ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter came before the Administrative Law Judge Division (“Division” or “ALJD”) for
a contested case hearing on an appeal by Petitioner Lowndes Point Partners, LLC (hereinafter
“Lowndes Point”) of Respondent South Carolina Department of Health and Environmental Control,
Office of Ocean and Coastal Resource Management’s (hereinafter “OCRM”) denial of Petitioner’s
request to amend permit number 2001-1C-509-P. A hearing was held before me November 3, 2003.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon
their credibility, considering the burden of persuasion by the parties, I make the following findings
of fact by a preponderance of the evidence:
1.The Petitioner is a Limited Liability Company, authorized to do business in South Carolina.
The Petitioner is responsible for the development of a residential community in Charleston,
South Carolina, on and adjacent to the Ashley River.
2.Respondent DHEC is the permitting agency charged with the duty “to protect the quality of
the coastal environment . . . .” S.C. Code Ann. § 48-39-30 (A) (Supp. 2002).
3.Lowndes Point is a private community in the City of Charleston on the Ashley River. In
2001, Lowndes Point applied with OCRM for a permit for a 29-slip docking facility.
4.On June 6, 2002, after negotiation and debate, OCRM and Petitioner agreed that OCRM
would issue a permit to Lowndes Point allowing for a docking facility with 300 linear feet of
docking space and nine wet slips. An appeal of this permit was upheld. OCRM considered
the permitted facility to be a “community dock.”
5.Petitioner agreed to this permit because it was under financial pressure to get some dock
permit in place. OCRM knew that it was likely that Petitioner would return with an
amendment request in the future. OCRM also granted permits for two private docks to be
shared by four waterfront property owners in the development.
6.In 2003, Petitioner applied for an amendment of the initial permit. The amendment requested
12 new floating jet docks which would fit between the highland and the approved wet slips,
but did not change the length or size of the overall facility. OCRM considered the
amendment request to seek a permit for a “marina,” as defined by 23A S.C. Code Ann. Regs.
30-1(D)(30) (Supp. 2002).
7.Petitioner’s amendment application met all of the regulatory requirements for a marina as set
forth in 23A S.C. Code Ann. Regs. § 30-12(E) (Supp. 2002). There is no commercial use
for the Petitioner’s docking facility as it is designed for the private use of the Lowndes Point
property owners, a fixed total of 31 lots.
8.OCRM gave public notice of the amendment request and public comment was received.
9.By letter dated August 27, 2003, OCRM denied the amendment request citing three reasons:
1.The amendment was a piecemeal approach to get a permit which denied OCRM an
opportunity to review the application as a whole;
2.The adjacent property owners were adversely impacted by the amendment; and
3.The permit application may result in long-range cumulative effects.
In support of its determination, OCRM cited S.C. Code Ann. § 48-39-30(C) and 23A S.C.
Code Ann. Regs. §§ 30-11(B)(10) and (C)(1) and (2).
10.The only witness called at the hearing was Curtis Joyner, OCRM’s Manager of Critical Area
Permitting. Mr. Joyner was the OCRM staff member who reviewed and denied the
amendment request.
11.Mr. Joyner was asked to explain the determination that the application was a piecemeal
approach. In response, Mr. Joyner admitted that Petitioner’s initial application sought 29
slips and that the initial request was throughly reviewed by OCRM. He further admitted that
he knew that Petitioner would seek some sort of amendment, that it was “no surprise” to him
when Petitioner did make the amendment request, and that there is nothing which prohibits
Petitioner from making such a request. He further acknowledged that he was able to make
a full review of the amendment request. It is significant to this tribunal that, in its proposed
order in this case, OCRM does not cite as a reason to deny the amendment that the
amendment was a piecemeal approach to get a permit which denied OCRM an opportunity
to review the application as a whole. Therefore, this reason will be considered abandoned by
OCRM.
12.Mr. Joyner was asked about the bases for OCRM’s determination that adjacent landowners
were adversely impacted by the amendment application. Mr. Joyner’s response was that “one
of them could be” that the local zoning did not support a “marina” as defined by OCRM
regulation. He also testified that if local zoning did allow for the facility that OCRM would
have to be okay with it, because “[OCRM’s] management plan says that we have to review
in light of local zoning.” Mr. Joyner testified that another believed adverse impact was that
the application would change the name of the facility under OCRM regulations from
“community dock” to “marina.”
13.The Petitioner’s planned urban development ordinance, passed by the Charleston City
Council, provides for a “community docking facility” which would accommodate boat slips
for all of the lots of Lowndes Point. The Charleston Board of Zoning Appeals has held that
the definition of “community docking facility” in the Petitioner’s planned urban development
ordinance was not the same definition as that used by OCRM regulations, and that the 29-slip
facility applied for by the Petitioner in 2001 was a proper use under Petitioner’s planned urban
development ordinance.
14.Above the Petitioner’s property on the river are industrial areas and former phosphate plants.
The Ashley River is about as degraded as it can get.
15.OCRM did not present any of the adjacent land owners as witnesses in this proceeding.
There was no testimony presented quantifying or describing the loss in value that any of the
land owners would incur as a result of the proposed amendment, nor was there any testimony
describing the manner in which the proposed structure would interfere with the enjoyment of
the adjacent land owners.
Further, in its proposed order in this case, OCRM did not set forth
any specific manner in which the proposed amendment would adversely impact the value and
enjoyment of adjacent property owners. OCRM only set forth the conclusion that such would
be case, but not in what manner that would be. The only specific as to the effect on the
general character of the area cited by OCRM in its proposed order was that there are no
docking structures visible where Charlestowne Landing is located, making an impact on the
view and the general character of the area “a concern to staff.” However, there is already a
permit for a dock at the location, so there will be a dock visible where Charlestowne Landing
is located whether this amendment is granted or not. This amendment will not add a dock or
change the design or length of the dock which will be visible from Charlestowne Landing.
16.Mr. Joyner was also asked about OCRM’s determination of potential long-range cumulative
effects of the amendment application. Mr. Joyner testified that “we’d have to take into
account that they’ve asked for a marina here, you know, its possible that other larger
properties within the area may do the same, whether it’s on this side of the Ashley River or
the other side of the Ashley River.” However, OCRM has approved permits for three other,
larger marinas in the vicinity of the Petitioner’s property and two other similar facilities, all
on the Ashley River.
CONCLUSIONS OF LAW
Based on the facts stated above, I conclude the following as a matter of law:
1.The South Carolina Administrative Law Judge Division has subject matter jurisdiction in this
action pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (Supp. 2002), and §§ 1-23-500 et seq.
(Supp. 2002). Pursuant to S.C. Code Ann. § 48-39-150(D) (Supp. 2002), the Division is
authorized to hear contested cases arising under Chapter 39 of Title 48 of the 1976 Code.
2.In a contested case proceeding, “the ALJ is not sitting in an appellate capacity and is not
restricted to a review of the decision below. Instead, the proceeding before the ALJ is in the
nature of a de novo hearing.” Reliance Ins. Co. v. Smith, 327 S.C. 528, 534, 489 S.E.2d 674,
677 (Ct. App. 1997). The trier of fact must weigh and pass upon the credibility of the
evidence presented. See S.C. Cable Television Ass’n. v. So. Bell Tel. and Tel. Co., 308 S.C.
216, 417 S.E.2d 586 (1992).
3.The standard of proof in a contested case hearing is a preponderance of the evidence. Nat’l
Health Corp. v. S.C. Dep’t of Health & Entlv. Control, 298 S.C. 373, 380 S.E.2d 841 (Ct.
App. 1989).
4.In any decision to grant or deny a construction permit in the critical area, OCRM exercises
significant discretion. See 1 Am. Jur. 2d Administrative Law § 118 (1962). The exercise of
that discretion, however, must be supported by a rational basis; otherwise it would be an
arbitrary decision. Cf. Deese v. State Bd. of Dentistry, 286 S.C. 182, 332 S.E.2d 539 (Ct
App. 1985).
5.The issue before this tribunal for decision is whether OCRM properly denied the permit
amendment request to increase the number of boat slips to 21.
6.OCRM considered the Petitioner’s amendment application to request a “marina,” as that term
is defined in 23A S.C. Code Ann. Regs. 30-1(D)(30) (Supp. 2002), because the facility has
more than 200 feet of docking space. However, the amendment did not seek to change the
size of the facility from the permit granted to the Petitioner by OCRM in 2001. Instead, it
sought to change the design of the facility by allowing 12 floating jet slips between the wet
slips and highland.
7.The amendment application met all of the regulatory requirements for a marina as set forth
in 23A S.C. Code Ann. Regs. § 30-12(E) (Supp. 2002).
8.OCRM rejected the amendment application, citing S.C. Code Ann. § 48-39-30(C) and 23A
S.C. Code Ann. Regs. §§ 30-11(B)(10), 30-11(C)(1) and 30-11(C)(2).
9.The amendment application was not a “piecemeal” approach. Mr. Joyner acknowledged that
the original permit was accepted by the Petitioner because of financial pressures Petitioner
was under, that an amendment was anticipated, and that the amendment application was no
surprise to him. OCRM had a full opportunity to review this facility when the initial
application in 2001 requested 29 slips. There has been no prejudice to OCRM in its current
review of a request for 12 new slips which does not change the size of the facility, only the
design. Further, there is no regulation or law which prohibits the Petitioner from seeking an
amendment. Further, for reasons cited herein, this allegation is considered abandoned.
10.OCRM originally permitted a facility for the Petitioner with 300 linear feet of docking space.
This amendment only changes the design, not the size, of the facility. Any adverse public
impact of the facility that may exist is already being imposed by the original permit issued by
OCRM.
Moreover, Mr. Joyner stated that if the local zoning permitted the facility, then
OCRM would “have to be” satisfied with the facility from a public impact point of view. The
particular issue of whether the facility sought by the Petitioner complies with the local zoning
was resolved by the City of Charleston Board of Zoning Appeals, which found that the facility
was allowed under local zoning. Based on the standard of “public impact” to which Mr.
Joyner testified, the full record before this tribunal, the lack of any credible and probative
evidence regarding the adverse impact on value and enjoyment of adjacent property owners,
and the limited nature of the amendment request, whatever public impact is caused by this
facility is insufficient to deny the Petitioner’s amendment request.
11.Further, based on the Petitioner’s planned urban development ordinance, passed by the
Charleston City Council, and based on the findings and conclusion of the City of Charleston
Board of Zoning Appeals that the facility applied for by Petitioner in 2001 was a proper use
under Petitioner’s planned urban development ordinance, the amendment is reasonable for its
intended use. Although OCRM cited this as a reason for denial in its proposed order, it was
merely a conclusory statement, and OCRM never explained in its proposed order the manner
in which the amendment “is not reasonable for its intended use.”
12.OCRM’s “long-term effects” of the application rationale is also without merit. Five other
larger or similar facilities on the Ashley River in the general vicinity of the Petitioner’s
property have been permitted. The Petitioner is already permitted for a docking structure;
the amendment simply seeks 12 floating jet docks without changing the size of the facility.
Further, the impact on the Ashley River is minimal, as the river is “about as degraded as it can
get.” Given the size of other marinas already permitted on the Ashley River, the size of the
Petitioner’s facility as already permitted by OCRM, and the nature of the amendment request,
this amendment request will not have such a long-term impact as to warrant the denial of the
request.
13.The amendment application meets all of the regulatory requirements for marinas. The
rationales of OCRM for rejecting the amendment are not persuasive. In fact, in some cases,
the rationale set forth by OCRM has been clearly disproved or abandoned. Accordingly, the
Petitioner has a right to the amendment it seeks. Therefore,
ORDER
IT IS HEREBY ORDERED that respondent South Carolina Department of Health and
Environmental Control is directed to amend permit number 2001-1C-509-P consistent with the
amendment application of Lowndes Point Partners, LLC;
AND IT IS SO ORDERED.
______________________________
C. Dukes Scott
Administrative Law Judge
December 9, 2003
Columbia, South Carolina |