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2009-MO-029 - SCDHEC v. Combos

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Supreme Court


South Carolina Department of Health and Environmental Control, Respondent,

v.

Stephen R. Combos, Appellant.


Appeal From Charleston County
 Roger M. Young, Circuit Court Judge


Memorandum Opinion No. 2009-MO-029
Heard May 14, 2009 – Filed June 15, 2009  


AFFIRMED


Cotton C. Harness, III, of Austin & Rogers, of Mt. Pleasant, for Appellant.

Carlisle  Roberts, Jr., of Columbia; and Chief Counsel Elizabeth Applegate Dieck, and Staff Attorney Davis A. Whitfield-Cargile, both of Charleston, all of DHEC, for Respondent.


PER CURIAMThe circuit court ruled Stephen R. Combos violated an administrative enforcement order and directed him to remove an unauthorized dock extension that crossed a navigable waterway.  Combos appeals, arguing his rights to equal protection and due process were violated, and the South Carolina Department of Health and Environmental Control (DHEC) should be estopped from denying him a permit for the dock extension.  We affirm pursuant to Rule 220(b)(1), SCACR and the following authorities: 

Issue I:  23A S.C. Code Ann. Regs. 30-12(A)(2)(n) (Supp. 2001) (“Docks must extend to the first navigable creek with a defined channel as evidenced by a significant change in grade with the surrounding marsh.  Such creeks cannot be bridged in order to obtain access to deeper water.”); Heckler v. Chaney, 470 U.S. 821, 831 (recognizing that “an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion”); Brownlee v. South Carolina Dep’t of Health & Envtl. Control, Op. No. 26620 (S.C. Sup. Ct. filed March 30, 2009) (Shearouse Adv. Sheet No. 14 at 11) (finding DHEC applied the correct legal standard in determining the waterway at issue near the Bohicket River was navigable and in denying the permit applications of nearby landowners to construct dock extensions because the extensions would violate state law prohibiting the crossing of navigable waterways (citing former Regulation 30-12-(A)(2)(n))); Grant v. South Carolina Coastal Council, 319 S.C. 348, 354, 461 S.E.2d 388, 391 (1995) (“The sine qua non of an equal protection claim is a showing that similarly situated persons received disparate treatment.”); Olson v. South Carolina Dep’t of Health & Envtl. Control, 379 S.C. 57, 70, 663 S.E.2d 497, 504 (Ct. App. 2008) (rejecting the plaintiffs’ argument that their equal protection rights were violated by the denial of their application for a dock permit because they “failed to meet their burden of demonstrating they were treated differently from similarly situated landowners”); see also Sunrise Corp. of Myrtle Beach v. City of Myrtle Beach, 420 F.3d 322, 329 (4th Cir. 2005) (“Even if we were to determine that plaintiffs’ project was similarly situated to other projects, they would still need to show purposeful discrimination.  If disparate treatment alone was sufficient to support a Constitutional remedy then every mistake of a local [governmental agency] in which the [agency] mistakenly treated an individual differently from another similarly situated applicant would rise to the level of a federal Constitutional claim.”); Denene, Inc. v. City of Charleston, 359 S.C. 85, 96, 596 S.E.2d 917, 922 (2004) (stating even if a governmental entity does not enforce a provision equally, “the fact that there is some unequal treatment does not necessarily rise to the level of a constitutional equal protection violation”); 16C C.J.S. Constitutional Law § 1417 (2005) (“An administrative agency must conform to equal protection requirements.”).

Issue II:  Kurschner v. City of Camden Planning Comm’n, 376 S.C. 165, 171, 656 S.E.2d 346, 350 (2008) (“Procedural due process imposes constraints on governmental decisions which deprive individuals of liberty or property interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment of the United States Constitution.”); id. (“The fundamental requirements of due process include notice, an opportunity to be heard in a meaningful way, and judicial review.” (citing S.C. Const. art. 1, § 22; Stono River Envtl. Prot. Ass’n v. South Carolina Dep’t of Health & Envtl. Control, 305 S.C. 90, 94, 406 S.E.2d 340, 342 (1991))); Olson, 379 S.C. at 68, 663 S.E.2d at 503-04 (“Procedural due process requirements are not technical, and no particular form of procedure is necessary.”); id. (“To prevail on a claim of denial of due process, there must be a showing of substantial prejudice.”); see also Sunrise Corp. of Myrtle Beach, 420 F.3d at  328 (observing the state’s deprivation of a property interest must fall so far beyond the outer limits of legitimate governmental authority that no process could remedy the deficiency (cited in Harbit v. City of Charleston, Op. No. 4511 (S.C. Ct. App. filed Feb. 25, 2009) (Shearouse Adv. Sh. No. 11 at 58, 66) (opinion amended May 4, 2009)); Sunset Cay, LLC v. City of Folly Beach, 357 S.C. 414, 430, 593 S.E.2d 462, 470 (2004) (“In order to prove a denial of substantive due process, a party must show that he was arbitrarily and capriciously deprived of a cognizable property interest rooted in state law.”).

Issue III:  Grant v. City of Folly Beach, 346 S.C. 74, 80, 551 S.E.2d 229, 232 (2001) (“As a general rule, estoppel does not lie against the government to prevent the due exercise of its police power or to thwart the application of public policy.”); id. (“To prove estoppel against the government, the relying party must prove (1) lack of knowledge and of the means of knowledge of the truth as to the facts in question, (2) justifiable reliance upon the government’s conduct, and (3) a prejudicial change in position.”); Morgan v. South Carolina Budget & Control Bd., 377 S.C. 313, 320, 659 S.E.2d 263, 267 (Ct. App. 2008) (stating the burden of proof is on the party asserting estoppel to establish all of its elements and “[a]bsent even one element, estoppel will not lie against a government entity”); id. (observing citizens are presumed to know the law and are charged with exercising reasonable care to protect their interests); see also S.C. Code Ann. § 48-39-170(C) (2008) (providing whenever DHEC determines there has been a violation of any permit, regulation, or statutory requirement, it may issue an order requiring compliance by the violator and may bring a civil enforcement action in the circuit court).

AFFIRMED.

TOAL, C.J., WALLER, PLEICONES, BEATTY and KITTREDGE, JJ., concur.