Schwiers v. SCDHEC ( 2019 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Gene B. Schwiers, Respondent,
v.
South Carolina Department of Health and Environmental
Control and Stewart W. Heath, Respondents below,
Of whom South Carolina Department of Health and
Environmental Control is the Respondent,
And
Stewart W. Heath is the Appellant.
Appellate Case No. 2016-002136
Appeal From The Administrative Law Court
Harold W. Funderburk, Jr., Administrative Law Judge
Opinion No. 5700
Heard May 6, 2019 – Filed December 31, 2019
REVERSED
Eugene LeRoy Nettles, III, of Nettles Turbeville &
Reddeck, of Lake City, for Appellant.
Gene B. Schwiers, of Greenville, pro se.
Bradley David Churdar, of Charleston, for the South
Carolina Department of Health and Environmental
Control.
MCDONALD, J.: In this contested permitting matter, Stewart Heath appeals the
Administrative Law Court's (ALC's) order denying his application to amend a
critical area permit to modify his private dock. Heath argues the ALC committed
errors of law in finding the proposed modifications failed to comply with the
requirements of the Coastal Zone Management Act, specifically section 48-39-150
of the South Carolina Code (2008 & Supp. 2019), and critical area regulations 30-
12(A)(1)(e) and (p) of the South Carolina Code of Regulations (2011). Heath
further asserts the ALC erred in failing to consider the relevant site specific
characteristics and disregarded regulation 30-11(A)(2)'s requirement that DHEC
ensure consistent permit evaluations. We reverse.
Facts and Procedural History
In 2012, DHEC approved Heath's application for a permit to modify his existing
private use dock on Main Creek in Garden City. In 2015, Heath applied to amend
the permit to authorize him to shift his existing floating dock northward and add a
second boatlift. After considering Heath's application and letters from neighboring
property owners objecting to the proposed modifications, DHEC approved the
amended permit. Gene Schwiers, the landowner of an adjacent parcel and dock,
requested the South Carolina Board of Health and Environmental Control (the
Board) conduct a final review of the permitting decision.1
After the Board declined to conduct a final review conference, Schwiers filed a
request for a contested case hearing before the ALC. In her prehearing statement,
Schwiers argued the proposed location of Heath's boatlift "would have a negative
impact on [her] family's enjoyment of [their] property because it would be an
impediment to [their] visual corridor." She noted other neighboring property
owners were concerned DHEC's "continued approval of encroachment" could
result "in the loss of value in the property owned by those impacted." In its
prehearing statement, DHEC asked that the ALC affirm its issuance of the
amended permit, explaining it determined Heath's requested modifications to the
existing dock would cause no material harm to the policies of the Act2 because the
proposed modifications were consistent with other docks along the Main Creek
1
Schwiers is a general partner of Sparkling Waters, LP, the legal owner of the
property adjacent to Heath's property.
2
See S.C. Code Ann. §§ 48-39-10 to -360 (2008 & Supp. 2019).
corridor and the resulting dock spacing would be consistent with the spacing of
other docks in the vicinity.
During the hearing before the ALC, Schwiers testified the proposed boatlift would
interfere with her complete enjoyment of her dock and her family's ability to
navigate a twelve-foot kayak between Heath's dock and her own dock. She
acknowledged some docks in the area had two boatlifts but asserted less than half
of the docks along her street had two boat storage structures. In her opposition
letter to DHEC, Schwiers complained the addition to Heath's dock would
"encroach on [her] dock drastically," leaving "little to no room" between their
docks, "and completely block her ability to fish, crab, catch minnows, and
[participate in] all other water activities to the north side." She also stated her
nephew would no longer be able to swim in the inlet or kayak on the north side of
the dock and her elderly mother's activities from the north side of the pierhead
would be restricted.3
Christopher Stout, Wetlands Section Project Manager for DHEC's Office of Ocean
and Coastal Resource Management (OCRM), was project manager for DHEC's
review of Heath's application to amend his critical area permit. According to
Stout, Heath satisfied Regulation 30-12's project standards for adding the boatlift
in that "Mr. Heath has an existing dock and what he has asked for fits within the
purview of square footage and the actual number of boat storage structures that are
allowed by the regulation." Stout testified that although Heath's existing dock was
outside of his extended property lines—and thus did not comply with the general
agency standard—it had been "grandfathered" because its construction predated
the Act. There were "a significant number of grandfathered structures" on Main
Creek, some of which did not adhere to the general standard concerning extended
property lines. In evaluating Heath's application, Stout considered that at its
closest point, Heath's proposed boatlift would be sixteen feet from Schwiers's fixed
pierhead. Schwiers's stairs lead south, away from the Heath dock; thus, the boatlift
addition would not impact her ability to access the water from the other sides of
her dock. Stout also considered the characteristics of the area, noting portions of
five docks belonging to other landowners crossed into Heath's own dock corridor,
between his extended property lines. The ALC admitted an aerial image showing
Heath's dock and the docks encroaching within his extended property lines.
3
The ALC admitted opposition letters DHEC received from neighboring property
owners as examples of documents DHEC reviewed in issuing the permit. Heath
has not challenged the admission of these letters on appeal.
The ALC reversed DHEC's decision and denied Heath's amended permit
application, finding the proposed location of the boatlift violated § 48-39-
150(A)(10) and regulation 30-11(B)(10)4 because the addition would result in
material harm to the policies of the Act as referenced in regulation 30-12(A)(1)(p).
In referencing the testimony presented at the hearing, the ALC noted, "Petitioner's
objection concerning the inability to fish or crab, deals exclusively with preference
of location on her pier, and the boatlift would not significantly hamper Petitioner's
ability to engage in that activity." However, "the whole of the proposed
construction [would] take place on Petitioner's side of the joint extended property
line, thereby causing material harm to the policies of the Act as referenced in S.C.
Code Ann. [§] 48-39-150(A)(10); 2 S.C. Code Ann. Regs. 30-11(B)(10) and 30-
12(A)(1)(p)."
Heath moved to reconsider, challenging the ALC's emphasis on Schwiers's
extended property lines as error due to the site specific characteristics of this
section of Main Creek. Heath further questioned the order's finding as to the
proposed boatlift's impact on Schwiers's value and enjoyment of her property,
arguing Schwiers presented no evidence "that the dock modification would
negatively affect the value of [Schwiers's] property."
The ALC denied Heath's motion to reconsider but issued an amended final order.
The ALC again concluded the proposed location of the boatlift violated
§ 48-39-150(A)(10) and regulation 30-11(B)(10) because "the proposed boatlift
will affect the value and enjoyment of adjacent owners to the extent of producing
material harm to the policies of the Act." The ALC found, "The ability to swim,
kayak, and fish from Petitioner's dock is sufficiently impeded by the close
proximity of the proposed second boatlift to constitute material harm to the
policies of the Act."
Standard of Review
In an appeal from the ALC, the Administrative Procedures Act provides our
standard of review. See Kiawah Dev. Partners, II v. S.C. Dep't of Health & Envtl.
Control, 411 S.C. 16, 28, 766 S.E.2d 707, 715 (2014) (citing S.C. Code Ann. § 1-
23-610(B) (Supp. 2019)). Appellate courts must confine their analysis to whether
the ALC's decision is:
4
S.C. Code Ann. Regs. 30-11(B)(10) (2011). The considerations of Regulation
30-11(B) mirror those of § 48-39-150(A).
(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of the agency;
(c) made upon unlawful procedure;
(d) affected by other error of law;
(e) clearly erroneous in view of the reliable, probative,
and substantial evidence on the whole record; or
(f) arbitrary or capricious or characterized by an abuse of
discretion or clearly unwarranted exercise of discretion.
Id.
"Thus, this court can reverse the ALC if the findings are affected by error or law,
are not supported by substantial evidence, or are characterized by abuse of
discretion or clearly unwarranted exercise of discretion." Olson v. S.C. Dep't of
Health & Envtl. Control, 379 S.C. 57, 64, 663 S.E.2d 497, 501 (Ct. App. 2008).
In determining whether the decision of the ALC was supported by substantial
evidence, a reviewing court "need only find, looking at the entire record on appeal,
evidence from which reasonable minds could reach the same conclusion as the
ALC." Kiawah Dev. Partners II, 411 S.C. at 28, 766 S.E.2d at 715. "However, the
court may reverse the ALC decision where it is in violation of a statutory provision
of it is affected by an error of law." Id.
Law and Analysis
I. Section 48-39-150(A) and Material Harm to the Policies of the Act
The General Assembly passed the Coastal Zone Management Act in 1977. See §§
48-39-10 to -360. Section 48-39-20 of the Act sets forth the following relevant
legislative findings:
(A) The coastal zone is rich in a variety of natural,
commercial, recreational and industrial resources of
immediate and potential value to the present and future
well-being of the State.
(B) The increasing and competing demands upon the
lands and waters of our coastal zone . . . have resulted in
the decline or loss of living marine resources, wildlife,
nutrient-rich areas, permanent and adverse changes to
ecological systems, decreasing open space for public use
and shoreline erosion.
....
(D) The coastal zone . . . may be ecologically fragile and
consequently extremely vulnerable to destruction by
man's alterations.
(E) Important ecological, cultural, natural, geological and
scenic characteristics, industrial, economic and historical
values in the coastal zone are being irretrievably
damaged or lost by ill-planned development that
threatens to destroy these values.
According to § 48-39-30(A), "[T]he basic state policy . . . [of the Act] is to protect
the quality of the coastal environment and to promote the economic and social
improvement of the coastal zone and of all the people of the State." The Act sets
forth the following relevant state policies:
(1) To promote economic and social improvement of the
citizens of this State and to encourage development of
coastal resources in order to achieve such improvement
with due consideration for the environment . . . ;
(2) To protect and, where possible, to restore or enhance
the resources of the State's coastal zone for this and
succeeding generations;
....
(5) To encourage and assist state agencies . . . . to achieve
wise use of coastal resources giving full consideration to
ecological, cultural and historic values as well as to the
needs for economic and social development and
resources conservation.
§ 48-39-30(B).
The Act provides that in determining whether to approve or deny a permit
application, DHEC
shall base its determination on the individual merits of
each application, the policies specified in Sections 48-39-
20 and 48-39-30 and be guided by the following general
considerations:
(1) The extent to which the activity requires a waterfront
location or is economically enhanced by its proximity to
the water.
(2) The extent to which the activity would harmfully
obstruct the natural flow of navigable water. . . .
(3) The extent to which the applicant's completed project
would affect the production of fish, shrimp, oysters, crabs
or clams or any marine life or wildlife or other natural
resources in a particular area including but not limited to
water and oxygen supply.
(4) The extent to which the activity could cause erosion,
shoaling of channels or creation of stagnant water.
(5) The extent to which the development could affect
existing public access to tidal and submerged lands,
navigable waters and beaches or other recreational
coastal resources.
(6) The extent to which the development could affect the
habitats for rare and endangered species of wildlife or
irreplaceable historic and archeological sites of South
Carolina's coastal zone.
(7) The extent of the economic benefits as compared with
the benefits from preservation of an area in its unaltered
state.
(8) The extent of any adverse environmental impact
which cannot be avoided by reasonable safeguards.
(9) The extent to which all feasible safeguards are taken
to avoid adverse environmental impact resulting from a
project.
(10) The extent to which the proposed use could affect
the value and enjoyment of adjacent owners.
§ 48-39-150(A). The Act further requires that "[a]fter considering the views of
interested agencies, local governments and persons, and after evaluation of
biological and economic considerations, if the department finds that the application
is not contrary to the policies specified in this chapter, it shall issue to the applicant
a permit." § 48-39-150(B).
Heath argues the ALC erred in basing its decision solely on § 48-39-150(A)(10)'s
"value and enjoyment" factor while ignoring the nine other statutory considerations
DHEC must examine when determining whether to approve or deny a critical area
permit. He contends the proposed boatlift would only affect Schwiers's ability to
swim, kayak, and fish from the northern side of her dock—she would still be able
to pursue these activities from the other sides of her dock. Heath asserts any such
limitations were recreational only and did not affect the value of Schwiers's
property, deep water access from her dock, or her ability to use or access her
property.5 Finally, Heath contends the ALC erred in finding the potential impact
upon recreational activities in a private dock dispute rose to the level of causing
"material harm to the policies of the Act." We agree.
Although our appellate courts have considered contested dock permits in a number
of cases, few have addressed an ALC's finding that the location of a private dock
constitutes a material harm to the policies of the Coastal Zone Management Act.
5
Schwiers presented no evidence of impact the second boatlift might have on the
value her property. Although very little of Schwiers's testimony was included in
the record, her opposition letter was admitted during the hearing. The opposition
letter does not address property value.
In White v. South Carolina Department of Health & Environmental Control, this
court reviewed an ALC order requiring the Coffin Point Homeowners Association
to rebuild its community dock in accordance with its permit as originally issued.
392 S.C. 247, 257–58, 708 S.E.2d 812, 817–18 (Ct. App. 2011), overruled by on
other grounds by Wells Fargo Bank, N.A. v. Fallon Properties S.C., LLC, 422 S.C.
211, 810 S.E.2d 856 (2018). Although the drawing attached within Coffin Point's
original application showed its proposed dock would be twenty feet from White's
extended property line, the dock as constructed crossed over the extended property
line, causing substantial disruption to White's commercial dock, where he sold fuel
and ice to shrimpers. Id. at 251, 708 S.E.2d at 814. White testified his business
earnings had steadily declined since the installation of the community dock;
additionally, two of his customers testified about the adverse impact of the dock's
location, explaining the distance between the docks combined with the size of their
shrimp boats presented a danger of their boats colliding with the community dock.
Id. at 257, 708 S.E.2d at 817–18. Thus, the ALC concluded the location of the
dock constituted a material harm to the policies of the Act with respect to both the
public's ability to navigate the creek and White's ability to conduct his business.
Id.
In analyzing Coffin Point's challenge to the ALC's decision, the court was careful
to differentiate between private navigational disputes and the disruption of a
commercial enterprise and its customers, explaining:
Coffin Point cites the case of Dorman v. South Carolina
Department of Health and Environmental Control in
support of its argument that policing disputes between
neighboring dock owners is not within the policies of the
Act. 350 S.C. 159, 171, 565 S.E.2d 119 (Ct. App. 2002).
Dorman involved objections to a proposed boat dock
from neighbors on both sides of the applicant's property.
350 S.C. at 162-63, 565 S.E.2d at 121. The neighboring
property owners objected on the grounds that the
proposed dock would crowd too close to their existing
docks and the roof would impinge their view. 350 S.C.
at 163, 565 S.E.2d at 121. This court adopted OCRM's
interpretation of Regulation 30-12, which included the
position that any navigational issue between private
docks is a private property issue. Id. at 171, 565 S.E.2d
at 126. Specifically, the Appellate Panel of OCRM
stated "It is not the policy of OCRM to police
navigational disputes that should be dealt with among
adjacent property owners." Id. at 163, 565 S.E.2d at 121
(internal quotation marks omitted). This court remanded
the case to the ALJ to determine whether the permit
should be granted in light of OCRM's interpretation of
Regulation 30-12. Id. at 171-72, 565 S.E.2d at 126.
In contrast, the present case involves the disruption of a
commercial enterprise and its customers. The objection
lodged by White does not involve merely a private
dispute with Coffin Point, but also concerns the needs of
White's customers, who themselves are members of the
public, and the local shrimping industry in general.
Unlike Dorman, this case does not involve a mere private
navigational dispute. Therefore, the ALJ's conclusion that
the location of Coffin Point's dock presents a significant
navigational hazard does not conflict with OCRM'S
policy of avoiding the regulation of private navigational
disputes.
Id. at 256, 708 S.E.2d 812, 816–17.
In affirming the ALC's finding that the location of the Coffin Creek dock
"constitute[d] material harm to the policies of the Act," the White court recognized
§ 48-39-150(A) requires DHEC "to base its evaluation on [a permit application's]
individual merits." Id. at 257, 708 S.E.2d at 17. The court emphasized the unique
circumstances of the case, noting a DHEC official's admission that "staff would
consider any 'significant impact' on a neighboring dock to constitute material harm
to the policies of the Act." Id. at 257–58, 708 S.E.2d 817–18; see also Maull v.
S.C. Dep't of Health & Envtl. Control, 411 S.C. 349, 361, 768 S.E.2d 402, 409 (Ct.
App. 2015) (distinguishing White from a permitting case involving two private
docks because White involved a commercial enterprise and serious navigational
safety concerns of the public).
Here, Schwiers has not demonstrated the "significant impact" described in White,
and the record lacks the substantial evidence necessary to support the ALC's denial
of the permit under § 48-39-150(10) alone. The ALC's amended order correctly
cites Olson, 379 S.C. at 57, 663 S.E.2d at 497, as an example of a case in which
impact on an adjacent owner's "value and enjoyment" supported the denial of a
dock permit. However, in Olson, in addition to their testimony that the proposed
dock would affect their recreational pursuits, both opposing property owners
testified the proposed dock would lower their property values because of its close
proximity to their existing docks. 379 S.C. at 67, 663 S.E.2d at 503; see also
White, 392 S.C. at 257, 708 S.E.2d at 817–18 (in which the commercial dock
owner testified his business earnings had steadily declined since the construction of
the community dock). Moreover, the Olsons sought to construct a dock on non-
waterfront property between two existing docks; the resulting space between the
new and existing docks would have been seven and forty-four feet, respectively.
Olson, 379 S.C. at 67, 663 S.E.2d at 503.
The ALC found DHEC's denial of the Olson permit was warranted based on both
the impact of the dock on the adjacent owners' value and enjoyment and "the extent
to which long-range, cumulative effects of the project may result with the context
of other possible development and the general character of the area." Id. at 62, 663
S.E.2d at 500. This court affirmed, as substantial evidence supported both
findings. Id. at 66–68, 663 S.E.2d at 502–03. But the Olson considerations
differed from those of this case because an alleged impact to value and enjoyment
was not the sole basis for denial of the permit, and there is no indication that the
site-specific characteristics of the non-waterfront Romain Retreat property at issue
were similar to those here.
Schwiers conceded during oral argument that she presented no evidence to the
ALC that the proposed boatlift would decrease the value of her property. The
evidence in the record established the boatlift addition would not affect deep water
access from Schwiers's dock nor her family's ability to access the property. Rather,
the only testimony Schwiers presented during the ALC hearing was that the
proposed location of the boatlift could interfere with her complete recreational
enjoyment of the north side of her dock. In her opposition letter, Schwiers claimed
the proposed boatlift would encroach on her dock by leaving little to no room
between her dock and Heath's and would completely block her ability to fish, crab,
and catch minnows from the north side of her dock. Neither the letter nor
Schwiers's testimony addressed the value of Schwiers's property. Accordingly, we
find the record lacks substantial evidence to support the ALC's finding that the
proposed boatlift would significantly impact Schwiers's "value and enjoyment"
under § 48-39-150(A)(10) to the extent it would rise to the level of a "material
harm to the policies of the Act."
In addressing the nine other factors of § 48-39-150(A), the ALC found the boatlift
addition would not harmfully obstruct the natural flow of navigable water; affect
production of wildlife, habitats of endangered species or historic sites along the
coastal zone; cause erosion or creation of stagnant water; or affect existing public
access to tidal and submerged lands, navigable waters and beaches, or other
recreational coastal resources. Such considerations fall clearly within the policies
of the Coastal Zone Management Act as set forth in the legislative declaration of
findings set forth in § 48-39-20 and the legislative declaration of policy detailed in
§ 48-39-30. Because we find the substantial evidence does not support the ALC's
conclusion that the addition of the proposed boatlift to the already existing dock
would result in material harm to the policies of the Act, we reverse the ALC's
denial of the permit under § 48-39-150(A).
II. Violation of Regulation 30-12(A)(1)(p)
Heath next asserts the ALC erred by finding the proposed boatlift's construction
over extended property lines constituted a material harm to the policies of the Act
in violation of regulation 30-12(A)(1)(p). He further contends the ALC failed to
consider the individual merits of his application, specifically the need for an
alternative dock alignment given the characteristics of the site in relation to the
other grandfathered docks in the area. Heath persuasively argues the ALC failed to
give deference to DHEC's interpretation and application of its own regulations and
that DHEC properly considered an alternative alignment across extended property
lines under regulations 30-12(A)(1)(e) and (p) because portions of several other
landowners' docks already lie within Heath's own extended property lines.6
During his testimony, Stout was asked about the application of regulation 30-
12(A)(1) to DHEC's consideration of Heath's permit application. Regulation 30-
12(A)(1) sets forth project standards for docks and piers constructed over and on
South Carolina's tidelands and coastal waters, and provides in pertinent part that:
6
"[W]he[n] an agency charged with administering a statute or regulation has
interpreted the statute or regulation, courts, including the ALC, will defer to the
agency's interpretation absent compelling reasons. We defer to an agency
interpretation unless it is 'arbitrary, capricious, or manifestly contrary to the
statute.'" Kiawah Dev. Partners, II, 411 S.C. at 34–35, 766 S.E.2d at 718 (quoting
Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844 (1984)); but
see S.C. Coastal Conservation League v. S.C. Dep't of Health & Envtl. Control,
363 S.C. 67, 75, 610 S.E.2d 482, 486 (2005) (noting the agency's reviewing body,
"not [agency] staff, is entitled to deference from the courts").
(e) 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.
...
(p) No docks, pierheads or other associated structures
will be permitted closer than 20 feet from extended
property lines with the exception of joint use docks
shared by two adjoining property owners. However, the
Department may allow construction closer than 20 feet or
over extended property lines where there is no material
harm to the policies of the Act.
S.C. Code Reg. 30-12(A)(1)(e) and (p).
Stout acknowledged subsection (p) generally requires docks be constructed no
closer than twenty feet from extended property lines but asserted the Regulation
allows docks to be closer and to cross extended property lines if such would cause
"no material harm to the policies of the Act." According to Stout, "the site-specific
characteristics of this section of Main Creek warrant[ed] an alternative alignment"
for Heath's dock because other existing docks in the area reached outside their own
extended property lines and into Heath's dock corridor. Heath's requested spacing
was consistent with the spacing of docks in the area, and several other docks in the
area had two permitted boat storage structures.
Stout testified the distance between Heath's relocated floating dock and the
adjoining property north of his was twenty-two feet. He characterized the area as
"crowded" even though some docks were more than twenty feet apart due to
construction on grandfathered docks outside their various dock corridors. While
Stout recognized the addition of the boatlift would result in less open space
between Schwiers's and Heath's docks, he noted the stairs for Schwiers's dock led
south, away from Heath's dock, and would be the point of entry for her family to
enter the water.
Unfortunately, Stout did not speak to Schwiers about her concerns and never met
on site with her or the other property owners to discuss the activities they claimed
the Heath boatlift addition might limit. Stout testified DHEC was required to
contact citizens opposing a permit application only when clarification was needed
as to the nature of the opposition. Here, no such clarification was necessary
because Schwiers's "comments and concerns were very clear." Schwiers cogently
detailed her concerns and opposition to the boatlift addition in her written
correspondence to DHEC.
Stout testified he considered "the use and enjoyment of adjacent docks in [his]
decision making." He explained, "What we review is our site visit photographs,
aerial photographs that can be produced either through the county's website,
Google Earth or our GIS data reviews. We look at the features of your
[Schwiers's] dock and where they sit in reference to the dock that's being
modified." At the time of the contested case hearing, Stout had been doing dock
permit reviews in this area of Main Creek for eight years and noted other docks in
the immediate area with "much less than 16.5 feet" between them. Some docks
had less than ten feet between them; others were almost touching. Finally, Stout
noted DHEC's policies "actually encourage boatlifts" to keep boats off the bottom
of the creek floor.
DHEC determined the site-specific characteristics of this area of Main Creek
warranted an alternative alignment for the modification to Heath's dock—thereby
allowing him to be closer than twenty feet from the extended property line—
because his existing dock was already outside of the extended property lines, as
were a number of other grandfathered docks in the area. In its prehearing
statement, DHEC explained it found the boatlift addition would cause no material
harm to the policies of the Act because the proposed modifications and spacing
were consistent with other docks along Heath's street and in the vicinity.
The ALC concluded the proposed boatlift location in relation to extended property
line constituted material harm to the policies of the Act because it "affected the
value and enjoyment" of Schwiers's property. Because we find the ALC erred in
finding the impact to Schwiers's recreational use rose to the level of "material harm
to the policies of the Act," we likewise reverse any finding that permitting the
proposed location of the boatlift outside of Heath's extended property lines would
rise to the level of material harm to the policies of the Act under regulation 30-
12(A)(1)(p).7
Conclusion
For the foregoing reasons, the decision of the ALC denying Heath's application to
amend his critical area permit is
REVERSED.
LOCKEMY, C.J., and SHORT, J., concur.
7
Heath also argues the ALC erred in failing to consider the provision of regulation
30-11(A)(2) requiring DHEC to ensure consistent permit evaluations. See R. 30-
1(A)(2)(b) (stating "[t]hese rules and regulations are intended to . . . insure
consistent permit evaluations by the Department."). Because we reverse on other
grounds, we decline to reach the merits of this issue. See Futch v. McAllister
Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999)
(holding the appellate court need not address the appellant's remaining issues when
disposition of prior issues is dispositive).