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Schwiers v. South Carolina Department of Health and Environmental Control

Court of Appeals of South Carolina

December 31, 2019

Gene B. Schwiers, Respondent,
v.
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

          Heard May 6, 2019

          Appeal From The Administrative Law Court Harold W. Funderburk, Jr., Administrative Law Judge.

          Eugene LeRoy Nettles, III, of Nettles Turbeville & Reddeck, of Lake City, for Appellant.

          Gene B. Schwiers, of Greenville, pro se.

          Bradley David Churdar, of Charleston, for the South Carolina Department of Health and Environmental Control.

          MCDONALD, J.

         In this 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.

         Facts and Procedural History

         In 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.[1]

         After 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[2] 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 vicinity.

         During 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.[3]

         Christopher 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.

         The ALC 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)[4] 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 30-12(A)(1)(p)."

         Heath 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."

         The ALC 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."

         Standard of Review

         In an 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.

Id.

         "Thus, 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).

         In 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 ...


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