SC COASTAL CONSERVATION v. SC DHEC
| Decision Date | 18 June 2001 |
| Docket Number | No. 3358.,3358. |
| Citation | 345 S.C. 525,548 S.E.2d 887 |
| Court | South Carolina Court of Appeals |
| Parties | SOUTH CAROLINA COASTAL CONSERVATION LEAGUE and Sierra Club, Appellants, v. SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVRONMENTAL CONTROL, Office of Ocean and Coastal Resource Management; Port Royal Plantation; and Town of Hilton Head Island, Respondents. |
James S. Chandler, Jr., of South Carolina Environmental Law Project, of Pawleys Island, for appellants.
Curtis L. Coltrane, of Coltrane & Alford, of Hilton Head Island and Mary D. Shahid, of DHEC Office of Ocean & Coastal Resource Management, of Charleston, for respondents.
Amicus Curiae: C.C. Harness, III, and Grahame E. Holmes, both of Mt. Pleasant, for DeBordieu Colony Community Association, Inc.
The circuit court affirmed a summary judgment order of the Administrative Law Judge Division (ALJD), upholding a permit issued by the Department of Health and Environmental Control (DHEC) allowing Port Royal Plantation to refurbish a groin field and construct new groins along the beach on Hilton Head Island. South Carolina Coastal Conservation League (SCCCL) and Sierra Club appeal, arguing the South Carolina Beachfront Management Act prohibits such construction. We reverse.
In April 1996 Port Royal Plantation applied to the Office of Ocean and Coastal Resource Management (OCRM), a division of DHEC, for a permit to construct four new groins and refurbish a series of seventeen existing groins (a "groin field") along approximately 8,000 feet of shoreline at Hilton Head.1 OCRM issued the permit on October 2, 1996.
SCCCL and Sierra Club filed a petition for administrative review of the permit decision and requested a contested case hearing before the ALJD. The petition named Port Royal Plantation and OCRM as respondents, and the administrative law judge (ALJ) granted the Town of Hilton Head's motion to intervene. Thereafter, the parties filed cross-motions for summary judgment. Prior to the hearing, the parties stipulated to the relevant facts and agreed that the only issue remaining was a question of law for the court: Whether the Beachfront Management Act prohibited the proposed construction.
By order dated June 16, 1998, the ALJ found the permit to refurbish the groin field and construct new groins valid. SCCCL and Sierra Club appealed this decision to the OCRM's Coastal Zone Management Appellate Panel, which adopted the order of the ALJ and affirmed on December 17. SCCCL and Sierra Club subsequently sought judicial review in the circuit court, which likewise affirmed DHEC's grant of the permit in an order filed February 7, 2000. This appeal followed.
Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), SCRCP; see also Tupper v. Dorchester County, 326 S.C. 318, 325, 487 S.E.2d 187, 191 (1997)
. On appeal, a reviewing court may reverse the decision of an administrative agency if a party's substantial rights are prejudiced by a decision which "violate[s] constitutional or statutory provisions. ..." Weaver v. S.C. Coastal Council, 309 S.C. 368, 374, 423 S.E.2d 340, 343 (1992); see also S.C.Code Ann. § 1-23-380(6) (Supp.2000).
The sole issue in this appeal is whether the groin construction and refurbishment permit issued by DHEC to Port Royal Plantation violates the statutory provisions of the Beachfront Management Act. We believe it does.
In 1977 our Legislature passed the Coastal Zone Management Act (CZMA) to "protect, preserve, restore and enhance the coastal resources of South Carolina." 23A S.C.Code Ann. Regs. 30-1(C)(1) (Supp.2000); see Beard v. S.C. Coastal Council, 304 S.C. 205, 207, 403 S.E.2d 620, 621 (1991)
().
To accomplish this goal, the CZMA created a state agency, the South Carolina Coastal Council, to administer and enforce its provisions.2
Id. The Council's regulatory authority, however, was inadequate to forestall extensive private beachfront development along the coast and, as a result, erosion became a serious threat. See S.C.Code Ann. § 48-39-250(4) (Supp.2000); 23A S.C.Code Ann. Regs. at 30-1(C)(1) & (2).
Realizing the gravity of the problem, the Legislature enacted the Beachfront Management Act in 1988.3 Promulgated to further the coastal protection afforded under the CZMA, the Act was a direct response to a report by the Blue Ribbon Committee on Beachfront Management that determined South Carolina's beach/dune system was in crisis.4 See 23A S.C.Code Ann. Regs. at 30-1(C)(3). Specifically, the report noted that "over fifty-seven miles of our beaches [were] critically eroding," thereby threatening "life, property, the tourist industry, vital State and local revenue, marine habitat, and a national treasure[.]" Id.
To combat the erosional threat, the Beachfront Management Act devised a statutory scheme to restore the beach/ dune system by promoting gradual retreat from the beachfront over a forty-year period. See § 48-39-280; 23A S.C.Code Ann. Regs. at 30-1(C)(6). To this end, the legislation directed DHEC to "develop and institute a comprehensive beach erosion control policy," and prohibited the use of any "critical area," including the beach, without first obtaining a permit from DHEC. § 48-39-120(A) & 130(A).5 In general, three methods are used to manage the problem of shoreline erosion: armoring the beach with "hard" erosion control devices; renourishing the beach with sand; and retreating from the beach altogether.6 23A S.C.Code Ann. Regs. at 30-1(C)(5). Enactment of the Beachfront Management Act evidences a clear legislative choice favoring the latter two policies. See, e.g., § 48-39-290(B)(2) (); § 48-39-250(5) ( ); § 48-39-260(3) ().9
Reflecting this preference, the Beachfront Management Act expressly states that "[n]o new construction or reconstruction is allowed seaward of the baseline," as determined by DHEC, except the following:
§ 48-39-290(A).10 We agree with SCCCL and Sierra Club that this section precludes OCRM from issuing any permits for the construction or refurbishment of groins, which clearly are constructed seaward of the baseline and do not fit within a statutory exception.11
Although Respondents acknowledge, as did the circuit court and ALJD, that this conclusion stems from a "literal reading" of section 48-39-290(A),12 they argue the section should not be interpreted in isolation from other provisions of the Beachfront Management Act.13 We agree. See, e.g., Williams v. Williams, 335 S.C. 386, 389-90, 517 S.E.2d 689, 690-91 (1999)
( ); Gardner v. Biggart, 308 S.C. 331, 333, 417 S.E.2d 858, 859 (1992) () (quoting Hay v. S.C. Tax Comm'n, 273 S.C. 269, 273, 255 S.E.2d 837, 840 (1979)); Burns v. State Farm Mut. Auto. Ins. Co., 297 S.C. 520, 522, 377 S.E.2d 569, 570 (1989) (). However, even construing the Act as a whole, Respondents' arguments are unavailing.
Initially, we believe Respondents are correct in asserting that groins, as defined herein, are not "erosion control structures or devices" as defined in the Act. On its face, the statutory definition of "erosion control structures or devices" does not reference groins and enumerates only three types: seawalls, bulkheads, and revetments. See § 48-39-270(1). However, because the word "include" may be seen as one of limitation or enlargement, we must turn to rules of construction to ascertain the Legislature's true intent. See Baker v. Chavis, 306 S.C. 203, 208-09, 410 S.E.2d 600, 603 (Ct.App. 1991)
(citing N.C. Turnpike Auth. v. Pine Island, Inc., 265 N.C. 109, 143...
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SC COASTAL v. DEPT. OF HEALTH, 25663.
...Beachfront Management Act1 (BMA) from issuing permits allowing existing groins2 to be repaired or new groins to be constructed. South Carolina Coastal Conserv. League v. South Carolina Dep't of Health and Envtl. Control, 345 S.C. 525, 548 S.E.2d 887 (Ct.App.2001). We FACTS OCRM issued a per......