South Carolina Cases November 22, 2024: Bay Light, LLC v. S.C. Dep't of Health & Envtl. Control & Coastal Conservation League

Case Description

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For Petitioner: Stan Barnett, Esq.

For the Department: Brad Churdar, Esq.

For SCCCL: Leslie Lenhardt, Esq.

ORDER DENYING MOTION FOR SUMMARY JUDGMENT

RALPH KING ANDERSON, III CHIEF ADMINISTRATIVE LAW JUDGE

This matter is before the South Carolina Administrative Law Court (Court or ALC) pursuant to a Motion for Summary Judgment (Motion) filed by Bay Light, LLC (Petitioner) on October 4, 2024. Petitioner filed a request for a contested case hearing filed on November 6, 2023, challenging the decision by the South Carolina Department of Health and Environmental Control denying Petitioner's request to construct a 385' x 15' pile-supported vehicular bridge to provide access to a coastal island with a 4' x 185' long private recreational dock with a covered pierhead and a floating dock with ramp.

In its Motion, Petitioner argues there are no genuine issue of material fact and that under the precedent of the Supreme Court in South Carolina Coastal Conservation League v. the South Carolina Department of Health and Environmental Control, et al ., 363 S.C. 67, 610 S.E.2d 482 (2005), it is entitled to judgment as a matter of law. Specifically, Petitioner argues that the Department's actions were unwarranted because the regulation it relied upon when denying its

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application is vague and therefore unenforceable as applied. Additionally, Petitioner asserts that the Department impermissibly delegated legislative rule making authority to the ACE Basin Taskforce as evidence by its adoption of the ACE Basin Waterfowl Map. The Department and the South Carolina Conservation League (Respondents) filed a joint response to the Motion on October 31, 2024. Petitioner filed a reply on November 6, 2024. On November 18, 2024, a hearing on the Motion was held at the Court's offices in Columbia, South Carolina. After reviewing the filings and the law in this case, Petitioner's Motion for Summary Judgment is denied.

BACKGROUND

On November 10, 2020, Petitioner purchased 9.7 acres of highland and 75 acres of marsh at the junction of Landing Creek and Toogoodoo Creek in the Meggett area of Charleston County. Subsequently, on November 12, 2021, Petitioner applied for a permit to construct a 385' x 15' pile-supported vehicular bridge to access a coastal island and a private recreational dock consisting of 4' x 185' walkway with handrails, a 12.5' x 12.5' covered fixed pierhead, a 4' x 25' ramp to access a floating dock with an 8' x 30' section and a perpendicular 8' x 25' section. (Proposed Project).

On September 7, 2023, the Department's Office of Coastal Resource Management (OCRM) staff denied Petitioner's permit request pursuant to subsections 48-39-30(A), (B)(1), and (B)(2) of the South Carolina Code (2008) and regulations 30.12.N(2)(b), 30.12.N(10), and 30.12.N(3)(a) of the South Carolina Code of Regulations (Supp. 2023). Specifically, the Department deemed that the coastal island which Petitioner sought access to was in an area of special resource value-the ACE Basin Taskforce Boundary Area. The Department further determined that because was Proposed Project was in a special resource value area, the application did not meet the requirements of regulation 30-12.N(2)(b). For instance, the Department determined that Petitioner's application failed to present any evidence that the Proposed Project was in furtherance of the public interest or that a permanent conservation easement had been obtained. Additionally, the Department found that the Proposed Project failed to reflect elimination of seventy-five percent of the number of private residential docks permitted by the Department's critical area permitting regulations as they existed on September 1, 2005 or retention of a conservation easement as required by regulation 30-12.N(4). Finally, the Department concluded that the Proposed Project included an impermissible roofed dock which is not allowed for private docks associated with applications for access to coastal islands.

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Petitioner then requested a final review conference with the Department's Board, which the Board denied, rendering the staff decision the final agency decision. S.C. Code Ann. § 44-1-60(F) (2018). Thereafter, Petitioner filed a request for a contested case hearing with this Court.

DISCUSSION

The Rules of Procedure for the Administrative Law Court (SCALC Rules) provide that the South Carolina Rules of Civil Procedure (SCRCP) "may, in the discretion of the presiding administrative law judge, be applied to resolve questions not addressed by these rules." SCALC Rule 68. Rule 56(c), SCRCP, provides that summary judgment is properly granted when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." On a motion for summary judgment, all ambiguities, conclusions, and inferences arising from the evidence must be construed most strongly against the movant. Baugus v. Wessinger , 303 S.C. 412, 401 S.E.2d 169 (1991). "[T]he party seeking summary judgment has the initial responsibility of demonstrating the absence of a genuine issue of material fact." Baughman v. Am. Tel. & Tel. Co. , 306 S.C. 101, 115, 410 S.E.2d 537, 545 (1991).

Generally, "[t]he purpose of summary judgment is to expedite disposition of cases which do not require the services of a fact finder." George v. Fabri, 345 S.C. 440, 452, 548 S.E.2d 868, 874 (2001). However, summary judgment is not appropriate "where further inquiry into the facts of the case is desirable to clarify the application of the law." Tupper v. Dorchester County, 326 S.C. 318, 325, 487 S.E.2d 187, 191 (1997). Also, "[s]ummary judgment should not be granted even when there is no dispute as to evidentiary facts if there is dispute as to the conclusion to be drawn from those facts." Id .

Is Regulation 30-12.N(2)(b) Legally Unenforceable?

The Specific Project Standards for Tidelands and Coastal Waters for permits to construct a bridge to obtain access to coastal islands provide in pertinent part that:

(b) Bridge permits, other than non-vehicular bridges for access by the general public, will not be issued in areas of special resource value unless they qualify under the special exceptions in R.30-12.N(10). These are the ACE Basin Taskforce Boundary Area , the North Inlet National Estuarine Research Reserve, and the Cape Romain National Wildlife Refuge.

S.C. Code Ann. Regs. 30-12.N(2)(b) (emphasis added).

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Petitioner argues that it is entitled to summary judgment because the regulation, which served as the basis for OCRM's denial of its permit, lacks a clear and definite definition of the ACE Basin Taskforce Boundary Area. Petitioner asserts that unlike the North Inlet National Estuarine Research Reserve and the Cape Romain National Wildlife Refuge, which were each adopted through federally mandated processes, there is no statutorily adopted metes and bounds boundary, definition, or map for the ACE Basin Taskforce Boundary Area. In support of its argument, Petitioner submitted the affidavit of its Environmental Consultant Judson Goff and the deposition transcript of Dr. James Southerland, Petitioner's Principal, as evidence of their inability to locate any information regarding the ACE Basin Taskforce Boundary Area on the Department's website. Petitioner contends that the ambiguity of the boundary for the ACE Basin Taskforce Boundary Area is further apparent from the internal confusion amongst the staff of OCRM and the South Carolina Department of Natural Resources as to the correct and current boundary area for the ACE Basin Taskforce Area. Petitioner contends that similar to the regulation at issue in South Carolina Coastal Conservation League v. South Carolina Department of Health and Environmental Control , the regulation's exclusion of a metes and bounds boundary, a definition, or a map for the ACE Basin Taskforce Boundary Area leaves OCRM without any specific standard to guide its application of the criteria set forth under regulation 30-12.N(b)(2). 363 S.C. 67, 610 S.E.2d 482. Petitioner thus avers that OCRM's adoption of the Waterfowl Focus Areas Map as the ACE Basin Taskforce Boundary Area was in violation of the Department's statutory authority and unconstitutionally vague.

In response, Respondents assert that the Ace Basin is a distinct boundary which was designated by the United States Fish and Wildlife Service (USFWS) in November 2004 as the Atlantic Coast Joint Venture South Carolina Waterfowl Focus Areas Map (Waterfowl Focus Areas Map) and that its adoption was consistent with the UFWS' authority under section 16 of the United States Annotated Code. 16 USCA § 669. Respondents contend that since the promulgation of regulation 30-12.N(b)(2) in October 2005, the Department has applied the Waterfowl Focus Areas

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Map in its the Geographic Information System (GIS) as the Ace Basin Taskforce Area under regulation 30-12.N(2)(b). Respondents maintain that had Petitioner or its representatives contacted the Department and not exclusively relied upon its independent research it could have ascertained the applicable boundary for the ACE Basin Taskforce Boundary Area.

Facial Challenge

The Respondents assert that what Petitioner has framed as a void-for-vagueness argument is in actuality a facial challenge to the constitutionality of regulation 30-12(N). As such, the Respondents contend that this Court lacks the jurisdiction to address Petitioner's arguments. Ye t, Petitioner maintains that what it is alleging is an as-applied challenge to regulation 30-12.N(B)(2)(b) and, since at the time when Petitioner purchased the property, applied for the permit, and OCRM staff denied its permit, there was no map bearing the label "ACE Basin Taskforce Boundary Area," regulation 30-12.N(B)(2)(b) cannot be applied against since it was unconstitutionally vague.

At the outset, I find that although Petitioner's argument could be construed as a facial challenge to the constitutionality of regulation 30-12(N), its arguments could also be reasonably construed as raising an as-applied challenge to the constitutionality of the regulation. See Travelscape v. S.C. Dep't of Revenue , 391 S.C. 89, 109, 705 S.E.2d 28, 39 (2011). In an as-applied challenge, "the party challenging the constitutionality of the statute claims that the application of the statute in the particular context in which he has acted, or in which he proposes to act, would be unconstitutional." Doe v. State , 421 S.C. 490, 503, 808 S.E.2d 807, 813 (2017) (internal quotation marks and citation omitted). In contrast, "[a] facial challenge is an attack on a statute itself as opposed to a particular application." State v. Legg , 416 S.C. 9, 13, 785 S.E.2d 369, 371 (2016) (citing City of Los Angeles, Calif. v. Patel , 576 U.S. 409 135 S.Ct. 2443, 192 L.Ed.2d 435 (2015)). Consequently, in analyzing a facial challenge to the constitutional validity of a statute, a court "considers only the text of the measure itself and not its application to the particular circumstances of an individual." 16 C.J.S. Constitutional Law § 163, at 161 (2015).

However, "[t]he line between facial and as-applied relief is [a] fluid one, and many constitutional challenges may occupy an intermediate position on the spectrum between purely as-applied relief and complete facial invalidation." 16 C.J.S. Constitutional Law § 153, at 147 (2015).

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Indeed, "the distinction between facial and as-applied challenges is not so well defined that it has some automatic effect or that it must always control the pleadings and disposition in every case involving a constitutional challenge." Doe v. State , 421 S.C. at 502, 808 S.E.2d at 813 (citing Citizens United v. Fed. Election Comm'n , 558 U.S. 310, 331, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010)).

Significantly, in this case, Petitioner does not argue that the ACE Basin Taskforce Boundary Area is incapable of determination. Rather, Petitioner's challenge to the constitutionality of the regulation centers upon the exclusion of a metes and bounds boundary, definition, or map of the Ace Basin Taskforce Boundary Area and OCRM's subsequent denial of its application based upon its erroneous application of the Waterfowl Focus Areas Map. Therefore, since Petitioner's challenge is not an attack on the regulation itself but rather OCRM's application of the Waterfowl Focus Areas Map as the Ace Basin Taskforce Boundary Area, I find that Petitioner is raising an as-applied challenge to the constitutionality of the regulation. As such, this Court has subject matter jurisdiction to hear the case. See Travelscape , 391 S.C. at 109, 705 S.E.2d at 39.

Factual Dispute

An as applied challenge involves an examination of the facts which is true in this case. Here, the Department contends that the ACE Basin Taskforce's adopted the Waterfowl Focus Areas Map as the boundary for the ACE Basin Taskforce Area. Although there is no dispute that OCRM applied the Waterfowl Focus Areas Map for purpose of its review of the application of regulation 30-12.N(2)(b), I find that genuine issues of material facts exist as to the Ace Basin Taskforce's adoption of the Ace Basin Taskforce Boundary Area and OCRM's application of the Waterfowl Focus Areas Map as the ACE Basin Taskforce Boundary Area. Baugus v. Wessinger, 303 S.C. at 415, 401 S.E.2d at 171. For instance, there is a discrepancy in the testimony of former Taskforce Presidents Michael McShane and Charles Lane regarding if and when the Taskforce's adopted of the ACE Basin Taskforce Boundary Area and also the resulting accuracy the boundary for the area used by the Department based upon regulation 30-12.N(2)(b). The determination of this issue thus involves the question of the credibility of the testimony of Charles Lane and Michael McShane and the ACE Basin Taskforce's adoption of the ACE Basin Taskforce Area remains. Accordingly,

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further inquiry into facts of the case is necessary to clarify the conclusions to be drawn from OCRM's application of the Waterfowl Focus Areas Map. Id.

Did the Department Improperly Delegate the Responsibility to Fix the Boundary for the ACE Basin Taskforce Area to the ACE Basin Taskforce?

Petitioner also argues that the Department has a nondelegable duty to identify the ACE Basin Taskforce Boundary Area and that it impermissibly delegated this responsibility to the ACE Basin Taskforce, an unincorporated, non-governmental entity. In support of its argument, Petitioner cites to Ashmore v. Greater Greenville Sewer District , 211 S.C. 77, 44 S.E.2d 88 (1947) for the proposition that the ACE Basin Taskforce is too far removed from the Department's responsibility to determine the ACE Basin Taskforce boundary to withstand legal muster. Petitioner further suggest that any delegation to the ACE Basin Taskforce is also impermissible since the Taskforce is comprised of private citizens whose interests "may be and often are adverse to the interests of others." See Carter v. Carter Coal Co., et al. v. Clark , 298 U.S. 238, 56. S.Ct. 855, 80 L.Ed. 1160 (1936).

However, the Department maintains that the ACE Basin Taskforce was legally established by the USFWS and that the ACE Basin Taskforce's efforts were strictly voluntary and advisory. Additionally, the Department contends that the ACE Basin Taskforce did not adopt the map used to deny Petitioner's permit application but rather that the map was adopted by the USFWS pursuant to its authority under section 669 of the United States Annotated Code. 16 USCA § 669. Importantly, the Department could not recall when the Taskforce adopted the map by the USFWS. Finally, the Department argues that there are genuine issues of material fact as to whether the USFWS delegated its authority to the ACE Basin Taskforce.

In Bauer v. S.C. State Hous. Auth. , the South Carolina Supreme Court recognized that it is well settled that "the Legislature may not delegate its power to make laws." 271 S.C. 219, 232, 246 S.E.2d 869, 876 (1978). "The test for determining whether the General Assembly has delegated the power to legislate is whether an act is complete in and of itself when it is passed." 19 S.C. Jur. Constitutional Law § 12. Nevertheless, in enacting law, the General Assembly may "authorize an administrative agency or board "to fill up the details" by prescribing rules and regulations for the complete operation and enforcement of the law within its expressed general purpose. Bauer v. S.C. State Hous. Auth. , 271 S.C. at 232, 246 S.E.2d at 876 (quoting S. C. State Highway Dept. v. Harbin , 226 S.C. 585, 86 S.E.2d 466, 470 (1955)). However, "a statute which

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in effect reposes an absolute, unregulated, and undefined discretion in an administrative body bestows arbitrary powers and is an unlawful delegation of legislative powers." Id. at 233, 86 S.E.2d at 876 (citing 16A Am. Jur. 2d Constitutional Law § 313). In other words, "if a law is complete when it was passed, the principle of nondelegability permits an administrative agency 'to fill up the details' by prescribing rules or regulations for the complete operation and enforcement of the law, consistent with the statute's general purpose and policy." 19 S.C. Jur. Constitutional Law § 12.

Here, Petitioner's contention centers not upon the delegation to the Department of the power to define the ACE Basin Taskforce Boundary Area, but whether the Department, itself, improperly delegated the authority to define the ACE Basin Taskforce Boundary Area to an unsanctioned body. However, before I can reasonably determine whether the Department impermissibly delegated its powers to in the context of an as applied constitutional challenge, further inquiry into the establishment of the Ace Basin Taskforce's and its adoption of the ACE Basin Taskforce Boundary Area is necessary to clarify the application of the law to this case. Baugus v. Wessinger, 303 S.C. at 415, 401 SE.2d at 171.

Conclusion

In conclusion, while there may be no dispute that the basis for OCRM's denial of Petitioner's permit application was its application of the Waterfowl Focus Areas Map, when considering all evidence and inferences in the light most favorable to Respondents, I find that there are genuine issues of material facts and that further inquiry into the facts is necessary to clarify the application of the law to the issues presented to this Court. Id. Accordingly, I conclude that Petitioner's Motion for Summary Judgment must be denied.

ORDER

IT IS THEREFORE HEREBY ORDERED that Bay Light, LLC's Motion for Summary Judgment is DENIED .

AND IT IS SO ORDERED.

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CERTIFICATE OF SERVICE

I, Stephanie Perez, hereby certify that I have this date served this Order upon all parties to this cause by depositing a copy hereof in the United States mail, postage paid, or by electronic mail, to the address provided by the party(ies) and/or their attorney(s).