Berry v. SCDHEC

Appellants owned property in North Myrtle Beach bounded by water on the west and north. In early 2007, they applied to the Department of Health and Environmental Control (“DHEC”) for a critical area permit to construct a replacement bulkhead. DHEC issued a Critical Area Permit to Appellants. The permit included a special condition: “Provided the proposed bulkhead is placed in the same location as the existing bulkhead.” In response to a complaint, a DHEC Enforcement and Compliance Project manager inspected Appellants’ property and observed the replacement bulkhead was partially constructed in a different location along the northern property line and that fill dirt had been placed in the area between the house and new bulkhead. DHEC issued Appellants various written warnings, including a Cease and Desist Directive and a Notice of Violation and Admission Letter. However, follow-up inspections revealed Appellants continued to alter the critical area and construct the replacement bulkhead in a different, unauthorized location. Accordingly, DHEC sent Appellants a Notice of Intent to Revoke the permit. Thereafter, (in 2010) DHEC issued a separate administrative enforcement order assessing against Appellants a civil penalty of $54,0002 and requiring Appellants to restore the impacted portion of the critical area to its previous condition. However, rather than requesting a contested case before the ALC, Appellants filed an action in circuit court seeking judicial review of the Enforcement Order de novo and requesting a final order “overturning [DHEC's] [Enforcement Order] and decision dated [. . .] 2010, with prejudice[.]” The circuit court granted DHEC’s motion to dismiss for lack of subject matter jurisdiction. The court found section 48-39-180 did not confer jurisdiction on the circuit court to review administrative enforcement orders issued by DHEC. Rather, the circuit court held such orders were administrative in nature and governed by the APA. Upon review of the matter, the Supreme Court agreed with the appellate court and affirmed dismissal of the action for lack of subject matter jurisdiction.

Berry v. SCDHEC