ORDERS:
ORDER
This matter comes before me on the request by Petitioner Marjorie Groom for a contested case
hearing de novo pursuant to S.C. Code Ann. § 48-39-150 (Supp. 1987) and § 1-23-310 et seq.
(Supp. 1987 & Supp. 1994), regarding her application to build a roof on an existing pierhead
located at 1110 Sea Eagle Watch, Seaside Plantation, James Island, Charleston County, South
Carolina. The Office of Ocean and Coastal Resource Management, Department of Health and
Environmental Control ("OCRM") denied the application and Groom timely made a request for
review. After notice to the parties, a hearing was conducted on March 13, 1995.
Any issues raised in the proceedings or hearing of this case but not addressed in this 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. Marjorie Groom is the owner of 1110 Sea Eagle Watch in Charleston, South Carolina. The
location is on Clark Sound in Charleston County.
2. The location has an existing walkway and pierhead constructed pursuant to a permit issued by
the Coastal Council, predecessor to OCRM, in 1989. These structures were present when Groom
purchased the property.
3. By application dated October 13, 1994, Groom sought authorization from OCRM to construct
a 10 foot by 16 foot pitched roof over the existing fixed pierhead. Notice of the application was
provided to adjoining landowners and to the general public by publication in the Charleston Post
and Courier.
4. The proposed purpose is for private residential use and to provide protection from the sun.
5. Groom has had skin cancer since 1970 and has been extensively treated through surgical
removal of cancerous cells, and skin grafts. She is required to see her physician every six months.
Members of her family are also showing early signs of the disease.
6. The addition of a roof to the existing pierhead would have no environmental impact on the
marine life of Clark Sound.
7. Adjoining landowners did not object to the application for a roof. One objected to the use of a
temporary cover because of the danger associated with the cover blowing off in a strong wind.
8. Seventeen landowners across Clark Sound facing Groom objected to the roof. Some provided
no reasons for their objections. Others objected primarily because the roof would obstruct the
"pristine, panoramic view" of Clark Sound. The persons objecting to the roof would have to look
away from the Sound inland to see Mrs. Groom's home.
9. OCRM denied the permit on November 23, 1994 citing the following reasons: no roofs have
been permitted within the general Clark Sound area, therefore no precedent exists in this
subdivision for the proposed roof; and letters from 17 residents of this area expressed opposition
to the roof. In addition, OCRM cited a list of specific references the permitting staff relied upon
to make the decision. These are the legislature's policies for permitting structures in the critical
area, the extent to which the use affects the value and enjoyment of adjacent owners, and the
regulation relating to roofs on docks and piers.
10. Between 1983 and 1994 OCRM has permitted ten docks in Clark Sound. Two of the
applications granted requested roofed structures. OCRM granted the permits amending the
application to allow the construction without the roofs. An application made in 1983 requested a
roofed dock which was permitted by OCRM. This structure is located in this same area but is not
directly on Clark Sound.
11. The roof over the dock would not seriously impair the view of Clark Sound or of adjoining
landowners. The roof would not affect the value or enjoyment of adjacent landowners.
12. OCRM made no independent determination of whether the roof would impact the view,
instead it relied on the number of objections to decide that the view was seriously impacted.
13. Mrs. Groom's health condition was not a factor considered by OCRM in determining whether
to issue the permit.
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. (Supp. 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 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. Pursuant to regulation, roofs on private docks will be permitted on a case by case basis, with
consideration given to individual merits of each application. Precedent in the vicinity for similar
structures will be considered as well as the potential for impacting the view of others. Roofs
having the potential to seriously impact views will not be allowed, while those that have minimal
impact may be allowed. 23A S.C. Code Ann. Regs. 31-12(A)(2)(r).
DISCUSSION
The evidence clearly reveals that the roof would not have any detrimental impact on the critical
areas in the coastal zone. The primary basis used by OCRM in denying the application was the
absence of any other roof structures in the development. Since there was no precedent, the
permitting staff did not want to allow any roofed structures. This is a simplistic view of the
requirements of Regulation 30-12(A)(2)(r). This regulation referring specifically to roofs on
private docks requires that applications are considered on a case by case basis considering the
individualmerits of each application. Although precedent will be considered it is not the sole or
controlling factor. Roofs which have the potential to seriously impact view will not be allowed,
while those that have minimal impact may be allowed. The photographs and slides introduced in
evidence, along with the drawing of the roofed structure contained in the application, clearly
reveal that there would be minimal if any impact on the views of the most vocal protestors. For
Mrs. Groom's roofed pier to obstruct their view at all, the protestors would have to look inland
instead of out toward the Sound itself. The adjoining landowners, whose views have the greatest
potential for being obstructed, have voiced no opposition to the roof.
The individual merits of Mrs. Groom's application reveal that in order for her to enjoy her
property to the fullest, including the use of the dock and pier, a roof is required. No one is
suggesting that because of her skin cancer, Mrs. Groom should be confined to her house. Yet in
its decision not to grant the permit, OCRM is taking that position. OCRM is making the choice
between someone's health and the "pristine, panoramic" view of Clark Sound. Certainly an
agency charged with protecting the environment and public health cannot be opposed to the
efforts of a person to protect her health especially when the impact on the environment and others
is minimal if at all.
Although a temporary cover or umbrellas may be available to Mrs. Groom to protect herself while
she is outside, there is a potential problem in adequately securing a tarp or umbrella to prevent a
strong gust of wind from dislocating it. The roofed structure proposed is similar to other roofed
structures allowed by OCRM in other areas of the coastal zone. The structure does not obstruct
the view nor does it detract from the general character of the area.
OCRM cannot take the ostrich approach to permitting by sticking its head in the sand hiding
behind prior decisions not to permit certain structures. It is charged with reviewing each
application on its merits. The fact that there are no roofs over piers in the vicinity does not mean
there should never be a roofed structure in the area. Likewise, the granting of an application for a
roofed structure does not mean all applications for roofed structures must be permitted. Each
application must be considered on its specific facts with appropriate evidence to support the
decision of the permitting staff. In this case, the roof does not endanger the environment, does
not obstruct anyone's view of the Sound, and it provides protection from the sun's potentially
damaging rays.
OCRM also argues that the roof is not a water dependent structure and therefore, it is not
required to permit a roof. Literally taken, this argument could formulate the basis of a decision
that a permit to construct a roof is not needed from OCRM. Roofs over existing structures do
not impact the environment any more than the existing dock or pier. OCRM's view is that a dock
is not to be used for recreational purposes other than to provide access to the water. This too, is
a narrow view. It is common knowledge and generally accepted that a dock may be used by its
owner for general recreational activities independent of the water. Sitting on a dock and enjoying
a sunrise or sunset is not an activity dependent on the water, yet it is one activity that anyone with
a dock or a pier would cite as one of the joys of being on the water. Having a dock provides
enjoyment to many in a peaceful and relaxing manner independent of the use of the water. It is
unfair to restrict someone to his home and deprive him of the full enjoyment of his property when
no one would be harmed by the existence of a roof on a pier.
ORDER
Based upon the foregoing findings of fact, conclusions of law and discussion, Mrs. Groom has
established by a preponderance of the evidence the individual merits of her application for a
roofed structure. The application meets the guidelines and requirements of the statutes and
regulations and OCRM should issue the permit. Therefore, it is
ORDERED, that Marjorie Groom's application to construct a roof for the dock existing at 1110
Sea Eagle Watch in Seaside Plantation is GRANTED. OCRM shall issue the permit for the roof
as requested. Nothing in this ORDER may be construed as requiring any or all applications for a
roof structure to be granted or denied by OCRM. OCRM is cautioned that the regulations
require a review based upon the individual merits of each application on a case by case basis.
AND IT IS SO ORDERED.
___________________________
ALISON RENEE LEE
Administrative Law Judge
July ______, 1995
Columbia, South Carolina. |