a dock. Chinnis also testified that OCRM interpreted the regulation as applying to lots subdivided into smaller lots after the effective date. Because the property had existed in its present form since the early 1900's, with no "resubdivision," Chinnis testified that OCRM determined that the regulation did not apply to the property and granted Neal's second application for a dock permit. When asked by the ALC to specifically define how he interpreted "platted and recorded" in evaluating Neal's permit application, Chinnis stated:

The wording in the court case . . . the basis that his lot had existed in its present form. When somebody buys a . . . every time I've bought a house, the lots had to be replatted. The lot wasn't recreated as a new lot, it was just replatted as a result of some financial arrangement or final recording. Mr. Neal's lot obviously was platted after '97, but it was the same lot that had existed for 30, 40, 50 years. So it wasn't a new lot, it was created and originally platted and recorded.

The ALC agreed with OCRM's interpretation of the regulation. Looking to Dorman v. Department of Health and Environmental Control, 350 S.C. 159, 565 S.E.2d 119 (Ct. App.2002),³ the ALC found the regulation would only prohibit docks from properties with less than seventy-five feet of water frontage, or prohibit shared docks from properties with less than fifty feet of water frontage, if the property was platted and recorded after the effective date, May 23, 1993. The ALC further determined that the regulation applied to properties platted and recorded after May 23, 1993, only as a result of a subdivision of property. The ALC reasoned that "[t]he term `platted and recorded' assumes the platting and recording involves a change in the configuration of the property." The ALC concluded "[t]o assume otherwise would lead to an absurd result" because when property owners, who had owned property in the same configuration for many years, recorded or rerecorded a plat of their property at any time after May 23, 1993, they would be subject to the seventy-five feet requirement. The ALC also determined if the regulation applied to any platting and recording, it would prevent the construction of a dock for a purchaser of a lot that formerly qualified for a dock because a survey and plat are normally required for title insurance at the time of purchase. The ALC further found that if a lot was recorded prior to May 23, 1993, even if it was never platted before the date, the regulation would not apply. Finally, the ALC noted that the construction of a small dock from Neal's property would not detrimentally affect the neighbors' property values or use and enjoyment of their own property in violation of regulation 30-11(B)(10).⁴ Accordingly, the ALC affirmed OCRM's issuance of the permit because the regulation did not apply to the property.

Brown appealed the ALC's ruling to the Appellate Panel. The Appellate Panel correctly described its scope of review and determined the ALC erred in its "interpretation of [the regulation] by concluding that 75 feet of frontage was not required in order for [Neal] to receive a private recreational dock permit" and reversed the ALC's order. The Appellate Panel's order did not contain any findings of fact.

Neal then appealed the Appellate Panel's ruling to the circuit court, which affirmed. The circuit court found the property had been platted and recorded more than one time after May 23, 1993; therefore, the regulation applied to the property and a new dock was impermissible because the property's waterfront footage was less than both the seventy-five foot and fifty foot requirements. The court found that the Neal property could not enjoy "grandfathered" status with regard to the regulation. Finally, the court found a dock would interfere with neighbors' value, use, and enjoyment of their property. Neal filed a motion for reconsideration claiming the circuit court impermissibly made findings of fact. The circuit court denied the motion for reconsideration and issued a new order reiterating its decision and declaring that its previous order did not include findings of fact. This appeal followed.

STANDARD OF REVIEW

In contested permitting cases, the ALC serves as the finder of fact. S.C.Code Ann. § 1-23-600(B) (Supp.2006); Brown v. South Carolina Dep't of Health & Envtl. Control, 348 S.C. 507, 520, 560 S.E.2d 410, 417 (2002); Dorman, 350 S.C. at 164, 565 S.E.2d at 122. On appeal to the Appellate Panel, the standard of review is whether the ALC's findings are supported by substantial evidence pursuant to section 1-23-610(C) of the South Carolina Code (Supp.2006). S.C.Code Ann. § 1-23-610(C) (Supp.2006); DuRant v. South Carolina Dep't of Health & Envtl. Control, 361 S.C. 416, 420, 604 S.E.2d 704, 706 (Ct.App.2004), cert. denied (Feb. 15, 2006). Thus, the Appellate Panel can reverse the ALC if the findings are not supported by substantial evidence or are based on an error of law. Dorman, 350 S.C. at 165, 565 S.E.2d at 122. The ALC's findings are supported by substantial evidence if, looking at the record as a whole, there is evidence from which reasonable minds could reach the same conclusion the administrative agency reached. Grant v. South Carolina Coastal Council, 319 S.C. 348, 353, 461 S.E.2d 388, 391 (1995).

Judicial review of the Appellate Panel's decision to the circuit court is governed by section 1-23-380(A)(6) of the South Carolina Code (2005), which provides:

The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions or...