Concerned Citizens Committee v. South Carolina Coastal Council

Chandler, Justice: Concerned Citizens Committee for the Ashley River (Citizens) appeal Circuit Court’s order affirming Coastal Council’s grant of a permit to D & D Enterprises (D & D) to construct a marina on the Ashley River. We reverse. FACTS Coastal Council, through its permitting committee, granted a permit to D & D for the construction and operation of a sixty slip marina on the Ashley River. Citizens appealed and, after an evidentiary hearing, Coastal Council issued its order affirming the grant. On review, Circuit Court affirmed, holding Coastal Council’s decision was supported by substantial evidence. ISSUE While other issues are raised, we need address only whether the record contains substantial evidence of a “demand” for the marina, as mandated by S.C. Code Regulation 30-12 (1976). DISCUSSION A. SCOPE OF REVIEW 1 Our review of Coastal Council’s order is limited to a determination of whether the findings of Coastal Council are supported by substantial evidence. S.C. Code Ann. § l-23-380(g) (1986); Parker v. S.C. Public Service [269] Commission, 281 S.C. 22, 314 S.E. (2d) 148 (1984). Substantial evidence is defined as “such evidence as a reasonable mind might accept as adequate to support a conclusion. . . . This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s findings from being supported by substantial evidence.” Lark v. Bi-Lo, Inc., 276 S.C. 130, at 135-136, 276 S.E. (2d) 304 (1981) (quoting from Consolo v. Fed. Maritime Comm., 383 U.S. 607, 86 S.Ct. 1018, 16 L.Ed. (2d) 131). B. ORDER OF COASTAL COUNCIL Coastal Council regulations require, at the threshold stage of the permitting procedure, that a permit applicant establish a public “demand” for the project in question: Applications for construction of marina and commercial dock facilities will be considered by the Coastal Council only after adequate demonstration by the applicant of demand for the facilities. S.C. Code Regs. 30-12(E)(4)(j) (1976) (Emphases supplied). Without this requisite showing, Coastal Council has no legal ability to grant the permit. In its order, Coastal Council found that “[d]emand exists for the marina.” After a searching review of the record, we find no substantial evidence presented at any stage of this litigation to support this finding. Indeed, the testimony of Coastal Council’s own permit administrator, Stephen Moore, reflects the absence of an existing demand for the marina. Moore sought to establish demand, not on present need, but upon “our own experience that marinas sort of generate their own need,” and that “I and members of my staff — have observed when marinas are built they fill up.”1 This testimony does not address, as required by Regulation 30-12, a present need or demand for the marina. At best, it represents a conjecture that the need will, in the future, be established. The fact that the marina may cre [270] ate a demand for wet moorage does not satisfy the requirement of need. Cf. S.C. Wildlife Fed. v. S.C. Coastal Council, 296 S.C. 187, 371 S.E. (2d) 521 (1988) (Public interest cannot be established on speculative economic benefit contingent upon completion of project). Moreover, the applicant, D & D, offered no testimony of a demand for a marina in this area, candidly admitting numerous times that its “main purpose” was to secure a marina for the display and sale of boats: The purpose of our proposed expansion is to provide a place to display our complete line of products that we offer for sale ... We are thinking of adding slips of wet [docks], mainly in there for display of boats for sale ... So the main purpose we are after, of course, is to put in boats for sale there. Again, to re-emphasize what Larry has already said, the principal purpose is to be able to consolidate our boats that we have for sale, which presently are being stored at other marinas____ Contrary to the opinion of the dissent, we hold that D & D’s personal business motivation and uncorroborated assertions cannot be equated with a public need for the marina. Further, the “variety of other evidence of demand” upon which the dissent relies is not competent evidence in this case. These statements were taken from the minutes of a Joint Legislative Delegation Meeting that occurred after Coastal Council’s permitting committee had already issued the permit. These statements are not sworn testimony, nor were they made in any judicial proceeding or, in fact, any proceeding before Coastal Council.2 In short, no substantial evidence of an existing demand for the marina having been presented to the Council Hearing Officer, the Full Council or the Circuit Court, [271] D & D was not entitled to a permit.3 Appellant’s remaining exceptions need not be addressed. Reversed. Gregory, C.J., and Finney and Toal, JJ., concur. Harwell, J., dissenting in separate opinion. Footnotes [1] We note that in his testimony Mr. Moore refers to a 1984 Charleston County study relating to “demand.” This study is not in the exhibits or record on appeal and, therefore, it cannot be reviewed for its probative value. [2] It is interesting to note that the Joint Delegation later testified before Coastal Council in opposition to the marina. [3] The dissent states that the issue of demand is not properly before this Court. We disagree. Coastal Council’s order concludes, without explanation, that demand exists for the marina. Citizens raised the issue of demand to the Circuit Court, which made a general ruling finding substantial evidence and adopting Coastal Council’s order, thereby ruling on the issue. See Cook v. S.C. Dept. of Highways and Public Transportation, 420 S.E. (2d) 847, 849 (S.C. 1992) (Trial judge need not separately address each contention in administrative order in holding that order was supported by substantial evidence). A Rule 59(e) motion was not necessary. Moreover, in their exceptions, Citizens state that Regulation 30-12, of which demand is an element, was not complied with by Coastal Council. It is within our province to address this issue.