Environment: Judge rules for church in wetlands permit appeal
February 27th, 2015
BY CHARLES SWENSON
A state court ruling will allow the Pawleys Island Community Church to move forward with a building project that includes filling a portion of freshwater wetland the church had once agreed to preserve.
Administrative Law Judge Shirley Robinson dismissed an effort by a Pawleys Island couple to enforce a 2001 agreement with the church. She said that agreement only applied to the work done at the time, construction of the 20,000-square-foot worship center, not to its current project, which will add a 4,000-square-foot storage building, parking and a stormwater retention pond.
The wetland is small, less than two-tenths of an acre. But it’s important, said Dan Abel. So is the principle, he added. He plans to appeal.
Dan Stacy, attorney for the church, said he doesn’t doubt Abel’s sincerity, but he doesn’t believe the agreement signed 14 years ago was intended to restrict the church forever. “This is a new project with a different set of parameters,” Stacy said.
Abel and his wife Mary used to live next to the church. They challenged state and federal permits the church sought to build the worship center that would have filled the wetland between their properties. A 2001 consent order approved by the Administrative Law Court allowed the church to move forward in exchange for preserving half of the wetlands.
“The wetland is important to Pawleys Creek,” Abel said. “We really need every last wetland.”
In 2012, the church applied for new permits to fill the remainder of the wetland. The state Office of Ocean and Coastal Resource Management told the church the permits violated the terms of the 2001 agreement. The church sought to amend the agreement saying its new plan was “not in compliance with the original order.”
Another former neighbor who was also a party to that order agreed to lift the restriction on the wetlands. The Abels did not. The court denied the change to the 2001 consent order.
Coastal Resources then reversed its position on the impact of the 2001 order and issued the approvals for the new project. The church will buy mitigation credits in order to fill the remaining wetland. “It’s a microcosm of how things get done in this state,” Abel said.
The Abel’s asked the board of the Department of Health and Environmental Control to review the Coastal Resources decision. It declined. They appealed to the Administrative Law Court.
“The church could change its mind and the agency chose to ignore it,” said Amy Armstrong, executive director of the S.C. Environmental Law Project, which represents the Abels. “That makes no sense at all.”
Although the 2001 order said the remaining wetlands would be preserved, Robinson ruled that “the intent of the parties was to assuage the concerns of neighboring property owners related to the construction activity authorized by the 2000 permit.”
She said that other language in the 2001 order makes it clear that its time frame was limited.
If the Abel’s wanted the wetlands preserved in perpetuity, they should have required the church to adopt a restrictive covenant, Stacy said. The 2001 order doesn’t refer to future owners, he noted, so “it creates ambiguity in the title” to the land.
Armstrong said it’s clear what the church agreed to. She is concerned that Robinson’s ruling makes consent orders meaningless. “Why would anyone agree to resolve a dispute?” she said. “SCELP represents clients all the time dealing with agreements like this.”
“Those are to be encouraged,” Stacy said. “I don’t think anyone can say it’s a slippery slope. This is in a vacuum. The Abels thought it was perpetual, the church did not.”
The case will now go to the state Court of Appeals.