Cromer v. United States of America
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).
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
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.
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
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
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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?