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2007-UP-326 - South Carolina Department of Health and Environmental Control v. Gould
Appellants, Gene Sheryl Nix, Sandra Dianne Nix and Dewayne Nix (hereinafter either referred to individually or jointly as “Intervenors”) appeal the trial court’s order denying their motion to intervene, arguing that their participation and the relief the

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED UPON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


South Carolina Department of Health and Environmental Control, Respondent,

v.

Shane Gould, Appellant.


Appeal from Administrative Law Court
Ralph King Anderson, III, Administrative Judge


Unpublished Opinion No. 2007-UP-326
Submitted April 2, 2007 – Filed June 18, 2007


AFFIRMED


C.C. Harness, III, of Mount Pleasant, for Appellant.

Van Whitehead, of North Charleston, for Respondent.

PER CURIAM:  Shane Gould appeals the administrative law judge’s (ALJ) order requiring relocation of a covered pierhead in a permit revocation action initiated by the South Carolina Department of Health and Environmental Control (DHEC).  We affirm.

FACTS

Gould resides and owns a house at 29 Sea Olive Road on Hilton Head Island, adjacent to Point Comfort Creek.  He applied for a dock permit in November 2001, which was granted on December 19, 2001.  Based on Gould’s permit application, all parts of the dock were to be built at least twenty feet inside his extended property line.  Gould began building the dock in 2003. 

Contemporaneously with construction of the dock, Margaret Maxwell, Gould’s neighbor, complained that the dock crossed the extended property line separating her property from Gould’s.  Indeed, as completed, the dock’s roofed pierhead and a floating dock crossed the extended property line separating the properties.  Maxwell continued to complain to the Office of Ocean and Resource Management (OCRM) and government officials about the dock’s placement, the resulting obstruction of her view, and her access to the creek.  

Based upon her complaints, OCRM reviewed the permit and discovered the inaccuracy of the submitted application.  OCRM instituted an enforcement action in 2004, but instead proceeded with this revocation action.[1]  In the action, OCRM sought to revoke Gould’s permit based on the material inaccuracy of the drawings, as well as to require him to submit a new permit application with new drawings.  However, OCRM did not seek to require Gould to alter the dock in the interim. 

During the pendency of this action, Gould agreed to move his floating dock to the other side of the pierhead onto his side of the extended property line.  However, he did not agree to move the roofed pierhead, which remained across the line separating his property from Maxwell’s.

The ALJ found that after Gould’s floating dock was moved, the only material harm would be the impact on Maxwell’s view.  Accordingly, the ALJ found this matter could be solved without revoking the existing permit and requiring a new application.  Thus, the ALJ ordered modification of the existing permit such that (1) the gangway and float be moved to the opposite side of the pierhead, and (2) any portion of the pierhead roof lying over the extended property lines be removed.  He further required that the new location of the floating dock be approved by OCRM consistent with his order, and any partial removal of the roofing be approved by OCRM.  Gould Appeals.  DHEC did not file a brief.

STANDARD OF REVIEW

The appellate court may reverse or modify an administrative decision if such decision is affected by errors of law, characterized by an abuse of discretion, or clearly erroneous in view of the substantial evidence on the whole record.  Professional Samplers, Inc. v. South Carolina Employment Sec. Com’n, 334 S.C. 392, 395, 513 S.E.2d 374, 376 (Ct. App. 1999).  “Substantial evidence” is not a mere scintilla of evidence, nor the evidence viewed blindly from one side of the case, but is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion the administrative agency reached in order to justify its action.  Hull v. Spartanburg Co. Assessor, 372 S.C. 420, 641 S.E.2d 909, 911 (Ct. App. 2007).  The appellate court may not substitute its judgment for that of an agency as to the weight of evidence on questions of fact.  Grant v. South Carolina Coastal Council, 319 S.C. 348, 353, 461 S.E.2d 388, 391 (1995). 

LAW / ANALYSIS

I.  Legal Authority to Order Removal of the Pierhead-Roof

Gould argues that the ALJ lacked legal authority to order the removal of the portion of the pierhead roof that crosses the extended property lines.  Specifically, he argues because the roof removal was not agreed to by the parties, and because OCRM did not request this relief or make any general prayer for relief, there is no basis for that portion of the order.  We disagree. 

This issue is not preserved for appellate review.  During examination of the trial’s first witness, the ALJ asked the parties:

In light of the tenure that this case comes before me, do I have the authority to if I find in (sic) fitting with the facts to amend the permit and to allow the permit of the dock crossing the extended property line within my authority to modify? 

Counsel for OCRM answered in the affirmative and Gould made no response.  The ALJ further noted “Well, I just wanted to ask that to let both parties know what I may be thinking about and so you can ask your questions accordingly.”  Again, Gould did not object or respond.  At the conclusion of the hearing, the ALJ stated that “a proper resolution to this case would be to modify the permit and require that . . . that no dock or anything else extend beyond the extended property line from that point on,” notifying the parties that the hearing would be adjourned other than any response to that proposed resolution.  Gould again made no objection or argument in response.  By failing to object to the ALJ’s comments, Gould waived any objection he may have raised to the remedy granted.  Rule 15(b), SCRCP, (“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”); Andrews v. von Elten & Walker, Inc., 315 S.C. 199, 202, 432 S.E.2d 500, 502, (Ct. App. 1993) (holding an issue that was discussed extensively at trial without objection was tried by consent of the parties).

Additionally, we note Gould’s position at trial was markedly contrary to his position on appeal.  Gould argued before the ALJ that an enforcement action was the proper means for OCRM to address Gould’s dock permit issue, rather than a revocation action.  As Gould apparently acknowledges in his brief, in an enforcement action for a permit violation, modification and removal are proper remedies.  See South Carolina Coastal Council v. Vogel, 292 S.C. 449, 357 S.E.2d 187 (1987) (affirming a removal order of an illegally constructed dock); Brownlee v. Dept. of Health and Env. Control, 372 S.C. 119, 641 S.E.2d 45, 46 (Ct. App. 2007) (discussing an enforcement action by the predecessor to OCRM in response to a dock that, having been built not in compliance with the issued permit, had been subject to an administrative order to relocate the pierhead and walkway).  Thus, in effect, Gould now appeals the ALJ’s enforcement-like resolution of this matter, after arguing enforcement was the proper form for this action in the first place.  “It is well settled that one cannot present and try his case on one theory and then change his theory on appeal.”  Gurganious v. City of Beaufort, 317 S.C. 481, 488, 454 S.E.2d 912, 916 (Ct. App. 1995). 

Because Gould raised no objection when the ALJ stated his intent to modify the permit rather than revoke it, and because of the inconsistency of his arguments on appeal and before the ALJ, we find this issue not preserved for appellate review.  Therefore, we find no error in the ALJ’s order.

CONCLUSION

Based on the foregoing, the ALJ’s order is

AFFIRMED.

HEARN, C.J., and GOOLSBY and STILWELL, JJ., concur.


[1] Maxwell was denied the right to intervene on October 18, 2005.  She did not appeal from this decision.  Although it is unclear from the record, it appears that Maxwell’s intervenor status was denied while this action was still in the posture of an enforcement action.