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C&M Enterprises of Georgia, LLC v. Williams

Court of Appeals of Georgia, Third Division

June 1, 2018

C&M ENTERPRISES OF GEORGIA, LLC
v.
WILLIAMS

          ELLINGTON, P. J., BETHEL, J., and SENIOR APPELLATE JUDGE PHIPPS.

          Ellington, Presiding Judge.

         In March 2016, Mark Williams, acting as the Commissioner of the Georgia Department of Natural Resources and the Chairman of the Coastal Marshlands Protection Committee, determined that a portion of a bulkhead on riverfront property in Bryan County owned by C&M Enterprises of Georgia, LLC, was illegally located in a protected estuarine area of marshlands within the Department's jurisdiction. Based on this determination, Williams issued an order directing C&M to remove the structure. C&M filed an appeal from the order to the Office of State Administrative Hearings, and both parties filed motions for summary determination.[1] An administrative law judge granted Williams' motion for summary determination and denied C&M's motion. C&M appealed to the superior court, which also affirmed.[2]We granted C&M's application for discretionary appeal, and it contends that Williams arbitrarily and capriciously failed to apply the agency's standard policy to determine the boundary between C&M's property and protected marshlands within the Department's jurisdiction.[3] For the reasons explained below, we affirm.

         Delineating a Jurisdictional Line. By way of background, we note that the Coastal Marshlands Protection Act of 1970, OCGA §§ 12-5-280 through 12-5-297, was enacted to regulate structures and activities in Georgia's coastal marshlands "to ensure that the value and functions of the coastal marshlands are not impaired and to fulfill the responsibilities of each generation as public trustees of the coastal marshlands for succeeding generations." OCGA § 12-5-281. Marshlands include "any marshland intertidal area, mud flat, tidal water bottom, or salt marsh in the State of Georgia within the estuarine area of the state, " whether tidewaters reach the area "through natural or artificial watercourses." OCGA § 12-5-282 (3). The Act provides:

No person shall remove, fill, dredge, drain, or otherwise alter any marshlands or construct or locate any structure on or over marshlands in this state within the estuarine area thereof without first obtaining a permit from the committee or, in the case of minor alteration of marshlands, the commissioner.

OCGA § 12-5-286 (a) (1). See Coastal Marshlands Protection Committee v. Altamaha Riverkeeper, Inc., 315 Ga.App. 510, 510-511 (726 S.E.2d 539) (2012) ("[A] party seeking to build a structure over any marshland in Georgia must first obtain a permit from the Committee.") (citation omitted).

         The Act provides that the Department of Natural Resources has the authority, inter alia, "to determine jurisdiction under [the Act]." OCGA § 12-5-284 (a) (1). See Center for a Sustainable Coast v. Coastal Marshlands Protection Comm., 284 Ga. 736, 741 (2) (670 S.E.2d 429) (2008). The Department tasks its Coastal Resources Division ("CRD") with marking the boundary lines of marshlands within the jurisdiction of the Department for permitting and enforcement under the Act. A CRD staff member marks a jurisdictional boundary line, known as a "JD line, " onsite with flagging tape and/or numbered flags staked into the ground to delineate the boundary between marshlands within the estuarine area (subject to regulation under the Act) and uplands (not regulated under the Act).[4] Drawing a JD line is not an exact science, and these lines often are not straight because they track the contours of the marshlands-uplands interface.

         A marked JD line allows a property owner to see whether any proposed construction will encroach on marshlands, that is, whether the activity will alter the marshlands or place a structure on the area seaward of the JD line. If the proposed activity is occurring entirely landward of the JD line, no permit will be required. Conversely, if the proposed activity will encroach on jurisdictional marshlands, a permit from CRD will be required.

         If the landowner seeks a permit from CRD for activity that will encroach on jurisdictional marshlands, the landowner is required to submit a survey prepared by a registered surveyor that shows the JD line delineated by CRD staff. Once CRD approves a survey containing a delineated JD line, the line becomes the "JD line of record" and remains in effect for one year or throughout a permit approval process, unless CRD delineates a revised JD line based on new information that the previously flagged JD line of record is no longer correct.

         If CRD learns that a landowner who did not first obtain a permit is possibly violating the Act by filling, dredging, or otherwise altering any marshlands or building a structure over any marshlands, CRD first checks whether there is a JD line of record for the property. If there is a JD line of record, it will be used in any enforcement action. If there is not a JD line of record for the property, CRD will delineate a JD line as it would in the permitting context, that is, the JD line should be established according to the conditions that existed before the unauthorized activity. Depending on the nature and extent of construction occurring before a CRD enforcement site visit, it may not be possible based on the usual indicators for CRD to determine the JD line precisely as it would have been before the landowner disturbed the land. In such a case, CRD will rely on other field-based evidence to determine the JD line at the time of the unauthorized activity. According to Karl Burgess, who was then the Program Manager for CRD's Marsh and Shore Management Program, such field-based evidence may include examining core samples or digging for buried plants. According to Stuart Sligh, an environmental consultant working for C&M, DNR may also consider historical photographs and GPS-based mapping surveys.

         C&M's First Replacement Bulkhead on the Sallette Tract. In February 2008, C&M acquired a 3.84 acre parcel known as "the Sallette Tract" along the bank of the Ogeechee River. At the time, there was a concrete boat ramp and a wooden bulkhead along the riverbank. In April 2008, without seeking a permit under the Act, C&M removed the boat ramp on the western side of the property, removed the eastern portion of the former wooden bulkhead, and excavated uplands approximately eight to ten feet inland from the riverbank on the eastern portion of the property. C&M then began construction of a concrete bulkhead to replace the wooden bulkhead. CRD received a report of this activity, and CRD staff conducted a site visit on April 15, 2008. At that time, there was no JD line of record in CRD's files delineating the marshlands for the Sallette Tract. CRD staff delineated a JD line and flagged the property on April 17, 2008. The JD line flagged by CRD was generally a straight line, except in the area of the former boat ramp where the line made a jog inland around the former location of the boat ramp, such that the area where the boat ramp had been was included in jurisdictional (protected) waters. CRD determined that footers for the new bulkhead had been installed in the marsh and that marshlands were being dredged and filled without authorization from CRD. CRD issued a cease-and-desist letter and a Notice of Violation to Timothy Marshlick, the sole member and owner of C&M, requested a time line for removing the unauthorized structures, and scheduled an enforcement conference for the following week.

         In November 2008, CRD issued a second Notice of Violation. The notice stated that CRD would remark the April 2008 JD line and directed C&M to have its surveyor re-stake the April 2008 JD line, to submit a survey showing the JD line based on the stakes, and to provide a written plan for removing the unauthorized structures. The notice expressly advised C&M that if it wished to fill in the old boat ramp and close its seaward entrance with a bulkhead, a permit would be required. C&M filed the survey as directed. After several weeks of negotiations between the parties, C&M agreed to remove the replacement bulkhead and restore the affected water bottoms, and the parties entered into a consent agreement in January 2009. CRD confirmed C&M's compliance with the consent order in a letter dated March 10, 2009.

         C&M's Second Replacement Bulkhead on the Sallette Tract. In March 2009, C&M, without first requesting that CRD re-delineate the marshlands boundary, began construction of a second replacement bulkhead. C&M excavated uplands even further inland by approximately five feet from the excavation for the first replacement bulkhead. C&M obtained a United States Army Corps of Engineers nationwide permit for a bank stabilization and boat dock construction project. In conjunction with the federal permit, on April 3, 2009, C&M requested a corresponding revocable license for the project from CRD.[5] C&M represented to both agencies that the new bulkhead would be built outside jurisdictional marshlands and would follow the April 2008 JD line established by CRD in connection with the earlier enforcement proceedings. The plans showed that the proposed bulkhead would jog around the landward end of the previously excavated boat ramp, that is, that it would not close the seaward entrance of the old boat ramp. CRD granted the revocable license based on this plan.

         In February 2010, CRD conducted a site visit and discovered that the completed second replacement bulkhead did not comply with the federal permit and the revocable state license. Specifically, CRD determined that the second bulkhead did not follow the April 2008 JD line, where it jogged around the landward end of the previously excavated boat ramp, but instead was built in a straight line and that fill had been placed in a depression left by the removal of the old boat ramp. In March 2010, CRD sent C&M a Notice of Violation and a cease-and-desist order, directing C&M to cease any construction related to the second bulkhead. C&M did not request a hearing before an ALJ or hearing officer at that time but did stop construction. In May 2010, CRD revoked C&M's license to build the bulkhead and boat dock.

         In June 2010, C&M submitted an application for an after-the-fact permit for the second replacement bulkhead. In its application, C&M acknowledged that the second bulkhead encroached to a small extent on jurisdictional area and attached drawings showing the "DNR Jurisdiction Line, " that being the line as delineated in April 2008 that jogged around the area of the former boat ramp. C&M requested, "[g]iven the minor amount of existing jurisdictional impact as compared to the amount of possible environmental harm resulting from demolition and complete removal of the bulkhead, " that much of the second bulkhead be allowed to remain as built. C&M proposed that it ameliorate the effects of the incursion by removing the part of the bulkhead from the area where the boat ramp had been excavated and removing the fill dirt from that area, which would allow it to receive the ebb and flow of the tide and thus reconnect that area to jurisdictional waters. Days before a hearing on the permit application scheduled for August 27, 2010, C&M withdrew its application.

         In negotiations with CRD to resolve the matter, which dragged on for years, C&M took the position that the April 2008 JD line had been incorrectly delineated in the earlier enforcement proceedings and should have been based on historical conditions that existed before it disturbed the property in removing the old wooden bulkhead and concrete boat ramp. Ultimately, CRD rejected C&M's argument, and, on March 21, 2016, Williams issued an administrative order requiring C&M to remove the portion of the second bulkhead located in jurisdictional marshlands. C&M filed an appeal from the order to the Office of State Administrative Hearings; an ALJ affirmed the order. The ALJ determined that "the operative point in time for determining the existence of marshland with regard to [C&M's] second unauthorized bulkhead was at the time [C&M] began constructing it (i.e., March 2009), not at some point in time before [C&M] began constructing its first unauthorized bulkhead, which was discovered in April 2008." C&M appealed to the superior court, which also affirmed. C&M's appeal is now before this Court.

         1. As a threshold matter, we consider Williams' contention that C&M failed to exhaust its administrative remedies with the result that it lacked the right to appeal the March 2016 order. Williams contends that C&M could have appealed the March 2010 cease-and-desist order if it believed that the delineation of the April 2008 JD line, on which the order was based, was invalid.[6] Because C&M failed to do so, Williams contends, it cannot challenge the March 2016 order that was based on the same JD line.

         A person cannot seek judicial review of an agency action unless he "has exhausted all administrative remedies available within the agency." OCGA § 50-13-19 (a). "Long-standing Georgia law requires that a party aggrieved by a state agency's decision must raise all issues before that agency and exhaust available administrative remedies before seeking any judicial review of the agency's decision." (Citation and punctuation omitted.) Dept. of Community Health v. Ga. Soc. of Ambulatory Surgery Centers, 290 Ga. 628, 629 (724 S.E.2d 386) (2012).[7]

         The record shows that Williams filed a motion to dismiss C&M's appeal to the superior court based on the alleged failure to exhaust its administrative remedies. The superior court, however, did not rule on the motion and ruled only on the merits of C&M's arguments. Because Williams did not obtain a ruling on the motion to dismiss and did not file a cross-appeal, this issue is not preserved for appellate review. See Ga. Bd. of Dentistry v. Brooks, 273 Ga. 852, 853 (1) (548 S.E.2d 284) (2001); cf. Northeast Ga. Cancer Care, LLC v. Blue Cross & Blue Shield of Ga., Inc., 297 Ga.App. 28, 32 (1) (676 S.E.2d 428) (2009).

         Moreover, the record shows that the March 2010 cease-and-order directed C&M to cease any construction related to the second bulkhead but did not order the bulkhead's removal. Over the next six years, C&M tried to secure permission to leave the second replacement bulkhead, or at least most of it, where it was. Within thirty days after the March 2016 order, which for the first time directed C&M to remove the second replacement bulkhead and backfill according to the April 2008 JD line, C&M filed a petition for a hearing before an ALJ pursuant to OCGA § 12-5-283 (b). C&M also appealed the ALJ's adverse order, which is the final agency decision, [8] to the superior court pursuant to OCGA §§ 50-13-19 and 50-13-20.1.[9] This is not a case where a party tried to sidestep available administrative procedures by filing a petition for declaratory judgment in the superior court. See Ga. Soc. of Ambulatory Surgery Centers v. Ga. Dept. of Community Health, 316 Ga.App. 433, 435 (729 S.E.2d 565) (2012) ("When an adequate administrative remedy exists that has not been taken, dismissal of any declaratory judgment or equitable action is appropriate.") (citation and punctuation omitted).

         C&M's appeal to this Court is not barred by a failure to exhaust ...


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