Gene B. Schwiers, Respondent,
South Carolina Department of Health and Environmental Control and Stewart W. Heath, Respondents below, Of whom South Carolina Department of Health and Environmental Control is the Respondent, And Stewart W. Heath is the Appellant. Appellate Case No. 2016-002136
May 6, 2019
From The Administrative Law Court Harold W. Funderburk, Jr.,
Administrative Law Judge.
LeRoy Nettles, III, of Nettles Turbeville & Reddeck, of
Lake City, for Appellant.
B. Schwiers, of Greenville, pro se.
Bradley David Churdar, of Charleston, for the South Carolina
Department of Health and Environmental Control.
contested permitting matter, Stewart Heath appeals the
Administrative Law Court's (ALC's) order denying his
application to amend a critical area permit to modify his
private dock. Heath argues the ALC committed errors of law in
finding the proposed modifications failed to comply with the
requirements of the Coastal Zone Management Act, specifically
section 48-39-150 of the South Carolina Code (2008 &
Supp. 2019), and critical area regulations 30-12(A)(1)(e) and
(p) of the South Carolina Code of Regulations (2011). Heath
further asserts the ALC erred in failing to consider the
relevant site specific characteristics and disregarded
regulation 30-11(A)(2)'s requirement that DHEC ensure
consistent permit evaluations. We reverse.
and Procedural History
2012, DHEC approved Heath's application for a permit to
modify his existing private use dock on Main Creek in Garden
City. In 2015, Heath applied to amend the permit to authorize
him to shift his existing floating dock northward and add a
second boatlift. After considering Heath's application
and letters from neighboring property owners objecting to the
proposed modifications, DHEC approved the amended permit.
Gene Schwiers, the landowner of an adjacent parcel and dock,
requested the South Carolina Board of Health and
Environmental Control (the Board) conduct a final review of
the permitting decision.
the Board declined to conduct a final review conference,
Schwiers filed a request for a contested case hearing before
the ALC. In her prehearing statement, Schwiers argued the
proposed location of Heath's boatlift "would have a
negative impact on [her] family's enjoyment of [their]
property because it would be an impediment to [their] visual
corridor." She noted other neighboring property owners
were concerned DHEC's "continued approval of
encroachment" could result "in the loss of value in
the property owned by those impacted." In its prehearing
statement, DHEC asked that the ALC affirm its issuance of the
amended permit, explaining it determined Heath's
requested modifications to the existing dock would cause no
material harm to the policies of the Act because the
proposed modifications were consistent with other docks along
the Main Creek corridor and the resulting dock spacing would
be consistent with the spacing of other docks in the
the hearing before the ALC, Schwiers testified the proposed
boatlift would interfere with her complete enjoyment of her
dock and her family's ability to navigate a twelve-foot
kayak between Heath's dock and her own dock. She
acknowledged some docks in the area had two boatlifts but
asserted less than half of the docks along her street had two
boat storage structures. In her opposition letter to DHEC,
Schwiers complained the addition to Heath's dock would
"encroach on [her] dock drastically," leaving
"little to no room" between their docks, "and
completely block her ability to fish, crab, catch minnows,
and [participate in] all other water activities to the north
side." She also stated her nephew would no longer be
able to swim in the inlet or kayak on the north side of the
dock and her elderly mother's activities from the north
side of the pierhead would be restricted.
Stout, Wetlands Section Project Manager for DHEC's Office
of Ocean and Coastal Resource Management (OCRM), was project
manager for DHEC's review of Heath's application to
amend his critical area permit. According to Stout, Heath
satisfied Regulation 30-12's project standards for adding
the boatlift in that "Mr. Heath has an existing dock and
what he has asked for fits within the purview of square
footage and the actual number of boat storage structures that
are allowed by the regulation." Stout testified that
although Heath's existing dock was outside of his
extended property lines-and thus did not comply with the
general agency standard-it had been "grandfathered"
because its construction predated the Act. There were "a
significant number of grandfathered structures" on Main
Creek, some of which did not adhere to the general standard
concerning extended property lines. In evaluating Heath's
application, Stout considered that at its closest point,
Heath's proposed boatlift would be sixteen feet from
Schwiers's fixed pierhead. Schwiers's stairs lead
south, away from the Heath dock; thus, the boatlift addition
would not impact her ability to access the water from the
other sides of her dock. Stout also considered the
characteristics of the area, noting portions of five docks
belonging to other landowners crossed into Heath's own
dock corridor, between his extended property lines. The ALC
admitted an aerial image showing Heath's dock and the
docks encroaching within his extended property lines.
reversed DHEC's decision and denied Heath's amended
permit application, finding the proposed location of the
boatlift violated § 48-39-150(A)(10) and regulation
30-11(B)(10) because the addition would result in
material harm to the policies of the Act as referenced in
regulation 30-12(A)(1)(p). In referencing the testimony
presented at the hearing, the ALC noted,
"Petitioner's objection concerning the inability to
fish or crab, deals exclusively with preference of location
on her pier, and the boatlift would not significantly hamper
Petitioner's ability to engage in that activity."
However, "the whole of the proposed construction [would]
take place on Petitioner's side of the joint extended
property line, thereby causing material harm to the policies
of the Act as referenced in S.C. Code Ann. [§]
48-39-150(A)(10); 2 S.C. Code Ann. Regs. 30-11(B)(10) and
moved to reconsider, challenging the ALC's emphasis on
Schwiers's extended property lines as error due to the
site specific characteristics of this section of Main Creek.
Heath further questioned the order's finding as to the
proposed boatlift's impact on Schwiers's value and
enjoyment of her property, arguing Schwiers presented no
evidence "that the dock modification would negatively
affect the value of [Schwiers's] property."
denied Heath's motion to reconsider but issued an amended
final order. The ALC again concluded the proposed location of
the boatlift violated § 48-39-150(A)(10) and regulation
30-11(B)(10) because "the proposed boatlift will affect
the value and enjoyment of adjacent owners to the extent of
producing material harm to the policies of the Act." The
ALC found, "The ability to swim, kayak, and fish from
Petitioner's dock is sufficiently impeded by the close
proximity of the proposed second boatlift to constitute
material harm to the policies of the Act."
appeal from the ALC, the Administrative Procedures Act
provides our standard of review. See Kiawah Dev.
Partners, II v. S.C. Dep't of Health & Envtl.
Control, 411 S.C. 16, 28, 766 S.E.2d 707, 715 (2014)
(citing S.C. Code Ann. § 1-23-610(B) (Supp. 2019)).
Appellate courts must confine their analysis to whether the
ALC's decision is:
(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of the agency;
© 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 an abuse of
discretion or clearly unwarranted exercise of discretion.
this court can reverse the ALC if the findings are affected
by error or law, are not supported by substantial evidence,
or are characterized by abuse of discretion or clearly
unwarranted exercise of discretion." Olson v. S.C.
Dep't of Health & Envtl. Control, 379 S.C. 57,
64, 663 S.E.2d 497, 501 (Ct. App. 2008).
determining whether the decision of the ALC was supported by
substantial evidence, a reviewing court "need only find,
looking at the entire record on appeal, evidence from which
reasonable minds could reach the same conclusion as the
ALC." Kiawah Dev. Partners II, 411 S.C. at 28,
766 S.E.2d at 715. "However, the court may reverse the
ALC decision where it is ...