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Pawleys Island: County conspicuous in absence from court in groin appeal

By Charles Swenson
Coastal Observer

A hearing was held last week on an appeal of permit issued to Georgetown County to build a groin on the south end of Pawleys Island. No one from the county attended.

The attorney for the groups challenging the permit made note of the absence.

The Administrative Law Court judge hearing the case noted it, too.

So did the attorney for the state Office of Ocean and Coastal Resource Management, which issued the permit.

Whether the county’s decision not to defend the permit will leave it without approval to build a 205-foot-long rock groin in front of the public parking lot on the island’s southern tip will be decided by Judge Phillip Lenski after he received additional filings from the attorneys involved over the next 45 days.

“I will make my decision very quickly,” he said at the conclusion of last week’s hearing in Columbia.

The state issued the permit to the county in September 2012. The county says the permit is necessary to protect the parking lot from erosion. Groins are built perpendicular to the shore to trap sand that moves in the current that runs parallel to the beach. They are only allowed under state law to protect public facilities threatened by erosion.

The Coastal Conservation League and local chapters of the Sierra Club and League of Women Voters have challenged the permit, saying the groin will cause erosion on adjacent beaches and that there is no threat to the parking area.

But last week’s hearing focused on the county’s failure to defend the permit in court, which the conservation groups, represented by the S.C. Environmental Law Project, say should lead to a finding in their favor on procedural grounds.

“Georgetown County, the permit holder, the person in this case with the most to lose is not here today,” said Michael Corley, attorney for the law project. “They don’t care if this permit survives or not.”

He argued there are two ways for the court to reach a finding that will overturn the permit. Under the rules of the Administrative Law Court, there are four criteria for a judge to determine if a party is in default by not responding to filings. “Georgetown County has done all four,” Corley said.

“We’ve never gotten anything from them,” he said. “They’ve done all this without notice or explanation to the court.”

Coastal Resources is also a party to the appeal, but if the county is found in default, the agency’s only interest is in defending its decision to issue the permit, which is no longer in question, Corley argued. “A procedural dismissal is a serious remedy,” he said, but he cited past cases where the courts did just that.

Corley added that the county has a $65 million budget with $23 million for operations and has a full-time attorney on staff. “The permitee knew what was going on here,” he said. “They had every expectation that this case was dead.”

Corley also asked the court to grant a summary judgment in his clients’ favor based on the county’s failure to respond to “requests for admission,” a process in which one party asks the other to respond to statements of fact. Under the court rules, if a party doesn’t respond the facts are admitted. In the permit appeal, those facts pertain to the erosion rate on Pawleys Island and the impact of a new groin on adjacent beaches.

In documents provided to the court, county attorney Wesley Bryant told attorneys for the Environmental Law Project that the request for admissions was sent to the wrong address. But Corley told Lenski that the address they used was the same one used by Coastal Resources in all its permitting documents.

The county could have asked the court to deal with the address issue, but it didn’t, Corley said.

Granting summary judgment because of the county’s actions won’t harm Coastal Resources, he said. The agency “is interested in the decision-making process.”

Brad Churdar, attorney for Coastal Resources, said the conservation groups want to hold the county to the letter of the law, but didn’t follow it themselves. He said they should have notified the agency of their request for admissions from the county. He told the judge the requests were not proper.

He also told the court he wasn’t prepared to argue the point about the county’s being in default because that wasn’t included in the earlier pleadings from the Environmental Law Project attorneys.

Churdar cited a County Council resolution to set aside funds to remove the groin in case it damaged nearby beaches – a condition of the permit – as an indication that the county hadn’t abandoned the project.

“The county has a limited budget,” he told the court, and didn’t want to spend money to hire attorneys to defend the permit.

“You’re not representing Georgetown County are you?” Lenski asked.

No, Churdar said.

“They’re not even here today,” Lenski said. “Georgetown County has wholesale failed to respond to anything the court has ordered.”

Churdar said Coastal Resources should have had the opportunity to respond to the request for admissions about erosion on the south end of Pawleys Island. Instead, the request was sent to the county capital projects office rather than the agency employee who reviewed the permit request, Chris Stout.

“These are fundamental issues to the permitting decision in this case,” Churdar said.

“You are vigorously arguing for Georgetown County, but they haven’t done the least thing,” Lenski said.

“It strikes me as rather unusual that the party isn’t even here,” Churdar said.

Yet he said there are still issues of fact that are in dispute over the agency’s decision to issue the groin permit to the county.

In reply, Corley said that the possible default of the county was raised in his written motion for summary judgment. But even if it hadn’t been, he said the judge could raise that issue on his own.

As to sending the request for admissions to Coastal Resources, Corley said that wasn’t required by court rules. Had they been sent, “would the county’s answers have been different?” he asked.

And he disputed the idea that the county couldn’t fund the defense of the permit. “It was political,” he said, citing e-mails received from the county.

“We knew they weren’t going to participate,” Corley said. “That means the case is over. We’re trying to figure out what to do about it.”

“I’m going to take this all into consideration,” Lenski said.

He gave Churdar 30 days to make any arguments in writing about the issue of the county’s default. Corley will have 15 days after that for any further response. Lenski said he would rule soon after that.

Town makes case for role in appeals process

“Have you ever been to Pawleys Island?” Town Attorney David DuRant asked.

“Yes, sir, I have,” said Judge Phillip Lenski.

In that case, DuRant said, the Administrative Law Court judge hearing an appeal of a state permit to build a groin on the island’s south end will know “to Pawleys Island, this is a big, big, big issue.”

DuRant argued last week that the town should be allowed to intervene in an appeal brought by conservation groups seeking to overturn the groin permit issued to Georgetown County.

The groin is needed to protect the parking lot. The parking lot is needed to provide beach access. Beach access is needed to enable the town to get federal and state funds for beach nourishment. And a stable beach is vital to the vacation rentals that provide most of the town’s revenue, DuRant said.

The conservation groups have asked the court to dismiss the case on procedural grounds because Georgetown County isn’t defending the permit. “If Georgetown County is dismissed, there’s nothing left to intervene to,” said Michael Corley, attorney for the S.C. Environmental Law Project, which represents the groups.

He argued that the town shouldn’t be allowed to intervene because it doesn’t have the “proprietary interest” required by law. “They don’t own the property where the groin is. They don’t own the property that’s going to be affected,” Corley said.

The town hasn’t suffered any actual damage and its claims need to be “concrete and particular” not “vague and conjectural” before it can intervene, Corley said.

He also objected to an affidavit from Tim Kana, a coastal geologist, in support of the town’s motion. It should have been filed within 10 days of the motion to intervene, but came 72 days later. He noted an affidavit from Mayor Bill Otis came 55 days later, but offered no objection.

The delay didn’t harm Corley’s case, DuRant said, “except he doesn’t like what’s in the affidavit.”

Kana said the proposed 205-foot-long groin will help stabilize the island’s south end without causing harm to adjacent beaches.

Lenski allowed the affidavit to be included in the motion. He allowed Corley 30 days to respond to the Kana affidavit and gave DuRant 15 days after that to reply to Corley.

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