South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Stephen Combos vs. DHEC, Office of Ocean and Coastal Resource Management, and Edward R. Mappus

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Stephen Combos

Respondents:
South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management, and Edward R. Mappus

Petitioners:
Samuel Brownlee, Richard Jolly, Ernie Driggers
 
DOCKET NUMBER:
02-ALJ-07-0215-CC

APPEARANCES:
Christopher McG. Holmes, Esquire, for the Petitioners

Leslie W. Stidham, Esquire, for Respondent South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management

Edward Mappus, Pro Se Respondent
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This contested case proceeding arises from a decision of the South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management (OCRM) to deny permits to the Petitioners, Steven Combos (2001-1B-608-P), Samuel Brownlee (2001-1B-012-P), Richard Jolly (2001-1B-014-P), and Ernie Driggers (2001-1B-609-P). All of the Petitioners requested permission to construct (or extend) private, recreational docks, from their properties on Johns Island, Charleston County, South Carolina, to the Bohicket River. Following OCRM's denials, the Petitioners requested contested case hearings and these cases were consolidated for hearing purposes. Edward Mappus also made a Motion to Intervene in Docket No. 02-ALJ-07-0213, which was granted on August 7, 2002. A contested case hearing was held in this matter on November 5, 2002, at the offices of the Administrative Law Judge Division (Division) in Columbia, South Carolina.

DISCUSSION

Construction in the coastal zone of South Carolina is governed by the South Carolina Coastal Zone Management Act, S.C. Code Ann. § 48-39-10 et seq. (Supp. 2001) and the regulations promulgated thereunder, 23A S.C. Code Ann. Regs. 30-1 et seq. (Supp. 2001). OCRM is charged with administering and enforcing these provisions. The specific rules governing the permitting of docks and piers are found at 23A S.C. Code Ann. Regs. 30-12(A) (Supp. 2001).

The Petitioners challenge OCRM's decision to deny the dock applications based on Regulation 30-12(A)(2)(n), in that the proposed docks would cross a navigable creek as well as OCRM's assertion that the docks would inhibit the reasonable public access to waters of the State and obstruct navigation. The Petitioners assert that they should be allowed to cross the creek because another dock obstructs the mouth of the tributary, making it unsafe to navigate into the tributary.



FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion by the parties, I make the following Findings of Fact by a preponderance of evidence:

1. The four (4) Petitioners in these consolidated actions are contiguous property owners of lots located on Bohicket Road, Johns Island, Charleston County, South Carolina. The Petitioners' high ground are separated from the Bohicket River by an expanse of marsh approximately seven hundred fifty (750) feet in width. In between the high ground and the Bohicket River is an unnamed tributary, which extends from the river back towards the mainland and runs parallel to the mainland, before terminating in the marsh. There are a number of docks in the vicinity, some of which extend to Bohicket River, some to a tributary stream, and one or two which appear from the exhibits to simply extend into the marsh for a short distance. Moving from west to east, the properties relevant to this appeal are: Atkinson, Brownlee, Driggers, Jolly, Combos, Mappus, Przyborowski, Albenesius and Byrd.

Atkinson, Przyborowski and Albenesius have docks which extend to the Bohicket River. Byrd has permission to extend his dock to the Bohicket River but has not yet built this extension. Petitioners Driggers, Jolly and Combos have docks on a tributary of the Bohicket River. Respondent Mappus has a dock which extends into the marsh for about eighty (80) feet. (1) Finally, Petitioner Brownlee has a partially constructed dock which was originally permitted to the tributary but which has not been completed. (2)

2. All four (4) Petitioners seek permits to extend their docks from the tributary to Bohicket River. They claim they require docks on the Bohicket River in order to obtain reasonable and safe water access. Specifically, the Petitioners contend that the presence of the Atkinson dock in the mouth of the tributary, along with the natural physical characteristics of sand bars, oyster beds and prevailing winds, effectively blocks safe navigation into and out of the tributary.

3. OCRM denied all four (4) permits because the docks would cross a navigable creek (the tributary) with a defined channel and would impede reasonable navigation in the tributary to the detriment of the public and an adjacent property owner. (3)



The Atkinson Dock

4. In 1989, OCRM, which, at that time, was known as the South Carolina Coastal Council, issued a permit to David and Melissa Case (Permit No. CC-89-244). That permit allowed for the construction of a four foot by seven hundred foot (4' by 700') walkway, leading to a twelve foot by twenty-four foot (12' by 24') fixed pierhead, and two ten foot by twenty foot (10' by 20') floating docks on either side of the pierhead. The permit was later assigned to Atkinson upon his purchase of the property. (4) According to the permit, the walkway would be located to the west of a non-vegetated intertidal mud flat shown on the permit drawing. This "mud flat," in turn, was to the west of the tributary to the Bohicket River on which the Petitioners had, or were permitted, their own docks.

In 1991, Atkinson built a dock to the Bohicket River. However, the dock is more than one hundred thirty (130) feet longer than permitted and is not constructed in the permitted location. Therefore, the Atkinson dock does not comply with the specifications in the permit authorizing the dock. After its construction, Atkinson's dock builder requested "as-built" approval of the dock's location. In early September 1991, Richard Chinnis, the Permit Coordinator at that time, determined that the dock was out of compliance with the permit because it was not built at the correct location and "was obstructing navigation of [the] tributary" to the Bohicket River. Shortly thereafter, South Carolina Coastal Council commenced an enforcement action against Atkinson. Atkinson was ultimately directed to relocate the pier and floating docks to a more landward location. An Administrative Order issued on November 22, 1991, found, in part, that:

[t]he "as-built" dock is not in compliance with the issued permit in that it is longer than permitted and is not constructed in the permitted location. The dock extends well channelward of the permitted extension. This extension is not reasonable for the intended use under R.30-12(c). The constructed dock also impedes navigation into the adjoining tributary . . . .

While there is some evidence that Atkinson attempted to appeal this Administrative Order, there is no evidence that the Order was ever rescinded, overruled, modified or in any other manner abrogated by OCRM, and the dock was never re-located. (5)

Navigation

5. The mouth of the tributary entering the Bohicket River is approximately ninety (90) feet wide. On a rising tide, depth measurements at the mouth ranged from seven (7) to eight (8) feet. In front of Petitioner Combos' existing dock, the creek was approximately forty (40) feet wide and approximately two (2) feet deep on each side of the channel, with a depth of four (4) feet in the middle of the channel. In front of Petitioner Jolly's dock, the creek measured approximately fifty (50) feet wide from marsh grass to marsh grass and the depth was approximately six and one half (6 ½) feet deep at the center of the channel. Therefore, the tributary is a defined channel with a significant change in grade.

Nevertheless, the Atkinson dock presents a significant impediment to navigation in the tributary's channel. Chuck Dawley conducted a survey of the area in question which depicts the Bohicket River, the marsh and tributary, as well as the existing dock structures and natural physical formations. (6) As part of his survey, Mr. Dawley determined elevations at various points in and along the tributary. The elevations were established with relation to mean sea level or National Geodetic Vertical Data (NGVD) using recognized and accepted surveying methods. On the survey, mean sea level was referenced as elevation zero (0.0 feet) which represents the point half-way between mean low tide and mean high tide. Based upon established datum, the tide range in this area of Charleston County is approximately 5.2 feet. Thus, mean low water is at an elevation of minus (-) 2.6 feet and mean high water is at an elevation of plus (+) 2.6 feet.

6. As depicted on the survey, the fixed pier of the Atkinson dock extends into the mouth of the tributary as it enters Bohicket River. More importantly, the thread, or deepest point of the channel of the tributary (at negative eight and one-half (-8.5) feet) is approximately twenty (20) feet landward of the landward edge of the fixed pier and underneath the dock's walkway. Therefore, the mouth of the tributary as it enters Bohicket River is actually underneath the fixed pier head and dock walkway.

Additionally, though the mouth of the tributary is approximately ninety (90) feet wide, there is a sand bar or tidal mud flat on the opposite side of the mouth of the tributary from the Atkinson dock which constricts ingress and egress to and from the tributary due to the shallow water depths at ordinary or mean sea level. The sand bar/mud flat has grown towards the Atkinson dock over the intervening years, leaving less and less depth in the portion of the tributary not obstructed by the Atkinson dock. The oyster bank has also grown over time, further reducing maneuverability as the tributary's mouth is approached. In fact, of the ninety (90) foot width, there is barely twenty (20) feet which has a depth of at least negative three (-3) feet so that at mean low water there is less than a half foot of water upon which to float a boat. Consequently, in order to stay in the deepest portions of the tributary, it is necessary for a boater to navigate to the side of the tributary on which the Atkinson dock is located and away from the oyster bank and sand bar.

The navigation difficulties are further exacerbated by the winds and currents. The prevailing winds in this vicinity are from the east and northeast, which tend to blow a vessel towards the Atkinson dock. Furthermore, when the tide is falling, the stronger currents are in the deepest part of the channel which would also pull a boat towards the Atkinson dock.

7. While the tributary itself can be navigated at mid-tide and higher, the "thread" of the stream goes underneath the Atkinson dock and is an impediment to boaters attempting to enter or exit the tributary. Though it is possible to easily navigate around the dock, as reflected by the experience of the OCRM staff , that ease of navigation is dependant upon unpredictable winds and currents. Therefore, I find that the Atkinson dock as it is currently situated presents a frequent hazard to safe navigation in and out of the tributary at the ordinary tides due to the location of the channel of the tributary under the Atkinson dock, the existence of the sand bar/mud flat on the side of the mouth opposite the Atkinson dock, and the prevailing winds and currents. (7) In fact, in the enforcement action against Atkinson, OCRM determined that the Atkinson dock presented an impediment to navigation in the adjacent tributary.



CONCLUSIONS OF LAW

Based on the foregoing Findings of Fact, 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. (1986 & Supp. 2001), and §§ 1-23-500 et seq. (1986 & Supp. 2001). Furthermore, S.C. Code Ann. §. 48-39-150 (D) (Supp. 2001) specifically authorizes the Division to hear contested cases arising under Chapter 39 of Title 48 of the 1976 Code.

2. The standard of proof in weighing the evidence and making a decision on the merits at a contested case hearing is a preponderance of the evidence. Nat'l Health Corp. v. S.C. Department of Health and Environmental Control, 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989).

3. Permits for the construction of private docks in the coastal zone are governed by the South Carolina Coastal Zone Management Act, S.C. Code Ann. § 48-39-10 et seq. (Supp. 2001), and the regulations promulgated pursuant to those provisions found at 23A S.C. Code Ann. Regs. 30-1 et seq. (Supp. 2001). Those regulations govern the management, development, and protection of the critical areas and coastal zone of this state. Furthermore, OCRM is charged with carrying out South Carolina's coastal zone policies and issuing permits for docks and piers in the critical areas of the coastal waters and tidelands. 23A S.C. Code Ann. Regs. 30-10(A)(1) (Supp. 2001); S.C. Code Ann. § 48-39-130 (Supp. 2001).

Crossing of Waterways

4. The primary objection OCRM has to these permits is that the docks would cross the tributary at a point where they would obstruct navigability. Accordingly, OCRM contends that the docks cannot be permitted to cross the tributary to reach the Bohicket River.

Regulation 30-12A(2)(n) provides:

Docks must extend to the first navigable creek with a defined channel as evidenced by a significant change in grade with the surrounding marsh. Such creeks cannot be bridged in order to obtain access to deeper water . . . .

23A S.C. Code Ann. Regs. 30-12A(2)(n) (Supp. 2001). Therefore, if a creek has a defined channel and is navigable, it cannot be crossed.

A creek is not navigable unless the waterway has the capacity for "valuable floatage." In determining the navigability of a waterway, "[t]he true test to be applied is whether a stream inherently and by its nature has the capacity for valuable floatage, irrespective of the fact of actual use or the extent of such use." Hughes v. Nelson, 303 S.C. 102, 105, 399 S.E.2d 24, 25 (1990). The term "valuable floatage" includes not only commercial vessels but also use of a waterway by the general public for boating, hunting, and fishing. State ex rel. Medlock v. S.C. Coastal Council, 289 S.C. 445, 346 S.E.2d 716 (1986). Furthermore, "[t]he test of navigability is not whether a waterway is accessible at all times. Rather, the test is whether it is accessible 'at the ordinary stage of the water.' " Hughes at 106 (quoting State v. Columbia Water, 82 S.C. 181,189, 63 S.E. 884, 888 (1909)).

In this case, the area of the tributary in front of the Petitioners' property is currently a defined channel, as evidenced by a significant change in grade with the surrounding marsh. However, the mere existence of a defined channel is not enough to satisfy the provisions of Regulation 30-12A(2)(n). Rather, the regulation requires that the waterway also be navigable. Though the tributary itself may be capable of floating watercraft at mid-tide, the facts establish that the mouth of the tributary cannot be consistently navigated safely at the ordinary stages of the tides because of the Atkinson dock. (8) Therefore, I find that it currently is not a navigable waterway.

Judicial Estoppel

5. OCRM has previously found that the Atkinson dock impedes navigation into the tributary and is a hazard to navigation in the tributary. The Petitioners contend OCRM should be judicially estopped from now contending that the Atkinson dock presents no such impediment or hazard. According to the Petitioners, because OCRM asserted during an earlier proceeding that, among other things, the dock could pose a navigational hazard, that they cannot now assert that the dock does not pose a significant threat. "The purpose of judicial estoppel is to prevent the manipulation of the judicial system by the litigants… [a] court invokes judicial estoppel to prevent a party from changing its position over the course of judicial proceedings." Quinn v. Sharon Corp., 343 S.C. 411, 415, 540 S.E.2d 474, 476 (2000). Many courts have held that a party is prohibited from asserting a position that is inconsistent from a prior position taken in the same cause of action or course of litigation. Id., citing Southmark Corp. v. Trotter, Smith & Jacobs, 212 Ga. App. 454, 442 S.E.2d. 265 (1994). The South Carolina Supreme Court has explained the doctrine as follows:

In order for the judicial process to function properly, litigants must approach it in a truthful manner. Although parties may vigorously assert their version of the facts, they may not misrepresent those facts in order to gain advantage in the process. The doctrine thus punishes those who take the truth-seeking function of the system lightly. When a party has formally asserted a certain version of the facts in litigation, he cannot later change those facts when the initial version no longer suits him. … [W]hile it noted some jurisdictions had expanded judicial estoppel to conclusions of law or assertions of legal theories, the Hayne court held the doctrine's application applied only to inconsistent statements of fact. Id. at 421, 479, quoting Hayne Federal Credit Union v. Bailey, 327 S.C. 242, 489 S.E.2d 472 (1997).

The doctrine is an equitable concept and therefore courts have discretion in its application. 31 C.J.S. Estoppel and Waiver § 139 (1996). "This flexible standard permits a judge to consider all circumstances involved." Quinn at 422.

There are five elements to judicial estoppel:

  • two inconsistent positions must be taken by the same party or parties in privity with each other;


  • the two inconsistent positions were both made pursuant to sworn statements;


  • the positions must be taken in the same or related proceedings involving the same parties in privity with each other;


  • the inconsistency must be part of an intentional effort to mislead the court; and


  • the two positions must be totally inconsistent; that is, the truth of one position must necessarily preclude the veracity of the other position.

Quinn at 480 (Anderson, J., concurring).

I conclude that judicial estoppel should not be applied in this case. Here, there is no evidence in the record to lead to a conclusion that an inconsistency was made in an effort to mislead this court. Furthermore, although the subject matter is related, the former factual assertion that the dock was not built as permitted and the ensuing enforcement action is a different proceeding than the contested case before me today, involving different parties. More importantly, it is not clear from the record what the ultimate resolution of the Atkinson dock matter was. In addition, the circumstances have changed since the enforcement action which took place in the 1980's. The evidence in the record reflects that the permits at issue were denied for several reasons, one of which is that the proposed docks would violate S.C. Code Ann. Regs. 30-12(A)(2)(n). This regulatory provision was not promulgated until 1993, well after the original Atkinson enforcement action was instituted. Consequently, this case does not pass the threshold for imposing judicial estoppel.

Conclusion

6. I conclude that in order for a waterway to be legally navigable under Regulation 30-12A(2)(n), the navigation of the waterway must not be so impeded as to create a frequent hazard. Therefore, though the docks would cross a defined channel, they would not cross a navigable waterway and thus would not impede reasonable navigation in the tributary to the detriment of the public and an adjacent property owner. Moreover, OCRM approved a permit for Przyborowski to cross the same tributary the Petitioners seek to cross at a point where the channel is approximately twenty-five (25) feet wide and with a depth of negative two (-2) feet. These numbers are similar to those surveyed at the point Driggers and Combos propose to cross the tributary. On the other hand, the determination that the tributary is not navigable is due to a man-made impediment. If the Atkinson dock is removed from its location in the mouth of the tributary, the impediment would no longer exist and the tributary would be a navigable stream.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the this case is remanded to the Office of Ocean and Coastal Resource Management. OCRM must either have the Atkinson dock removed from its current location and constructed as it was originally permitted or approve the Petitioners' permits to the Bohicket River.

AND IT IS SO ORDERED.



__________________________________

Ralph King Anderson, III

Administrative Law Judge



March 7, 2003

Columbia, South Carolina

1. There is no discernible channel at the Mappus dock. The area simply " flattens out" into a mud flat.

2. Brownlee's original permit has expired. Rather than seek to renew the existing permit, Brownlee applied to extend his dock to the Bohicket River. If Brownlee completed construction of his dock to the location in the tributary at which it had been approved, his pier would be located essentially on top of the oyster bank near the mouth of the tributary.

3. Respondent Mappus testified that if these docks are allowed to extend to the Bohicket River, their existence would significantly impede his use and enjoyment of the tributary, which occurs on average, thirty (30) times a year.

4. While Atkinson was granted minor amendments to the permit to accommodate its joint use with his brother, none of the amendments affected the location or distance of the walkway and fixed pier.

5. OCRM's Director of Regulatory Programs, who investigated the Atkinson permit violation in 1991, and who made the factual findings regarding impacts to navigation, was unable to recall any evidence being presented to him during the pendency of the enforcement action which would change those factual conclusions.

6. Mr. Dawley is a registered professional surveyor for the State of South Carolina with extensive experience in surveying marshes, creeks and intertidal areas of coastal South Carolina. Furthermore, I find Dawley's survey an accurate delineation of the elevations and locations of the landmarks in the area.

7. This finding is based upon the above facts and also the opinion of Steve Combos. Mr. Combos, though a party in this proceeding, is also a U. S. Coast Guard licensed boat captain rated for vessels up to fifty (50) gross tons. I qualified him as an expert in boating safety and navigation and found his opinion persuasive. His opinion is also consistent with the findings of OCRM in 1991.

8. I recognize that there is evidence of actual use of the tributary at the ordinary stage of the tide. However, that use appears to be limited and does not offset the dangers of entering or exiting the waterway.


Brown Bldg.

 

 

 

 

 

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