ORDERS:
FINAL ORDER
STATEMENT
OF THE CASE
This
contested case arises from the South Carolina Department of Health and
Environmental Controls Bureau of Ocean and Costal Resource Management’s
(“OCRM”) denial of a private dock permit to Victor Rodriquez (“Petitioner”) to construct
a private recreational dock from his lot located at #46 Saturday Road, I’On
Subdivision, Mt. Pleasant, South Carolina.
On
August 31, 2005, Curtis Joyner, Manager for Critical Area Permitting,
(“Joyner”) denied the dock permit (“Permit”) on four grounds: (1) Petitioner’s
lot is not “waterfront”; (2) the proposed walkway for the dock is closer than
20 feet from the extended property lines; (3) the Permit would violate the I’On
Dock Master Plan (“I’ON DMP”) approved by OCRM; and (4) the permit would violate
other regulatory provisions relating to environmental impact.
Petitioner
filed a request for a contested case hearing appealing OCRM’s decision to the Administrative Law Court (“ALC”). The I’On Company (“I’On”) intervened in support of the OCRM decision.
A
hearing was held on June 20, 2007. For the reasons set forth below, I find that
OCRM’s denial of the permit was erroneous.
ISSUES
1.
Whether Petitioner’s property is “waterfront”?
2.
Whether the proposed dock violates rules against crossing property lines?
3. Whether the
proposed dock violates the policies of the Act by violating the I’ON DMP?
4.
Whether there are other feasible alternatives to Petitioner building a private dock?
FINDINGS
OF FACT
Having
observed the witnesses and exhibits presented at the hearing and taking into
account the burden of proof, I make the following Findings of Fact by a
preponderance of evidence:
Background
1. I’On
is a development company that built a 570 lot subdivision in Mt. Pleasant, South Carolina along a portion of Hobcaw Creek, a body of water regulated by OCRM.
2. The
subdivision Dock Master Plan (“I’On DMP”) which was approved in 1997, provided
for construction of six community docks on Hobcaw Creek, with a boat ramp at
the I’On owned Club House (“I’On Club”). All subdivision lots, with the sole exception
of Petitioner’s lot, are separated from Hobcaw Creek by open land held in
common.
3. The
Petitioner owns lot #46, which is adjacent to I’On Club. There is no commonly
held land between the Petitioner’s lot and a small navigable tributary off
Hobcaw Creek.
4. As
a boat owner, Petitioner’s only water access is via the community boat ramp and
adjacent community dock located at I’On Club. Because boat owners are not permitted
to dock their boats overnight at the community dock, Petitioner must use the I’On
Club boat ramp each time he desires to launch his boat within the I’On
development.
5. Because
the boat ramp at I’On Club is frequently used for events and is shared by I’On
residents with the general public, Petitioner made an application for a private
single family dock in order to gain deep water access to Hobcaw Creek.
Although he could have built a dock to the small navigable tributary
immediately in front of his lot, he asked that his dock be constructed in a
“dog legged” formation towards Hobcaw Creek in a configuration that crossed the
extended property lines of I’On Club.
Waterfront
Lot
6.
A small tributary which connects to Hobcaw Creek is located within Petitioner’s
extended property lines.
7.
OCRM did no site review of the small tributary, but it believes that with the
exception of the DMP, Petitioner would be waterfront to the “rivulet area.”
8.
The only testimony regarding the small tributary reflects the fact that the
tributary is approximately 20 feet in width, is navigable, and connects to
Hobcaw Creek.
9.
Petitioner has navigated the tributary, but suggests that it is better suited
for smaller boats like kayaks. Petitioner chose to cross I’On’s extended
property line by building his dock directly toward Hobcaw Creek because doing
so would allow him access to deeper water.
10.
OCRM agrees that docks can be built in creeks that are 10 feet – 20 feet wide
and OCRM has issued dock permits to build docks in similar situations.
11.
OCRM’s conclusion that Petitioner’s property was not “waterfront” was based
solely on its conclusion that Petitioner’s only access to water was directly to
Hobcaw Creek. OCRM correctly states that straight extensions of Petitioner’s
extended property lines do not reach Hobcaw Creek directly. However,
Petitioner’s lot is located adjacent to a small tributary which connects to Hobcaw
Creek and is approximately 20 feet wide within the extended lot lines of his
property.
12.
A straight-line extension of the original lot lines reaches the small
navigable tributary within 1000 feet of the critical line, as required under
applicable regulations for a lot to be classified as “waterfront.” Since the
permit drawings show the tributary to be approximately 20 feet wide and the
extension of the lot lines would afford the same width of the creek, the lot
meets all the definitions established by OCRM to qualify the lot as
“waterfront.” Moreover, the presence of a Dock Master Plan does not affect
the fact that this lot is “waterfront” under OCRM definitions.
13. Thus,
the Agency erroneously concluded the Petitioner did not have waterfront
property.
Dock
Master Plan
14. OCRM
denied the dock permit in part because the permit would violate the I’On DMP as
approved by OCRM. The Permit in this case was denied on August 31, 2005. 23A
S.C. Code Ann. Regs. 30-12 (A)(1)(h) (Supp. 2005) provides that:
Developers of subdivisions and multiple
family dwellings are encouraged to develop plans which include joint-use docks
and/or community docks at the time of required dock master plans. The
approved Dock Master Plan must be recorded in the appropriate County Office of Deeds prior to lot sales in the subdivision. Reference to this DMP must
be given in all contracts for lot sales. Lots in subdivision with
approved Dock Master Plans as of the date of enactment of this regulation are
exempt from R.30-12.A(2)(q)(i) as amended by this regulation.
R.30-12.A(2)(q)(i) as amended by this regulation does not apply to other lots
of record that exist as of the date of enactment of this regulation until the
later of July 1, 2007 or the expiration of any permit issued prior to that
date. (emphasis added)
In a prior case
before this Court, the existence of a DMP did not restrict OCRM or property
owners to only those docks depicted on the plan. In Evan and Leslie Jones v.
SCDHEC and Arthur Moore, Docket Number:
05-ALJ-07-0011-CC, the Rivertowne DMP was amended or revised
several times to add or change corridors, lot dimensions, and size
restrictions. New information since the approval of the I’On DMP presented
valid reasons to allow an alternative alignment. Therefore, I find that Petitioner’s
alternative alignment in his permit application is warranted in this case.
15. I’On
Club presented a Dock Master Plan to OCRM with the purpose of limiting
construction to six community docks. Five would serve different sections of the
neighborhood and one would provide the sole boat ramp access and a community
docking facility for the I’On subdivision and the general public. The map of
the I’On DMP shows the critical area line adjacent to the Petitioner’s proposed
dock and a portion of the small navigable tributary in front of his lot. Using
the map’s scale on the I’On DMP, the small navigable tributary on Petitioner’s
lot measures 18-20 feet wide.
16. The
primary purpose of DMP’s is to notify potential lot and home buyers about their
access to coastal creeks. However, Petitioner had no notice of the I’On DMP
which would preclude his access to Hobcaw Creek.
17. Policy
guidelines require that in order for a DMP to be properly implemented, it must
be included in all contracts of sale for affected lots; however, the contract
of sale for Petitioner’s lot did not mention a DMP. OCRM contends that
Petitioner had constructive notice of the I’On DMP because a copy of the
I’On DMP was publicly available at the OCRM office. However, it is clear that
Petitioner did not have actual notice of the DMP, as required by statute.
18. Moreover,
DHEC regulations require that the DMP be shown on a plat recorded in the County Office of Deeds. The Petitioner received no notice in any sales documents, deeds,
plats or closing documents and no evidence was submitted by I’On or OCRM to
show the I’On DMP was properly recorded.
19. The
I’On DMP did not show the property lines of the subdivision as built and no
deed restrictions were shown on the DMP that would affect placement of docks on
Petitioner’s property. Other than the I’On DMP, there are no limitations on
Petitioner’s ability to secure a dock permit, other than the issue of
location. Further, Petitioner’s lot appears to be the only lot in I’On
that is waterfront and not impacted by the existence of commonly owned property
between lots and the marsh.
20.
Petitioner clearly believed that he was buying a waterfront lot because of
the tributary located immediately in front. Additionally, Petitioner paid a
price for his lot commensurate with waterfront value.
21.
The I’On DMP violates the policies and regulations in that there was improper
implementation and I’On took no steps to enforce the various notification
requirements. If the DMP does not apply, then OCRM regulations must be reviewed
to see if the dock permit application otherwise violates the factors OCRM
considers in issuing such permits.
22. There
appears to be no harm to the I’On DMP. The Petitioner’s proposed dock will be 100
feet from the I’On Club Dock. Moreover, OCRM has allowed for the revision of DMP’s
previously.
Crossing
Extended Property Lines and Policy Concerns
23. The
proposed dock will cross over the extended property line of the I’On Club.
According to OCRM, the crossing of property lines can occur only if “there is
no material harm to the Act.” While OCRM offered no legal definition of what
“material harm” involves, the agency concluded that the dock would cause
material harm in this case because: (1) Petitioner’s lot is not waterfront; (2)
Allowing the Petitioner to build a dock would set a bad precedent and create a cumulative
impact from similar dock applications; (3) Petitioner’s permit violates the I’ON
DMP: and (4) The community docks offer a feasible alternative to the Petitioner
building a dock. Since the lot is clearly waterfront, only the last three considerations
are necessary to address.
24. As
it relates to precedent or cumulative impacts, the testimony of OCRM does not
show how this dock can create a precedent. First, Petitioner’s lot is the only
similarly situated lot in I’On Subdivision. Second, if future DMPs are
properly reviewed and implemented by giving notice to property owners prior to
the purchase of such lots in accordance with Regulation 30-12-(a)(2)(h), the
problem of owners wanting to build individual own docks will not arise.
25. OCRM
may allow construction closer then twenty feet from extended property lines or
over them where there is no material harm to the Act. OCRM allows docks to be
extended over property lines where there is a shortening of a walkway, or so
the dock can reach a bigger creek. The only caveat is that the alignment
cannot cross a navigable creek or prevent other docks from being built. The
proposed dock is over 100 feet from the I’On Club Dock and does not interfere
with navigation or any other use by adjacent property owners.
26. Respondents
contend that the Community Dock at the I’On Club is a feasible alternative to
the Petitioner’s building a private dock. However, testimony clearly shows
that Petitioner cannot feasibly use the I’On Club boat ramp or dock. The I’On
Club has reserved the right to rent the Club House facilities for public and
private functions. These parties often block the driveway to the boat ramp and
impede Petitioner’s ability to drive his boat to the ramp.
27. With
only 20 parking places and no overnight docking available, the parking lot and
the I’On Club boat ramp are frequently congested. This congestion limits the
Petitioner’s use of the common facilities.
28. Petitioner
works five or more days a week and has only Saturdays and Sundays available to
use his twenty foot family boat. He stores his boat off site on another lot
and is unable to drive the boat to the ramp due to the constant use of the
roadway and limited available parking. Based on the evidence, the facilities
available are not feasible alternatives for access to the water, as envisioned
under the permit application.
29. The
community dock and boat ramp are not feasible alternatives to a private dock
where Petitioner will be able to store his boat and make use of it at this
convenience. The subdivision has only built three docks, which are used by
numerous other I’On homeowners as well as the general public.
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 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)(1987 & 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. 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. Sec. 48-39-10 et
seq. (1987 & Supp. 2005), and the regulations promulgated pursuant to those
provisions at 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 the 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. 2005); S.C. Code Ann. § 48-39-130 (1987
& Supp. 2005).
Waterfront
Property
4. In
South Carolina, “[n]avigable water is a public highway which the public is
entitled to use for the purposes of travel either for business or pleasure.” State
ex re. Lyon v. Columbia Water Power Co., 82 S.C. 181, 189, 63 S.E. 884, 888
(1909). These rights of the public in navigable waters stem from the common law
and have also been preserved in the South Carolina Constitution. See, S.C. Const. art XIV, §4 (“All navigable waters shall forever remain public highways free to the
citizens of the State and the United States….”) Furthermore, S.C. Code Ann. §49-1-10 provides that
“all streams which have been rendered or can be rendered capable of being
navigated by rafts of lumber or timber by the removal of accidental
obstructions and all navigable watercourses and cuts are hereby declared
navigable streams and such streams shall be common highways and forever
free....” “These constitutional and statutory provisions expressly sanction the
preexisting common-law rights of the public in navigable watercourses.” State of South Carolina v. Head, 330 S.C. 79, 498 S.E.2d 389
(1997), citing State ex rel. Lyon v. Columbia
Water Power Co., 82
S.C. 181, 63 S.E. 884 (1909).
5. “Because
of the ebb and flow of water on the South Carolina coast during high and low
tides, most tidal areas are navigable at high tide. Accordingly, in order for a
tributary to be legally navigable, it must be navigable at the ordinary stage
of the water. In other words, the fact that an area within the tributary can be
navigated by a small motorboat at high tide is not significant.” Evan and
Leslie Jones v. SCDHEC and Arthur Moore, Docket Number: 05-ALJ-07-0011-CC.
“… [I]n order to be considered navigable, the waterway in question need not be
accessible at all times, but rather need only be accessible for navigation at
the ordinary stage of the water.” Jose Biascoechea v. SCDHEC, Docket
Number: 05-ALJ-07-0166-CC. (Citing as authority Hughes v. Nelson, 303 S. C. 102, 399 S. E. 2d 24.)
6. The
area within the small navigable tributary where Petitioner proposes to locate his
dock is navigable at the ordinary stage of the water by small, recreational
watercraft.
7. Petitioner's
proposal to extend into Hobcaw Creek would not negatively impact, restrict, or
obstruct navigation in Hobcaw Creek, and is a reasonable extension for
Petitioner' intended use of his dock.
8. Section
R.30-1(D)(50) generally defines waterfront property as upland sites
where a straight-line extension of both, generally share perpendicular,
upland property lines reaches a navigable watercourse within 1000 feet of the
marsh critical line. Waterfront property may also be identified via an approved
dock master plan where designated corridors differing from upland property lines
reaches extensions are delineated. Because the extension of Petitioner’s
property lines reach the small navigable tributary within 1000’ of the marsh
critical line, the Petitioner has waterfront property. Moreover, the small
navigable tributary is identified in the I’On DMP.
Dock
Master Plan
9. OCRM
applies the policies of the Coastal Management Program Document, III-39, et
seq. and the OCRM regulations relating to docks, R.30-12(A) together with the
legislative policies, §48-89-30(A)(B)(1) and (B)(2), the Ten General
Considerations, 30-11(B)(1)(5), and further considerations 30-11(C)(1). As it
relates to the validity of the I’On DMP, the evidence does not support OCRM’s
position.
10. The
Coastal Management Program Document states that “Docks and piers are an
important form of water dependent recreation.” OCRM requires all developers to
submit Dock Master Plans to insure that a conceptual plan is in place to bring
order to water access and competing uses.
11. In
order for a DMP to be valid, it must meet the policy standards set forth in the
Management Program Document. The I’On DMP violated the policy requirements as
follows:
1. III-40(2) Submittal Requirements (h) – Deed restrictions of the property
that affect dock placement must be shown on the plat.
Reviewing
the DMP (2 plats), there is nothing that restricts single family docks from
being built and there is no statement of restriction on the plats.
2. III-41(4) – Implementation – (a) requires that the Dock Master Plan must
be referenced in all contracts for sale,
This
was not done by I’On nor enforced by OCRM. Moreover, III-41(c) allows for dock
applications when new information is revealed in the application to address and
overcome concerns identified in the DMP. I’On failed to give required notice.
Therefore, the Court can find no harm created by issuance of a dock permit in
the case.
12. The
Agency also implements the DMP through its regulation 30-12(A)(1)(h), which provides
that the plan must be put on a recordable subdivision plat and recorded in the
appropriate County Office of Deeds. Further, the regulation requires that
reference to the DMP must be included in all contracts to sale. This was not
done.
13. It
is clear that I’On is in violation of OCRM policies because it did not give
notice to Petitioner of the I’On DMP. “Constructive or inquiry
notice in the context of a real estate transaction often is grounded in an
examination of the public record because it is the proper recording of
documents asserting an interest or claim in real property which gives
constructive notice; the recording of a document alerts all future grantees of
the rights of the recorder because the law assumes the grantee will search the
index and discover the interest or claim.” Spence v. Spence, 368 S.C.
106, 628 S.E.2d 869 (S.C. 2006). The fact that DMP was available to the
Petitioner in the OCRM office was not sufficient notice. Moreover, there was no
reference to the DMP in the deed sufficient to give Petitioner notice of the I’On
DMP.
14. Based
on the forgoing and taking into consideration the fact that the Petitioner was
never notified of the existence of a DMP, the Petitioner should not be bound by
it. The DMP is fatally flawed because it does not conform to proper notice
requirements and OCRM cannot use it to prevent the Petitioner from seeking a
private dock permit.
Crossing
Property Lines
15. OCRM
allows the crossing of extended property lines when there is no material harm
to the policies of the Act. The policies are set forth in Section 48-39-30.
The pertinent parts of that section are as follows:
a. The General Assembly declares the basic state policy…is to protect the
quality of the coastal environment and to promote the economic and social
improvement of the coastal zone for all the people of the State.
b. (1) …To encourage development of coastal resources in order to achieve
such improvement with due consideration for the environment and within a
framework of a coastal planning program that is designed to protect the
sensitive and fragile areas from inappropriate development and provide adequate
safeguards with respect to construction of facilities…
(2)To protect and where possible, to restore or
enhance the coastal zone…
16. The
agency did not apply these policies as required under the regulations but
instead focused on what they considered to be “material harm” —i.e— “creating
waterfront property,” “cumulative impacts” and the fact that the DMP offers
“feasible alternatives” to the dock. However, these “harms” do not address the
policy concerns of crossing property lines but instead are directed at issues
separate and apart from the Policies.
17. First,
it is clear that OCRM allows property owners to cross property lines. Joyner
stated that OCRM allows crossing of property lines where the lot is waterfront
and there is a shorter distance to another creek, or where there is an
opportunity to reach a deeper creek. ION presented no testimony showing any
harm other than its concern for the integrity of the I’ON DMP.
18. Second,
reviewing the Act’s Policies, it is clear that the intent of the legislature is
to encourage access to public waters. Dock permits are commonly issued and
there is nothing unusual about this dock except for the DMP concerns. The
testimony shows that Petitioner has a waterfront lot; there are no cumulative impacts;
and ION’s overuse of the community facility does not offer a realistic feasible
alternative to water access for the Respondent. Thus, there is no harm to the
policies of the Act.
CONCLUSION
The Court hereby reverses
the decision of OCRM and the dock permit sought by the Petitioner shall be
issued.
____________________________
The
Honorable Carolyn C. Matthews
Administrative
Law Court
1205 Pendleton Street, Suite 224
Columbia, SC 29201
March 18, 2008
Columbia, SC
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