Weatherholtz v. SCDHEC

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 Court of Appeals

James Weatherholtz, Appellant,

v.

South Carolina Department of Health and Environmental
Control, Respondent.

Appellate Case No. 2014-001939

Appeal From The Administrative Law Court
Carolyn C. Matthews, Administrative Law Judge

Unpublished Opinion No. 2016-UP-180
Heard February 10, 2016 – Filed April 20, 2016

REMANDED

James Earnest Weatherholtz, of Womble Carlyle
Sandridge & Rice, LLP, of Charleston, pro se.

Bradley David Churdar, of the South Carolina
Department of Health and Environmental Control, of
Charleston, for Respondent.

PER CURIAM: Appellant James Weatherholtz appeals the administrative law
court's (ALC's) order affirming the Department of Health and Environmental
Control's (DHEC) denial of Appellant's dock permit application, arguing (1) the
ALC's holding that the creek is not ten feet wide is the product of legal errors and
unsupported factual findings, and (2) the ALC committed legal error in holding an
existing dock outside his lot's extended property lines and the possibility another
dock could be built outside those lines made him ineligible for a dock permit. We
remand the case for further proceedings.

On August 7, 2013, DHEC denied Appellant's permit application to build a dock
on his property, located on Kushiwah Creek in Charleston. The permit was denied
based on S.C. Code Ann. Reg. 30-12(A)(2)(c)(i) (2011) (subsection (i)) and S.C.
Code Ann. Reg. 30-12(A)(2)(c)(ii) (2011) (subsection (ii)). Subsection (i)
provides "Docks will not be permitted on creeks less than 10 feet wide as measured
from marsh vegetation on each side." The relevant portion of subsection (ii)
provides,

Docks will not be permitted on creeks less than 20 feet
wide as measured from marsh vegetation on each side
unless one of the following two special geographic
circumstances exists: a lot has greater than 500 feet of
water frontage or no potential access via dockage from
the opposite side of the creek.

On August 20, 2013, Appellant filed a request for final review. DHEC filed its
response on September 5, 2013. On September 16, 2013, DHEC's board declined
to conduct a final review conference, causing DHEC's staff decision to become
final. Appellant then requested review before the ALC, and the ALC heard the
case on March 5, 2014.

At the ALC hearing, Appellant presented testimony from a land surveyor whose
field crew measured the creek at approximately twenty locations. Additionally,
Appellant testified about his own personal measurements of the creek's width.
DHEC's project manager testified that he and another staff member went to the
creek by boat in July 2013 and took approximately four measurements along the
creek using a survey rod. The project manager also returned to the creek on a later
occasion and took additional measurements in Appellant's presence. However, the
project manager declined to measure at least one location requested by Appellant.

The ALC issued its final order on June 17, 2014, but Appellant filed a motion for
reconsideration challenging several of the ALC's factual and legal findings.
Subsequently, the ALC issued an amended final order on August 12, 2014,
upholding DHEC's permit denial under both subsection (i) and subsection (ii). The
amended final order contains a factual finding that DHEC staff "measured the
creek width at four different locations within [Appellant's] extended property
lines." However, the order contains no findings addressing whether DHEC staff
took measurements at the exact location where Appellant wishes to place his
proposed dock.

During oral argument, the parties disagreed whether testimony and exhibits in the
record established that DHEC took measurements at the exact location of
Appellant's proposed dock.

We cannot determine whether the ALC erred in affirming the denial of Appellant's
dock permit pursuant to subsection (i) without a specific finding on this point.
Accordingly, we remand this case to the ALC for a specific factual finding as to
whether DHEC staff measured the creek's width at the exact location of the
proposed dock and not simply within the Appellant's property lines. The ALC
should then apply that finding to subsection (i). See Sierra Club v. S.C. Dep't of
Health & Envtl. Control, 387 S.C. 424, 431, 693 S.E.2d 13, 16 (Ct. App. 2010)
("Under section 1-23-610(B) [of the South Carolina Code], our court may affirm or
remand [an ALC] case for further proceedings.").

REMANDED.

WILLIAMS, LOCKEMY, and MCDONALD, JJ., concur.