Dreher v. South Carolina Department of Health & Environmental Control , 412 S.C. 244 ( 2015 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
Ann Dreher, Respondent,
v.
South Carolina Department of Health and Environmental
Control, Petitioner.
Appellate Case No. 2013-000364
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal From The Administrative Law Court
Ralph King Anderson III, Administrative Law Judge
Opinion No. 27507
Heard November 18, 2014 – Filed March 18, 2015
AFFIRMED AS MODIFIED
Bradley David Churdar, of N. Charleston, for Petitioner.
Christopher McG. Holmes, of Mt. Pleasant, for
Respondent.
CHIEF JUSTICE TOAL: We granted the South Carolina Department of
Health and Environmental Control's (DHEC) petition for a writ of certiorari to
review the court of appeals' decision in Dreher v. South Carolina Department of
Health and Environmental Control, 399 S.C. 259, 730 S.E.2d 922 (Ct. App. 2012),
reversing the Administrative Law Court's (ALC) denial of Ann Dreher's
(Respondent) bridge construction permit application. We affirm as modified.
FACTS/PROCEDURAL BACKGROUND
In January 1994, Respondent purchased two parcels of property located on
Folly Island, South Carolina: 806 East Cooper Avenue, and Tract D. These lots
were previously a contiguous tract of high ground property in which the Tract D
portion abutted the ocean, and the Cooper Avenue portion abutted the roadway.
However, at some point prior to Respondent's property purchase, two man-made
canals were constructed, after which Tract D became completely surrounded by
coastal tidelands and waters. At present, 806 East Cooper Avenue is
approximately 0.24 acres in size, and Tract D is approximately 0.84 acres in size.
On April 2, 2009, Respondent filed a permit application with DHEC
requesting permission to construct a vehicular bridge from 806 East Cooper
Avenue to Tract D. DHEC denied the application because Regulation 30-
12(N)(2)(c) prohibits the agency from issuing a bridge construction permit to a
"coastal island" less than two acres in size, and the parties agreed that—if Tract D
was, in fact, a "coastal island"—it did not meet the regulation's minimum size
requirement. See S.C. Code Ann. Regs. 30-12(N)(2)(c) (2011).1
Respondent requested a contested case hearing before the ALC. At the
hearing, the parties focused on whether Tract D met the definition of a "coastal
1
Regulation 30-12(N)(2) specifically states:
(a) The decision on whether to issue or deny a permit for a bridge to a
coastal island must be made with due consideration of the impacts
to the public trust lands, critical area, coastal tidelands and coastal
waters, weighed against the reasonable expectations of the owner
of the coastal island. Giving due consideration to these factors,
[DHEC] has determined that some islands are too small or too far
from upland to warrant the impacts on public resources of bridges
to these islands, and thus no permit for a bridge shall be issued.
....
(c) [DHEC] will not consider applications for bridge access to islands
less than two acres in size.
island" as described in the Coastal Zone Management Act (CZMA) and the
regulations promulgated pursuant to the CZMA. See generally S.C. Code Ann. §§
48-39-10 to -360 (2008 & Supp. 2014); S.C. Code Ann. Regs. 30-1 to -21 (2011 &
Supp. 2014). A "coastal island" is defined as:
an area of high ground above the critical area delineation that is
separated from other high ground areas by coastal tidelands or waters.
An island connected to the mainland or other island only by a
causeway is also considered a coastal island. The purpose of this
definition is to include all islands except those that are essentially
mainland, i.e., those that already have publicly accessible bridges
and/or causeways. The following islands shall not be deemed a
coastal island subject to this section due to their large size and
developed nature: Waites Island in Horry County; Pawleys Island in
Georgetown County; Isle of Palms, Sullivans Island, Folly Island,
Kiawah Island, Seabrook Island, Edisto Island, Johns Island, James
Island, Woodville Island, Slannn Island and Wadmalaw Island in
Charleston County; Daniel Island in Berkeley County; Edisto Beach
in Colleton County; Harbor Island, Hunting Island, Fripp Island,
Hilton Head Island, St. Helena Island, Port Royal Island, Ladies
Island, Spring Island and Parris Island in Beaufort County.
S.C. Code Ann. Regs. 30-1(D)(11) (emphasis added). Because the listed islands
are not considered "coastal islands," properties on these islands are exempt from
the minimum acreage requirement found in Regulation 30-12(N)(2)(c). See S.C.
Code Ann. Regs. 30-12(N)(2)(a), (c) (restricting eligibility for a bridge-building
permit to those coastal islands that are large enough to warrant the impact on
public resources).
Ultimately, the ALC found Tract D "geologically, geographically and by
legal description, is on and within the boundaries of Folly Island."2 Nonetheless,
the ALC concluded that Tract D constituted a "coastal island" separate and apart
from Folly Island.3 Therefore, the ALC upheld DHEC's denial of Respondent's
2
Similarly, the ALC found that "[t]he proposed bridge was the least
environmentally damaging alternative for access to Tract D and, in fact, would
have de minimus environmental impact."
3
The ALC based this conclusion on four reasons. First, the ALC found that Tract
D was "an area of high ground about the critical area that is separated from other
bridge permit application, finding that "Tract D is less than one acre in size," and
that "the legislative intent, as evidenced by the language of Regulation 30-1(D)(11)
and the policies of the CZMA, was to include islands like Tract D in Regulation
30-1(D)(11)'s definition of 'coastal island.'"4
Respondent appealed to the court of appeals, and the court of appeals
reversed the ALC's decision. See Dreher, 399 S.C. at 261, 730 S.E.2d at 923.
Specifically, the court of appeals found that because DHEC "failed to challenge"
the ALC's finding that Tract D was part of Folly Island, that finding became the
law of the case. Id. at 263, 730 S.E.2d at 924. The court of appeals considered this
fact dispositive, as Folly Island—and thus Tract D—were specifically exempt from
the minimum acreage requirement for a bridge-building permit. See id. at 264–65,
730 S.E.2d at 925. In the alternative, the court of appeals ruled that on the merits,
substantial evidence in the record demonstrated that Tract D was part of Folly
Island, and thus was exempt from the minimum acreage requirement found in
Regulation 30-12(N)(2)(c). Id. at 263–64, 730 S.E.2d at 924–25. Finally, the
court of appeals held that because Respondent was not prohibited from building a
bridge due to Tract D's small size, she was entitled to construct the bridge by virtue
of Regulation 30-12(F). Id. at 266, 730 S.E.2d at 925–26; see also S.C. Code Ann.
Regs. 30-12(F) (requiring DHEC to weigh the environmental impact of proposed
bridges against public safety considerations, and to approve projects that have a
high ground areas by coastal tidelands or waters," and thus technically met the
definition of a "coastal island." Second, the ALC determined that unlike the other
exempt islands listed in Regulation 30-1(D)(11), Tract D was not "essentially
mainland," and thus the General Assembly did not intend to exempt Tract D from
the minimum acreage requirement found in Regulation 30-12(N)(2)(c). Third, the
ALC similarly concluded that the General Assembly did not intend to include
parcels such as Tract D in the list of exempt coastal islands because unlike the
other named islands, Tract D was not "large [in] size and developed [in] nature."
Finally, the ALC found that building the bridge to Tract D would require building
in a tidelands area, which the CZMA specifically sought to protect.
4
Both parties filed timely motions to reconsider. Of note, DHEC requested the
ALC reconsider its finding that Tract D "geologically, geographically and by legal
description, is on and within the boundaries of Folly Island," arguing that the
finding was inconsistent with the remainder of the ALC's conclusions. Because the
ALC did not rule on either party's motion within thirty days, the motions were
deemed denied.
minimal environmental impact).
We granted DHEC's petition for a writ of certiorari to review the court of
appeals' decision.
ISSUES
I. Whether the court of appeals misapplied the law of the case
doctrine?
II. Whether Tract D is exempt from the minimum acreage
requirement found in Regulation 30-12(N)(2)(c)?
STANDARD OF REVIEW
Appellate courts review cases decided by the ALC in accordance with the
Administrative Procedures Act. Engaging & Guarding Laurens Cnty.'s Env't
(EAGLE) v. S.C. Dep't of Health & Envtl. Control, 407 S.C. 334, 341, 755 S.E.2d
444, 448 (2014) (citing S.C. Code Ann. § 1-23-610(B) (Supp. 2012)). Thus we are
limited "to determining whether the ALC's findings were supported by substantial
evidence or were controlled by an error of law." Id. An appellate court may not
substitute its judgment for the judgment of the ALC as to the weight of the
evidence on questions of fact. S.C. Code Ann. § 1-23-610(B). "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 [ALC] reached." Hill v.
S.C. Dep't of Health & Envtl. Control, 389 S.C. 1, 9–10, 698 S.E.2d 612, 617
(2010).
ANALYSIS
I. Law of the Case Doctrine
"An unappealed ruling is the law of the case and requires affirmance."
Shirley's Iron Works, Inc. v. City of Union, 403 S.C. 560, 573, 743 S.E.2d 778, 785
(2013). Thus, should the appealing party fail to raise all of the grounds upon
which a lower court's decision was based, those unappealed findings—whether
correct or not—become the law of the case. Cf. Judy v. Martin, 381 S.C. 455, 458,
674 S.E.2d 151, 153 (2009) ("Under the law-of-the-case doctrine, a party is
precluded from relitigating . . . , [inter alia,] matters that were [] not raised on
appeal, but should have been . . . .").5
Moreover, because an appellate court may affirm the lower court's decision
for any reason appearing in the record, the prevailing party may—but is not
required to—raise additional sustaining grounds to support the lower court's
decision. See Rule 220(c), SCACR; see also I'On, L.L.C. v. Town of Mt. Pleasant,
338 S.C. 406, 417, 420, 526 S.E.2d 716, 722, 723 (2000) ("In raising an additional
sustaining ground in an appeal, the party who prevailed in the lower court urges an
appellate court to affirm the lower court's ruling for a reason other than one
primarily relied upon by the lower court."). Thus, "it is not necessary for the party
who prevailed below to object to or appeal from the trial court's ruling in order to
raise such grounds." I'On, 338 S.C. at 418, 526 S.E.2d at 722.
Here, the court of appeals found that DHEC—the prevailing party before the
ALC—should have secured a ruling from the ALC reversing its finding that Tract
D was "geologically, geographically and by legal description, [] on and within the
boundaries of Folly Island," and that because DHEC failed to do so, this finding
became the law of the case. However, the court of appeals misapprehended the
law of the case doctrine. Specifically, the court of appeals erred in applying the
doctrine so as to bar the prevailing party below from raising an additional
sustaining ground. DHEC properly raised its challenge to the ALC's finding in its
brief to the court of appeals, and thus did not concede or abandon the argument.
See id. at 420, 526 S.E.2d at 723. Therefore, rather than find the argument
procedurally barred, the court of appeals should have considered whether Tract D
is a "coastal island" as defined in the regulations.
II. Coastal Island Exemption
DHEC asserts that because Tract D is surrounded by coastal tidelands and
waters, it is a "coastal island" under Regulation 30-1(D)(11). Further, DHEC
argues that Tract D essentially ceased to be a part of Folly Island as a result of the
creation of the man-made canals that separate Tract D from 806 East Cooper
Avenue. In contrast, Respondent does not dispute that Tract D is surrounded by
coastal tidelands and waters, but rather contends that because Tract D remains
within the geographical and legal boundaries of Folly Island, it is expressly exempt
5
To the extent an appellate court relies on the law of the case doctrine, the
appellate decision affirms the lower court's decision procedurally, rather than on
the merits.
from being considered a "coastal island." As the ALC aptly expressed, "This
decision [] centers on whether the legislature intended that its declaration of Folly
Island as [exempt from the general definition of a 'coastal island'] overrides its
declaration that a coastal island is simply high ground which is 'separated from
other high ground areas by coastal tidelands or waters.'" In other words, the issue
here is purely an issue of regulatory interpretation.
Generally, "[a] specific statutory provision prevails over a more general
one." Wooten ex rel. Wooten v. S.C. Dep't of Transp., 333 S.C. 464, 468, 511
S.E.2d 355, 357 (1999); see also Converse Power Corp. v. S.C. Dep't of Health &
Envtl. Control, 350 S.C. 39, 47–48, 564 S.E.2d 341, 346 (Ct. App. 2002)
(employing the rules of statutory construction to discern the meaning of a
regulation). Here, Regulation 30-1(D)(11) broadly defines "coastal islands," but
then specifically exempts certain islands, including Folly Island, from the general
definition. See S.C. Code Ann. Regs. 30-1(D)(11). Further, the ALC found that
Tract D was "on and within" Folly Island, and as detailed in the court of appeals'
opinion, that finding is supported by substantial evidence in the record. See
Dreher, 399 S.C. at 263–64, 730 S.E.2d at 924–25 (outlining the facts in the record
demonstrating that Tract D is part of Folly Island). As such, we agree with
Respondent that Tract D is not a "coastal island" in and of itself; rather, it is part of
Folly Island, which is specifically exempted in the regulation.
Accordingly, the specific regulatory exemption for Folly Island controls
over the more general regulatory definition of "coastal island." As a result, Tract D
cannot be considered a "coastal island," and the minimum acreage requirement
found in Regulation 30-12(N)(2)(c) does not bar Respondent's bridge construction
permit application. In conjunction with Regulation 30-12(F) and the ALC's
finding that "[t]he proposed bridge was the least environmentally damaging
alternative for access to Tract D and, in fact, would have de minimus
environmental impact," we find that DHEC and the ALC erred in denying
Respondent's permit application. Cf. S.C. Code Ann. Regs. 30-12(F) (outlining the
environmental impact standards DHEC should consider prior to granting a bridge-
building permit).
CONCLUSION
For the foregoing reasons, we affirm the result reached by the court of
appeals, albeit through different reasoning.
AFFIRMED AS MODIFIED.
KITTREDGE and BEATTY, JJ., concur. PLEICONES, J.,
concurring in part and dissenting in part in a separate opinion in which
HEARN, J., concurs.
JUSTICE PLEICONES: I concur in part and dissent in part. I agree with the
majority that the Court of Appeals misapplied the law of the case doctrine. I
disagree, however, with the majority's decision to uphold the Court of Appeals'
reversal of the ALC's denial of respondent's permit request.
The majority acknowledges that whether Tract D is entitled to share Folly Island's
coastal island exemption found in S.C. Code Ann. Regs. 30-1(D)(11) (2011) is a
question of fact, which is reviewed under the substantial evidence standard. While
the majority views the factual issue as whether Tract D is a "part" of Folly Island
or "on and within" that island, in my view the question is whether there is
substantial evidence to support the ALC's finding that the tract is itself a coastal
island. Whether a parcel located within the geographic boundaries of a named
island is itself a separate coastal island within the meaning of Reg. 30-1(D)(11), or
whether it is not and therefore shares the named island's exemption, is a question of
fact. Risher v. S.C. Dep't of Health & Envtl. Control, 393 S.C. 198, 210, 712
S.E.2d 428, 434 (2011) ("whether or not the Lot is part of Fripp Island is not a
legal question that is determined under the rubric of a regulation; instead, it is a
finding of fact properly left within the purview of the fact finding body, and only
reversible if unsupported by substantial evidence").
In Risher, we found substantial evidence supported the ALC's findings that the lot
located within the geographic boundaries of Fripp Island did not meet the
definition of coastal island under the regulation, and that it was therefore within
Fripp's exemption. Here, as all parties admit, Tract D is entirely surrounded by
"coastal tidelands or waters" and is therefore a coastal island as defined by Reg.
30-1(D)(11). The ALC's finding that Tract D is not within Folly Island's
exemption is supported by substantial evidence. Risher, supra. In my opinion, the
Court of Appeals erred in reversing the ALC, and the majority also errs by
focusing on Tract D's location rather than on its topography. Id.Even if the majority's view prevails, and the ALC's decision finding Tract D to be a
coastal island is reversed, it does not follow that respondent is automatically
entitled to the bridge permit she seeks. Instead, the matter should be remanded to
DHEC for consideration of the permit request in light of the requirements of S.C.
Code Ann. Regs. 30-12(F) (2011), an issue which has not yet been litigated.
For the reasons given above, I concur in part and dissent in part.
HEARN, J., concurs.