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2007-UP-513 - Vaughn v. DHEC

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

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Stephen Vaughn, Appellant,

v.

South Carolina Department of Health and Environmental Control and Beresford Creek Homeowner’s Association, Respondents.


John D. Geathers, Administrative Law Court Judge


Unpublished Opinion No. 2007-UP-513
Submitted November 1, 2007 – Filed November 7, 2007   


AFFIRMED


Mary. D. Shahid, of Charleston, for Appellant.

Leslie S. Riley and James D. Myrick, both of Charleston, for Respondents.

PER CURIAM: This is an appeal of an Administrative Law Court (ALC) order affirming a decision of the South Carolina Department of Health and Environmental Control (DHEC), Office of Ocean and Coastal Resource Management (OCRM), denying a dock permit to Appellant, Stephen Vaughn.  Vaughn argues the ALC erred in finding his property (the Lot) was not waterfront property and in refusing to allow modification of the subdivision’s dock master plan to include a dock corridor for the Lot.  Vaughn also claims the denial of a dock permit violated his constitutional rights to Equal Protection under the laws of South Carolina.  We affirm[1].  

FACTS

Vaughn entered into a contract to purchase the Lot on Rivershore Drive in the Beresford Creek Subdivision (the Subdivision) on Daniel Island.[2]  The Lot was not indicated on the dock master plan as having an approved dock corridor.  Vaughn filed an application with OCRM to obtain a permit to build a private dock on the Lot.  The proposed dock consisted of a 4 foot by 620 foot walkway with handrails leading to a 20 foot by 20 foot fixed pierhead with a roof and handrails.  The proposed dock included an attached 10 foot by 20 foot floating dock and a 12 foot by 20 foot six-pile boatlift. 

Vaughn requested a meeting with OCRM staff through his elected representative, Shirley Hinson.  OCRM Deputy Commissioner Chris Brooks and Permitting Director Richard Chinnis met with Vaughn in October 2004 to discuss the pending dock permit. 

In the beginning of November 2004, OCRM denied Vaughn’s permit application on the ground the Lot was not waterfront property as defined by OCRM regulations.  First, OCRM found the Lot’s “projected property lines d[id] not intersect with the creek [within] 1000’ as required” by OCRM regulations.  Second, OCRM found the Lot did not “possess a dock corridor on [an OCRM] approved” dock master plan for the Subdivision. 

Vaughn filed a request for a contested case with the ALC.  The Beresford Creek Homeowner’s Association (Association) moved to intervene as a party to the contested case, and the ALC granted the Association’s motion.  A hearing was held in August 2005.  The ALC affirmed OCRM’s decision denying a dock permit to Vaughn, finding the Lot was not waterfront property as defined by regulations. 

On November 4, 2005, Vaughn commenced an appeal of OCRM’s denial of the dock permit to the Coastal Zone Management Appellate Panel (the Panel).  Vaughn averred the ALC erred in finding the Lot was not waterfront property and by refusing to allow modification of the dock master plan to include a dock corridor for the Lot. Vaughn also claimed the denial of his permit violated his constitutional rights to Equal Protection under the laws of South Carolina.  During the pendency of the appeal, Act 387 (the Act) was signed into law[3] which substantively amended DHEC’s administrative and permitting procedures, including amendments to the procedure of appeal from the ALC.[4]  Pursuant to the Act, Vaughn filed and served his notice of appeal with this court on July 3, 2006.

STANDARD OF REVIEW

In contested permitting cases, the ALC serves as the finder of fact.  Brown v. S.C. Dep’t of Health & Envtl. Control, 348 S.C. 507, 520, 560 S.E.2d 410, 417 (2002).  On appeal, this court may not substitute its judgment for that of an agency on questions of fact when those facts are supported by substantial evidence.  Dorman v. Dept. of Health & Envtl. Control, 350 S.C. 159, 565 S.E.2d 119 (Ct. App. 2002); See Al-Shabazz v. State, 338 S.C. 354, 380, 527 S.E.2d 742, 756 (1999).  In determining whether the ALC’s decision was supported by substantial evidence, this court need only find, looking at the entire record on appeal, evidence from which reasonable minds could reach the same conclusion that the administrative agency reached.  DuRant v. S.C. Dep’t of Health & Envtl. Control, 361 S.C. 416, 420, 604 S.E.2d 704, 706 (Ct. App. 2004).  The mere possibility of drawing two inconsistent conclusions from the evidence does not prevent a finding from being supported by substantial evidence.  Id. at 420, 604 S.E.2d at 707.

LAW/ANALYSIS

I.  Waterfront Property

Vaughn contends the ALC erred in finding the Lot was not waterfront property.  Vaughn first asserts the Lot meets the regulatory requirements of waterfront property, and alternatively, he argues OCRM and the ALC improperly used the regulatory definition of waterfront property in denying his dock permit.  We disagree.

The regulatory definition of waterfront property, as found in Regulation 30-1(D)(52) of the South Carolina Code (Supp. 2006), provides:

For purposes of these regulations, waterfront property will generally be defined as upland sites where a straight-line extension of both, generally shore perpendicular, upland property lines reaches a navigable watercourse within 1000’ of the marsh critical line.  Waterfront property may also be identified via an approved dock master plan where designated corridors differing from upland property line extensions are delineated.

In this case, the ALC found the Lot did not comport to either of the two definitions of waterfront property contained in the regulations. 

A.  Straight-Line Extension of the Lot’s Property Lines

The ALC found the straight-line extensions of both of the Lot’s generally shore perpendicular, upland property lines do not reach Beresford Creek or any other navigable waterway within 1000 feet of the Lot’s marsh critical line.  Vaughn argues the testimony of his civil engineer, Greg Jones, demonstrates how an extension of the upland property boundaries of the Lot satisfies the 1000 feet requirement contained in the definition. However, as noted by the ALC, Jones did not extend the upland property lines of the Lot, as required by the regulatory definition, to reach his conclusion.[5]  The ALC explained Jones “extended the eastern shore-perpendicular, upland property line by creating an angle at the critical line and beginning a new line towards Beresford Creek, instead of simply extending the property boundary in a straight line.”  For the second extension, Jones “extended a segment of the [OCRM] critical line towards Beresford Creek, rather than extending the other shore perpendicular upland property line of [the] [L]ot’s western property.”  We find substantial evidence to support the ALC’s determination the Lot was not waterfront property according to the first definition of waterfront property provided in the regulations.  Accordingly, we find no error in the ALC’s determination. 

Regardless of whether the Lot’s straight-line extensions met the required length, Vaughn asserts OCRM and the ALC erred in using the regulatory definition of waterfront property for the purpose of establishing criteria for the issuance or denial of a permit application.  Vaughn claims the definition of waterfront property provided in Regulation 30-1(D)(52) should have been used only for the purposes of providing guidance in the interpretation of other regulations.  Vaughn suggests that the permit application should have been considered in the context of South Carolina Code Regulation 30-12, specifically Regulation 30-12(A)(1)(e).[6]  Regulation 30-12 sets forth specific project standards for tidelands and coastal waters.  Regulation 30-12(A)(1), specified by Vaughn, lists the standards for the construction of docks and piers. 

We note OCRM and the ALC did not err in using Regulation 30-1(D)(52) to determine the Lot was not waterfront property.  The South Carolina Coastal Zone Management Act was passed to protect and enhance the State’s coastal resources.  S.C. Code Ann. §§ 48-39-10 to 360 (Supp. 2006); S.C. Code Ann. Regs. 30-1 (Supp. 2006).  The Lot is located in a “critical area” within the South Carolina coastal zone.  See S.C. Code Ann. Regs. 30-1(D)(14) (Supp. 2006) (defining “critical areas” as “(1) coastal waters, (2) tidelands, (3) beach/dune systems and (4) beaches”).  Therefore, one must apply for a dock permit when seeking to construct a dock.  S.C. Code Ann. Regs. 30-2 (B) (Supp. 2006) (requiring “any person wishing to alter a critical area [to] receive a permit”).  The regulations promulgated pursuant to the South Carolina Coastal Zone Management Act cloak OCRM with authority to carry out South Carolina’s coastal zone policies, including the power to issue permits for docks and piers.  S.C. Code Ann. Regs. 30-10(A)(1) (Supp. 2006); S.C. Code Ann. §48-39-130 (Supp. 2006).  The first general consideration OCRM is required to weigh in determining whether to issue a dock permit, or any other “critical area” permit, is “[t]he extent to which the activity requires a waterfront location or is economically enhanced by its proximity to water.”  S.C. Code Ann. Regs. 30-11(B)(1) (Supp. 2006).  The construction and use of a dock are clearly activities that require a waterfront location.  See, e.g., S.C. Code Ann. Regs. 30-12(A)(1) (Supp. 2006) (describing a dock as a “structure built over and/or floating on water . . . generally used for the mooring of boats”).  Therefore, as the ALC noted:

[W]hile Regulation 30-1(D)(52) is a purely definitional section, not a substantive dock permitting regulation, the definition of ‘waterfront property’ provided in that section is important for determining whether a proposed dock project is located in a ‘waterfront location’ and thus can satisfy the first general consideration for evaluating critical area activities under the Coastal Zone Management Act and OCRM’s regulations.

Accordingly, OCRM and the ALC properly considered Regulation 30-1(D)(52) to determine the Lot was not a waterfront property.

B.  Identification on a Dock Master Plan

The ALC also found the Lot was not identified on a dock master plan for the Subdivision, such as to satisfy the second definition of waterfront property.  The ALC acknowledged Vaughn’s efforts to have the dock master plan amended to include a dock corridor for the Lot, but concluded the Lot was not identified as waterfront property with a dock corridor on the most current version of the dock master plan. 

Vaughn again asserts OCRM and the ALC erred in using the regulatory definition of waterfront property.  Vaughn contends nothing in the regulations mandates a denial of a dock permit if a lot does not have an established dock corridor on an approved dock master plan.  Vaughn suggests the regulations only require a dock master plan be used as a “framework” for future permitting decisions.  Thus, Vaughn asserts it was unlawful regulation and an error of law for OCRM and the ALC to base their denial on the fact the Lot was not indicated in the dock master plan.

As discussed above, OCRM’s and the ALC’s reliance on the definition of waterfront property and the adherence to the requirements contained in the definitions were proper.  Further, we find substantial evidence to support the ALC’s determination that the Lot was not waterfront property according to the second definition of waterfront property provided in the regulations.  Accordingly, we find no error in the ALC’s determination.

II.  Modification

Vaughn also claims the ALC erred in not allowing the dock master plan to be modified.  Vaughn argues modification of the dock master plan was proper based on new information regarding the Lot and the Subdivision’s restrictive covenants did not prevent a modification of the dock master plan, as asserted by the ALC.  

The ALC did not actually make the ruling which Vaughn raises to this court.  The ALC noted in its findings of fact that the Lot was subject to the terms and conditions of the Subdivision’s Declaration of Covenants, Conditions and Restrictions, but did so to illustrate the Lot was not indicated on the current version of the dock master plan.  Nowhere within its order does the ALC indicate that the dock master plan may not be modified in the future.  Accordingly, this issue is not preserved for our review, and we decline to address it.  In re Michael H., 360 S.C. 540, 546, 602 S.E.2d 729, 732 (2004) (holding that issues must be raised and ruled upon in the trial court to be preserved for appellate review); Ellie, Inc. v. Miccichi, 358 S.C. 78, 103, 594 S.E.2d 485, 498 (Ct. App. 2004) (finding “without an initial ruling by the trial court, a reviewing court simply would not be able to evaluate whether the trial court committed error”).

III.  Equal Protection

Lastly, Vaughn contends his rights to Equal Protection were violated by the ALC’s decision.  The gravamen of Vaughn’s argument is that he is similarly situated to several other lot owners in the Subdivision who have obtained dock permits.  We disagree. 

Vaughn is in a different position than the other lot owners in the Subdivision because the Lot was never depicted on the dock master plan as showing a dock corridor.  The other lots in the neighborhood, which have obtained dock permits, are shown on the dock master plan as having a dock corridor.  Thus, we find Vaughn is not similarly situated to others in the Subdivision, and the ALC’s order does not violate Vaughn’s constitutional rights. 

CONCLUSION

We find substantial evidence to support the ALC’s determination that the Lot was not waterfront property according to the definition of waterfront property provided in the regulations and thus, find no error in the ALC’s determination.  Further, we find reliance on the regulatory definition of waterfront property in determining the Lot was not waterfront property was proper.  Next, we hold Vaughn’s claim the ALC erred in not allowing the dock master plan to be modified is not preserved for our review.  Lastly, we hold Vaughn’s constitutional rights were not violated by the ALC’s decision.  Based on the foregoing, the final order of the ALC is

AFFIRMED.

ANDERSON and THOMAS, JJ., and GOOLSBY, A.J., concur.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] After Vaughn filed this appeal, the Lot was sold to SDJ, LLC, an entity in which Vaughn is a principal. 

[3] The “effective date” of the Act is July 1, 2006. 

[4] Prior to the enactment of the Act, the Panel had jurisdiction to review final decisions of the ALC.  S.C. Code Ann. § 1-23-610 (2005) amended by Act 387 §5 (codified at S.C. Code Ann. §1-23-610 (Supp. 2006)).  Under the Act, the court of appeals now has jurisdiction over appeals from final decisions of the ALC.  See Act 387 §§ 5, 15.   Section 57 requires the Act to apply “to any actions pending on or after the effective date.”  However, it also creates an exception to this general rule of applicability and mandates the former law continue to apply to “appeals of Department of Health and Environmental Control, Ocean and Coastal Resource Management and Environmental Quality Control permits that are before the Administrative Law Court on the effective date of this act and petitions for judicial review that are pending before the circuit court.”  See Chem-Nuclear Syss., LLC v. South Carolina Bd. of Health and Envtl. Control, 374 S.C. 201, 206, 648 S.E.2d 601, 604 (2007).    

[5] The ALC found the testimony of Jones was not credible. 

[6]  Regulation 30-12(A)(1)(e) reads:

All applications for docks and piers should accurately illustrate the alignment of property boundaries with adjacent owners and show the distance of the proposed dock from such extended property boundaries. For the purpose of this section, the extension of these boundaries will be an extension of the high ground property line.  The Department may consider an alternative alignment if site specific characteristics warrant or in the case of dock master plans, when appropriate.