SC Administrative Law Court Decisions

I. Introduction

Felix C. Lowe and John Vann (Lowe and Vann) are seeking a permit to construct a private joint-use dock on the May River in Beaufort County. The South Carolina Department of Health and Environmental Control, Bureau of Ocean and Coastal Resource Management (OCRM) denied the permit request. Lowe and Vann have challenged OCRM's denial by presenting this contested case with jurisdiction in the Administrative Law Judge Division. S.C. Code Ann. §§ 48-39-150 (Supp.1998), 1-23-310 et seq. (Supp.1986 and 1998). Prior to the hearing Brenda Fronczak and Gary Fronczak (Fronczaks) intervened in support of OCRM's position. After considering the evidence and law applicable to this matter, I conclude that the permit must be granted.

II. Issue

Should a permit be granted to Lowe and Vann allowing the construction of a private joint-use dock consisting of a 5' x 630' walkway with handrails leading to a 20' x 20' covered, fixed pierhead with each side of the pierhead having a 4' x 30' ramp leading to an 8' x 30' floating dock?

III. Analysis

Dock Permit

1. Positions of Parties

OCRM denied the permit request on the grounds that building the structure is inconsistent with the regulations governing docks. More particularly, OCRM argues the dock will improperly affect the value and enjoyment of adjacent owners (23A S.C. Code Ann. Regs. 30-11(B)(10) (Supp. 1998)), will have an improper long-range, cumulative effect on other possible development of the area (30-11(C)(1) (Supp. 1998)), improperly crosses a navigable creek having a defined channel (30-12(A)(2)(n) (Supp. 1998)), and improperly crosses the extended property line of an adjoining property owner (30-12(A)(2)(p) (Supp. 1998)). The Fronczaks support OCRM's position. However, Lowe and Vann disagree with OCRM and argue that none of the regulations or guidelines, whether taken individually or collectively, warrant denying the permit.

2. Findings of Fact

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

Lowe and Vann own separate but adjoining lots in a subdivision known as Gascoigne Bluff with Lowe owning lot 9 and Vann owning lot 8. Both individuals seek to build a single common dock to be used by both individuals to access the May River in Beaufort County. When completed, the structure will consist of a 5' x 630' walkway with handrails leading to a 20' x 20' covered, fixed pierhead. Each side of the pierhead will have a 4' x 30' ramp leading to an 8' x 30' floating dock.

Lowe is more than 1000 feet from the May River when such distance is measured within Lowe's extended property lines. However, in an effort to reach the May River by a shorter distance, Lowe and Vann filed an application with OCRM seeking a joint-use dock which will access the May River at a distance of 630 feet. The 630 foot distance is achieved by crossing the extended property line of the adjoining lot 10 owned by the Fronczaks.

The Fronczaks' lot 10 is a lot fronting on the May River and having a dock providing access to that river. The home constructed on the lot was designed to maximize the view of the marsh and river. In fact, the extensive view of the marsh and river was a significant factor in the Fronczaks' decision to purchase the lot and the loss of that view is the primary concern of the Fronczaks.

Except for the potential loss of view, the dock will not otherwise interfere with daily living associated with a residential use including outside recreational activities as well as the rest and quiet of home life. Likewise, the Lowe and Vann joint-use dock will not diminish the Fronczaks' access to the river. These findings are especially true since the proposed dock will be over 600 feet from the Fronczaks' home and more than 500 feet from the dock owned by the Fronczaks.

When viewed from the interior of the Fronczaks' house, a portion of the proposed walkway, dock, and pierhead will be visible. However, vegetation at the back of lot 10 will diminish the view of the structure, and an "island" in the marsh to the left of the lot as one faces the river will also diminish the view of the structure. In fact, the island will limit the view of the structure to approximately 200 feet as opposed to the full 630 foot length.

Lowe and Vann seek their permit in order to gain access to the deep water of the May River. In fact, at the terminus of their proposed dock, the May River is at least six feet deep and at least 150 feet wide. In reaching the river, the structure will cross marsh that is inundated by tidal inflows during mid-tide and high tide. During such times, the inflows provide a depth of water of at least one and a half feet and allow pleasure boats to navigate in the tidal waters up to a distance of twenty feet from the lots of Lowe and Vann.

However, in gaining access to the May River, the proposed structure will not cross any creeks with defined channels. Rather, the area over which the structure will pass is relatively flat with little or no significant drops in grade from the surrounding marsh. No measurements of channels were taken, no measurements of drops in grade were made, and no points were identified at which the proposed dock would cross a channel.

3. 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.

a. Burden of Proof

For an administrative matter of the type presented here, the party asserting the affirmative of an issue has the burden of proof. 2 Am. Jur. 2d Administrative Law § 360 (1994). In this case, Lowe and Vann assert that they meet all of the requirements for a dock permit. Therefore, Lowe and Vann assert the affirmative in this case and 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 the evidence, the arguments presented by the parties, and the applicable law, I find that Lowe and Vann have met the requirements for the permit.

b. Applicable Law

OCRM is 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 specific 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, OCRM's regulatory provisions apply.

c. Regulations: General Guidelines For All Critical Areas

Guidelines for evaluation of any proposed project in a critical area are provided in Regs. 30-11(B) and (C). Of the ten general considerations identified in Reg. 30-11(B), the only one in dispute is the extent to which the proposed use could negatively affect the value and enjoyment of adjacent owners. Of the requirements listed in Reg. 30-11(C), again, only one requirement is in dispute, 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. Lowe and Vann argue that the factors of Regs. 30-11(B) and (C) do not warrant denying the permit. I agree with Lowe and Vann.

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

- Value -

Lowe and Vann argue that the joint-use dock will not negatively impact the value of the Fronczaks' property. Under the facts of this case, I agree.

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 issue is one of fact and is that of deciding what impact on value will the placement of a joint-use dock have on the Fronczaks' property.

In the instant case, the preponderance of the evidence does not support a conclusion that the proposed joint-use dock will have a negative impact upon the value of the Fronczak's property. Rather, at best, opinion evidence suggests two impacts upon value. First, a lot close to deep water is more valuable that a lot further away. Second, a lot with no view of a neighbor's dock is more valuable than a lot with a view of a neighboring dock.

As to the first impact, all other things being equal, property fronting on water is likely to be more valuable than property some distance from the water. However, in this case, the evidence is not persuasive that the joint-use dock will negatively impact the value attributed to the Fronczaks' "closeness-to-water" element. First, as a practical matter, the Fronczaks lot will remain at its precise distance to deep water regardless of whether the joint-use dock is constructed. Thus, no physical change to closeness results and no corresponding loss of value can be attributed to the joint-use dock. Second, no market data demonstrates how a lot owner that is close to the water is subjected to a loss of value when a more distant neighbor constructs a dock to the waterfront. Certainly, one can speculate that the fact that the more distant lot has gained access to the water front may decrease the value of any premium charged to the closer lot if the premium was based on the expectation that no other lot could access the water. In the absence of data confirming such speculation, I am unwilling to reach such a conclusion based upon the unsupported opinion testimony of a non-expert. Indeed, even for expert testimony, the fact-finder may give the testimony the weight and credibility the fact-finder determines it deserves. Florence County Dep't of Social Serv. v. Ward, 310 S.C. 69, 425 S.E.2d 61 (1992); S.C. Cable Tel. Assn. v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992); Greyhound Lines v. S.C. Public Serv. Comm'n, 274 S.C. 161, 262 S.E.2d 18 (1980). Thus, no negative impact to value based on the "closeness-to-water" theory has been established.

The second potential impact upon value is that of determining whether a lot with no view of a neighbor's dock is more valuable than a lot with a view of a neighboring dock. Under the facts of this case, I am not persuaded that the Fronczak's lot with a view of a neighbor's dock is less valuable than that same lot without a view of a neighbor's dock.

Again, at best, the evidence presented opinions of witnesses not certified as experts who dispute the impact on the value of property from being able to see a dock on a neighboring property. When facts are disputed, the judge as the fact-finder must weigh the evidence presented and evaluate the credibility of the witnesses. See Doe v. Doe, 324 S.C. 492, 478 S.E.2d 854 (Ct. App. 1996); Rogers v. Kunja Knitting Mills, Inc., 312 S.C. 377, 440 S.E.2d 401 (Ct. App. 1994), cert. dismissed, 318 S.C. 187, 456 S.E.2d 918 (1995). Moreover, even if the evidence is uncontradicted, the trial judge is not required to accept the evidence if the evidence is unconvincing. All v. Prillaman, 200 S.C. 279, 20 S.E.2d 741 (1942).

Here, the evidence of loss of value is opinion evidence from lay witnesses. Further, the opinion evidence is unconvincing and is not supported by sales in the market place of similar property adjacent to docks. In the absence of convincing evidence, the permit cannot be denied on the unproven assertion that a loss of value will result from being able to view the dock of an adjacent property owner.

- Enjoyment -

Somewhat related to the value concern is the concern that the presence of the dock will impact the enjoyment experienced by the Fronczaks. Lowe owns lot 9. When facing the May River, the adjacent property owner to the left of Lowe is Vann, the owner of lot 8, and to the right, are the Fronczaks, the owners of lot 10. The Fronczaks assert the joint use dock of Lowe and Vann will improperly interfere with the Fronczaks' view of the marsh and river.

While the regulations clearly impose a duty to consider the enjoyment of all adjacent owners, that duty requires balancing the competing concerns of those owners in a fair and reasonable manner. Regs. 30-11(B)(10). In calculating that balance, at least two areas of impact must be considered. First, the degree to which the permit will impact the neighbors' use of their private properties. Second, the degree to which the permit will impact the neighbors' use of the public trust property.

Here, as to the use of the private property, the neighboring Fronczaks have designed and constructed a residence that maximizes their view of the marsh and the river. The Fronczaks assert their enjoyment of their private property will be significantly impaired since the joint-use dock of Lowe and Vann will obstruct their view from both the first and second floors of their home. Absent the view concern, the proposed dock will not otherwise diminish the enjoyment of the private property. For example, the presence of the dock will not interfere with daily living associated with a residential use such as outside recreational activities or the rest and quiet of home life.

As to the public trust property, the objection is that the dock will diminish their enjoyment of the marsh and river since the marsh and river will be obstructed by the dock. In all other particulars, the Lowe and Vann joint-use dock will not lessen enjoyment since the dock will not diminish access to the river.

Given the impact in this case on the neighbors' use of their private property and on the neighbors' use of the public trust property, I conclude that the visibility of the proposed dock does not present a degree of obstruction so detrimental as to warrant denying the permit.

For instance, as to the private use, the distances, the alignment of the dock , and the general terrain do not present a structure that improperly impacts the Fronczaks' enjoyment of their private property. In fact, the proposed dock will be over 600 feet from the Fronczaks' home and more than 500 feet from the dock owned by the Fronczaks. In addition, the alignment of the proposed dock will be behind an "island" which separates the joint-use dock from the Fronczaks' dock. While the island will not hide all of the walkway and dock structure, the island will block a portion of the structure so that only approximately 200 feet of the structure will be visible. Further, the property line of the Fronczaks includes a significant degree of vegetation which will also provide a diminished view of the proposed dock.

As to the enjoyment of the public trust property, the essence of the Fronczaks' argument is that their land purchase was premised on the fact that an existing view was present at the time of purchase and that such a view should remain essentially intact over time. However, the law in South Carolina is to the contrary.

A private land owner does not acquire an easement that provides an unobstructed ocean view, breeze, light or air over adjoining property. Hill v. The Beach Co. et al., 279 S.C. 313, 306 S.E.2d 604 (1983); Schroeder v. O'Neill, 179 S.C. 310, 184 S.E. 679 (1936). Thus, no reasonable expectation existed at the time of purchase that the then existing view would remain the view over time. Instead, especially for a view overlooking public trust property, no inherent right to a continued view exists. Rather, OCRM, the agency charged with overseeing the State's coastal public trust property, must balance all of the legitimate uses of the public trust property. Accordingly, while the Fronczaks have every right to position their home in a manner that provides an extensive view of the public trust property, such a positioning is not a sufficient basis for denying a joint use dock which seeks access to the public trust property.

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, the "cumulative effects" concern is that structures should normally not be allowed closer than 20 feet from extended property lines. 23A S.C. Code Ann. Regs. 30-12(A)(2)(p) (Supp. 1998). OCRM and the Fronczaks object to the permit since the Lowe and Vann dock will cross the Fronczaks' extended property lines and, if such a crossing is allowed, other similarly situated property owners will seek to also cross extended property lines. Thus, OCRM believes that allowing this permit will create a precedent that will have "long-range, cumulative effects . . . within the context of other possible development." Regs. 30-11(C)(1). I disagree with OCRM.

True, other property owners in the immediate area could at some future date seek permits that cross extended property lines. However, to do so is entirely within those property owner's rights. Indeed, the "extended property line" regulation requires OCRM to consider the individual circumstances of each application. For example, the regulation uses the word "normally" and thus implies a less than mandatory rule prohibiting the crossing of extended property lines. Indeed, the regulation grants the freedom to cross extended property lines "where there is no material harm to the policies of the Act." Regs. 30-12(A)(2)(p). Accordingly, the concern of creating a precedent from granting this permit is not a valid basis for concluding that the "long-range, cumulative effects" (Regs. 30-11(C)(1)) are negatively impacted. Rather, just the opposite is true. OCRM is already encouraged to weigh such requests (Regs. 30-12(A)(2)(p)) and thus, Regs. 30-11(C)(1) is not a basis for denying the Lowe and Vann permit.

d. Regulations: Docks in Particular

Even if one satisfies the general guidelines, a dock permit is still denied if the requirements of 23A S.C. Code Ann. Regs. 30-12(A) (Supp. 1998) are not met. Allegedly not met here are that (1) in an attempt to reach deeper water, one cannot bridge a navigable creek having a defined channel (30-12(A)(2)(n)), and (2) the proposed dock must not improperly cross the extended property line of adjoining property owners since normally docks or pierheads should not be allowed within 20 feet of an extended property line.

i. A Navigable Creek Having A Defined Channel

- Introduction -

OCRM's tests for evaluating permit applications must be formalized by regulation. S.C. Code Ann. Sec. 48-39-130(B) (Supp. 1995); Captain's Quarters v. S.C. Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1991). Mandatory criteria must be applied since an agency cannot disregard its own regulations. Triska v. Department of Health and Environmental Control, 292 S.C. 190, 355 S.E.2d 531 (1987). The failure of OCRM to apply mandatory provisions of its regulations prevents OCRM from granting the permit. See Concerned Citizens v. Coastal Council, 310 S.C. 267, 423 S.E.2d 134 (1992) ("[w]ithout this requisite showing [i.e., a regulatory requirement of a demand for a marina, OCRM] has no legal ability to grant the permit.").

When a navigable creek with a defined channel is present then "[s]uch creeks cannot be bridged in order to obtain access to deeper water." 23A S.C. Code Regs. 30-12(A)(2)(n). Further, a defined channel is one that is "evidenced by a significant change in grade with the surrounding marsh." Id. Given the regulation's mandatory language of "cannot," the issue is whether a navigable waterway with a defined channel is crossed⁽¹⁾ by the proposed dock.

- Navigability -

In making this determination, navigability is required. Navigability is not met unless the water source has the capacity for "valuable floatage." This requirement of valuable floatage is satisfied even where the only use is by pleasure boats. State ex rel. Medlock v. S.C. Coastal Council, 289 S.C. 445, 346 S.E.2d 716 (1986). Likewise, the fact that traffic cannot be sustained at all times is not controlling since navigability is met so long as accessibility is obtainable at the "ordinary stage" of the water. Hughes v. Nelson, 303 S.C. 102 399 S.E.2d 24 (Ct. App. 1990).

Here, the facts establish navigability. For instance, persuasive testimony establishes that at mid-tide to high tide, the water depth near the Lowe and Vann properties is at least one and a half feet. Further, pleasure boats have traveled as close as twenty feet from the Lowe and Vann properties. Accordingly, the waters adjacent to the Lowe and Vann properties are navigable.

- A Defined Channel -

However, the mere existence of a navigable body of water is not enough to satisfy the plain provisions of 23A S.C. Code Ann. Regs. 30-12(A)(2)(n). Rather, the prohibition on construction requires the presence of a body of water with a defined channel. The regulation explains that a defined channel is one "evidenced by a significant change in grade with the surrounding marsh." Under the facts proven in this case, no persuasive evidence demonstrates that the walkway and dock will cross or bridge a waterway having a defined channel.

Numerous aerial photographs depict the marsh adjacent to the May River and specifically show an "island" in the marsh. When facing the May River and standing on the proposed walkway, this island is to the immediate right. When viewing the area over which the walkway will travel, no defined channel is crossed by the walkway or dock. Rather, the evidence demonstrates the area is relatively flat with little or no significant drops in grade from the surrounding marsh.

Indeed, no persuasive testimony identified any defined channel. For example, the testimony did not supply the measurements of a channel that would be crossed, did not specify how any channel demonstrated a change in grade from the surrounding marsh, and did not show any point or points at which the proposed dock would cross a channel. Accordingly, the proposed dock will not cross or bridge any channel with a significant drop in grade from the surrounding marsh.

ii. Extended property lines

The regulations explain that the normal rule is that docks and their associated structures should not be allowed closer than 20 feet from extended property lines. 23A S.C. Code Ann. Regs. 30-12.A(2)(p) (Supp. 1998). However, the regulation lists two significant exceptions. First, crossing of extended property lines is specifically allowed for "common docks shared by two adjoining property owners." Second, crossing of extended property lines is specifically allowed if "there is no material harm to the policies of the Act." Under the facts of this case, both exceptions apply.

- Common Docks -

Here, no dispute exists that the dock being sought is a "common dock shared by two adjoining property owners." Thus, the permit request falls squarely within the literal language of the exception. Such being true, the "normal" rule prohibiting the crossing of extended property lines does not apply. Notwithstanding, however, OCRM argues that Lowe and Vann may cross only the extended property lines of the two property owners seeking the common dock, but no others. I cannot agree.

Regulations such as the one here under review have received the review of the General Assembly. See S.C. Code Ann. § 1-23-120 (Supp. 1998) (explaining that "[a]ll regulations except those specifically exempted under this section must be submitted to the General Assembly."). A legislative enactment must have its words read consistent with the plain meaning of those words without resorting to a subtle or forced construction that will limit or expand that enactment. Stephen v. Avins Constr. Co., 324 S.C. 334, 478 S.E.2d 74 (Ct. App. 1996). More particularly, regulations must be read to carry out the plain language used and will not be read so as to insert additional language beyond the plain words used. See Metric Constructors, Inc. v. Division of Occupational Safety and Health of South Carolina Dept. of Labor, Licensing and Regulation, 321 S.C. 252, 468 S.E.2d 5 (Ct. App. 1996)

In Metric Constructors, supra., all agreed the regulation at issue in that dispute plainly imposed a training requirement and all agreed the operator had received his training from a prior employer. The case arose, however, because the regulating agency did not approve of the source of the training and then sought to use the regulation to impose a violation based on a disapproval of that training source. The Court found the agency's rationale to be flawed and concluded the agency was misapplying its own regulation. The court found that the language of the regulation there under review ("only trained and authorized operators shall be permitted to operate a powered industrial truck") did not limit the sources from whom the operator could receive his training and thus the court would not insert language that prohibited an operator from receiving his training from a previous employer.

Similarly, in the instant case, the OCRM regulation plainly allows the crossing of extended property lines if the dock permit is for a "common dock shared by two adjoining property owners." Just as in Metric Constructors, supra., all agree that Lowe and Vann seek a permit for a "common dock shared by two adjoining property owners." Again, similar to Metric Constructors, supra., the fact that OCRM does not approve of the property lines being crossed does not alter the plain language of the regulation allowing the crossing of extended property lines and imposing no limitation on which lines can be crossed. Indeed, had the writers of the regulation wanted to disapprove of the crossing of specific lines, such could have been easily accomplished.

Accordingly, since the writers of the regulation did not choose to limit the lines that could be crossed, I also decline to insert words into the regulation that limit the lines that can be crossed. Thus, I hold that the plain meaning of 23A S.C. Code Ann. Regs. 30-12.A(2)(p) (Supp. 1998) allows the crossing of the extended property line of the Fronczaks since Lowe and Vann seek a common dock shared by two adjoining property owners.

- No Material Harm -

Independent of the existence of a common dock, the crossing of extended property lines is further allowed if the crossing does not produce any " material harm to the policies of the South Carolina Coastal Management Act [the Act]." 23A S.C. Code Ann. Regs. 30-12.A(2)(p) (Supp. 1998). OCRM argues that material harm will result since crossing an extended property line in this case will set a precedent for allowing the crossing of extended property lines in other cases. I cannot agree for two reasons.

First, and most fundamentally, no material harm can result to the policies of the Act if an applicable regulation promulgated pursuant to the Act specifically allows the crossing. To find otherwise would yield the anomalous position that complying with a properly promulgated regulation produces a result that is contrary to the policies of the Act. Since 23A S.C. Code Ann. Regs. 30-12.A(2)(p) allows crossing extended property lines for a common dock constructed by adjoining property owners, by definition, the Lowe and Vann common dock cannot produce a material harm to the policies of the Act.

Second, OCRM's argument of material harm to the Act is unpersuasive. OCRM explains that the material harm is that granting this permit will set a precedent. I cannot agree that such a result is a material harm to the Act.

OCRM has the duty to weigh all considerations and make a reasoned judgment on when crossing extended property lines is warranted. See Regs. 30-12.A(2)(p). OCRM must carry out that duty since an administrative agency does not have the discretionary power to decline to perform a function even when the agency deems the function unduly burdensome. 73 C.J.S. Public Administrative Law and Procedure §63 (1983).

More particular to this controversy, given the duty imposed upon OCRM, the fact that performing that duty may set a precedent is not a reason for denying a permit. Rather, OCRM's performance of its duty and setting a "precedent" gives the public a sense of what to expect for future applications similar to that of Lowe and Vann. Indeed, no one should assume that an OCRM decision to allow the crossing of an extended property establishes a "precedent" for the wholesale allowance of crossing any extended property lines. On the contrary, OCRM will exercise its judgment in a rational manner providing decisions that are wholly consistent with and supportive of the Act, not detrimental. See 330 Concord Street Neighborhood Association v. Campsen, 309 S.C. 514, 424 S.E.2d 538 (Ct. App. 1992) (government cannot act arbitrarily in its actions); Weaver v. Coastal Council, 309 S.C. 368, 423 S.E.2d 340 (1992) (similarly situated applicants must be treated similarly). Accordingly, the mere concern that a precedent will be set is not a valid basis for denying the permit requested in this case.

IV. Order

The South Carolina Department of Health and Environmental Control, Bureau of Ocean and Coastal Resource Management is directed to grant a dock permit to Felix C. Lowe and John Vann. The permit shall allow the construction of a private joint-use common dock consisting of a 5' x 630' walkway with handrails leading to a 20' x 20' covered, fixed pierhead with each side of the pierhead having a 4' x 30' ramp leading to an 8' x 30' floating dock.

AND IT IS SO ORDERED

______________________

RAY N. STEVENS

Administrative Law Judge

Dated: March 3, 2000

Columbia, South Carolina

1. The regulation literally states that a navigable creek with a defined channel cannot be "bridged." No party has raised any opposition to the view that a dock that crosses a creek is a dock that has "bridged" the creek. However, in other cases, parties have argued that the language of the regulation now under review does not apply to docks at all. Rather, the argument has been made that the prohibition is on bridges in the traditional sense of the word and that only bridges can "bridge" a creek. A dock, so the argument goes, presents a walkway that merely crosses a creek and is not a structure that "bridges" a creek. Given the fact that no party has raised the issue and given that fact that in this case no navigable creek with a defined channel is either crossed or bridged, I decline to address the meaning of the word "bridged."