ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
The
above-captioned case comes before this court pursuant to the request of
Petitioner James J. Bailey for a contested case hearing. Petitioner challenges
the decision of Respondent South Carolina Department of Health and
Environmental Control, through its Office of Ocean and Coastal Resource
Management (OCRM), to issue a permit to Respondent Jean Townsend for the modification
of a private recreational dock in Adams Creek on Wadmalaw Island in Charleston
County, South Carolina. In particular, Petitioner, a nearby property owner,
challenges OCRM’s decision to permit the conversion of a portion of the fixed
dock to a floating dock with walkway. After timely notice to the parties, a
hearing of this matter was held on June 17, 2008, at the South Carolina
Administrative Law Court in Columbia, South Carolina, and, at counsel’s mutual
request, was concluded by conference call on the record with counsel for all
parties on July 3, 2008. Based upon the evidence and arguments presented and
upon the applicable law, I find that OCRM’s decision to issue the dock permit should
be sustained.
FINDINGS
OF FACT
Having
carefully considered all testimony, exhibits, and arguments presented at the
hearing of this matter, and taking into account the credibility and accuracy of
the evidence, I make the following Findings of Fact by a preponderance of the
evidence:
Background
1. Wadmalaw
Island is an island located in Charleston County, South Carolina. The island
is bounded by the Wadmalaw River, North Edisto River, Church Creek, and Bohicket
Creek; the two creeks separate the island from nearby Johns Island. Through
certain special restrictive zoning measures and a number of conservation
easements, Wadmalaw Island has remained primarily rural, with only limited
residential development and no commercial development. The island’s zoning
regulations address the size of lots that may be developed and built upon.
2. Petitioner
James J. Bailey owns and resides part-time on two lots located downstream from Respondent
Townsend’s property along Adams Creek on Wadmalaw Island. Mr. Bailey’s
property is adjoined by Dana Beach’s property, who is not a party to this case.
Mr. Beach’s property adjoins James Wells’ property, which has been permitted
for a dock that is not yet under construction. Mr. Wells is Ms. Townsend’s son,
and his property adjoins Ms. Townsend’s property, which is at issue here.
Thus, Ms. Townsend’s lot is situated along Adams Creek and is separated from
Petitioner’s property by two intervening tracts. Ms. Townsend’s lot is subject
to the zoning regulations on Wadmalaw Island.
3. The
Townsend property with the dock at issue here, located at 6840 McCants Road on
Wadmalaw Island, is family property where Ms. Townsend and her sisters grew up
and lived since she was thirteen years old. The abutting dock was initially
permitted by the War Department in 1948. Ms. Townsend’s father ran a
commercial shrimping operation from the dock until he became ill. He then
leased the dock to Rockville Seafood and Boatyard for commercial shrimping
operations for $800 per month, and his wife, Eugenia Hills Townsend, continued
the lease after his death until 1995. The legal nonconforming (non-agricultural)
commercial shrimping use was abandoned in 1995. Mr. Wells inherited his
property, which was originally part of a much larger tract, with the family
house upon Eugenia Townsend’s death. Eugenia Townsend also had 7.54 acres
under contract to Adela Stoney on the side opposite from Mr. Wells’ property;
upon Eugenia Townsend’s death, Jean Townsend and her sisters conveyed that
portion to the Stoney trust. The subdivision of the property by sale and split
inheritance rendered the property unbuildable under the AG-15 zoning
designation. The three Townsend sisters—Jean, Ann, and
Connie—thus inherited in 1996 the remaining 3.79 acres with the dock. Mr.
Bailey asserts the Townsend property is 1.76 acres of upland and 2.03 acres of
marsh, and no one has disputed the accuracy of that assertion. The Townsend
sisters currently own the property as members of an LLC. Ms. Jean Townsend
currently resides on Johns Island.
4.
In the late 1980s, all of Wadmalaw Island was conservatively rezoned
under the AG-15 designation, which precludes commercial development and
requires a minimum of fifteen acres for a lot to be buildable. However, the
commercial shrimping operation was a legal nonconforming use. That use ceased
in 1995, and it is undisputed that it has been abandoned.
5. As
previously stated, the dock was permitted by the War Department in 1948. Much
larger than most docks in the area and the average private recreational dock,
it is grandfathered and allowed to exist and be maintained in the form it was
in during 1977 despite subsequent restrictions or prohibitions, since it predates
the creation of OCRM and passage of the Coastal Zone Management Act in 1977.
In 2005, several portions of the dock walkway had completely fallen in and OCRM
granted a permit for substantial rebuilding and rehabilitation. Although this
did not enlarge or alter the dock’s footprint, OCRM brought a revocation action
two years later, in response to Mr. Bailey’s complaints, to try to remove
portions of the dock. That action was heard before Administrative Law Judge
Ralph King Anderson, III, who issued an order on May 22, 2008. That order,
which denied the revocation imposed by OCRM, is currently under appeal. This
court takes judicial notice of that proceeding, and reference may be made to
that order for a more complete background of the prior permitting of this
dock. See S.C. Dep’t of Health & Envtl. Control v. Townsend,
Admin. Law Court 07-ALJ-07-0555-CC (May 22, 2008); Rule 201, SCRE (judicial
notice); ALC Rule 68 (other procedural rules apply where practicable). The
fixed T-shaped dock is comprised of a pier head and a right side 80 feet long
and a left side 125 feet long. The “right” of the dock was rebuilt pursuant to
the 2005 permit.
6. At
issue in this case is a portion of the “left” side of the dock. On September
6, 2007, OCRM issued permit number OCRM-06-178-R to Jean Townsend, for modifications
to her dock for private, recreational use in Adams Creek abutting Respondent’s
property. The permit authorizes the 5’ by 125’ left side shore parallel
walkway to be reduced to 5’ by 69’ and in place of the section that is to be
removed authorizes the construction of a 3’ by 20’ ramp leading to a 7’ by 40’
floating dock to be used for private recreational purposes. The sketches
attached to the permit also indicate that some concrete debris at the end of
another portion of the dock will be removed.
Commercial
or Private Recreational Use
7. Mr.
Bailey timely filed a request for a contested case with this court to challenge
the issuance of the permit in question. Mr. Bailey argues that Ms. Townsend is
circumventing proper OCRM review because the modification is not for private
recreational use but for commercial use. Specifically, he argues the permit is
not for Ms. Townsend and her sisters to launch their kayaks but to accommodate
the Frangelica, a fishing boat owned by Mr. John R. Bittner that has
docked at this berth since 2005. Mr. Bailey also expressed concern about the
sailboat of another friend of Ms. Townsend’s, Mr. Robert Johnson, that has
docked at this berth since 2003; specifically, Mr. Bailey argues these are
commercial arrangements indicating the beginnings of a marina.
8. Mr.
John R. Bittner has owned the Frangelica for thirteen years. The Frangelica measures fifty-seven feet from tip to tip and fifty-four feet at the
waterline. It was moored at Bohicket Marina for ten years. In February 2005,
Bohicket Marina changed ownership, and Mr. Bittner met with Ms. Townsend
through mutual friends and has since moored the Frangelica at her dock
on Adams Creek. As part of the 2005 permitted renovation, Ms. Townsend
contracted with Mike Murray of Atlantic Marine to install mooring pilings at
the Frangelica’s berth. Mr. Bittner paid for the pilings, which are on
the shoreward side of the Frangelica’s berth. Ms. Townsend also
installed a utility box for electricity on the dock. Mr. Bittner has sometimes
paid the electric bill. Previously, he paid Ms. Townsend $100 per month,
helped to nail down boards, provided upkeep of the dock, and assisted with the
renovation work that was not performed by Mr. Murray. He also assisted Ms.
Townsend in obtaining an insurance policy on the property and dock and has
helped with the premiums. Mr. Bittner cuts the grass on the property as
needed.
9. Mr.
Bailey argues that the Frangelica is a charter fishing vessel. The Frangelica has not been run as a charter since 1996-97, and Mr. Bittner has not hired a
captain for the Frangelica since then. In fact, the Frangelica is taxed as a second home, and Mr. Bittner does not expense any money paid to
Ms. Townsend on his tax returns. Mr. Bittner has a 300 gallon water tank that
he fills at his house and transports to the dock to wash the Frangelica.
The Frangelica does not have a DNR charter license, a business license,
or a tuna license, nor does it dock at a commercial facility as would be
required if it were run as a charter. The Frangelica formerly held a saltwater
charter vessel license in 2005, but the application specifically states the
vessel is not used for commercial fishing; however, since that license can now
be obtained easily online and the Frangelica goes out so seldom, it does
not maintain a deep sea license. Mr. Bittner sometimes takes out groups of
friends but does not run charters.
10. Mr.
Robert Johnson, another friend of Ms. Townsend’s, sometimes moors his
twenty-seven foot sailboat in the middle of the dock. Previously, he has paid
her $50 per month and helped out with minor dock repairs and upkeep and the
2005 renovation. Mr. Robert Gibson had previously docked his boat there when
Eugenia Townsend was alive and apparently was in discussion with Ms. Townsend
to dock his boat there occasionally, but there is no evidence that he has done
so; he also contributed a nominal financial amount and helped with the upkeep of
the dock under Eugenia Townsend’s ownership. Bob Guild contacted Ms. Townsend
about renting space at her dock, but she declined. Ms. Townsend does not rent
slips nor allow access to her dock to the general public.
11. The
modification of the dock from fixed to floating would benefit the Frangelica by making it easier and safer to return to her mooring, especially when there
are high winds. However, the floating dock would be primarily for Ms.
Townsend’s and her sisters’ use to launch their kayaks in the creek more easily
without having to wait for tides or to drag the kayaks across marsh into the
water.
12. Ms.
Townsend has never had a written agreement with either Mr. Bittner or Mr.
Johnson. Effective June 4, 2008, Ms. Townsend told Mr. Bittner and Mr. Johnson
not to pay her anything, as the payments had raised questions that such
transactions might be considered a “commercial” use of the dock. Nonetheless, their
boats were to remain moored at her dock. Mr. Curtis Joiner of OCRM permitting
testified that the monies exchanged were not considered when the permit was
issued and could be material to that consideration. However, since those
financial arrangements have ceased, he did not consider it germane since it
would not alter OCRM’s decision. Thus, there is no reason to remand the case
to OCRM to consider those factors.
13. At
Mr. Bailey’s request, OCRM investigated fully and found no commercial
activity. See letter of Sept. 1, 2006, Pet. Ex. 25. Based on a
complaint by Mr. Bailey, the Charleston Planning Department also conducted an
onsite investigation and found no evidence of commercial activity. See letter of July 26, 2006, Pet. Ex. 23. Mr. Bailey failed to present evidence of
commercial use.
14. Based
on the above testimony and facts, I find that the dock’s use is properly
characterized as private and recreational. The nominal sums exchanged,
financial assistance with modifications, and assistance with dock and property
upkeep are simply not commercial. As the dock previously leased in 1994-95,
over ten years ago, for $800 per month and Mr. Bittner previously paid $450 a
month, $50 or $100 per month is not a commercially reasonable transaction. Nor
is this a marina where anyone may apply to dock their boat. Rather, these are
informal arrangements between friends. The monies paid and assistance given
were clearly and solely to help defray expenses incident to use of the dock. Ms.
Townsend is primarily concerned with having the dock in use and well-maintained
and repaired to keep it safe and to preserve the footprint of the dock. This
is a large grandfathered dock originally built for commercial purposes.
However, Ms. Townsend’s allowance of friends to dock their boats does not
render its use commercial rather than private and recreational. Rather, the
permit was properly considered and issued allowing conversion of part of the
fixed dock to a floating dock.
Standing:
Fixed v. Floating
15. Ms.
Townsend argues that Mr. Bailey lacks standing to challenge the permit because
he has not shown any particularized harm by the issuance of the permit, which
authorizes converting a portion of the dock from fixed to floating, without
altering the overall size or footprint of the dock. In response, Mr. Bailey
argues that he is impacted by whether the dock is used for private and
recreational or commercial purposes. I find that Mr. Bailey has shown no
particularized harm from the conversion of a portion of the dock from fixed to
floating. The extent that Mr. Bailey’s use of his nearby dock would be
impacted by whether Ms. Townsend’s dock use is private and recreational or
commercial is an insufficient nexus to challenge the permitted dock
modification from fixed to floating dock.
16. The
impact on navigation is unchanged. Mr. Bailey argues that the floating dock primarily
benefits the Frangelica, which navigates very close to his dock when
berthing and thus impacts the swimming safety and use and enjoyment of his
dock. However, the Frangelica has docked at the same berth on the dock
for three years. Thus, the agency action of permitting the conversion of an
existing portion of the dock from fixed to floating does not impact navigation or
the use and enjoyment of Mr. Bailey’s nearby dock.
CONCLUSIONS
OF LAW
Based
upon the forgoing Findings of Fact, I conclude the following as a matter of
law:
Jurisdiction
and General Principles
1. This
court has jurisdiction over this matter pursuant to S.C. Code Ann. § 48-39-150
(2008), S.C. Code Ann. § 1-23-600(B) (2005 & Supp. 2007), and 23A S.C. Code
Ann. Regs. 30-6 (Supp. 2007). “In contested permitting cases, the ALC serves
as the finder of fact.” Olson v. S.C. Dep’t of Health & Envtl. Control,
Op. No. 4416 (S.C. Ct. App. filed June 20, 2008) (Shearouse Adv. Sh. No. 28 at
23, 26).
2. Petitioner,
as the moving party challenging OCRM’s decision to issue the permit in
question, bears the burden of proof in this matter. See Leventis v.
S.C. Dep’t of Health & Envtl. Control, 340 S.C. 118, 132-33, 530 S.E.2d
643, 651 (Ct. App. 2000) (burden of proof in administrative proceedings
generally rests upon the party asserting the affirmative of an issue); 2 Am.
Jur. 2d Administrative Law § 360 (1994) (same). Therefore, Petitioner
must demonstrate, by a preponderance of the evidence, that Respondent’s dock
permit fails to satisfy the relevant statutory and regulatory criteria
governing the issuance of such permits. See Anonymous v. State Bd.
of Med. Exam’rs, 329 S.C. 371, 375, 496 S.E.2d 17, 19 (1998) (standard of
proof in an administrative proceeding is generally the preponderance of the
evidence).
3. With
regard to the issuance of permits for the construction of docks in the
“critical areas” of the state, two sets of regulatory
criteria are pertinent: the general guidelines applicable to all critical area
permits, see 23A S.C. Code Ann. Regs. 30-11 (Supp. 2007), and the
specific permitting standards for the construction of docks and piers in
tidelands and coastal waters, see 23A S.C. Code Ann. Regs. 30-12(A)
(Supp. 2007). In the instant case,
Petitioner contends that the permit should be remanded for processing by OCRM
because the use is commercial rather than private and recreational.
4. OCRM
defines “private dock” as a facility that “provides access for one family, and
is not a marina.” 23A S.C. Code Ann. Regs. 30-1(D)(18)(e) (Supp. 2007).
However, it cannot be rationally contended nor could the legislature have
intended that this definition preclude dock owners from allowing friends to
access and tie up boats at private docks, even for long term moorage. That
same subsection also defines “boat storage dock,” “commercial dock,” “community
dock,” and “joint use dock.” 23A S.C. Code Ann. Regs.
30-1(D)(19) (Supp. 2007). However, none of these definitions are applicable,
much less controlling.
5. Despite
ample opportunity to present his case with voluminous exhibits and testimony,
Mr. Bailey has put forth absolutely no evidence that Ms. Townsend’s dock is
being used for commercial rather than private recreational purposes. Mr.
Bittner’s boat is a private vessel and is not used as a charter operation. The
incidental monies that have been exchanged to assist with dock upkeep and
renovation does not change the nature of the transaction as a private
arrangement between friends. Moreover, Ms. Townsend has ceased accepting money
from Mr. Bittner and Mr. Johnson. The County Planning Department investigated
and found no evidence of a commercial operation. OCRM conducted onsite
inspections and found no evidence of a commercial operation. Ms. Townsend and
Mr. Bittner have fully complied with answering OCRM’s questions and concerns about
their arrangement. Moreover, nothing would preclude OCRM or the Planning
Department from bringing an appropriate enforcement action should Ms. Townsend
attempt to change her use of the dock to commercial at some point in the future.
At this juncture, such concerns are speculative.
6. Regulation
30-11(C) sets forth several additional guidelines that must be considered when
making permitting decisions regarding activities in the critical areas. See 23A S.C. Code Ann. Regs. 30-11(C) (Supp. 2007). The first of these guidelines
requires the consideration of “[t]he extent to which long-range, cumulative
effects of the project may result within the context of other possible
development and the general character of the area.” 23A S.C. Code Ann. Regs.
30-11(C)(1). Mr. Bailey argues that he is impacted because the dock is
commercial and is slowly being converted into a marina. Thus, he argues he is
adversely affected by Ms. Townsend’s submission of the permit for private and
recreational use, which he argues mischaracterized the commercial use and
precluded full review of the permit. However, the potential disruption of Mr.
Bailey’s use of his nearby dock caused by Ms. Townsend converting part of her existing
dock from a fixed pier head to a floating dock, while maintaining the size and
footprint of the existing dock, is negligible and does not warrant denial of
the permit. Accordingly, I cannot find that Ms. Townsend’s permit would
adversely affect Mr. Bailey’s use or enjoyment of his dock.
7. Mr.
Bailey’s concerns with commercial development in Adams Creek on Wadmalaw Island
and its impact upon his use of his nearby dock are best addressed through the
enforcement of local zoning ordinances and OCRM’s enforcement of the terms of
Ms. Townsend’s permit should her use of her dock become commercial in the future,
rather than through a challenge to Ms. Townsend’s individual dock permit, which
authorizes modifications in compliance with the regulatory permitting criteria.
8. Ms.
Townsend argues that Mr. Bailey lacks standing to challenge the permit. I
agree. In the context of OCRM cases, our Supreme Court has set forth what a
petitioner must show to have standing to challenge an agency action.
The “irreducible
constitutional minimum of standing” has three components: “First, the plaintiff
must have suffered an ‘injury in fact’—an invasion of a legally protected
interest which is (a) concrete and particularized, and (b) ‘actual or imminent,
not “conjectural” or “hypothetical.”’ Second, there must be a causal
connection between the injury and the conduct complained of—the injury has to
be ‘fairly . . . trace[able] to the challenged action of the defendant, and not
. . . the[e] result [of] the independent action of some third party not before
the court.’ Third, it must be ‘likely,’ as opposed to merely ‘speculative,’
that the injury will be ‘redressed by a favorable decision.’”
Smiley v.
S.C. Dep’t of Health & Envtl. Control, 374 S.C. 326, 329, 649 S.E.2d
31, 32-33 (2007), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-61, 112 S.Ct. 2130 (1992) and Sea Pines Ass’n for the Protection of
Wildlife, Inc. v. S.C. Dep’t of Natural Resources, 345 S.C. 594, 550 S.E.2d
287 (2001). “In this setting, ‘particularized’ means [Bailey] must be affected
in a personal and individualized way by the permitting decision.” Id.
9. As
to the first element, Mr. Bailey has not shown an injury in fact from the
permitted conversion of fixed dock to floating dock. As to his contention that
the dock modification should have been submitted as a commercial use, there is
no evidence to support his assertion, and his concern that the dock is becoming
a marina is conjectural and speculative at this time. As to the second
element, there is no causal connection between Mr. Bailey’s alleged injury and
the permitted conversion from fixed to floating dock. His concerns focused
mainly on the Frangelica and somewhat on Mr. Johnson’s sailboat. Those
boats have docked there for the last few years and will continue to dock there
regardless of the permitting decision. As to the third element, it is not
likely that any injury would be redressed by a favorable decision. Regardless
of OCRM’s permitting of a modification from fixed to floating dock, the above
boats would remain moored at the dock. An adverse decision might make the
permitting process more onerous and cost-prohibitive for Ms. Townsend, but it
would not affect her letting friends use her dock nor alter the dock’s footprint
or impact. Despite his claims, Mr. Bailey has thus failed to establish any of
the three prongs necessary for standing.
10. While
this court does not deny that it is possible to establish standing through
“use” where one can show injury or damage, here Mr. Bailey’s use of his dock
remains the same with the modification of Ms. Townsend’s dock from a fixed to a
floating dock. Moreover, Ms. Townsend’s use of her dock as modified remains
virtually the same and will not adversely impact navigation or Mr. Bailey’s use.
The only change is that Ms. Townsend and her sisters will be able to launch
their kayaks from the dock without being dependent on tides. Secondarily, the Frangelica will be safer and easier to berth, especially when there are high winds,
thus benefitting everyone.
11. Even
if standing were established, there is no evidence that Ms. Townsend
misrepresented her use on her permit application or that OCRM did not properly
review the application. The evidence does not suggest a commercial dock or
commercial use but only de minimis, good faith, neighborly contributions to
assist with dock maintenance. As even those small amounts have ceased, they
are no longer a concern. Therefore, OCRM properly permitted the modification
for a portion of the dock to be converted from fixed to floating.
ORDER
Based
upon the Findings of Fact and Conclusions of Law stated above,
IT
IS HEREBY ORDERED that OCRM’s decision to issue permit OCRM-06-0178-R for
the modification of a dock for private recreational use abutting 6840 McCants
Road on Wadmalaw Island in Charleston County, South Carolina, is SUSTAINED.
AND
IT IS SO ORDERED.
______________________________
July 23, 2008 JOHN
D. GEATHERS
Columbia, South Carolina Administrative
Law Judge
1205 Pendleton
Street, Suite 224
Columbia, South
Carolina 29201-3731
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