South Carolina Department of Health and Environmental Control v. Gould

Appellants, Gene Sheryl Nix, Sandra Dianne Nix and Dewayne Nix
(hereinafter either referred to individually or jointly as “Intervenors”)
appeal the trial court’s order denying their motion to intervene, arguing that
their participation and the relief the

THIS OPINION
HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED UPON AS PRECEDENT
IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

South Carolina Department of Health and Environmental Control, Respondent,

v.

Shane Gould, Appellant.

Appeal from Administrative Law Court

Ralph King Anderson, III, Administrative
Judge

Unpublished Opinion No. 2007-UP-326

Submitted April 2, 2007 – Filed June 18,
2007

AFFIRMED

C.C. Harness, III, of Mount Pleasant, for Appellant.

Van Whitehead, of North Charleston, for Respondent.

PER
CURIAM:  Shane Gould appeals the administrative
law judge’s (ALJ) order requiring relocation of a covered pierhead in a permit
revocation action initiated by the South Carolina Department of Health and
Environmental Control (DHEC).  We affirm.

FACTS

Gould
resides and owns a house at 29 Sea Olive Road on Hilton Head Island, adjacent
to Point Comfort Creek.  He applied for a dock permit in November 2001, which
was granted on December 19, 2001.  Based on Gould’s permit application, all
parts of the dock were to be built at least twenty feet inside his extended
property line.  Gould began building the dock in 2003. 

Contemporaneously
with construction of the dock, Margaret Maxwell, Gould’s neighbor, complained
that the dock crossed the extended property line separating her property from
Gould’s.  Indeed, as completed, the dock’s roofed pierhead and a floating dock
crossed the extended property line separating the properties.  Maxwell
continued to complain to the Office of Ocean and Resource Management (OCRM) and
government officials about the dock’s placement, the resulting obstruction of
her view, and her access to the creek.  

Based
upon her complaints, OCRM reviewed the permit and discovered the inaccuracy of
the submitted application.  OCRM instituted an enforcement action in 2004, but
instead proceeded with this revocation action.[1] 
In the action, OCRM sought to revoke Gould’s permit based on the material
inaccuracy of the drawings, as well as to require him to submit a new permit
application with new drawings.  However, OCRM did not seek to require Gould to
alter the dock in the interim. 

During
the pendency of this action, Gould agreed to move his floating dock to the
other side of the pierhead onto his side of the extended property line.  However,
he did not agree to move the roofed pierhead, which remained across the line
separating his property from Maxwell’s.

The ALJ
found that after Gould’s floating dock was moved, the only material harm would
be the impact on Maxwell’s view.  Accordingly, the ALJ found this matter could
be solved without revoking the existing permit and requiring a new application. 
Thus, the ALJ ordered modification of the existing permit such that (1) the
gangway and float be moved to the opposite side of the pierhead, and (2) any
portion of the pierhead roof lying over the extended property lines be removed. 
He further required that the new location of the floating dock be approved by
OCRM consistent with his order, and any partial removal of the roofing be
approved by OCRM.  Gould Appeals.  DHEC did not file a brief.

STANDARD OF REVIEW

The
appellate court may reverse or modify an administrative decision if such
decision is affected by errors of law, characterized by an abuse of discretion,
or clearly erroneous in view of the substantial evidence on the whole record.  Professional
Samplers, Inc. v. South Carolina Employment Sec. Com’n, 334 S.C. 392, 395,
513 S.E.2d 374, 376 (Ct. App. 1999).  “Substantial evidence” is not a mere
scintilla of evidence, nor the evidence viewed blindly from one side of the
case, but is evidence which, considering the record as a whole, would allow
reasonable minds to reach the conclusion the administrative agency reached in
order to justify its action.  Hull v. Spartanburg Co. Assessor, 372
S.C. 420, 641 S.E.2d 909, 911 (Ct. App. 2007).  The appellate court may not
substitute its judgment for that of an agency as to the weight of evidence on
questions of fact.  Grant v. South Carolina Coastal Council, 319 S.C.
348, 353, 461 S.E.2d 388, 391 (1995). 

LAW / ANALYSIS

I.  Legal Authority to Order
Removal of the Pierhead-Roof

Gould argues that
the ALJ lacked legal authority to order the removal of the portion of the
pierhead roof that crosses the extended property lines.  Specifically, he
argues because the roof removal was not agreed to by the parties, and because
OCRM did not request this relief or make any general prayer for relief, there
is no basis for that portion of the order.  We
disagree. 

This
issue is not preserved for appellate review.  During examination of the trial’s
first witness, the ALJ asked the parties:

In
light of the tenure that this case comes before me, do I have the authority to
if I find in (sic) fitting with the facts to amend the permit and to allow the
permit of the dock crossing the extended property line within my authority to
modify? 

Counsel for OCRM answered in the
affirmative and Gould made no response.  The ALJ further noted “Well, I just
wanted to ask that to let both parties know what I may be thinking about and so
you can ask your questions accordingly.”  Again, Gould did not object or
respond.  At the conclusion of the hearing, the ALJ stated that “a proper
resolution to this case would be to modify the permit and require that . . .
that no dock or anything else extend beyond the extended property line from that
point on,” notifying the parties that the hearing would be adjourned other than
any response to that proposed resolution.  Gould again made no objection or
argument in response.  By failing to object to the ALJ’s comments, Gould waived
any objection he may have raised to the remedy granted.  Rule 15(b), SCRCP, (“When
issues not raised by the pleadings are tried by express or implied consent of
the parties, they shall be treated in all respects as if they had been raised
in the pleadings.”); Andrews v. von Elten & Walker, Inc., 315 S.C.
199, 202, 432 S.E.2d 500, 502, (Ct. App. 1993) (holding an issue that was
discussed extensively at trial without objection was tried by consent of the
parties).

Additionally,
we note Gould’s position at trial was markedly contrary to his position on
appeal.  Gould argued before the ALJ that an enforcement action was the proper
means for OCRM to address Gould’s dock permit issue, rather than a revocation
action.  As Gould apparently acknowledges in his brief, in an enforcement
action for a permit violation, modification and removal are proper remedies.  See South Carolina Coastal Council v. Vogel, 292 S.C. 449, 357 S.E.2d 187
(1987) (affirming a removal order of an illegally constructed dock); Brownlee
v. Dept. of Health and Env. Control, 372 S.C. 119, 641 S.E.2d 45, 46 (Ct.
App. 2007) (discussing an enforcement action by the predecessor to OCRM in
response to a dock that, having been built not in compliance with the issued
permit, had been subject to an administrative order to relocate the pierhead
and walkway).  Thus, in effect, Gould now appeals the ALJ’s enforcement-like
resolution of this matter, after arguing enforcement was the proper form for
this action in the first place.  “It is well settled that one cannot present
and try his case on one theory and then change his theory on appeal.”  Gurganious
v. City of Beaufort, 317 S.C. 481, 488, 454 S.E.2d 912, 916 (Ct. App.
1995). 

Because
Gould raised no objection when the ALJ stated his intent to modify the permit
rather than revoke it, and because of the inconsistency of his arguments on
appeal and before the ALJ, we find this issue not preserved for appellate review. 
Therefore, we find no error in the ALJ’s order.

CONCLUSION

Based on the
foregoing, the ALJ’s order is

AFFIRMED.

HEARN, C.J., and
GOOLSBY and STILWELL, JJ., concur.

[1] Maxwell was denied the right to intervene on October
18, 2005.  She did not appeal from this decision.  Although it is unclear from
the record, it appears that Maxwell’s intervenor status was denied while this
action was still in the posture of an enforcement action.