ORDERS:
ORDER OF DISMISSAL
The matter is before me pursuant to a request for a contested case hearing filed by
Petitioner Ernest Alvin “Al” Timmons (“Petitioner”), challenging the issuance of a dock permit,
P/N # OCRM-04-809, to Elizabeth C. Mills (“Mills”), for construction of a dock at 111 Fort
Freemont Road, Lands End Section, St. Helena Island, Beaufort County, South Carolina. A
hearing was held before me on August 26, 2004, pursuant to timely notice to the parties, at the
offices of the Administrative Law Court in Columbia, South Carolina. Petitioner appeared pro
se before this Court at the contested case hearing. Respondent Mills was represented by counsel,
Mary D. Shahid, Esquire, and Respondent South Carolina Department of Health and
Environmental Control (“SCDHEC”) was represented by Leslie S. Riley, Chief Counsel of
SCDHEC’s Office of Coastal Resource Management.
Prior to this contested case hearing, on July 26, 2004 the South Carolina Coastal
Conservation League filed a Motion to Intervene in this matter. By order issued August 13,
2004, this Court denied the League’s Motion to Intervene. No appeal was taken of this August
13, 2004 Order, and this Court’s Order denying intervention is final.
At the conclusion of the Petitioner’s presentation of his case, Respondent SCDHEC made
a motion, joined into by Respondent Mills, for dismissal of this contested case pursuant to
SCRCP Rule 41
. Based on the following, Respondents’ joint motion to dismiss is granted.
Petitioner owns Lots 14 and 15, Lands End Section, St. Helena Island, Beaufort County,
South Carolina, in what is commonly know as the Bessie Sanders subdivision. Respondent
Mills’ property, Lot 13 (111 Fort Freemont Rd.), adjoins Petitioner’s property. Both Petitioner’s
and Respondent’s lots are located adjacent to Port Royal Sound. The Sound is a large body of
water which has channel markers indicating the potential for large watercraft. Petitioner and
Mills, as well as other waterfront property owners adjacent to Port Royal Sound, enjoy a sandy
beach located between their high ground boundaries and the Sound. Members of the public also
utilize the beach located in front of Petitioner’s property.
Petitioner regularly uses his property, and the beach and Sound adjacent to his property,
for recreation. Petitioner shrimps, flounder gigs, and fishes along the beach in the Sound. At the
hearing, Petitioner presented photographic evidence of his family enjoying the beach along Port
Royal Sound.
A dock permit was previously issued for Lot 13, Mills’ property. However, this permit
expired and Mills made a new application. She received permit OCRM-04-809, which is the
subject of this appeal. This permit authorizes the construction of a dock at Lot 13 consisting of a
walkway 4' x 490', a 14' x 14' covered fixed pierhead, a 12' x 24' floating dock, and a 4 pile
boatlift. The permit also authorizes construction of a rock revetment. Petitioner has no objection
to the rock revetment proposed at Lot 13. However, Petitioner does object to the construction of
the dock.
Petitioner’s objections to this dock are based, primarily, on his concerns regarding dock
proliferation at the Lands End area, rather then the specific impacts arising from the construction
of this dock. At the time Petitioner purchased Lots 14 and 15, there was a dock constructed in
the area known as Lands End, visible and known to Petitioner. Since that time, three additional
docks have been constructed that are visible to Petitioner from his property. Petitioner made no
inquiries with OCRM or with any state or federal permitting agency regarding the potential for,
or existence of, dock permits for Lot 13 at the time he purchased Lots 14 and 15.
Petitioner’s house is elevated in order to take advantage of his view of the Sound and
surrounding areas. There is a thick stand of natural and landscaped vegetation at ground level on
Petitioner’s property that serves as a visual buffer. Although Respondent Mills’ dock may be
visible to Petitioner once it is constructed, other docks are also visible to Petitioner. Aerial
photography introduced during Respondent Mills’ cross-examination of Petitioner demonstrates
that at least eight docks are located in the general vicinity of Petitioner’s property.
According to Petitioner, the construction of this dock will not prevent him from engaging
in the uses that he enjoys at his property including fishing, flounder gigging, and shrimping.
Petitioner also testified that he is able to walk under and between the docks that are presently
located at Lands End.
SCRCP Rule 41(b) provides that “after the plaintiff in an action tried by the court without
a jury has completed the presentation of his evidence, the defendant, without waiving his right to
offer evidence in the event the motion is not granted, may move for a dismissal on the ground
that upon the facts and the law the plaintiff has shown no right to relief.”
At the conclusion of Petitioner’s case, Respondents’ jointly moved for dismissal of this
matter pursuant to SCRCP 41. The Court granted Respondents’ Motion based on Petitioner’s
failure to carry his burden of demonstrating that the issued permit violated applicable statutory
and regulatory standards.
The “burden of proof” is the responsibility of establishing or demonstrating or
confirming a fact in a disputed matter. In a contested case, it refers to the duty of
a party to convince the trier of fact of its position in an administrative matter.
Generally, a proposed agency action is at the heart of the controversy and the ALJ
must determine whether the proposed action – issuance or revocation of a permit,
for example – is [in]appropriate.
The burden may shift, as may occur when a rebuttable presumption or affirmative
defense is involved, but it never disappears and the parties are never on an even
plane. One party always has the burden of proof. If Petitioner does not meet its
burden of proof or persuasion, at the end of Petitioner’s case the respondent can
move for an involuntary dismissal.
In non-enforcement cases, the burden of proof rests with the non-agency
petitioner to prove by a preponderance of the evidence that the agency action is
incorrect.
South Carolina Administrative Practice and Procedure
Edited by Randolph R. Lowell, Esq. and Stephen P. Bates, Esq.
Chapter 3, The Contested Case Before the ALJD, Page 200-201
This Court has adopted the position set forth above, and has entertained and granted
Motions for Dismissal for failure of a party to carry its burden of proof. (See Jones v. S.C. Dep’t
of Health and Environmental Control, 98-ALJ-07-0374-CC, and Democratic Reform at Big
Creek v. S.C. Dep’t of Health and Environmental Control, 98-ALJ-07-0556-CC.)
Petitioner failed to demonstrate, in the presentation of his testimony and evidence, that
SCDHEC improperly issued this permit. Petitioner failed to demonstrate lack of compliance
with S.C. Code Ann. § 48-39-150 and S.C. Code Reg. 30-11 (the ten general considerations).
Petitioner further failed to demonstrate that SCDHEC and Mills violated any of the performance
standards set forth in S.C. Code Reg. 30-12.
The permit issued to Respondent Mills conforms to applicable statutory and regulatory
standards. The permit provides for the construction of a dock consisting of a 4' x 490' walkway.
In addition, the permit allows for construction of a 14' x 14' covered fixed pierhead, a 12' x 24'
floating dock, and a 4 pile boatlift. Petitioner estimated that the Sound, a large body of water
with channel markers indicating the potential for large watercraft, is approximately two miles
wide at the location of the proposed dock. The proposed dock also appears to be consistent in
size and configuration with the other docks in the area that were visible to the Court in the
photographic exhibits.
Private docks are not authorized on the State’s beachfront, and construction on the
beachfront is regulated through S.C. Code § 48-39-25 et seq., commonly knows as the S.C.
Beachfront Management Act. However, the beach located between Petitioner and Respondent
Mills’ properties and the Sound is tidelands critical area, as defined in S.C. Code Ann. § 48-39-10. This critical area is not a beach as defined by § 48-39-10(H).
Based on the foregoing, I find and conclude that Petitioner has failed to carry his burden
of demonstrating that (1) the dock permit issued to Respondent Mills was issued in violation of
applicable statutes and regulations; (2) that the information provided by Mills to SCDHEC in
support of her permit application was inaccurate or incomplete; or (3) that SCDHEC’s review
was insufficient. Therefore,
IT IS ORDERED that Respondents’ Motion for Dismissal, pursuant to SCRCP Rule
41(b) is, hereby, GRANTED.
AND IT IS SO ORDERED.
__________________________________
The Honorable Marvin F. Kittrell
Chief Administrative Law Judge
October 26, 2004
Columbia, South Carolina |
