ORDERS:
ORDER AND DECISION
This matter comes before me on the request by the Petitioners for a contested case hearing de
novo pursuant to rS.C. Code Ann. § 48-39-150 (Supp. 1994) and § 1-23-310 et seq. (Rev. 1986
& Supp. 1994), regarding the application of Scott and Deborrah McCandless for an amendment
to permit number CC-93-277 to construct a private walkway, dock and pier on Log Bridge Creek
at Lot 174, Gold Cup Lane in Stono Ferry Plantation, Hollywood, South Carolina. The South
Carolina Department of Health and Environmental Control, Office of Ocean and Coastal
Resource Management ("OCRM") granted the amendment. After notice to the parties, a hearing
was conducted at the Administrative Law Judge Division on February 6, 1995.
Any issues raised in the proceedings or hearing of this case but not addressed in the Order are
deemed denied. Further, the filing of a motion for reconsideration is not a prerequisite to any
party filing a notice of appeal of this Order.
FINDINGS OF FACT
I make the following findings of fact, taking into consideration the burden on the parties to
establish their respective positions by a preponderance of the evidence, and taking into account
the credibility of the witnesses:
1. Respondents Scott and Deborrah McCandless are the owners of Lot 174 Gold Cup Lane in
Stono Ferry Development in Hollywood, South Carolina. Earl and Lynn Smalley own Lot 183 in
the same development. John Wilkins has a claim against Lot 182 and is pursuing litigation against
Stono Ventures regarding his interest. Stono Ventures is the owner of record in the real estate
records of Charleston County. There are no structures on Lots 182 and 183.
2. By application dated October 22, 1993, (P/N# CC-93-277), the McCandlesses sought
authorization from OCRM to construct a walkway, pierhead and floating dock on Log Bridge
Creek, a tidal creek feeding into the Intercoastal Waterway in the coastal zone area.
3. Log Bridge Creek is 150 feet in width.
4. Pursuant to the application, the McCandlesses requested a permit for a 4' by 175' walkway
leading to a 12' by 12' roofed fixed pierhead. On the upstream side of the pierhead from a 5' by 8'
landing platform is a gangway leading to a 8' by 30' floating dock.
5. The proposed activity is for the private and recreational use by the McCandlesses and access to
the water.
6. None of the petitioners received actual notice of the application for a dock permit made by the
McCandlesses in October 1993.
7. Mr. Wilkins did not receive notice because he is not listed on the real property records for
Charleston County as the owner of record. He filed a Lis Pendens against the property in
February 1993.
8. The Smalleys' lot is not an adjoining lot to the McCandlesses property.
9. No records were checked by either the McCandlesses or by OCRM. 10. OCRM issued a
permit with reduction of total square footage for the fixed pierhead and floating dock to 160
square feet and with the walkway placed twenty (20) feet from the right property line. The
McCandlesses requested OCRM to reconsider its decision on the location of the walkway and the
amount of square footage.
11. A compromise was agreed upon locating the dock 55 feet from the right property line because
of a slough located where the dock was originally permitted. OCRM issued an amended permit
to construct the walkway 55 feet parallel to the right property line. The location and size of the
pierhead and dock as provided in the original permit issued by OCRM would remain the same.
The amended permit was issued on February 8, 1994.
12. In April 1994, construction began on the walkway. Piles were installed and the planks were
laid.
13. Before the walkway was completed, Earl Smalley noticed that it was not properly aligned
extending beyond the 55 foot line. An informal survey was conducted by Smalley showing the
walkway was not 55 feet parallel to the right property line. A copy of the drawing was provided
to OCRM, the Architectural Review Board, and the McCandlesses. Smalley contacted OCRM
about the problem. Smalley also objected to the location of the walkway and pierhead.
14. A site visit by OCRM in June revealed no problems that could be detected visually. OCRM
took photographs of the McCandlesses' property and dock as well as the view from the Smalleys'
property.
15. Even though the inspection revealed no visual problems, OCRM requested a survey from the
McCandlesses. The survey revealed that the walkway was not properly aligned.
16. After the site visit, discussions occurred between OCRM and the McCandlesses. As a result
of those discussions, OCRM issued an amended permit on August 29, 1994 authorizing the
realignment of the walkway starting at 55 feet from the right property line and ending at 71 feet.
17. The change in the permit required the McCandlesses to remove all the piles and walkway
extending beyond 71 feet from the right property line. At the 71 foot mark, OCRM allowed the
walkway to turn slightly and continue parallel to the right property line to the creek.
18. The configuration of the walkway after the amendment created a "dog leg". The pierhead
would be located in the same position except the walkway would end at the left side of the pier
instead of the right side.
19. The Smalleys, Mr. Wilkins, and the McCandlesses have converging property lines.
20. Each lot was determined by OCRM to have waterfront property and therefore would be
entitled to a dock if requested, the only issue would be the location of the walkway and dock.
21. Mr. Wilkins has the smallest amount of waterfront property and OCRM determined that the
dock corridor for Lot 182 is 45 feet wide. This is the property area available to Mr. Wilkins on
the waterfront and the area within which a walkway and dock could be constructed if requested
and permitted by OCRM.
22. Part of the view from the Smalleys' lot includes the dock corridor of Mr. Wilkins and Mr. and
Mrs. McCandless. As depicted in the photographs, the view of the McCandlesses' walkway as
existing is only a small portion of the view available from the Smalleys' property.
23. The walkway does not obstruct the Smalleys' view.
24. The covenants and restrictions enforced by the Stono Ferry Architectural Review Board
require that owners of lots fronting water may erect docks upon the Board's written approval of
the plans and specifications. Any changes to construction must also be approved by the Board.
25. The McCandlesses submitted the plans and specifications to the Board for approval in March
1994. The Board approved the construction of the walkway and dock to be located 55 feet
parallel to the right property line. It initially disapproved the handrails but after consideration
acquiesced in the use of the handrails.
26. The Board did not approve the change to the walkway as permitted by OCRM in the August
1994 amendment and the McCandlesses were notified of the decision.
27. Because the walkway was not built according to the plans, an enforcement action could have
been initiated by OCRM to require the walkway to be constructed as permitted.
28. OCRM prefers not to permit construction with a "dog leg" configuration. The Board has
never allowed the construction of a walkway or dock with a turn in Stono Ferry.
29. OCRM tries to reach a compromise in an enforcement action when the landowner would incur
significant costs in removing the nonconforming construction.
30. Scott McCandless has spent at least $6000 in materials for construction of the walkway and
pierhead. Part of the walkway was removed. An estimate of the cost to drive only the remaining
piles for the walkway to the dock is $1000. Construction of the walkway including piles and
planking costs about $40 per foot. Mr. McCandless needs to install at least 97 feet of walkway to
the pier. This could cost about $3500 or more. Some of the material removed to relocate the
walkway may be used again.
31. OCRM considered the cost involved in requiring the McCandlesses to remove all of the
walkway. It also considered whether the compromise would adversely impact the adjoining
landowners, in particular Lot 182.
32. Each criteria cited in the Coastal Zone Management Act and regulations for assessing the
impact of a project in the critical area was considered by OCRM.
33. OCRM determined that the location of the walkway and pier 71 feet from the right property
line of Lot 174 would not have virtually no impact on the critical area and would not interfere
with any proposed plan to locate a dock on Lot 182. The fact that the walkway and pier would
be in the view of Lot 183 owned by the Smalleys was not a significant factor by OCRM to
warrant denial of the amendment.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law the following:
1. The Administrative Law Judge Division ("Division") has subject matter jurisdiction in this
action pursuant to S.C. Code Ann. §§ 1-23-600(B) and 1-23-310, et seq. (Rev. 1986 & Supp.
1994).
2. S.C. Code Ann. § 48-39-150 (Supp. 1994) authorizes the Division to hear contested cases
arising under Chapter 39 of Title 48 of the 1976 Code.
3. OCRM is the subdivision within DHEC charged with implementing the state's coastal zone
policies and issuing permits for docks and piers in the coastal zone areas.
4. S.C. Code Ann. § 48-39-50 (Supp. 1994) provides the authority for DHEC to promulgate
regulations carrying out the provisions of Chapter 39 of Title 48 of the 1976 Code.
5. 23A S.C. Code Ann. Regs. 30-1 through 30-20 (1987 & Supp. 1994) were promulgated by the
Coastal Council (as predecessor to OCRM), as the applicable regulations governing the
management, development, and protection of the critical areas of the coastal zone of the state.
6. The project in question is located in a critical area under S.C. Code Ann. § 48-39-10 (Supp.
1994); 23A S.C. Code Ann. Regs. 30-1(C)(4) and (12) (Supp. 1994), and Regs. 30-10(A)
(1976).
7. Any person wishing to alter a critical area must apply and receive a permit from OCRM. 23A
S.C. Code Ann. Regs. 30-2(B) (1976). Once the application is received, OCRM is required to
notify all adjoining landowners of a permit application. 23A S.C. Code Ann. Regs. 30-2(C)
(1976).
8. S.C. Code Ann. § 48-39-150(A) (Supp. 1994) and 23A S.C. Code Ann. Regs. 30-11 (Supp.
1994) set forth the guidelines to be used in assessing the impact of a project in a critical area.
Included in these considerations is the extent to which the proposed use could affect the value and
enjoyment of adjacent owners. 23A S.C. Code Ann. Regs. 30-11(B)(10) (1976).
9. 23A S.C. Code Ann. Regs. 30-12(A) (1976 & Supp. 1994) sets forth the specific standards for
construction of docks and piers for tidelands and coastal waters and the permit application
process and requirements.
10. Specifically, Regs. 30-12(A)(p) requires that no dock or pierhead or other associated
structures should normally be allowed to be built closer than 20 feet from extended property lines
with the exception of common docks shared by two adjoining property owners.
11. Docks being constructed on creeks that are 50 to 150 feet wide are restricted in size to 160
square feet unless special geographic circumstances and land uses warrant a larger structure. 23A
S.C. Code Ann. Regs. 30-12(A)(q)(iii) (Supp. 1994).
12. Permits may be amended without the requirements of a new permit only if the proposed
change does not increase the scope of the permitted project or change the use of the permitted
project. 23A S.C. Code Ann. Regs. 30-4(H) (Supp. 1994).
13. According to 23A S.C. Code Ann. Regs. 30-4(I), OCRM has consistently experienced the
problem that violators of the Act seek after-the-fact permits to legalize the activity. The staff
does not have the authority to consider an after-the-fact permit unless the permit would legitimize
an activity that in the opinion of OCRM appears to be a routine permitting matter that would
meet all rules and regulations. 23A S.C. Code Ann. Regs. 30-4(I) (Supp. 1994).
DISCUSSION
Petitioners Mr. and Mrs. Smalley and Mr. Wilkins raise two main issues with respect to the
issuance of the permit. The first is notice. Both claim that they had no notice of the original
application in October 1993 made by the McCandlesses for the permit. Under the regulations,
once the application is filed OCRM is required to notify adjacent property owners of the
application. The property owners listed in the application were Harwell and Stono Ventures.
The Charleston County real property records also listed these individuals as property owners.
Smalley is not an adjacent property owner. The owner of record for Lot 182 at the time the
application was filed and at the time of the hearing is Stono Ventures. Wilkins may have filed a
Lis Pendens against Lot 182 but that is filed with the Clerk of Court and is not contained in the
property records that were checked by the McCandlesses. See S.C. Code Ann. § 15-11-10
(1976) (filing with Clerk of county in which property is situated). The Lis Pendens does not
change the ownership of the property, it simply puts the public on notice that someone is litigating
a claim to some interest in the parcel. Shelly Construction Company v. Sea Garden Homes, Inc.,
287 S. C. 24, 336 S.E.2d 488 (Ct. App. 1985). Until the court resolves the issue, Stono Ventures
is still the owner of the parcel. Therefore, actual notice was given to the proper adjoining
landowners. There is also a public notice required to be published in a newspaper of statewide
circulation as well as a newspaper of local circulation. Proof of publication was not presented in
this case. Therefore, there is no evidence about constructive notice to petitioners. The regulations
also state that OCRM shall provide notice of an application to "other interested persons".
Although OCRM provides notice to persons who request to be placed on a list, perhaps other
property owners who may be affected by a dock permit should be given actual notice in those
situations in which the extended property lines converge. This option is available to OCRM but it
is not required by the statute or regulations.
Even if the petitioners did not have actual notice from OCRM about the application, they did
learn of the permit and participated in the amended permit application in August, 1995. Mr.
Smalley was sent a copy of the notice and allowed to comment. Mr. Wilkins also participated,
even though he is not the record owner of the property. The rights of the parties have been
protected.
The Architectural Review Board claims that the walkway cannot be built without its approval.
All parties concede that the Division does not have jurisdiction over the dispute between the
Board and McCandlesses. The Board specifically denied the amendment because the walkway is
not parallel to the property line. The Board has never approved a turn in a walkway and strives to
maintain uniformity in the development of the docks. The McCandlesses' application to the Board
for the amendment was denied and no further action has been taken by the McCandlesses to
appeal that decision or by the Board to enforce the covenants and restrictions. This matter is
outside the Division's jurisdiction.
None of the petitioners object to the McCandlesses having a dock. The second issue raised by the
Smalleys and Mr. Wilkins and the only issue raised by the Board is the placement of the walkway
and dock. In particular the dispute centers on the location of the walkway. Mr. Wilkins is the
only person to object to the location of the pierhead. A large portion of the walkway under the
amendment would be located at least 15 feet closer to Mr. Wilkins' property line and more in the
view of the Smalleys. There is no question that the location of the walkway 55 feet parallel from
the right property line would have less of an effect on the adjoining property owners. It would be
farther away from the Smalleys and therefore less intrusive on their view. Likewise, it would be
farther from Mr. Wilkins' property line and would create more distance from any dock
constructed for Lot 182. The construction of the dock as permitted in August 1994 would not
create a problem based solely upon measurements between the dock corridors extending from the
property lines. However, an examination of the lot configurations in addition to the dock
corridors reveals the concern expressed with the location of the walkway. The lots are configured
in a manner that the view from the lot does not face the water located in the dock corridor for that
particular lot. This is especially a concern for Lot 182. The view from the Smalleys lot, based
upon the normal orientation for a house, is towards the McCandlesses' dock corridor. The same
for Lot 182. A house located on Mr. Wilkins lot would have to be aligned diagonally on the lot
for a view of his dock corridor. The walkway and dock constructed by the McCandlesses are
visible from the Smalleys' and Wilkins' lot but are not so intrusive as to block or obstruct the
aesthetic view of Log Bridge Creek.
The regulations require that after the fact permits to correct errors or other illegal activity are not
allowed unless the permit would legitimize activity which OCRM considers to be a routine
permitting matter meeting all the requirements of the statutes and regulations. It is unlikely that
OCRM would have permitted this walkway and dock as currently configured if presented on the
original application. However, the amendment occurred as a result of negotiations with OCRM in
a possible enforcement action. OCRM weighed the benefits of requiring the McCandlesses to
remove all the construction on the walkway in order to comply strictly with the permit against the
cost involved in removing the piles and the impact on the adjoining landowners if an amendment
were made. The benefit to be achieved by requiring removal of the piles and installation in strict
conformity to the permit did not outweigh the cost associated with the removal. The impact on
the adjoining property owners was minimal at best. The compromise achieved the same goals
without the economic impact.
Although, the "dog leg" in the walkway is not the optimal design, it achieves the purpose of
providing access to the water. The walkway and pierhead do not impact the vegetation and
marine life. The design of the walkway and pierhead do not obstruct or significantly impact the
aesthetic view of the water so as to interfere with the Smalleys' enjoyment of their waterfront
property. There is sufficient space between the location of the McCandlesses' pierhead and the
dock corridor of Lot 182 to prevent interference with a pierhead for that lot.
ORDER
Based upon the findings of fact, conclusions of law, and discussion contained above, it is
ORDERED, that OCRM issue a permit to Scott and Deborrah McCandless for a walkway to be
located beginning 55 feet from the right property line as constructed extending until the walkway
reaches 71 feet from the right property line. At that point the walkway may turn and continue 71
feet parallel to the right property line until it reaches Log Bridge Creek. The pier must not
exceed 160 square feet and must be located to the right of the walkway. No portion of the
walkway or pierhead may extend beyond 71 feet from the right property line. The remaining
provisions of the permit as amended on August 29, 1994 are incorporated in this Order. The
provisions of the permit must be strictly followed and no deviation from these requirements may
be allowed.
AND IT IS SO ORDERED.
_________________________________
ALISON RENEE LEE
Administration Law Judge
July _____, 1995
Columbia, South Carolina. |