Cromer v. United States of America

Filing 56

ORDER denying 36 Motion for Summary Judgment. Signed by Magistrate Judge William M Catoe on 9/25/08.(ladd, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE DISTRICT OF SOUTH CAROLINA A N D E R S O N DIVISION L a rry D. Cromer a n d Nancy Cromer, Plaintiffs, vs. U n ite d States of America, Defendant. ) ) ) ) ) ) ) ) ) ) )

C iv il Action No. 8:07-0126-W M C ORDER

T h is matter is before the court on the defendant's motion for summary judgment. T h e case was referred to this court for disposition on April 17, 2008, upon consent of the p a rties pursuant to Title 28, United States Code, Section 636(c), and Local Rule 73.01(B), D S C , by order of Judge G. Ross Anderson, Jr., United States District Judge.

F AC TS PRESENTED T h e plaintiffs are the owners of real property located at 223 Lee Road, Fairplay, S o u th Carolina on Lake Hartwell. The plaintiffs allege that the defendant, acting through the U .S . Army Corps of Engineers ("Corps"), abused its discretion in allowing a dock to be placed in front of their property and denying them a permit to place a dock serving the property on w h ic h they live. The plaintiffs seek injunctive relief requiring the Corps to have an improperly p e rm itte d dock removed and allowing the plaintiffs to have a dock serving their property, or for in v ers e condemnation because the action of the Corps has caused a diminution in the value o f their property. The plaintiffs allege that when they purchased their property in 1994, they w ere informed by the Corps that docks could be obtained at any time. Their property consisted o f five lots, totaling 18.613 acres. In 2003, the plaintiffs contacted the Corps and were told that th e lot on which their home was being constructed was dockable. The resident agent for the C o rp s told the plaintiffs that he would come out to locate the dock at a later time because he

w a s behind schedule. In July 2004, Mrs. Cromer saw the agent, and he told her he was with a n o th e r client and for her to call and make an appointment to see him (Nancy Cromer aff.). In November 2004, the Corps issued a dock permit for Lot 49 to Robert F. Savage, Jr., the p lain tiffs ' neighbor. Lot 49 is adjacent to the plaintiffs' land. The plaintiffs claim the dock is d ire c tly in front of their property. The plaintiffs claim that the neighbor's property already had a dock, as there is a dock on Lot 48, and Mr. Savage bought Lots 48 and 49 as one lot (C ro m e r aff., ex. A, B). The plaintiffs contend that the dock location interferes with their use a n d quiet enjoyment of their property and is in violation of the policies and procedures in the H a rtw e ll Project Shoreline Management Plan (comp. ¶¶ 2-7).

AP P L IC AB L E LAW AND ANALYSIS F e de ra l Rule of Civil Procedure 56(c) states, as to a party who has moved for s u m m a ry judgment: T h e judgment sought shall be rendered forthwith if the p le a din g s, depositions, answers to interrogatories, and a d m is s io n s on file, together with the affidavits, if any, s h ow that there is no genuine issue as to any material fact a n d that the moving party is entitled to judgment as a m a tte r of law. Accordingly, to prevail on a motion for summary judgment, the movant must demonstrate that: (1 )th e re is no genuine issue as to any material fact; and (2) that he is entitled to judgment as a matter of law. As to the first of these determinations, a fact is deemed "material" if proof of its existence or non-existence would affect disposition of the case under applicable law. A n d e rs o n v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is "g e nu in e " if the evidence offered is such that a reasonable jury might return a verdict for the n o n -m o v a n t. Id. at 257. In determining whether a genuine issue has been raised, the court m u s t construe all inferences and ambiguities against the non movant and in favor of the non m o v ing party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

2

T h e party seeking summary judgment shoulders the initial burden of d e m o n s tra ting to the district court that there is no genuine issue of material fact. Celotex Corp. V . Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold

d e m o n stra tio n , the non-moving party, to survive the motion for summary judgment, may not re s t on the allegations averred in his pleadings. Rather, the non-moving party must

d e m o n s tra te that specific, material facts exist which give rise to a genuine issue. Id. At 324. U n d e r this standard, the existence of a mere scintilla of evidence in support of the plaintiff's p o s iti o n s is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 2 5 2. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the g ran ting of the summary judgment motion. Ross v. Communications Satellite Corp., 759 F.2d 3 5 5 , 365 (4th Cir. 1985). "Only disputes over facts that might affect the outcome of the suit u n de r the governing law will properly preclude the entry of summary judgment. Factual d is p u tes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248. F u rth e rm o re, Rule 56(e) provides in pertinent part: W h e n a motion for summary judgment is made and supported as p rov ide d in this rule, an adverse party may not rest upon the mere a lle g atio n s or denials of the adverse party's pleadings, but the a d ve rs e party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a g e nu in e issue for trial. If the adverse party does not so respond, s u m m a ry judgment, if appropriate, shall be entered against the a d v e rs e party. F e d.R .C iv .P . 56(e). Accordingly, when rule 56(e) has shifted the burden of proof to the nonm o v an t, he must produce existence of every element essential to his action that he bears the b u rd e n of adducing at trial on the merits. In reviewing an agency's decision under the Administrative Procedure Act ("A P A "), a court shall set aside an action of an agency where it is determined to be arbitrary, c ap ric io u s , an abuse of discretion, or not otherwise in accordance with law. 5 U.S.C.

§ 706(2)(A). However, the court may not substitute its judgment for that of the agency. C itize n s to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), overruled on other

3

g rou n d s by Califano v. Sanders, 430 U.S. 99 (1977). The arbitrary and capricious standard is highly deferential: even if a reviewing court disagrees with an agency's action, the court m u s t uphold the action if the agency considered all relevant factors and the court can discern a rational basis for the agency's choice. Camp v. Pitts, 411 U.S. 138, 143 (1973); Volpe, 401 U .S . at 415- 416. T h e statutory authority for the Corps of Engineers' regulation of various s h ore lin e s is 16 U.S.C. § 460d, which states that public use of the water areas and shoreline o f water resource development projects is under the control of the Department of the Army and s h a ll be in accordance with "rules and regulations as the Secretary of the Army may deem n e c e s s a ry." The Corps of Engineers' authority to issue a Shoreline Use Permit ("SUP") is fo u nd under Title 36, Code of Federal Regulations, Part 327.0, Rules and Regulations G o v e rn i n g Public Use of W a te r Resource Development Projects Administered by the Chief o f Engineers. Title 36 addresses permits and private shoreline use in parts 327.19 and 327.30 a n d Appendixes A-C to part 327.30. Part 327.19 states that permits for floating structures "sh a ll be issued at the discretion of the District Commander under the authority of this reg ulatio n ." Part 327.30 addresses policy and guidance on management of shorelines of civil w ork s projects and the issuance of SUPs. The Agency promulgates Shoreline Management P lan s (each water resource has its own Plan) that contain, among other items related to s h ore lin e management, general guidelines and criteria related to the issuance of SUPs. T h e SUPs at issue here were governed in part by the 1998 Hartwell Project S h o re lin e Management Plan ("HPSMP") (def. m.s.j., ex. A). The HPSMP provides that an a p p lic a tio n for a SUP for a "private individual floating facility" (a dock) will be denied if the a p plic a nt does not own a lot that has (1) legal access to public land (HPSMP ¶ 13) and (2) an a d jac e n t shoreline upon which to place the dock (HPSMP ¶ 14a). Legal access normally req uires that the applicant own private land that abuts the government owned shoreline, a c o m m o n boundary.

4

T h e defendant contends that an adjacent shoreline is having a common b o un d ary that is perpendicular to the shoreline, and that part of the shoreline is termed "p rim a ry frontage." The defendant argues that the crux of the disagreement the plaintiffs have w ith the Agency is with the term "primary frontage." According to the defendant, "primary fro n ta g e" is that part of the shoreline that is adjacent to the common boundary line shared by th e Government and a private land owner. The adjacent shoreline, which constitutes the p rim a ry frontage, is determined by the 90° rule, which identifies the area that is perpendicular to the common boundary line. These terms are not found in the HPSMP, but the defendant c o nte n ds that the terms have been consistently applied to SUP applications, including the four S U P s issued to the plaintiffs and the Lot 49 SUP issued to Mr. Savage. "Primary frontage" is th e method by which the Agency determines whether and where an SUP applicant can p h ys ic a l l y place a dock on the shoreline/water. As stated above, an applicant must own p riv a te property that provides legal access to the government-owned shoreline, and that c o m m o n boundary must be adjacent to the shoreline. The defendant concedes that the lot o wn e d by the plaintiffs does share a common boundary with the Government-owned shoreline a n d, therefore, does have the legal access required. However, the defendant argues that by a p plyin g the "primary frontage" rule, it was determined that this common boundary is not a d ja c en t to the shoreline and, therefore, is not dockable. A s noted above, the HPSMP is silent on how to determine what part of the s h ore lin e is "adjacent" to a privately-owned lot. Therefore, the defendant contends that it was w ith in the discretion of the Agency to properly define the term. The defendant argues that the A g e n cy has consistently applied the primary frontage/90° rule to determine "adjacency," and th e rational basis for creating such a rule is the need to have a consistent means of d e term inin g whether and where to allow the physical placement of docks on the shoreline in re la tio n to the private property providing legal access to said docks. The defendant contends th a t the rational basis for using the 90° rule specifically is that it identifies the area p e rp e nd ic u la r to the common boundary, which is a reasonable definition of "adjacent." The

5

d e fe n da n t also notes that the HPSMP states in paragraph 14a that "it is possible for an in d iv id u al's dock to be permitted in front of a neighboring lot." Accordingly, the defendant c o nte n ds that even if the Lot 49 dock was in front of a neighboring lot, including the one owned b y the plaintiffs, such placement would not violate the HPSMP. The defendant argues that it c a n show through the land surveys that the dock associated with Lot 49 is within the primary fro n ta g e of Lot 49, and it can also show that the plaintiffs' lot is non-dockable because it does n o t have any primary frontage. The plaintiffs assert that genuine issues of material fact exist concerning whether th e Corps abused its discretion in allowing the plaintiffs' neighbor to have two docks serving o n e piece of property in violation of the Corps' regulations and/or policy. Second, the plaintiffs a s se rt that a genuine issue of fact exists concerning whether the Corps abused its discretion in allowing a dock serving adjacent land to the plaintiffs' property to be erected at a location w he re the user must cross water in violation of the Corps' regulations or policy. Third, the p la in tiffs assert a genuine issue of fact exists concerning the action of the Corps in approving a second dock on the property adjacent to the plaintiffs' land, which fronts the plaintiffs' p ro p e rty and requires the user to cross water to gain access to the dock. The plaintiffs c o nte n d that such actions of the Corps were arbitrary and capricious or an abuse of discretion tha t violate the HPSMP and constitute inverse condemnation of the plaintiffs' land due to d im in u tio n of value because the Corps' actions prevent the lawful placement of a dock to serve th e plaintiffs' home. In Matthews v. United States, 526 F.Supp. 993 (M.D. Ga. 1981), a landowner b r o u g h t an action seeking the removal of an allegedly private dock that the Corps had a u th o rize d to be constructed and operated in a public recreation area on Lake Hartwell. The D is tric t Court found that the Corps abused its discretion by permitting the private dock to be c o ns tru c te d and operated in the public recreation area. However, the court denied injunctive re lie f requiring the removal of the dock, and instead ordered the Corps to require the marina to repurchase the dock and operate it as a public dock. Id. at 1005­1007. The court reasoned

6

tha t an adequate remedy at law, inverse condemnation, was available to the plaintiff to c o m p e ns a te her for her monetary damages, but the plaintiff had not made such a claim in her c o m p lain t. Id. at 1005-1006. On appeal, the Eleventh Circuit Court of Appeals noted that the lo c atio n and operation of the dock was in violation of the applicable regulations and found that th e plaintiff's "right to the view from her property weighs more heavily than the hardships c a u s e d by removal of the dock." Accordingly, the circuit court found that the district court a b us e d its discretion in refusing to grant an injunction requiring the removal of the dock. M a tth e w s v. United States, 713 F.2d 677, 681-82 (11th Cir. 1983). In this case, the plaintiffs request an injunction requiring the Lot 49 dock to be re m o v ed and permission for the plaintiffs to construct their own dock. If an injunction is not g ran ted , the plaintiffs request monetary damages for the "unlawful taking of said property." T h e court cannot say, based upon the record before it, that the defendant's decisionmaking in this case was not arbitrary and capricious. W h ile the defendant argues that under the APA th e court is limited to setting aside the Agency decision and remanding to the Agency for fu rth e r action, the APA states explicitly that a reviewing court may "compel agency action u n law fu lly withheld or unreasonably delayed." 5 U.S.C. § 706(1). Furthermore, this court c a n n o t say, based upon the record before it, that the plaintiffs do not have a legitimate property in te re s t at stake so as to show an unlawful taking of their property.

C O N C L U S IO N W h e re f o re , based upon the foregoing, the defendant's motion for summary ju d gm e n t is denied. IT IS SO ORDERED.

s /W illia m M. Catoe U n ite d States Magistrate Judge S e p te m b e r 25, 2008 G re e nv ille , South Carolina

7