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Dreher v. South Carolina Department of Health and Environmental Control

Supreme Court of South Carolina

March 18, 2015

Ann Dreher, Respondent,
v.
South Carolina Department of Health and Environmental Control, Petitioner

Heard November 18, 2014.

Appellate Case No. 2013-000364.

Appeal From The Administrative Law Court. Ralph King Anderson III, Administrative Law Judge.

Bradley David Churdar, of N. Charleston, for Petitioner.

Christopher McG. Holmes, of Mt. Pleasant, for Respondent.

OPINION

[412 S.C. 246]ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Page 506

TOAL, CHIEF JUSTICE:

We granted the South Carolina Department of Health and Environmental Control's (DHEC) petition for a writ of certiorari to review the court of appeals' decision in Dreher v. South Carolina Department of Health and Environmental Control, 399 S.C. 259, 730 S.E.2d 922 (Ct.App. 2012), reversing the Administrative Law Court's (ALC) denial of Ann Dreher's (Respondent) bridge construction permit application. We affirm as modified.

Facts/Procedural Background

In January 1994, Respondent purchased two parcels of property located on Folly Island, South Carolina: 806 East Cooper Avenue, and Tract D. These lots were previously a contiguous tract of high ground property in which the Tract D portion abutted the ocean, and the Cooper Avenue portion abutted the roadway. However, at some point prior to Respondent's property purchase, two man-made canals were constructed, after which Tract D became completely surrounded by coastal tidelands and waters. At present, 806 East Cooper Avenue is approximately 0.24 acres in size, and Tract D is approximately 0.84 acres in size.

On April 2, 2009, Respondent filed a permit application with DHEC requesting permission to construct a vehicular bridge from 806 East Cooper Avenue to Tract D. DHEC denied the application because Regulation 3012(N)(2)(c) prohibits the agency from issuing a bridge construction permit to a " coastal island" less than two acres in size, and the parties agreed that--if Tract D was, in fact, a " coastal island" --it did not meet the regulation's minimum size requirement. See S.C. Code Ann. Regs. 30-12(N)(2)(c) (2011).[1]

Respondent requested a contested case hearing before the ALC. At the hearing, the parties focused on whether Tract D met the definition of a " coastal island" as described in the Coastal Zone Management Act (CZMA) and the regulations promulgated pursuant to the CZMA. See generally S.C. Code Ann. § § 48-39-10 to -360 [412 S.C. 247] (2008 & Supp. 2014); S.C. Code Ann. Regs. 30-1 to -21 (2011 & Supp. 2014). A " coastal island" is defined as:

an area of high ground above the critical area delineation that is separated from other high ground areas by coastal tidelands or waters. An island connected to the mainland or other island only by a causeway is also considered a coastal island. The purpose of this definition is to include all islands except those that are essentially mainland, i.e., those that already have publicly accessible bridges and/or causeways. The following islands shall not be deemed a coastal island subject to this section due to their large size and developed nature: Waites Island in Horry County; Pawleys Island in Georgetown County; Isle of Palms, Sullivans Island, Folly Island, Kiawah Island, Seabrook Island, Edisto Island, Johns Island, James Island, Woodville Island, Slannn Island and Wadmalaw Island in Charleston County; Daniel Island in Berkeley County; Edisto Beach in Colleton County; Harbor Island, Hunting Island,

Page 507

Fripp Island, Hilton Head Island, St. Helena Island, Port Royal Island, Ladies Island, Spring Island and ...

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