SC Administrative Law Court Decisions

STATEMENT OF THE CASE

The Petitioner, Karen Bennett, challenges the decision of Respondent, South Carolina Department of Health & Environmental Control, Office of Ocean and Coastal Resource Management (OCRM), to issue Respondent Tim Burke a permit for a private recreational dock on his property at 855 Targave Road, adjacent to Simpson Creek in Charleston, Charleston County, South Carolina. A hearing was held on September 18, 2007, at the Administrative Law Court in Columbia, South Carolina.

BACKGROUND

On or about October 20, 2006, OCRM received from Respondent Burke an application for the construction of a private use dock at 855 Targave Road, adjacent to Simpson Creek in Charleston, Charleston County, South Carolina (“Property”). In addition to the required application forms, Respondent submitted a recorded plat of the Property showing the proposed dock and required setbacks, pursuant to 23A S.C. Code Ann. Reg. 30-12 (2006 Supp.). After reviewing the application, plans, and specifications, on December 4, 2006, OCRM issued a Critical Area Permit & Coastal Zone Consistency Certification OCRM-06-229-F (“Permit”) authorizing the construction of the dock. OCRM authorized a dock consisting of a 4’ by 527’ walkway with handrails on one side, leading to a 4’ by 8’ pier head, an 8’ by 11’ floating dock, and a four pile boatlift. The permit included a Special Condition that the dock be located a minimum of 20’ from the extension of the property line shared with Petitioner.

On or about December 6, 2006, Petitioner requested a Final Review Conference before the South Carolina Board of Health and Environmental Control of OCRM’s decision to issue the Permit. On January 18, 2007, the Board declined to conduct a Final Review Conference. On or about February 15, 2007, the Petitioner filed a Notice of Request for Contested Case Hearing before the Administrative Law Court (“ALC”) in this matter. On September 18, 2007, this Court conducted a hearing.

FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the duly noticed hearing conducted on September 18, 2007, and taking into consideration the burden of persuasion and credibility of the witnesses, I make the following findings of fact by a preponderance of the evidence:

1. The Respondent Burke is the owner of the property located at 855 Targave Road in Charleston, South Carolina.
2. 855 Targave Road is one of three contiguous lots owned by Respondent Burke. 855 Targave Road is referred to by the parties and on plats of the property as the “Clark House Lot.” In addition to the Clark House Lot, Respondent owns Lot 31 and Lot 32. Respondent purchased Lots 31, 32, and the Clark House Lot on or about May 1, 2006.
3. These three lots were subdivided in 1967 as “Section 5 Clarks Point.” Petitioner is a descendant of the original owners and developers of Clarks Point and the Clark House Lot.
4. The Clark House Lot shares a boundary with Petitioner’s property. Petitioner owns six contiguous lots. Petitioner’s property which shares a boundary with the Clark House Lot is described as Lot 11, Section 1, South Riverview, TMS # 426-09-00-071. The adjoining lot belonging to Petitioner is described as Lot 10, Section 1, South Riverview, TMS # 426-09-00-072. Petitioner resides on Lot 11, Section 1. There is a residence on Lot 10, Section 1, and a dock from Lot 10, Section 1 to Simpson Creek.
5. On November 19, 2003, OCRM issued a permit authorizing construction of a joint use dock for lots belonging to Debbie Blackstock and William S. Read. At the time of issuance of that Permit, Blackstock owned Lot 31, Targave Road and William S. and Jane Read owned Lot 30, Section 5.
6. When Respondent Burke purchased Lot 31, he obtained a transfer of this joint use dock permit from Blackstock, his predecessor in title.
7. Respondent Burke resides at the Clark House Lot and intends to sell Lots 31 and 32.
8. The Clark House Lot was subdivided before May 23, 1993, the date that operates as a trigger under S.C. Code Reg. 30-12(A)(1)(o) for determining whether a lot possesses sufficient water frontage to qualify for a dock. However, the Clark House Lot satisfies the requirements of S.C. Code Reg. 30-12(A)(1)(o) related to water frontage at the critical line because it possesses 113.83 linear feet of water frontage at the critical line. Moreover, in accordance with S.C. Code Reg. 30-12-(A)(1)(2), the extension for the dock proposed for the Clark House Lot is less than 1000 feet; the total length of the dock is, at most, 535 feet (a 527’ walkway and a pier head extension of 8’).
9. The permitted dock satisfies OCRM requirements in S.C. Code Reg. 30-12(A)(1)(p). The walkway is required to be off-set from Petitioner’s shared property line extension. In addition, and since Respondent owns and controls Lot 31, the pier head, floating dock, and boatlift have been shifted away from the orientation of Petitioner’s property and are located in a bend in Simpson’s Creek, resulting in more of a visual impact on Lot 31 than on Petitioner’s property.
10. Petitioner’s objections to the dock can be described as follows:

a. concerns about proximity of dock to Petitioner’s backyard, at Lot 11, Section 1, and resulting loss of privacy;

b. concerns about impacts on wildlife; and

c. concerns about impacts on aesthetics and view.

11. While the configuration of the lots in Clarks Point may result in the permitted docks being visible from Petitioner’s backyard, Petitioner’s perceived loss of privacy is not a basis for denial of the permit The Clark House Lot satisfies OCRM’s definition of waterfront property in S.C. Code Reg. 30-1(52). OCRM, and Respondent Burke, sought to reduce the impact of the permitted dock on Petitioner by locating the terminus of the dock in a bend of Simpson’s Creek away from Petitioner’s property and by adhering to the 20-foot off-set required by S.C. Code Reg. 31-12(A)(1)(p).
12. There are multiple docks located upstream and downstream of the permitted dock, including Petitioner’s dock. The permitted dock will have no greater impact on wildlife than the existing docks. The agencies that are charged with protecting wildlife, the South Carolina Department of Natural Resources and the U.S. Fish and Wildlife Service, were notified of this permit application and did not object. Moreover, Petitioner’s concerns about removal of a utility pole in the marsh that serves as a roosting or nesting area for birds is unfounded, since the dock as permitted avoids this abandoned utility pole.
13. Aerial and ground photography of Clarks Point reveals that there are other docks that would be visible to Petitioner from her property, both across Simpson Creek, upstream, and downstream, including Petitioner’s own dock. OCRM and Respondent Burke have reduced possible impacts to Petitioner’s view by shifting the terminus of the dock toward Burke’s property.
14. Although the Petitioner was a very credible witness, and I sympathize with her concerns about the impact that the dock may have upon her ability to watch and observe birds and other wildlife on her property, the permitted dock does not violate applicable laws and regulations.

CONCLUSIONS OF LAW

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

1.      The Administrative Law Court has subject matter jurisdiction in this action pursuant to S. C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2005) and §§ 1-23-500 et seq. (1986 & Supp. 2005. Furthermore, S. C. Code Ann. § 48-39-150(D) (Supp. 2005) specifically authorizes the Court 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. SCDHEC, 298 S. C. 373, 380 S. E. 2d 841 (Ct. App. 1989). The burden of proof in a contested case hearing is upon the moving party. S. C. Code Ann. § 44-7-210(e)(Supp. 2001); See 2 Am Jr. 2d Administrative Law § 360 (1994); Alex Sanders, et al., South Carolina Trial Handbook § 9:3 Party With Burden, Civil Cases (1999) (In civil cases, generally, the burden of proof rests upon the party who asserts the affirmative on an issue.) In the present case, the Petitioner has the burden of proving that the Department erred granting the permit.

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. 2005), and the regulations promulgated pursuant to those provisions [23A S. C. Code Ann. Regs. 30-1 et seq. (Supp. 2005)]. 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. 30-1 et seq. (Supp. 2005); S. C. Code Ann. § 48-39-130 (Supp. 2005).

4.      In accordance with 23A S.C. Code Ann. Reg. 30-12, Respondent Burke submitted a full and complete application to OCRM for a private recreational dock to be located on the Property.

5.      The Property is not subject to the property frontage requirements set forth by 23A S. C. Code Ann. Regs. 30-12(o) because the Property was created by a subdivision in 1967.

6.      Respondent OCRM properly determined that Respondent Burke’s Property meets all applicable requirements of 23A S.C. Code Ann. Reg. 30-1 et seq for the construction of a private use recreational dock.

7.      The size, extension, and location of the proposed dock are reasonable for its intended use.

8.      The proposed dock utilizes the least environmentally damaging alignment.

9.      South Carolina law holds that a property owner does not acquire an easement that provides an unobstructed ocean view, breeze, light or air over adjoining property. Schroeder v. O'Neill, 179 S.C. 310, 184 S.E. 679 (1936); Hill v. The Beach Co. et al., 279 S.C. 313, 306 S.E.2d 604 (1983).

10.  Respondent OCRM properly issued Permit # OCRM-06-229-F to Respondent Burke in accordance with 23A S.C. Code Ann. Reg. 30-1 et seq.

11.  Petitioner has failed to establish OCRM erred in any way in its review or issuance of the Permit and therefore has failed to meet her burden of proof.

Based on the Findings of Fact and Conclusions of Law set forth herein, it is therefore Ordered that OCRM Permit # OCRM-06-229-F is, hereby, affirmed, and Respondent Burke may proceed with construction in accordance with the Permit.

AND IT IS SO ORDERED.

____________________________

Carolyn C. Matthews

Administrative Law Court

Columbia, South Carolina

December 14, 2007