SC Administrative Law Court Decisions

I. Statement of the Case

Petitioner Jack H. Kee, Jr. (Kee) requested a contested case hearing to challenge a permit granted by the South Carolina Department of Health and Environmental Control, Bureau of Ocean and Coastal Resource Management (OCRM) to Roger Kennedy (Kennedy) for construction of a private dock on and adjacent to the Wando River at 418 Brown Pelican Drive in the St. Thomas Point subdivision, Wando, Berkeley County, South Carolina. The proposed structure will consist of a 4' x 295' walkway with handrails leading to a 12' x 20' fixed pierhead covered by a 12' x 12' roof. A 3' by 18' ramp will lead to a 12' x 27' floating dock, and a 4 pile 12' x 12' boat lift is to be constructed on the right side of the fixed pierhead. Kee and St. Thomas Point Homeowners' Association (the Association) oppose the permit as written. Brantley D. Thomas and Kathleen B. Thomas (the Thomases) do not oppose the permit as written, but they have intervened in this proceeding to protect the 10' setback from their extended property line that is included as a condition in the permit.

The disagreement on the issuance of the permit places contested case jurisdiction in the Administrative Law Judge Division (ALJD) under S.C. Code Ann. § 48-39-150 (Supp. 1998) and § 1-23-310 et seq. (Rev. 1987 & Supp. 1998). After considering the evidence presented at the August 4th and 5th, 1999 hearing, I find the permit must be granted as written.

II. Issue

Should a permit be granted to Kennedy allowing the construction of a 12' x 27' floating dock located 33' from Kee's dock and 10' upstream from the extended property line of the Thomases?

III. Analysis

A. Positions of Parties

Kee and the Association assert that the 12' x 27' floating dock to be constructed for Kennedy is excessive in size and that it violates a dock master plan that was created for the subdivision by dock builder Robert Pilcher (the Pilcher plan). They also argue that OCRM's allowance of a dock of this size will create negative long-term cumulative impacts. These parties argue that OCRM's allowance of a floating dock of this size will pave the way for other requests for similarly sized docks in the area which will disrupt the community and alter the general character of the area if such permits were granted. Kee, who is an adjacent property owner (upstream), also asserts that the Kennedy dock will be located too close to his dock, and that if OCRM does not require the size of the Kennedy dock to be reduced, OCRM should at least require that the dock be located 10' further downstream to allow more space between the Kennedy dock and Kee's dock. Kee concedes that a 12' x 26' configuration for Kennedy's floating dock would be acceptable if it were located 10' further downstream.

The Thomases, who are also adjacent property owners (downstream), assert that their view would be negatively affected by elimination of the 10' setback from their extended property line.

OCRM asserts that allowance of the 12' x 27' floating dock will not create negative long-term cumulative impacts and that a dock of this size is reasonable in relation to the size of Kennedy's lot, and Kennedy's intended use of the dock. OCRM further asserts that it properly considered the value and enjoyment of all adjacent property owners when it evaluated Kennedy's permit application.

None of the parties contend that the proposed dock will have any permanent adverse environmental impacts. Rather, the dispute centers around the value and enjoyment of adjacent owners and the cumulative impacts to the general character of the area.

B. Findings of Fact

I find by a preponderance of the evidence the following facts:

1. Permitting history of St. Thomas Point

In the late 1980's, a developer of the St. Thomas Point subdivision approached OCRM (known then as South Carolina Coastal Council) with a subdivision lot layout in conjunction with three dock permit applications for three separate lots owned by Steve Newcombe (Newcombe). The layout showed "flag" lots, with 30' water frontage, between lots with 80' water frontage, for the waterfront properties in the subdivision. The configuration of a flag lot, sometimes called a "key" lot, typically places the greater portion of the lot several hundred feet back from the water, with a corridor or "flag pole" extending down to the water to allow for water access.

In March, 1989, OCRM sent a letter to the St. Thomas Point developer expressing concern over the flag lots and indicating that the flag lots may not be eligible for docks. (See Petitioner's Exhibit # 23F). OCRM's concern was that in order to honor setbacks from extended property lines, the docks permitted on lots with 30' water frontage would be either very restricted or closer together than what was desirable. Thereafter, OCRM employee Richard Chinnis (Chinnis) met with representatives of the developer and worked out a compromise agreement allowing for most of the flag lots to qualify for docks. In April, 1989, OCRM sent a letter to one of the developers confirming this agreement: certain lots would not be permitted for docks and certain other lots would share joint use docks; all other lots would be eligible for individual docks. (See Petitioner's Exhibit # 23B).⁽¹⁾ Attached to this letter was a drawing loosely referenced as a "dock corridor plan" drafted by Chinnis to memorialize the compromise reached. Chinnis testified that the plan was not a dock corridor plan in the formal sense of the term, but that its main purpose was simply to memorialize OCRM's agreement with the developer concerning which lots would be eligible for docks. Chinnis stated that he did not anticipate any usefulness for the plan beyond designating which lots would be eligible for docks. Included in the lots which were not eligible for docks were lots 78 and 79, which the Thomases now own. Lot 78 is adjacent to the community dock in St. Thomas Point.

After reaching its compromise with the developer, OCRM issued permits to Steve Newcombe for construction of docks on lots 81, 82 and 83.⁽²⁾ OCRM also issued several permits to the St. Thomas Point developer for construction of docks on several other lots in St. Thomas Point. After the developer sold these lots and certain individual property owners commissioned the construction of the docks, these owners became concerned about the close proximity of the docks to each other. As a result, the contractor who was commissioned to construct the docks, Robert Pilcher, approached OCRM with a dock construction plan that was designed to maximize distances between docks (the Pilcher plan).

Pilcher presented his plan to OCRM in conjunction with certain lot owners' respective requests for amendment to their existing dock permits, so that they could rearrange the configurations previously permitted by OCRM. The new configuration proposed by Pilcher was a 10' x' 20' pierhead connected to a 10' x 20' floating dock, with a boat lift located between the pierhead and the floating dock (channelward of the pierhead and landward of the floating dock). Notably, the Pilcher plan encompassed lots 80 through 88 of the subdivision, although it is not clear whether all of the owners of these lots requested this particular permit amendment. Ownership of lot 81 eventually passed to Kee and ownership of lot 80 eventually passed to Kennedy. Kee's lot has 30' of water frontage and Kennedy's lot has 80' of water frontage.

The Pilcher plan was not considered to be a "dock master plan" by OCRM and was not treated as such. In fact, OCRM's requirements governing dock master plans were not in existence at the time Pilcher submitted his plan to OCRM.⁽³⁾ OCRM considered the Pilcher plan to be a construction alignment plan submitted by certain lot owners, via Pilcher, as part of their respective permit amendment requests. OCRM issued the requested permit amendments, but did not make any representation to these permit applicants that any future deviations from the Pilcher plan would not be allowed. Neither did OCRM represent that the Pilcher plan was binding on lot owners in St. Thomas Point who did not apply for a permit amendment incorporating the Pilcher plan. There is evidence, however, that a real estate agent made such representations to certain lot purchasers in St. Thomas Point, including Kee. Kee testified that one of the determining factors in his purchase of lot # 81 was the amount of space he expected to have between his dock and the dock on lot # 80, at least 50 feet. Kee indicated that this expectation was based on his understanding that all waterfront lot owners had to build their docks in accordance with the Pilcher plan.

While several of the docks on lots 80 through 88 have been configured in a manner that is consistent with the Pilcher plan, there are some deviations. The configuration of the dock on lot # 88 deviates somewhat from the Pilcher plan. Also, Kee's dock configuration on lot # 81 also deviates from the Pilcher plan. Kee has an 11' x 21' fixed pierhead instead of 10' x 20'. Also, Kee requested an amendment to his permit to alter the location of the boat lift from what was previously permitted. Kee's boat lift juts out from behind the floating dock several feet toward the neighboring upstream dock, unlike what was designated in the Pilcher plan. Further, the Pilcher plan designates the floating dock to be parallel with the fixed pierhead. However, Kee's floating dock is cocked at an angle from the pierhead, extending further downstream from the fixed pierhead.

Additionally, the dock locations have several deviations from the Pilcher plan. Kee's dock extends 10' further downstream, crossing the extended property line to lot # 80 (Kennedy's lot), than what was originally designated by the Pilcher plan, although it is still within the dock corridor designated by that plan. Also, it appears that several of the docks upstream from Kee's dock also cross 10' over extended property lines, which is inconsistent with the Pilcher plan.⁽⁴⁾ The resulting distance between Kee's dock and the dock located upstream off lot # 82 is 33'.⁽⁵⁾ The distance between the other upstream docks, with the exception of lot # 88, is also 33'.

2. Permitting history of lot 80

The original permit for lot # 80 was issued to the developer on February 5, 1990. The permit allowed for a 4' x 200' walkway leading to a 10' x 12' fixed pierhead and a ramp downstream of the pierhead leading to a 10' x 20' floating dock. The permit was later assigned to subsequent purchasers of lot # 80, including Roger Kennedy who purchased lot # 80 in June, 1998.

Prior to assignment to Roger Kennedy, the permit underwent several amendments, some of which were not publicly noticed. On February 21, 1990, OCRM granted a permit amendment to authorize expansion of the walkway from 200' to 340'. On January 23, 1993, the permit, which was scheduled to expire by February 5, 1993, was extended to February 5, 1994. On January 21, 1994, OCRM granted another one-year extension for the permit. In early 1995, OCRM granted a third one-year extension for the permit. On March 14, 1995, OCRM granted an amendment to authorize enlarging the fixed pierhead to 10' x 15' and constructing a roof over the boat lift and fixed pierhead, provided that the floating dock would not be enlarged. On June 26, 1995, OCRM granted another amendment to expand the floating dock to 10' x 30', provided that the extension would be installed on the upstream side of the dock. Chinnis testified that he did not know why OCRM originally denied the request to enlarge the floating dock and then later granted it.

On February 28, 1996, OCRM granted another one-year extension for the permit and granted another amendment authorizing construction of a 10' x 20' fixed pierhead. OCRM granted two additional one-year extensions, setting the final expiration of the permit at December 31, 1998. On December 21, 1998, OCRM allowed an amendment authorizing the construction of the boat lift landward of the floating dock and allowing the dock to be constructed at a minimum of 10' off the extended property line.

In December, 1998, Kennedy began construction of a dock under this permit. Shortly thereafter, Kee obtained a temporary restraining order enjoining Kennedy from any further construction. Because the validity of several amendments to the permit was in question, Kennedy chose to file an application for a new permit in early 1999.

The difference between the location of the Kennedy dock as permitted by OCRM and where the Pilcher plan would have placed it is approximately 10 feet; the Pilcher plan located the dock flush with the extended property line for lot 79.

3. The Kennedy application

Kennedy testified that at the time he was making the decision to purchase lot # 80, he owned a 31' boat and the dock permit he expected to have assigned to him allowed for a 30' floating dock. This was a factor in his decision to purchase the property. At the time of the hearing, Kennedy owned a 24' boat, but he testified that he may purchase a larger boat in the future.

The project which Kennedy proposed in his 1999 permit application consisted of a 4' x 295' walkway leading to a 10' x 20' fixed pierhead covered by a roof, with a 3' x 18' ramp leading to a 10' x 35' floating dock. Kennedy also requested a 15' x 20' boathouse on the right side of the fixed pierhead with a 4 pile 12' x 12' boat lift underneath. He testified that his reasons for requesting a 10' x 35' floating dock included future plans for a larger boat and the fact that he had seen other properties with the same amount of waterfront with docks larger than 35'.

On April 20, 1999, OCRM granted permit number OCRM-99-096-B to Kennedy with modifications to Kennedy's proposal; OCRM deleted the proposed roof over the boat lift, reduced the floating dock to 12' x 27' and allowed for the pierhead to be increased to 12' x 20'. OCRM also included as a special condition of the permit the requirements that the structure be constructed 10 feet off the property line extension between lots 80 and 79, and that all parts of the dock be constructed 33 feet from Kee's dock at lot 81.

Prior to issuing the permit for the Kennedy dock, Chinnis met with both Kee and with the Thomases to assess the concerns of the adjacent property owners. The Thomases have maintained that the proposed dock's 10' setback from their extended property line would make a difference in their view of the Wando River. The Thomases indicated that when they purchased lot #'s 78 and 79, they knew that OCRM would not allow them to build a dock off these lots, despite having 120' of water frontage, due to the proximity of a community dock. In spite of that, however, they paid a premium for the property because it provided an exceptional view of the river.

Chinnis also considered the views expressed by Kee and the St. Thomas Point Homeowners' Association. The Association expressed opposition to any deviation from the 10' x 20' floating dock configuration set forth in the Pilcher plan based on the Association's insistence that all waterfront docks be built according to the Pilcher plan. The Association also expressed concern over the distance between the Kennedy dock and the community dock. OCRM determined that the difference between a dock 20' in length and the 27' authorized under the Kennedy permit would not be significant in terms of access to the community dock. OCRM also considered the ability of the Association to restrict the size of docks in the community through their own restrictive covenants.

Kee expressed concern that the Kennedy dock as currently permitted will diminish his enjoyment of his property, as his room for crabbing, fishing, shrimping and swimming off his dock will be reduced. There is no evidence, however, that Kee will not be able to continue these activities off his dock. While he may not have as much space as he would like for these activities, there is no evidence that the space will be inadequate for these activities.

Kee also stated that the location of the Kennedy dock will cause him navigational problems. However, Kee admitted that the Kennedy dock as permitted will not impede his navigation, but will only require him to be more cautious. No credible evidence was presented to establish that the Kennedy dock as currently permitted will cause any navigational impediments or any danger to other boaters in the community.

Additionally, Kee stated that he thought that the configuration and proximity of the Kennedy dock would reduce the market value of his property. However, Kee was unable to give an estimate of what the value of his property would be if Kennedy builds his dock as currently permitted. Further, no evidence exists of sales of similar property demonstrating a loss of value due to a dock similar to the Kennedy dock being constructed on the adjacent lot.

Taking into account all of the competing concerns of the adjacent property owners, the concerns of the Association, and the reasonableness of Kennedy's requested configuration, OCRM determined that a floating dock configuration of 12' x 27' with a 10' setback from the extended property line of lot # 79 would minimize any negative impacts to the adjacent owners. OCRM imposed a 10' setback from the Thomases' extended property line with an intent to minimize the view impact of the dock. Further, OCRM considered the fact that Kee's boat lift is on the upstream side of his dock away from Kennedy's dock and that Kee had 33' existing clearance between his dock and the dock upstream of his, so that the configuration of the Kennedy dock would have no impact on Kee's ability to access his boat lift. OCRM also considered the 33' clearance between the other docks upstream of Kee's dock. Based on Kee's existing clearance of 33' from the dock upstream of his and the 33' clearance between the other upstream docks, OCRM determined that a 33' clearance between the Kennedy dock and Kee's dock was reasonable. To a lesser degree, OCRM considered Kee's 30' lot width and the extension of Kee's dock 10' over the extended property line, which limited the available space for Kennedy's dock, in determining what was a reasonable accommodation to the adjacent property owners. Finally, the Wando River is over 1000' wide in the area of St. Thomas Point. OCRM considered the 10' x 27' floating dock configuration reasonable for a lot with 80' of water frontage on a river exceeding 1000' in width. OCRM has granted permits for larger floating docks on other lots with 80' waterfront. For example, OCRM granted several permits for 40' floats on 80' lots in another subdivision downstream from St. Thomas Point.

C. Conclusions of Law

Based on the foregoing Findings of Fact, I conclude the following as a matter of law:

Under the facts of this case, the issue becomes determining whether OCRM properly applied the applicable law in granting the permit. I conclude the permit is proper.

1. Burden of Proof

In administrative proceedings, the burden of proof is on the party asserting the affirmative of an issue. 2 Am. Jur. 2d Administrative Law § 360 (1994). In this case, Kee and the Association assert that Kennedy's dock permit as written violates applicable regulations and was granted arbitrarily. Therefore, Kee and the Association assert the affirmative in this case and they must prove their allegations by a preponderance of the evidence. See Anonymous v. State Board of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998)("'Absent an allegation of fraud or a statute or a court rule requiring a higher standard, the standard of proof in administrative hearings is generally a preponderance of the evidence . . . '").

After carefully considering all evidence, arguments of the parties and the applicable law, I find that Kee and the Association have failed to carry their burden of proving that the permit as written was arbitrarily granted or violates the applicable regulations.

2. Applicable Law

OCRM is the division within DHEC charged with administering the State's coastal zone policies and issuing permits in coastal zone areas. S.C. Code Ann. §§ 1-30-45(B), 48-39-35, and 48-39-50(C). To assist in accomplishing its task, the General Assembly has authorized OCRM to promulgate regulations governing the management, development, and protection of the coastal zone areas of the state. S.C. Code Ann. § 48-39-50(E) (Supp. 1998). Pursuant to that authority, OCRM promulgated regulations governing permits for docks. In fact, for docks, two specific regulations are pertinent: the general guidelines applicable to all permits in critical areas, 23A S.C. Code Ann. Regs. 30-11 (Supp. 1998); and the regulations governing docks, 23A S.C. Code Ann. Regs. 30-12.A (Supp. 1998). Here, the structure is to be built in a "critical area" as that term is defined in S.C. Code Ann. § 48-39-10 (J) (Supp. 1998), 23A S.C. Code Ann. Regs. 30-1(C)(4) and (12) (Supp. 1998) and Regs. 30-10(A) (Supp. 1998). Accordingly, the regulatory provisions within OCRM's jurisdiction are applicable.

A. Regulations: General Guidelines for all critical areas

The first area of review is that of the general guidelines of Regs. 30-11(B) and (C). Reg. 30-11(B) lists the ten general considerations required to be considered in the evaluation of any proposed project in a critical area. Of those ten general considerations, the only one in dispute in this case is the extent to which the proposed use could negatively affect the value and enjoyment of adjacent owners. Reg. 30-11(C) lists further guidelines on which OCRM must base its decisions in evaluating permit applications. Of these guidelines, the only one in dispute in this case is the extent to which long-range, cumulative effects of the project may result within the context of other possible development and the general character of the area. Kee and the Association argue that these factors demonstrate that the permit should be denied. I conclude that neither of these guidelines warrants denying or modifying the permit as written.

i. Value and Enjoyment of Adjacent Property Owners: Regs. 30-11(B)(10)

a. enjoyment of adjacent owners

The adjacent property owners in this case are the Thomases, who own lots 78 and 79, and Kee, who owns lot 81. The Thomases want a 10' setback from their extended property line to protect their enjoyment of the view they now have. Kee, however, wants the Kennedy dock to be located 10' further downstream so that he will have more space between his dock and the Kennedy dock. OCRM has a duty to consider the value and enjoyment of all adjacent owners and to balance their competing concerns in a fair and reasonable manner. I find that OCRM has fulfilled this duty in requiring the Kennedy dock to be located 33' from Kee's dock and 10' upstream from the Thomas's extended property line.

An OCRM employee measured the distance between Kee's dock and the adjacent upstream dock and found the distance to be 33'. Similar measurements of 33' were found between the other upstream docks. Further, Kee's boat lift is on the upstream side of his dock away from Kennedy's dock. Therefore, the configuration of the Kennedy dock will have no impact on Kee's ability to access his boat lift. Based on these considerations, OCRM determined that a 33' clearance between Kee's dock and Kennedy's dock would be reasonable and would not impede Kee's ability to enjoy activities off his dock. OCRM also considered the extension of Kee's dock 10' over Kennedy's extended property line, which limited the available space for Kennedy's dock. Additionally, OCRM considered the fact that Kee's lot has only 30' of water frontage. I find that OCRM properly balanced these factors against the reasonableness of Kennedy's request and the concerns of the Thomases.

b. value of adjacent property

Valuing real property creates a factual determination. Cf. Andrews Bearing Corp. v. Brady, 261 S.C. 533, 201 S.E.2d 241 (1973) (where the court explained that no factual issue was presented since there was "no question of valuation being in issue."). Thus, the fact issue is presented of what impact on value will the proximity and size of the Kennedy dock have on the adjacent properties.

In the instant case, no evidence supports a conclusion that the Kennedy dock will diminish the value of Kee's property. To arrive at a conclusion that the value of adjacent property is reduced, evidence of sales of similar property would need to be established showing that the presence of a structure in the critical area has materially and negatively impacted the value of the adjacent owner's property. No such evidence is presented in this case. Accordingly, the permit cannot be denied or modified due to the loss of value imposed on adjacent property owners.

ii. Cumulative, Long-Range Effect: Regs. 30-11(C)(1)

Regs. 30-11(C)(1) explains that consideration should be given to "[t]he extent to which long-range, cumulative effects of the project may result within the context of other possible development and the general character of the area." Here, it is true that other property owners in the immediate area could at a future date seek to expand the size of their docks to the size allowed by OCRM for the Kennedy dock. However, only four lots in the St. Thomas Point community have sufficient water frontage to allow any such expansion.⁽⁶⁾ Even assuming that OCRM would grant each of these four lot owners' request for a 7' expansion to their floating dock, the community would experience a total dock expansion of only 28'. I find that such an expansion would not significantly alter the general character of the area as it currently exists.

In any event, the granting of any such request would be restricted by OCRM's new regulation limiting the size of docks on creeks larger than 150 feet to the average size of existing, adjacent docks. See 23A S.C. Code Ann. Regs. 30-12.A(2)(q)(iv). Previously permitted docks which are larger than that allowed by the new regulation may not be enlarged. 23A S.C. Code Ann. Regs. 30-12.A(2)(q)(v). While these new provisions do not apply to Kennedy's permit application, they would apply to any future applications for dock permits or permit amendments.

B. Regulations: Docks

Even if the general guidelines are satisfied, a dock permit must further satisfy the requirements imposed by 23A S.C. Code Ann. Regs. 30-12.A (Supp. 1998). Of those requirements, the only ones in dispute in this case are (1) docks shall not impede navigation; (2) the size and extension of a dock must be limited to that which is reasonable for the intended use; (3) no docks or pierheads should normally be allowed to be built closer than 20 feet from extended property lines; and (4) standards for size.

1. Navigation

Docks may not impede navigation. 23A S.C. Code Ann. Regs. 30-12.A(2)(a) (Supp. 1998). In this case, however, no credible evidence was presented to show that the Kennedy dock as currently permitted will cause any navigational impediments or any danger to other boaters in the community.

2. Reasonableness for intended use

The size and extension of a dock must be limited to that which is reasonable for the intended use. 23A S.C. Code Ann. Regs. 30-12.A(2)(c) (Supp. 1998).

Kennedy testified at the hearing that when he was making the decision to purchase lot # 80, he owned a 31' recreational boat and the dock permit he expected to have assigned to him allowed for a 30' floating dock. This was a factor in his decision to purchase the property. At the time of the hearing, Kennedy owned a 24' boat, but he testified that he may purchase a larger boat in the future. He testified that his reasons for requesting a 10' x 35' floating dock included future plans for a larger boat and the fact that he had seen other properties with the same amount of waterfront with docks larger than 35'.

Further, OCRM has granted permits for larger recreational docks on lots that are the same size as Kennedy's lot. Additionally, the Wando River is over 1000' wide in the area of St. Thomas Point.

Under all of the surrounding circumstances, I find that a 12' x 27' floating dock is reasonable for Kennedy's intended recreational use and is not excessive.

3. Extended property lines

OCRM regulations dictate that no docks 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. 23A S.C. Code Ann. Regs. 30-12.A(2)(p) (Supp. 1998). However, OCRM may allow construction over extended property lines where there is no material harm to the policies of the South Carolina Coastal Management Act (the Act). Id. Chinnis testified that in this case, there would be no material harm to the policies of the Act if the Kennedy dock were located 10' further downstream, flush with the Thomas's extended property line. Therefore, OCRM did not consider the setback requirement to be binding in this case; this is illustrated in OCRM's decision to require merely a 10' setback instead of a 20' setback. OCRM's primary reason for requiring a 10' setback from the extended property line of lot # 79 was to accommodate the enjoyment of adjoining landowners pursuant to Reg. 30-11(B)(10).

4. Dock size

The size of docks to be located on creeks over 150' in width is determined by OCRM on a case by case basis "pursuant to established permitting rules and regulations . . ." 23A S.C. Code Ann. Regs. 30-12.A(2)(q)(iii) (Supp. 1998). Therefore, OCRM has considerable discretion in the determination of reasonable size for docks on creeks over 150' wide.

There is precedent for OCRM's granting of large docks for 80' lots on the Wando River. OCRM has granted several permits for 40' floating docks on 80' lots in a subdivision downstream of St. Thomas Point. Further, the size of Kennedy's dock is only 7' greater than that of the upstream docks in St. Thomas Point. I find that under these circumstances, the size allowed by OCRM is reasonable and complies with the regulations.

C. Arbitrary action

Kee and the Association essentially argue that because several of OCRM's prior permitting decisions were based on the applicants' submission of the Pilcher plan, the Pilcher plan should be binding on all lots which it encompassed. Kee and the Association essentially argue that OCRM's failure to write Kennedy's dock permit to "comply" with the Pilcher plan was arbitrary. I cannot agree.

An administrative agency is generally not bound by the principle of stare decisis, but it cannot act arbitrarily in failing to follow established precedent. Concord Street Neighborhood Ass'n v. Campsen, 309 S.C. 514, 424 S.E.2d 538 (Ct. App. 1992). Nonetheless, in evaluating a permit application, OCRM is required to base its decision on the individual merits of each application. S.C. Code Ann. § 48-39-150(A) (Supp. 1998). Where there are relevant distinguishing factors between separate permit applications, OCRM can hardly be said to have acted arbitrarily in treating the applications differently.

In the St. Thomas Point subdivision, OCRM granted several permit amendments which incorporated the Pilcher plan and proposed 10' x 20' floating docks. However, the mere granting of these permit amendments was not a representation that future deviations from the Pilcher plan would not be allowed. In fact, Kee himself was granted a permit amendment deviating from the Pilcher plan. Neither did OCRM make any representation that the Pilcher plan would be binding on lot owners who had not requested a permit amendment incorporating the Pilcher plan. OCRM did not have any formal policy on dock master planning when the Pilcher plan was submitted. In any event, the purpose of OCRM's current dock master plan requirements is merely to identify dock corridors for lots eligible to apply for docks. OCRM considers dock sizes and configurations to be issues for resolution under each individual permit application. In the case of those applications which incorporated the Pilcher plan, OCRM simply acted on a permit amendment request and determined that, under the surrounding circumstances, the requested amendment should be granted.

Years later, OCRM considered different circumstances in evaluating the Kennedy application. Unlike the applications incorporating the Pilcher plan, the Kennedy application involved adjacent property owners seeking to protect a 10' setback from their extended property line. Unlike the applications incorporating the Pilcher plan, the Kennedy application involved a neighboring dock extending 10' into the space which would otherwise have been available for Kennedy's dock corridor. Unlike the applications incorporating the Pilcher plan, the Kennedy application requested a 10' x 35' floating dock. OCRM had granted 40' floating docks for similarly sized docks in other subdivisions and therefore considered Kennedy's request to be reasonable.

In summary, there is simply no evidence of a pattern of OCRM imposing any certain dock size, configuration or spacing between docks in the St. Thomas Point subdivision. OCRM's initial drafting of a "dock corridor plan" was merely a memorialization of its agreement with the developer to identify which lots would be eligible for docks. Further, the Pilcher plan was drafted at the request of lot owners themselves, not at OCRM's request.

While spacing between docks is a legitimate concern, it is not the only factor which OCRM must consider in evaluating permit applications. Additionally, OCRM is not in the business of imposing uniform dock sizes and configurations throughout a community. On the contrary, OCRM considers dock size and configuration to be issues for resolution under each individual permit application. Uniformity desired by members of the community is more appropriately imposed by private means such as restrictive covenants.

IV. Order

The South Carolina Department of Health and Environmental Control, Bureau of Ocean and Coastal Resource Management is directed to grant to Roger Kennedy permit number OCRM-99-096-B, allowing Kennedy to construct a private dock with a 12' x 20' fixed pierhead and a 12' x 27' floating dock on and adjacent to the Wando River.

AND IT IS SO ORDERED

______________________________

RAY N. STEVENS

Administrative Law Judge

This 10th day of January, 2000

Columbia, South Carolina

1. Significantly, OCRM later promulgated a regulation, effective in May, 1993, which required a minimum water frontage of 75' to be eligible for a dock permit. See 23A S.C. Code Ann. Regs. 30-12(A)(2)(o) (Supp. 1998).

2. Newcombe constructed the docks for these three lots and later sold the lots, one of which Kee now owns.

3. Chinnis testified that the purpose of OCRM's dock master planning requirements is to identify dock corridors for lots that are eligible to apply for docks; the submittal requirements do not ask for dock sizes or configurations, which OCRM considers to be issues to be resolved under each individual permit application.

4. These docks, however, have not been surveyed

5. OCRM employees measured this distance "wood to wood" (the closest distance between the docks; that is, the distance from the closest piece of wood on the dock to the closest piece of wood on the adjacent dock).

6. The remaining lots with floating docks smaller than the Kennedy dock have 30' frontage, and under current OCRM regulations, owners of lots of this size are not allowed to construct docks. See 23A S.C. Code Ann. Regs.30-12.A(2)(o) (Supp. 1998). Therefore, no expansions of these existing docks would be allowed by OCRM.