Brownlee v. South Carolina Department of Health & Environmental Control

641 S.E.2d 45, 372 S.C. 119, 2007 S.C. App. LEXIS 7

• Court: Court of Appeals of South Carolina
• Decided: January 29, 2007
• Docket: 4200
• Status: Published

Opinions

KEMMERLIN, Acting Judge:

Samuel Brownlee and Richard Jolly (Landowners) appeal from an order of the circuit court affirming the Coastal Zone Management Appellate Panel’s denial of permits to extend docks from their respective properties, across a tributary, to the Bohicket River. In the alternative, Landowners argue the circuit court should have ordered a neighboring dock be moved. We reverse.

PROCEDURAL HISTORY

This case reaches us through a contorted appellate process. It arises from a decision of the South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management (OCRM) denying the Landowners permission to build or to extend private recreational docks from their lots to the Bohicket River, sometimes called Bohicket Creek.

The Landowners sought review by the Administrative Law Division (ALJ) where the case was assigned to the Honorable Ralph King Anderson, III. Judge Anderson allowed Edward Mappus to intervene pro se and heard the case on November 5, 2002, taking testimony and other evidence. By Orders of March 7, 2003, and April 23, 2003, Judge Anderson overruled the OCRM’s determination and directed that permits be issued to Landowners.

On Appeal, The Coastal Zone Management Appellate Panel (CZMAP) reversed the decision of the ALJ and the Landowners appealed to the Court of Common Pleas for Charleston County. There the case was heard by the Honorable Mikell Scarborough, Circuit Judge, who affirmed the CZMAP in an opinion dated October 25, 2004. This appeal by the Landowners followed.

FACTS

The South Carolina Coastal Council in 1989 issued to David and Melissa Case a permit to build from their property to the Bohicket River a seven-hundred-foot walkway across an intertidal mud flat. The Cases thereafter sold their lot and assigned their permit to Lawrence Atkinson who in 1991 built a walkway and dock to the Bohicket River; however, the dock did not comply with the Coastal Council’s permit. It is one hundred thirty feet longer than permitted, and it does not reach the Bohicket at the point allowed by the permit. Instead, the pierhead extends into the main run (the deepest part) of the swash referred to in the record below as a “tributary” of the Bohicket.¹

Atkinson’s dock builder applied for “as built” approval, but in September of 1991, the Coastal Council’s Permit Coordinator noted that the dock was not where it should be and that it “was obstructing navigation of [the] tributary.”² An enforcement action against Atkinson was brought, and in November of 1991, the South Carolina Coastal Council issued its Order providing:

[T]he ‘as built’ dock is not in compliance with the issued permit in that it is longer than permitted and is not constructed in the permitted location. The dock extends well channelward of the permitted extension. This extension is not reasonable for the intended use under R.30-12(c). The constructed dock also impedes navigation into the adjoining tributary....

Atkinson failed to comply with the Order, and the dock still stands in defiance of the Order of the Coastal Council, the predecessor of OCRM. Moreover, OCRM has not enforced the removal Order.

Samuel Brownlee and Richard Jolly, the Landowners, are the contiguous owners of property abutting on the tributary. In 2001 they sought permits to build a dock seven hundred fifty feet across the marsh to the Bohicket. To do this, they had to pass over the tributary. OCRM, as the successor to the Coastal Council in permitting activities,³ denied the issuance of permits on April 19, 2002, the denial being stated by the Agency in a letter that read in pertinent part:

OCRM staff has determined that authorizing the dock extension over the tributary would be counter to Regulations. OCRM Regulations specifically state “docks shall not impede navigation and they can only extend to the first navigable creek as evidenced by a significant change in grade.” OCRM staff performed a boat trip and found that the creek exhibits significant width (50’) and change in grade at your dock that excludes the very nature of a waterbody that is navigable. Furthermore, the creek has an established history of public use as evidenced by the four (4) docks that currently access this creek.

When the case reached Judge Anderson, he tried it and issued his all important decision — all important because in the long history of the case his was the only tribunal where the witnesses actually appeared and gave testimony and offered other evidence. At trial Richard Chinnis, an employee of OCRM, testified that in 1991 he was the Permit coordinator and in that connection was aware of the Atkinson permit and the enforcement action against Atkinson. When shown a plat which depicted the Atkinson dock, the following colloquy appears in the trial transcript:

Q: And can you identify it on there the tributary that the .. . [Landowners lots] ... are upon?

A: Well, he’s [the maker of the plat] showing what’s labeled a nonvegetative intertidal mud flat to the — if you’re on the high ground looking at the Bohicket to the immediate right of the walkway. This is not exactly the configuration of the creek that Mr. Combos has his dock permit on, but I guess that’s the creek he’s talking about even thought it’s labeled ... [as an] ... intertidal mud flat, not a creek.... ⁴

After he visited the site, he wrote Atkinson in 1991, advising him that the dock as built was a hazard to navigation.

Chuck Dawley, a registered land surveyor qualified as an expert in surveying tidal areas, testified that the Atkinson walkway and pierhead crossed the main run of the tributary at its mouth and that on the day of his survey, a windy day, the boat he occupied was “actually being propelled into the Atkinson dock.” He stated that a boat once within the tributary could be used when the tide was up, but that there was difficulty in getting in and out of the tributary.

Steven Combos, the owner of a lot which abuts the tributary and the holder of a U.S. Coast Guard certificate to operate fifty gross ton size vessels, was qualified as an expert on safety and navigation and testified that the Atkinson dock obstructs navigation and also presents a hazard to navigation in this area. He testified:

Well, when you try to traverse, coming or going, from the inlet and you have a north wind or you have an outgoing tide, you have to hug the pilings that are on that dog leg well before you get to his fixed pier because if you don’t you’ll be on the sandbar to the opposite site, and I’ve hit the pilings and I’ve hit that oyster mound plenty of times. Now, in ideal conditions, you know, when you have basically a high tide or no wind, I mean, you know, it is possible to get by it. But, like I say, it’s my experience that it’s far and few between that those opportune times are there.

He stated that it is particularly hazardous because after the Atkinson dock was built, an oyster bank and a sandbar at the mouth of the tributary have grown “tremendously.” When Mr. Combos approached OCRM staff, he was told that he and the Landowners would be permitted to build their docks over the tributary to Bohicket Creek, but Edward Mappus, the pro se intervener in this case and owner of a lot on the tributary objected. Mr. Combos, who owns the lot next to Mr. Mappus, offered to elevate any portion of his dock and walkway over the tributary and to let Mr. Mappus use his dock, but Mappus would not consent to allowing the proposed walkway and dock to reach the Bohicket River. Judge Anderson found that the Atkinson dock “presents a significant impediment to navigation in the tributary,” and he ruled that OCRM must either direct removal of the Atkinson dock or issue the requested permits to the Landowners.

On appeal, OCRM called Mr. Curtis Joyner, its Manager of Critical Area Permitting. He testified that he also visited the site by boat. He made various measurements at a three-quarter tide. He asserted that at that stage of the tide he had no trouble entering the tributary. His visit to the tributary, unlike that of Mr. Dawley, the Registered Land Surveyor, did not occur on a windy day. The substance of his testimony was that he did not feel that the building of the Atkinson dock in the main run of the tributary and the build up of a bar and oyster bank since the dock was placed had made the tributary not-navigable. OCRM reversed the ALJ, finding he erred in his interpretation of 23A S.C.Code Ann. Regs. 30 — 12(A)(2)(n). This appeal followed.

STANDARD OF REVIEW

Under the Administrative Procedures Act (APA),⁵ an Administrative Law Judge presides as the fact finder. See S.C.Code Ann. § 1-23-600(B) (Supp.2005); Brown v. South Carolina, Dept. of Health & Envtl. Control, 348 S.C. 507, 520, 560 S.E.2d 410, 417 (2002). A proceeding before the ALJ is in the nature of a de novo hearing, including the presentation of evidence and testimony, rather than an appellate proceeding. See Brown, 348 S.C. at 512, 560 S.E.2d at 413.

The Appellate Panel reviews the decision of the Administrative Judge in an appellate capacity pursuant to section 1-23-610(D) of the South Carolina Code. S.C.Code Ann § 1-23-610(D) (2005).⁶ The Appellate Panel’s review is confined to the record before it. The circuit court’s review is the same as this Court’s under section l-23-380(A)(6)(2006) of the South Carolina Code. See S.C.Code Ann. § l-23-380(A)(6)(2005);⁷ Brown, 348 S.C. at 512, 560 S.E.2d at 413. It may reverse a decision of an administrative agency if the agency’s findings or conclusions are:

(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. § 1-23-380(A)(6)(2005); see also Weaver v. South Carolina Coastal Council, 309 S.C. 368, 374, 423 S.E.2d 340, 343 (1992).

LAW/ANALYSIS

In reviewing the final decision of the ALJ pursuant to section l-23-610(D), the Appellate Panel sits as a quasi-judicial tribunal and is not entitled to make findings of fact. See Brown, 348 S.C. at 520, 560 S.E.2d at 417. “The [Appellate] Panel can validly reverse the ALJ based on an error of law ... or if his findings are not supported by substantial evidence.” Dorman v. South Carolina Dept. of Health & Envt. Control, 350 S.C. 159, 165, 565 S.E.2d 119, 122 (Ct.App.2002).

Here there is no error of law by the ALJ and his findings are supported by the required substantial evidence. The Appellate Panel found the ALJ misinterpreted what constitutes a navigable waterway under Regulation 30-12(A)(2)(n) and reversed the ALJ’s ruling. Specifically, the Appellate Panel determined the ALJ erred in concluding “in order for a waterway to be legally navigable under Regulation 30-12(A)2(2)(n), the navigation of the waterway must not be so impeded as to create a frequent hazard” and in concluding that the tributary “currently is not a navigable waterway.” We find this was error.

OCRM took the position that as a matter of law the creek was navigable. If that was true, the Landowners could not prevail. But navigability here is a matter of fact, and the facts as found by the ALJ were adverse to OCRM. OCRM claimed the creek was navigable; the Landowners claimed it was not. Although the testimony is in dispute, the facts as found by the ALJ are supported by the evidence. In the words of the ALJ:

In this case, the area of the tributary in front of the Petitioners’ property is currently a defined channel, as evidence by a significant change in grade with the surrounding marsh. However, the mere existence of a defined channel is not enough to satisfy the provisions of Regulation 30-12A(2)(n). Rather, the regulation requires that the waterway also be navigable. Though the tributary itself may be capable of floating watercraft at mid-tide, the facts establish that the mouth of the tributary cannot be consistently navigated safely at the ordinary stages of the tides because of the Atkinson dock. Therefore, I find that it currently is not a navigable waterway.

Further, the ALJ held:

While the tributary itself can be navigated at mid-tide and higher, the “thread” of the stream goes underneath the Atkinson dock and is an impediment to boaters attempting to enter or exit the tributary. Though it is possible to easily navigate around the dock, as reflected by the experience of the OCRM staff, that ease of navigation is dependant upon unpredictable winds and currents. Therefore, I find that the Atkinson dock as it is currently situated presents a frequent hazard to safe navigation in and out of the tributary at the ordinary tides due to the location of the channel of the tributary under the Atkinson dock, the existence of the sand bar/mud flat on the side of the mouth opposite the Atkinson dock, and the prevailing winds and currents.

The ALJ concluded the decision as follows:

I conclude that in order for a waterway to be legally navigable under Regulation 30-12A(2)(n), the navigation of the waterway must not be so impeded as to create a frequent hazard. Therefore, though the docks would cross a defined channel, they would not cross a navigable waterway and thus would not impede reasonable navigation in the tributary to the detriment of the public and an adjacent property owner ... [T]he determination that the tributary is not navigable is due to a man-made impediment. If the Atkinson dock is removed from its location in the mouth of the tributary, the impediment would no longer exist and the tributary would be a navigable stream.

This factual finding is consistent with a prior determination of OCRM’s predecessor. The Coastal Council, in its Order of November 1991, found that the Atkinson dock as built “impedes navigation.” The dock remains to this day in the same place, still impeding navigation.

CZMAP failed to state how the ALJ erred in his interpretation of 23A S.C.Code Ann. Regs. 30-12(A)(2)(n). Rather, the order simply states that the ALJ erred where he concluded: “in order for a waterway to be legally navigable under Regulation 20-12(A)(2)(n), the navigation of the waterway must not be so impeded as to create a frequent hazard,” and “the facts establish that the mouth of the tributary cannot be consistently navigated safely at the ordinary stages of the tides because of the Atkinson dock. ...” Absent explanation of this legal conclusion, or of how the facts in the record supported a finding of “navigability” under the regulation, we can see no error of law meriting reversal of the ALJ. Further, the ALJ’s findings of fact were supported by substantial evidence on the record.

Here OCRM finds itself in the position of trying to pull its chestnuts from a fire it set. It would not face the problem it now faces if it and its predecessor, the Coastal Council, had proceeded to enforce the removal Order directed to Atkinson.

CONCLUSION

Based on the foregoing, we reverse the circuit court’s order which affirmed OCRM’s denial of the landowner’s dock permit. We reinstate the ALJ’s order, which remanded the case so OCRM could either remove the Atkinson dock or approve the Landowners’ dock permits.

REVERSED.

HEARN, C.J., concurs. GOOLSBY, J., dissents in a separate opinion.

1 . This body of water actually contributed nothing: it only returned at low tide the water it had received from the Bohicket at high tide. But because the word "tributary” was used in the record, we will call it that.

2 . The walkway was one hundred thirty feet longer than permitted and the pierhead blocked the tributary as hereafter described.

3 . Under Act 123 of the 1977 General Assembly.

4 . The insignificance of the tributary is implied by this testimony. It was not sufficiently different from the mud flat crossed as to cause the maker of the plat to chart it.

5 . S.C.Code Ann. §§ 1-23-10 to -660 (2005 & supp.2005).

6 . This section was amended by 2006 South Carolina Laws Act 387 (H.B.3285); however, the applicable language at all times pertinent to (he present appeal is found in section 1-23- 610(D) (2005).

7 .This section was also amended by 2006 South Carolina Laws Act 387 (H.B.3285); however, similar to the above, the applicable language all times pertinent to the present appeal is found in section 1-23-380(A)(6)(2005).