Normandy Corp. v. Sc Dept. of Transp., No. 4640.

CourtCourt of Appeals of South Carolina
Writing for the CourtGeathers
Citation386 S.C. 393,688 S.E.2d 136
PartiesNORMANDY CORPORATION, Respondent, v. SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION, Appellant.
Docket NumberNo. 4640.
Decision Date17 December 2009
688 S.E.2d 136
386 S.C. 393
NORMANDY CORPORATION, Respondent,
v.
SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION, Appellant.
No. 4640.
Court of Appeals of South Carolina.
Heard October 13, 2009.
Decided December 17, 2009.
Rehearing Denied January 20, 2010.

[688 S.E.2d 139]

Clifford O. Koon, Jr., Paul D. de Holczer, and Robert L. Brown, all of Columbia, for Appellant.

Howell V. Bellamy, Jr., and Robert S. Shelton, both of Myrtle Beach, for Respondent.

GEATHERS, J.


This declaratory judgment action stems from a condemnation action instituted by the South Carolina Department of Transportation (Department) to acquire approximately six acres of land from the Normandy Corporation (Normandy) for the construction of the Carolina Bays Parkway in Horry County. After concluding that the Department was undervaluing the condemned property on the basis that the property was located on a parcel containing wetlands, Normandy sought an order declaring whether any of the wetlands on the parcel fell within the jurisdiction of the Clean Water Act, 33 U.S.C. § 1251 et seq. (CWA), and the impact, if any, of the CWA on the parcel as of October 13, 2000, the date the condemnation action was filed. The master-in-equity ruled that, as of October 13, 2000, none of the wetlands on the parcel fell within the jurisdiction of the CWA and that the wetlands could legally be drained. The Department now seeks review of the master's order. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

The parcel of property at issue in this case is located in Horry County near the intersection of Highway 9 and Highway 57. It consists of approximately 88.59 acres. Normandy acquired the parcel in 1996 in a bankruptcy proceeding.

In 1997, Loris Hospital expressed some interest in purchasing a portion of the parcel from Normandy. In connection with the proposed sale, Normandy hired Dr. Paul Booth to perform a wetlands delineation. Dr. Booth delineated seventy-two acres of the parcel and concluded that approximately forty-six of those acres were wetlands. According to Marguerite McClam, a licensed civil engineer who was hired by the Department in connection with the Carolina Bays Parkway project, the United States Army Corps of Engineers (Corps) subsequently "certified" Dr. Booth's delineation and the certification was valid for five years.

At the time that Dr. Booth performed his delineation, Normandy had done nothing significant to the parcel. Ditches around the perimeter of the parcel existed, but they had not been maintained and their flow was blocked by beaver dams.

Ultimately the proposed sale to Loris Hospital was not completed, and, sometime after Dr. Booth's delineation, Normandy cut the timber on the parcel, raked the parcel, "cleared it up," and planted a pine plantation thereon. Additionally, in 1998, Normandy installed Christmas tree ditches on the parcel. Normandy then began the process of having the parcel rezoned from mobile home residential to planned unit development for commercial purposes. A redelineation was not required, and was not performed, in connection with that process, which was completed in April 2000.

On October 13, 2000, the Department filed a Condemnation Notice with respect to Normandy's parcel. According to Normandy's declaratory judgment complaint, the Department sought to acquire approximately six acres of the parcel.1 The portion of the parcel condemned by the Department provided all of the parcel's frontage and access to Highway 9.2

In connection with the condemnation action, the Department retained Gordon Murphy of the LPA Group to prepare a "wetland delineation package request" for the Corps. Murphy visited the site in 2001. Murphy's delineation was limited to the "study corridor," which consisted of 2.7 acres.

688 S.E.2d 140

Sometime in 2001, the Department submitted an offer to Normandy for the portion of the parcel subject to the condemnation action. The offer was based upon the Department's appraisal, which estimated that 50% to 75% of the parcel was comprised of wetlands. After receiving the Department's appraisal, Normandy asked Norman Boatwright to perform a study to determine the amount of wetlands existing on the parcel. Boatwright's study was completed in 2001.

Normandy subsequently asked Craig Turner to perform a more comprehensive wetlands study. Turner installed eight groundwater monitoring wells across the parcel to document water levels and rates of drainage. The wells were automated to read water levels once daily. Turner's study, which began in December 2003 and lasted until October 2004, found that in addition to the approximately 26 acres that had been delineated uplands by Dr. Booth, another 47.46 acres of the parcel had been converted to uplands as a result of "the drainage system installed in 1998." Thus, Turner's study concluded that roughly 73.5 acres of the 88.59 acres he delineated were uplands (approximately 83%). According to Michael Todd Smith, a partial owner of Normandy, Turner's study was "almost identical" to Boatwright's.

In December 2003, Normandy filed its declaratory judgment action in circuit court. In its complaint, Normandy argued that the Department was undervaluing the condemned portion of the parcel based upon its erroneous assumption that 50% to 75% of the parcel was comprised of wetlands falling within the jurisdiction of the CWA. Specifically, Normandy contended that "the prior accumulation of water" relied upon by the Department in making its appraisal was largely corrected when the parcel was timbered and drainage ditches were installed thereon. Normandy therefore sought a declaration by the court as to whether any wetlands existing on the parcel were jurisdictional (i.e., within the jurisdiction of the CWA) and the impact, if any, of the CWA on the parcel as of October 13, 2000, the condemnation date.

In February 2004, the Department filed a motion to dismiss pursuant to Rule 12(b)(7), SCRCP, seeking dismissal of the declaratory judgment action on the grounds that Normandy had failed to join the South Carolina Department of Health and Environmental Control (DHEC) and the Corps as parties to the action.3 After conducting a hearing on the matter, Judge B. Hicks Harwell denied the Department's motion in an order issued October 27, 2004. Judge Harwell concluded that the circuit court did not have jurisdiction over DHEC or the Corps because neither entity had taken any type of final agency action with respect to the parcel. Moreover, with regard to DHEC, Judge Harwell ruled that "[b]asically, the only ability DHEC has to regulate wetlands derives from its review power of a Federal permit application under the CWA."

On January 25, 2006, by mutual agreement of the parties, the declaratory judgment action was stricken from the circuit court's docket with leave to restore pursuant to Rule 40(j), SCRCP. That very same day, the matter was restored and referred to the master pursuant to a Consent Order to Restore and Refer (Order of Reference) issued by the circuit court. A trial was subsequently held before the master on August 27, 2007.

At trial, Normandy introduced the results of Turner's wetlands study. Additionally, Turner, who was qualified as an expert in the fields of soil science and wetland delineation, testified that it was "reasonable and probable" that his study accurately reflected the wetlands status of the parcel as of the condemnation date. He explained that the Christmas tree ditches, which were installed prior to the condemnation date, were "very effective" at pulling water out of wetlands. Turner further testified that the approximately fifteen acres of wetlands remaining on the parcel were not, in his opinion, jurisdictional.

688 S.E.2d 141

In an order dated November 27, 2007, the master found that Turner's study correctly stated the status of the property as of October 13, 2000. He further held that, as of October 13, 2000, the parcel "contained 73.5 acres of uplands; contained no wetlands within the jurisdiction of the Clean Water Act; and contained 15 acres of wetlands that could be legally drained." The Department subsequently filed a motion to alter or amend pursuant to Rule 59(e), SCRCP. The master denied the motion, and this appeal followed.

ISSUES ON APPEAL

1. Did the master lack subject matter jurisdiction to determine the amount of jurisdictional wetlands existing on the parcel?

2. Did the master err by concluding that the parcel contained no wetlands within the jurisdiction of the CWA?

3. Did the master err by concluding that the parcel contained fifteen acres of wetlands that could legally be drained?

STANDARD OF REVIEW

"A suit for declaratory judgment is neither legal nor equitable, but is determined by the nature of the underlying issue." City of Hartsville v. S.C. Mun. Ins. & Risk Fin. Fund, 382 S.C. 535, 543, 677 S.E.2d 574, 578 (2009) (quoting Felts v. Richland County, 303 S.C. 354, 356, 400 S.E.2d 781, 782 (1991)). Condemnation actions are actions at law. S.C. Pub. Serv. Auth. v. Arnold, 287 S.C. 584, 586, 340 S.E.2d 535, 537 (1986). Actions involving the interpretation of statutes, such as the CWA, are also actions at law. See Auto Owners Ins. Co. v. Rollison, 378 S.C. 600, 606-07, 663 S.E.2d 484, 487 (2008) ("[B]ecause this action involves the interpretation of a contract and statutes, it is an action at law."); In re Estate of Timmerman, 331 S.C. 455, 458-59, 502 S.E.2d 920, 921 (Ct.App.1998) (holding that an action concerning the application of the omitted spouse statute was an action at law). In an action at law tried without a jury, the trial court's findings will not be disturbed on appeal unless they are found to be without evidence reasonably supporting them. Stanley v. Atlantic Title Ins. Co., 377 S.C. 405, 409, 661 S.E.2d 62, 64 (2008).

LAW/ANALYSIS

I. Subject Matter Jurisdiction

The Department contends that the master lacked subject matter jurisdiction to issue a ruling as to the amount of jurisdictional wetlands...

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11 practice notes
  • First Citizens Bank & Trust Co. v. Taylor, Appellate Case No. 2017-001700
    • United States
    • Court of Appeals of South Carolina
    • July 8, 2020
    ...jurisdiction, which "may be raised at any time, including on appeal." 431 S.C. 163 Normandy Corp. v. S.C. Dep't of Transp. , 386 S.C. 393, 403, 688 S.E.2d 136, 141 (Ct. App. 2009). "Pursuant to Rule 53, SCRCP, a master has no power or authority except that which is given to h......
  • Deep Keel, LLC v. Atl. Private Equity Grp., LLC, Appellate Case No. 2013–002281.
    • United States
    • Court of Appeals of South Carolina
    • June 17, 2015
    ...question of subject matter jurisdiction, which “may be raised at any time, including on appeal.” Normandy Corp. v. S.C. Dep't of Transp., 386 S.C. 393, 403, 688 S.E.2d 136, 141 (Ct.App.2009). Cf. 386 S.C. at 402–04, 688 S.E.2d at 141–42 (finding the master had subject matter jurisdiction to......
  • In re Walter M., No. 4639.
    • United States
    • Court of Appeals of South Carolina
    • December 17, 2009
    ...182, 189, 607 S.E.2d 82, 85 (2005) (recognizing malice may be implied from the use of a deadly weapon). Accordingly, we find no error.3 688 S.E.2d 136 II. Family Court's Finding of Appellant next argues the family court erred in finding him delinquent because the State failed to prove beyon......
  • In re Jamal G., No. 4913.
    • United States
    • Court of Appeals of South Carolina
    • January 30, 2012
    ...Thus, this court remains bound by this state's longstanding rules of issue preservation. See In re Walter M., 386 S.C. at 392–93, 688 S.E.2d at 136. Jamal did not raise an objection to the court's consideration and ultimate rejection of the lesser-included offense of voluntary manslaughter ......
  • Request a trial to view additional results
11 cases
  • First Citizens Bank & Trust Co. v. Taylor, Appellate Case No. 2017-001700
    • United States
    • Court of Appeals of South Carolina
    • July 8, 2020
    ...jurisdiction, which "may be raised at any time, including on appeal." 431 S.C. 163 Normandy Corp. v. S.C. Dep't of Transp. , 386 S.C. 393, 403, 688 S.E.2d 136, 141 (Ct. App. 2009). "Pursuant to Rule 53, SCRCP, a master has no power or authority except that which is given to h......
  • Deep Keel, LLC v. Atl. Private Equity Grp., LLC, Appellate Case No. 2013–002281.
    • United States
    • Court of Appeals of South Carolina
    • June 17, 2015
    ...question of subject matter jurisdiction, which “may be raised at any time, including on appeal.” Normandy Corp. v. S.C. Dep't of Transp., 386 S.C. 393, 403, 688 S.E.2d 136, 141 (Ct.App.2009). Cf. 386 S.C. at 402–04, 688 S.E.2d at 141–42 (finding the master had subject matter jurisdiction to......
  • In re Walter M., No. 4639.
    • United States
    • Court of Appeals of South Carolina
    • December 17, 2009
    ...182, 189, 607 S.E.2d 82, 85 (2005) (recognizing malice may be implied from the use of a deadly weapon). Accordingly, we find no error.3 688 S.E.2d 136 II. Family Court's Finding of Appellant next argues the family court erred in finding him delinquent because the State failed to prove beyon......
  • In re Jamal G., No. 4913.
    • United States
    • Court of Appeals of South Carolina
    • January 30, 2012
    ...Thus, this court remains bound by this state's longstanding rules of issue preservation. See In re Walter M., 386 S.C. at 392–93, 688 S.E.2d at 136. Jamal did not raise an objection to the court's consideration and ultimate rejection of the lesser-included offense of voluntary manslaughter ......
  • Request a trial to view additional results

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