Olson v. Dept. of Health and Env., 4416.

• Citation: 663 S.E.2d 497
• Decision Date: 20 June 2008
• Docket Number: No. 4416.,4416.
• Court: Court of Appeals of South Carolina
• Parties: Bruce and Barbara OLSON, Appellants, v. SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL, Office of Ocean and Costal Resources Management, Jack L. Sims, John McCown and Molly Ball, Respondents.

663 S.E.2d 497

Bruce and Barbara OLSON, Appellants, v. SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL, Office of Ocean and Costal Resources Management, Jack L. Sims, John McCown and Molly Ball, Respondents.

No. 4416.

Court of Appeals of South Carolina.

Heard June 3, 2008.

Decided June 20, 2008.

C. C.Harness, III, and Melinda Adelle Lucka of Mt. Pleasant; for Appellants.

Carlisle Roberts, Jr., Evander Whitehead, and Leslie S. Riley all of Columbia, Elizabeth Dieck and William A. Scott, both of Charleston, for Respondent.

HUFF, J.:

This is an appeal by Bruce and Barbara Olson from an Administrative Law Court (ALC) order finding a permit issued by the South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management (hereinafter OCRM) and subsequently transferred to the Olson's adjoining landowner, Jack L. Sims, was not a joint-use permit for Sims' lot 55 and the Olsons' lot 56. The Olsons also appeal the denial by OCRM of an independent permit for a dock from their property to the Intracoastal Waterway. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

The Olsons own lot 56 in the Romain Retreat subdivision. Sims is the owner of lot 55, which is adjacent to the Olsons' property. John McCown owns lot 54, which is adjacent to Sims' lot 55. Molly Ball is the owner of lot 61, located across a drainage ditch easement from the Olsons. The Olsons' property is situated such that the extension of their property lines result in their lot bordering the drainage ditch, across from which is the backyard of the Ball property.¹ The Ball property lines extend out over a marsh and toward the Intracoastal Waterway, as do the Sims and McCown properties.²

The Olsons' lot was previously owned by Ann Graves, and the Sims lot was previously owned by Ann's son, Stephen Graves. In 1996, William Blume entered into two contracts to purchase lot 55 and lot 56 from Stephen Graves and Ann Graves. Prior to finalizing the purchase, Blume applied for a permit for a dock located on lot 55, noting the property was under contract to purchase. On July 3, 1997, OCRM issued a permit to Blume, but included with the permit the special condition that "this is the only dock permitted for lots 55 & 56." Prior to issuance of the permit, in April 1997, Blume informed Ann and Stephen Graves he was exercising his right to terminate the contract as he was unable to obtain a dock permit that was satisfactory to him.³ Shortly thereafter, on July 8, 1997, Stephen Graves applied for a permit to construct a private dock from lot 55. On August 25, 1997, OCRM issued the permit, which again included the special condition that it was the "only dock permitted for lots 55 and 56."

In 1998, Sims purchased lot 55 from Stephen Graves. In 2001, the Olsons purchased lot 56 from Ann Graves. In August, 2002, Stephen Graves transferred his dock permit to Sims. After discovering the Sims property was being surveyed for the construction of a dock, the Olson family approached Sims about the possibility of a joint-use dock with Sims, which Sims declined. In October 2003, Sims and McCown, who held his own permit for a private dock on his lot 54, applied for an amended permit allowing the two landowners to build one walkway down their property line leading to two pier heads. OCRM approved the amended permit for Sims and McCown in February 2004. In March 2004, the Olsons appealed the approval of the Sims/McCown amended permit for a joint-use dock and requested a contested hearing before the ALC. Thereafter, the Olsons submitted an application for their own private dock from lot 56 to the Intracoastal Waterway. On September 3, 2004, OCRM denied the Olsons' permit application. The Olsons challenged this decision by OCRM as well, and the two matters were consolidated for consideration by the ALC.

Following a hearing on the matter, the ALC judge issued his order concluding the Olsons' permit was properly denied and the Sims/McCown joint-use permit was properly issued. Specifically, the judge affirmed the denial of the Olsons' permit based on (1) the impact the proposed Olson dock would have on the adjacent property owners' value and enjoyment and (2) "the extent to which long-range, cumulative effects of the project may result within the context of other possible development and the general character of the area." He further determined, based on the evidence before him, the permit originally issued to Stephen Graves did not create a joint dock permit for lot 55 and lot 56. The ALC judge also concluded the Olsons' due process rights were not violated, and found no deprivation of the Olsons' equal protection rights as well. This appeal followed.⁴

STANDARD OF REVIEW

In contested permitting cases, the ALC serves as the finder of fact. Neal v. Brown, 374 S.C. 641, 648, 649 S.E.2d 164, 167 (Ct.App.2007); Brown v. S.C. Dep't of Health & Envtl. Control, 348 S.C. 507, 520, 560 S.E.2d 410, 417 (2002). Judicial review of the ALC judge's order is governed by section 1-23-610(C) of the South Carolina Code which provides as follows:

The review of the administrative law judge's order must be confined to the record. The reviewing tribunal may affirm the decision or remand the case for further proceedings; or it may reverse or modify the decision if the substantive rights of the petitioner has (sic) been prejudiced because of (sic) the finding, conclusion, or 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 abuse of discretion or clearly unwarranted exercise of discretion.

S.C.Code Ann. § 1-23-610(C) (Supp.2007). Thus, this court can reverse the ALC if the findings are affected by error of law, are not supported by substantial evidence, or are characterized by abuse of discretion or clearly unwarranted exercise of discretion. 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. Neal, 374 S.C. at 648, 649 S.E.2d at 167. The mere possibility of drawing two inconsistent conclusions from the evidence does not prevent a finding from being supported by substantial evidence. DuRant v. S.C. Dep't of Health & Envtl. Control, 361 S.C. 416, 420, 604 S.E.2d 704, 707 (Ct.App.2004).

LAW/ANALYSIS

I. Joint Dock Permit

The Olsons first argue the ALC erred in finding the permit issued to Graves did not create a joint dock permit for lots 55 and 56. In particular, the Olsons point to evidence that the dock permit in question contained the provision that it was the only permit for lots 55 and 56, and that one of OCRM's internal documents on the application noted the permit type as "joint." We find substantial evidence in the record supports the ALC decision.

While the application by Stephen Graves did result in a notation on the Agency's DBASE IV information sheet that the "Permit Type" was "joint," Richard Chinnis, director of regulatory programs with OCRM, explained this language did not indicate it was an application for a joint-use permit, but designated it was a joint application with OCRM and the Corps of Engineers. We find absolutely no merit to the Olsons' assertion that Chinnis did not participate in the Blume or Graves permitting process and therefore did not "understand the dynamics of the whole process" sufficient enough to accurately describe the meaning of the condition or the notes in the file. The record clearly reflects Chinnis participated in the permitting decision for both the Blume and Graves applications. Further, the Olsons called Chinnis as their own witness, and it was the Olsons who elicited information on the meaning of the term "joint" in the internal document from Chinnis.

As to the special condition of the permit providing "this is the only dock permitted for lots 55 and 56," we find this language insufficient to transform the permit into a joint-use permit for lots 55 and 56. Chinnis testified the condition was placed on the Blume permit because at the time Blume was in the process of acquiring both lots 55 and 56, and this was a notice to him that he need not apply for a dock permit for lot 56 as one would not be issued. Chinnis further stated he was under the assumption that Stephen Graves owned both lots 55 and 56 when he applied for the dock permit, and looking at it as they did the Blume application with one owner of both lots, the special condition was an advisement to the applicant that lot 56 was not going to receive a dock permit. Chinnis indicated there was never any mention nor documentation of any agreement between Stephen Graves and Ann Graves for a joint-use dock.⁵ As noted above, we find no merit to the Olsons' assertion that Chinnis lacked knowledge on the subject.

Further, the evidence here clearly shows the dock permit for lot 55 issued to Stephen Graves and subsequently transferred to Sims did not include the owner of lot 56 as an applicant. Rather, the application shows a single-use permit for a private dock was sought for lot 55, with no mention of a joint-use dock. Additionally, the property identified on the application corresponded with the property description of lot 55 and the application clearly shows the dock was solely located within the boundaries of lot 55. The public notice for the Graves permit application made no reference to any joint-use dock for lots 55 and 56, but indicated only it was for construction of a private dock located at lot 55. The permit issued to Stephen Graves by OCRM stated the purpose of the permit was "for the property owner's private recreational use." Accordingly, substantial evidence exists to support the...