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Bill 978

Indicates Matter Stricken

Indicates New Matter

COMMITTEE REPORT

March 9, 2000

S. 978

Introduced by Senators Leventis, McConnell, Ravenel, Passailaigue, Grooms, Rankin and Branton

S. Printed 3/9/00--S. [SEC 3/13/00 3:44 PM]

Read the first time January 11, 2000.

To whom was referred a Bill (S. 978), to amend Section 48-39-40, as amended, Code of Laws of South Carolina, 1976, relating to the Coastal Zone Management Appellate Panel, etc., respectfully

That they have duly and carefully considered the same, and recommend that the same do pass with amendment:

Amend the bill, as and if amended, SECTION 1, Section 48-39-40(E), page 2, by striking line 41, and inserting in lieu thereof the following: / Environmental Control in accordance with/

Amend the bill further, as and if amended, SECTION 1, Section 48-39-40(E), page 3, line 7, before the / . / by inserting / and the South Carolina Coastal Zone Management Program document and refinements /

Amend the bill further, as and if amended, SECTION 2, Section 48-39-150(D), page 3, by striking lines 32-34, and inserting in lieu thereof the following: / Carolina Board of Health and Environment Control in accordance with Articles 3 and 5, Chapter 23 of Title 1. Any applicant having a permit denied may challenge the validity of any or all reasons given for denial." /

Renumber sections to conform.

Amend title to conform.

THOMAS L. MOORE, for Committee.

TO AMEND SECTION 48-39-40, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE COASTAL ZONE MANAGEMENT APPELLATE PANEL, SO AS TO CHANGE THE NAME TO THE SOUTH CAROLINA COASTAL COUNCIL AND TO FURTHER PROVIDE FOR THE POWERS AND DUTIES OF THE COASTAL COUNCIL AND TO SPECIFY THE PROCEDURES FOR APPEALING DECISIONS OF THE COASTAL COUNCIL RELATING TO SIGNIFICANT OR CONTROVERSIAL PERMIT APPLICATIONS AND CONSISTENCY CERTIFICATIONS; TO AMEND SECTIONS 48-39-150, 48-39-180, 48-39-280, AND 48-39-290, ALL AS AMENDED, AND ALL RELATING TO, AMONG OTHER THINGS, APPEALS OF PERMIT DECISIONS, SO AS TO CONFORM THESE PROVISIONS TO CHANGES MADE IN THIS ACT.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. Section 48-39-40 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:

"(A) On July 1, 1994, There is created the Coastal Zone Management Appellate Panel South Carolina Coastal Council which consists of fourteen members, which shall act as an advisory council to the board and the Department of Health and Environmental Control. The members of the panel shall Coastal Council must be constituted as follows: eight members, one from each coastal zone county, to be elected by a majority vote of the members of the House of Representatives and a majority vote of the Senate members representing the county from three nominees submitted by the governing body of each coastal zone county, each House or Senate member to have one vote; six members, one from each of the congressional districts of the State, to be elected by a majority vote of the members of the House of Representatives and the Senate representing the counties in that district, each House or Senate member to have one vote. The panel Coastal Council shall elect a chairman, vice-chairman vice chairman, and other officers it considers necessary.

(B) Terms of all members are for four years and until successors are appointed and qualify. Members from congressional districts serve terms of two years only as determined by lot at the first meeting of the panel. Vacancies must be filled in the original manner of selection for the remainder of the unexpired term.

(C) On July 1, 1994, members of the South Carolina Coastal Council, become members of the South Carolina Coastal Zone Appellate Panel and continue to serve until their terms expire. On July 1, 2000, the immediate past members of the South Carolina Coastal Zone Management Appellate Panel become the members of the South Carolina Coastal Council. Upon the expiration of their terms, members must be selected as provided within this section.

(D) The Coastal Council shall meet on a regular basis at such times and places as established by its chairman.

(E) The Coastal Council has the authority to issue or deny, on behalf of the department, applications for permits and consistency certifications that are submitted pursuant to this chapter and that meet the criteria established pursuant to subsection (F). The Coastal Council shall establish a program whereby the applicant and other interested persons have the right to appear before the council to provide oral or written comments relating to the application. This program is not required to be promulgated in regulations pursuant to Article 1, Chapter 23 of Title 1 of the South Carolina Administrative Procedures Act. After receiving comments, the Coastal Council, by majority vote of those present, shall decide whether to issue or deny the application. The Coastal Council's decision constitutes the final staff decision of the department and is the final agency decision unless an administrative appeal is filed. An administrative appeal of the Coastal Council's decision shall proceed to the Administrative Law Judge Division and the South Carolina Board of Health and Environmental Control as a contested case in accordance with Articles 3 and 5, Chapter 23 of Title 1. In matters which are not forwarded to the Coastal Council pursuant to subsection (F), department staff shall make the decision and an administrative appeal of department staff decisions shall proceed in the same manner to the Administrative Law Judge Division and the South Carolina Board of Health and Environmental Control. However, appeals of coastal zone consistency certifications of federal permits pursuant to Section 48-39-80(B)(11) are not contested cases and shall proceed as provided by applicable federal law.

(F) The department shall forward to the Coastal Council for decision all significant or controversial applications for permits and consistency certifications submitted pursuant to this chapter. The South Carolina Board of Health and Environmental Control and the Coastal Council shall develop specific criteria for determining whether an application qualifies as 'significant' or 'controversial'. These criteria may include, among other factors, whether a public hearing on the application has been requested under Section 49-39-150(B). These criteria are not required to be promulgated in regulations pursuant to Article 1, Chapter 23 of Title 1 of the South Carolina Administrative Procedures Act.

(G) The Coastal Council may submit any legislative or regulatory proposal or change which it considers advisable to the South Carolina Board of Health and Environmental Control for consideration and review."

SECTION 2. Section 48-39-150(D) of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:

"(D) Any applicant having a permit denied or any person adversely affected by the granting of the permit has the right of direct appeal from the decision of the Administrative Law Judge to the Coastal Zone Management Appellate Panel may appeal the decision to the Administrative Law Judge Division and the South Carolina Board of Health and Environment Control as a contested case. Any applicant having a permit denied may challenge the validity of any or all reasons given for denial."

SECTION 3. Section 48-39-150 of the 1976 Code is amended by adding at the end:

"(G) This section applies to permit decisions made by the South Carolina Coastal Council pursuant to Section 48-39-40(E) in addition to decisions made by department staff."

SECTION 4. Section 48-39-180 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:

"Section 48-39-180. Any applicant whose permit application has been finally denied, revoked, suspended, or approved subject to conditions of the department by the Coastal Zone Management Appellate Panel by the South Carolina Board of Health and Environmental Control, or any person adversely affected by the permit, may, within twenty days after receiving notice thereof, file petition in the circuit court having jurisdiction over the affected land for a review of the department's action "de novo" is entitled to judicial review pursuant to Sections 1-23-380 and 1-23-610 or to determine whether the department's action so restricts or otherwise affects the use of the property as to deprive the owner of its existing practical use and is an unreasonable exercise of the state's police power because the action constitutes the equivalent of taking without compensation. If the court finds the action to be an unreasonable exercise of the police power, it shall enter a finding that the action shall not apply to the land of the plaintiff, or in the alternative, that the department shall pay reasonable compensation for the loss of use of the land. The use allowed by any permit issued under this chapter may, in the discretion of the court, be stayed pending decision on all appeals that may be taken. The circuit court may in its discretion require that a reasonable bond be posted by any person. It is specifically intended that any person whose permit application has been denied may have such permit issued by the circuit court having jurisdiction if such person can prove the reasons given for denial to be invalid."

SECTION 5. Section 48-39-280(A)(4) of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:

"(4) Notwithstanding any other provision of this section, where a department-approved beach nourishment project has been completed, the local government or the landowners, with notice to the local government, may petition an Administrative Law Judge to move the baseline as far seaward as the landward edge of the erosion control structure or device or, if there is no existing erosion control structure or device, then as far seaward as the post project baseline as determined by the department in accordance with Section 48-39-280(A)(1) by showing that the beach has been stabilized by department-approved beach nourishment. If the petitioner is asking that the baseline be moved seaward pursuant to this section, he must show an ongoing commitment to renourishment which will stabilize and maintain the dry sand beach at all stages of the tide for the foreseeable future. If the Administrative Law Judge grants the petition to move the baseline seaward pursuant to this section, no new construction may occur in the area between the former baseline and the new baseline for three years after the initial beach nourishment project has been completed as determined by the department. If the beach nourishment fails to stabilize the beach after a reasonable period of time, the department must move the baseline landward to the primary oceanfront sand dune as determined pursuant to items (1), (2), and (3) for that section of the beach. Any appeal of an Administrative Law Judge's decision under this section may be made to the Coastal Zone Management Appellate Panel South Carolina Board of Health of Environmental Control."

SECTION 6. Section 48-39-280(E) of the 1976 Code, as last amended by Act 607 of 1990, is further amended to read:

"(E) A landowner claiming ownership of property affected who feels that the final or revised setback line, baseline, or erosion rate as adopted is in error, upon submittal of substantiating evidence, must be granted a review of the setback line, baseline, or erosion rate, or a review of all three. The requests must be forwarded to the Coastal Zone Management Appellate Panel and handled in accordance with the department's regulations on appeals may appeal the decision as a contested case."

SECTION 7. Section 48-39-290(D) of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:

"(D) Special permits:

(1) If an applicant requests a permit to build or rebuild a structure other than an erosion control structure or device seaward of the baseline that is not allowed otherwise pursuant to Sections 48-39-250 through 48-39-360, the department may issue a special permit to the applicant authorizing the construction or reconstruction if the structure is not constructed or reconstructed on a primary oceanfront sand dune or on the active beach and, if the beach erodes to the extent the permitted structure becomes situated on the active beach, the permittee agrees to remove the structure from the active beach if the department orders the removal. However, the use of the property authorized under this provision, in the determination of the department, must not be detrimental to the public health, safety, or welfare.

(2) The department's Permitting Committee is the committee to consider applications for special permits.

(3)(2) In granting a special permit, the committee department may impose reasonable additional conditions and safeguards as, in its judgment, will fulfill the purposes of Sections 48-39-250 through 48-39-360.

(4)(3) A party aggrieved by the committee's decision to grant or deny a special permit application may appeal to the full Coastal Zone Management Appellate Panel pursuant to Section 48-39-150(D) the decision as a contested case."

SECTION 8. This act takes effect July 1, 2000.

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