THE STATE OF SOUTH CAROLINA
In The Court of Appeals
South Carolina Coastal Conservation League and Sierra Club, Appellants,
South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management; Port Royal Plantation; and Town of Hilton Head Island, Respondents.
Appeal From Beaufort County
Thomas Kemmerlin, Jr., Master-in-Equity
REVERSED AND REMANDED
James S. Chandler, Jr., of South Carolina Environmental Law Project, of Pawleys Island, for appellants.
Curtis L. Coltrane, of Coltrane & Alford, of Hilton Head Island and Mary D. Shahid, of DHEC Office of Ocean & Coastal Resource Management, of Charleston, for respondents.
Amicus Curiae: C. C. Harness, III, and Grahame E. Holmes, both of Mt. Pleasant, for DeBordieu Colony Community Association, Inc.
SHULER, J.: The circuit court affirmed a summary judgment order of the Administrative Law Judge Division (ALJD), upholding a permit issued by the Department of Health and Environmental Control (DHEC) allowing Port Royal Plantation to refurbish a groin field and construct new groins along the beach on Hilton Head Island. South Carolina Coastal Conservation League (SCCCL) and Sierra Club appeal, arguing the South Carolina Beachfront Management Act prohibits such construction. We reverse.
In April 1996 Port Royal Plantation applied to the Office of Ocean and Coastal Resource Management (OCRM), a division of DHEC, for a permit to construct four new groins and refurbish a series of seventeen existing groins (a "groin field") along approximately 8,000 feet of shoreline at Hilton Head. (1) OCRM issued the permit on October 2, 1996.
SCCCL and Sierra Club filed a petition for administrative review of the permit decision and requested a contested case hearing before the ALJD. The petition named Port Royal Plantation and OCRM as respondents, and the administrative law judge (ALJ) granted the Town of Hilton Head's motion to intervene. Thereafter, the parties filed cross-motions for summary judgment. Prior to the hearing, the parties stipulated to the relevant facts and agreed that the only issue remaining was a question of law for the court: Whether the Beachfront Management Act prohibited the proposed construction.
By order dated June 16, 1998, the ALJ found the permit to refurbish the groin field and construct new groins valid. SCCCL and Sierra Club appealed this decision to the OCRM's Coastal Zone Management Appellate Panel, which adopted the order of the ALJ and affirmed on December 17. SCCCL and Sierra Club subsequently sought judicial review in the circuit court, which likewise affirmed DHEC's grant of the permit in an order filed February 7, 2000. This appeal followed.
Summary judgment is proper 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 the moving party is entitled to a judgment as a matter of law." Rule 56(c), SCRCP; see also Tupper v. Dorchester County, 326 S.C. 318, 325, 487 S.E.2d 187, 191 (1997).
On appeal, a reviewing court may reverse the decision of an administrative agency if a party's substantial rights are prejudiced by a decision which "violate[s] constitutional or statutory provisions . . . ." Weaver v. S.C. Coastal Council, 309 S.C. 368, 374, 423 S.E.2d 340, 343 (1992); see also S.C. Code Ann. § 1-23-380(6) (Supp. 2000).
The sole issue in this appeal is whether the groin construction and refurbishment permit issued by DHEC to Port Royal Plantation violates the statutory provisions of the Beachfront Management Act. We believe it does.
In 1977 our Legislature passed the Coastal Zone Management Act (CZMA) to "protect, preserve, restore and enhance the coastal resources of South Carolina." 23A S.C. Code Ann. Regs. 30-1(C)(1) (Supp. 2000); see Beard v. S.C. Coastal Council, 304 S.C. 205, 207, 403 S.E.2d 620, 621 (1991) ("Like the 1988 Beachfront Management Act, the purpose of the 1977 Act was to protect, restore and enhance the coastal environment."). To accomplish this goal, the CZMA created a state agency, the South Carolina Coastal Council, to administer and enforce its provisions. (2) Id. The Council's regulatory authority, however, was inadequate to forestall extensive private beachfront development along the coast and, as a result, erosion became a serious threat. See S.C. Code Ann. § 48-39-250(4) (Supp. 2000); 23A S.C. Code Ann. Regs. at 30-1(C)(1) & (2).
Realizing the gravity of the problem, the Legislature enacted the Beachfront Management Act in 1988. (3) Promulgated to further the coastal protection afforded under the CZMA, the Act was a direct response to a report by the Blue Ribbon Committee on Beachfront Management that determined South Carolina's beach/dune system was in crisis. (4) See 23A S.C. Code Ann. Regs. at 30-1(C)(3). Specifically, the report noted that "over fifty-seven miles of our beaches [were] critically eroding," thereby threatening "life, property, the tourist industry, vital State and local revenue, marine habitat, and a national treasure[.]" Id.
To combat the erosional threat, the Beachfront Management Act devised a statutory scheme to restore the beach/dune system by promoting gradual retreat from the beachfront over a forty-year period. See § 48-39-280; 23A S.C. Code Ann. Regs. at 30-1(C)(6). To this end, the legislation directed DHEC to "develop and institute a comprehensive beach erosion control policy," and prohibited the use of any "critical area," including the beach, without first obtaining a permit from DHEC. § 48-39-120(A) & 130(A). (5)
In general, three methods are used to manage the problem of shoreline erosion: armoring the beach with "hard" erosion control devices; renourishing the beach with sand; and retreating from the beach altogether. (6) 23A S.C. Code Ann. Regs. at 30-1(C)(5). Enactment of the Beachfront Management Act evidences a clear legislative choice favoring the latter two policies. See, e.g., § 48-39-290(B)(2) (governing all construction, reconstruction and alterations between the baseline (7) and the setback line, (8) thereby prohibiting the construction of new erosion control devices seaward of the setback line except for the protection of a pre-existing public highway and strictly regulating the repair or replacement of such devices if destroyed); § 48-39-250(5) ("The use of armoring in the form of hard erosion control devices such as seawalls, bulkheads, and rip-rap to protect erosion-threatened structures adjacent to the beach has not proved effective. . . . In reality, these hard structures, in many instances, have increased the vulnerability of beachfront property to damage from wind and waves while contributing to the deterioration and loss of the dry sand beach which is so important to the tourism industry."); § 48-39-260(3) (stating that the policy of South Carolina is to "severely restrict the use of hard erosion control devices to armor the beach/dune system and to encourage the replacement of hard erosion control devices with soft technologies as approved by [DHEC] which will provide for the protection of the shoreline without long-term adverse effects"). (9)
Reflecting this preference, the Beachfront Management Act expressly states that "[n]o new construction or reconstruction is allowed seaward of the baseline," as determined by DHEC, except the following:
(1) wooden walkways no larger in width than six feet
(2) small wooden decks no larger than one hundred forty-four square feet
(3) fishing piers which are open to the public . . .
(4) golf courses
(5) normal landscaping
(6) structures specifically permitted by special permit as provided in subsection (D)
(7) pools may be reconstructed if they are landward of an existing, functional erosion control structure or device . . . .
§ 48-39-290(A). (10) We agree with SCCCL and Sierra Club that this section precludes OCRM from issuing any permits for the construction or refurbishment of groins, which clearly are constructed seaward of the baseline and do not fit within a statutory exception. (11)
Although Respondents acknowledge, as did the circuit court and ALJD, that this conclusion stems from a "literal reading" of section 48-39-290(A), (12) they argue the section should not be interpreted in isolation from other provisions of the Beachfront Management Act. (13) We agree. See, e.g., Williams v. Williams, 335 S.C. 386, 389-90, 517 S.E.2d 689, 690-91 (1999) ("[T]his Court's primary function is to ascertain the intention of the legislature. . . . The Court should consider not merely the language . . . being construed, but the word[s] and [their] meaning in conjunction with the purpose of the whole statute and the policy of the law."); Gardner v. Biggart, 308 S.C. 331, 333, 417 S.E.2d 858, 859 (1992) ("A statutory provision should be given a reasonable and practical construction consistent with the purpose and policy expressed in the statute.") (quoting Hay v. S.C. Tax Comm'n, 273 S.C. 269, 273, 255 S.E.2d 837, 840 (1979)); Burns v. State Farm Mut. Auto. Ins. Co., 297 S.C. 520, 522, 377 S.E.2d 569, 570 (1989) ("In ascertaining [legislative] intent, statutes which are part of the same Act must be read together."). However, even construing the Act as a whole, Respondents' arguments are unavailing.
Initially, we believe Respondents are correct in asserting that groins, as defined herein, are not "erosion control structures or devices" as defined in the Act. On its face, the statutory definition of "erosion control structures or devices" does not reference groins and enumerates only three types: seawalls, bulkheads, and revetments. See § 48-39-270(1). However, because the word "include" may be seen as one of limitation or enlargement, we must turn to rules of construction to ascertain the Legislature's true intent. See Baker v. Chavis, 306 S.C. 203, 208-09, 410 S.E.2d 600, 603 (Ct. App. 1991) (citing N.C. Turnpike Auth. v. Pine Island, Inc., 265 N.C. 109, 143 S.E.2d 319 (1965) ("includes" is ordinarily a word of enlargement and not of limitation) (emphasis added); Frame v. Nehls, 550 N.W.2d 739, 742 (Mich. 1996) (stating that "[w]hen used in the text of a statute, the word 'includes' can be used as a term of enlargement or of limitation, and the word in and o