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Kiawah Development Partners, II v. South Carolina Department of Health and Environmental Control

Supreme Court of South Carolina

April 18, 2018

Kiawah Development Partners, II, Respondent,
v.
South Carolina Department of Health and Environmental Control, Appellant, and South Carolina Coastal Conservation League, Appellant,
v.
South Carolina Department of Health and Environmental Control, and Kiawah Development Partners, II, of whom South Carolina Department of Health and Environmental Control is, Appellant, and Kiawah Development Partners, II, is Respondent. Appellate Case No. 2016-000707

          Heard September 27, 2017

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

          Amy Elizabeth Armstrong, of South Carolina Environmental Law Project, of Pawleys Island and Bradley David Churdar, of South Carolina Department of Health and Environmental Control, of Charleston, for Appellants.

          G. Trenholm Walker and Thomas P. Gressette, Jr., both of Walker Gressette Freeman & Linton, LLC, of Charleston, for Respondent.

          HEARN, JUSTICE

         This case comes to the Court a second time following an order issued by the Administrative Law Court (ALC) ordering the installation of an erosion control structure along the shoreline of the Kiawah River on Captain Sam's Spit. Because we find a portion of the structure authorized by the ALC is not supported by substantial evidence, we affirm the order as modified, as more fully explained herein.

         FACTUAL BACKGROUND

         The complete history of litigation surrounding the installation of erosion control structures on Captain Sam's Spit can be found in our earlier opinion, Kiawah Develop Partners, II v. South Carolina Department of Health and Environmental Control, 411 S.C. 16, 766 S.E.2d 707 (2014). The litigation arose after Respondent Kiawah Development Partners, II (KDP) applied for a permit to build an erosion control structure consisting of a bulkhead and revetment along the Kiawah River on Captain Sam's Spit in order to facilitate residential development of the upland property. The South Carolina Department of Health and Environmental Control (DHEC) denied the majority of the permit but granted a 270-foot portion to protect public access to Beachwalker Park. Thereafter, the ALC held a contested case hearing where KDP challenged DHEC's denial of the majority of the requested permit, and the South Carolina Coastal Conservation League (the League) contested the issuance of the permit for the 270-foot structure and sought to uphold the denial of the remainder of the permit. After the ALC ruled in favor of KDP and issued an order authorizing the installation of a bulkhead and revetment running 2, 783 feet along the shoreline, both DHEC and the League appealed to this Court. We reversed and remanded the ALC's order, finding several errors of law in its application of the public trust and various provisions of the Coastal Zone Management Act[1] (CZMA). See id. at 44, 766 S.E.2d at 723.

         On remand, the ALC reconsidered the evidence presented at the hearing and authorized the installation of a 270-foot tandem bulkhead and revetment along the shoreline adjacent to the parking lot of Beachwalker Park, as well as a vertical bulkhead only that spanned an additional 2, 513 feet along the shoreline of Captain Sam's Spit. Now on appeal, DHEC argues the ALC erred in approving the structure aside from the 270 feet protecting access to Beachwalker Park, while the League contests the entirety of the erosion control structure.

         STANDARD OF REVIEW

         The Administrative Procedures Act establishes the standard of review in appeals from the ALC. S.C. Code Ann. § 1-23-610(B) (Supp. 2017). The Act constrains an appellate court from reweighing the evidence presented to the ALC, but the appellate court may reverse or modify a decision if the ALC's findings or conclusions are:

(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of ...

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