ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This contested case arises
from a decision of the Respondent, South Carolina Department of Health and
Environmental Control, Office of Ocean and Coastal Resource Management (“DHEC-OCRM”
or “the Department”) to issue an after-the-fact permit to Respondent Coffin
Point Plantation Homeowners Association (“Coffin Point HOA”). The permit
approved a dock as constructed on Coffin Creek in Beaufort County, South
Carolina. Following the issuance of the permit, Petitioner George E. White
requested a Final Review Conference before the S.C. Board of Health and
Environmental Control. On June 26, 2007, the Board decided not to review this
matter. The Coffin Point HOA then requested a contested case hearing before
this Court. He contends that the dock as constructed has a material impact on
the value and enjoyment of his property and constitutes a navigational hazard.
A hearing was held
in this matter on August 7, 2008 at the office of the Administrative Law Court
in Columbia, South Carolina. For the reasons set forth below, I find that DHEC-OCRM’s
issuance of the after-the-fact permit should be reversed.
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
the evidence:
Background
1. Petitioner George White has
resided in Coffin Point Plantation, Beaufort County, South Carolina for
approximately 27 years. His property abuts Coffin Creek and is immediately adjacent
to property owned by Respondent Coffin Point HOA, which is on the northern side
of his property. He owns a commercial dock on Coffin Creek where he operates
his business, selling ice and fuel to owners and operators of shrimp boats.
Large commercial shrimping vessels measuring between 60 and 80 feet in length
regularly tie up at Petitioner’s dock.
2. Prior to 1977 and the
passage of the Coastal Tidelands and Wetlands Act, the entirety of Coffin Point
Plantation was owned by Sheriff Ed McTeer. At the time Sheriff McTeer
purchased the property in the 1950’s, Coffin Point Plantation had not been
subdivided and there were two existing wharves on the waterfront. One was utilized
by the homeowners of Coffin Point Plantation and the other was utilized by the
St. Helena Seafood Company. By the time Coffin Point HOA’s dock was applied
for, the wharves had been destroyed; all that remained to indicate their
previous location were pilings in the marsh. These pilings remain today.
3. In 2004, Respondent
Coffin Point HOA submitted an application for a community dock. The
application was prepared by Sheriff McTeer’s son, James E. McTeer, who is a
member of the Coffin Point Homeowners Association. He testified that it was
his intention to apply for a permit to construct a dock in the location of the old
wharf used by the homeowners of Coffin Point Plantation. Had Coffin Point
Plantation been subdivided at the time this wharf was in use, the wharf would
have crossed the extended property line shared by Petitioner and Coffin Point
HOA. However, contrary to what was apparently intended, the application included
hand drawings of the dock, depicting the extended property line as a straight
line extension of the high ground property line and showing the proposed dock
as being located 20 feet within the extended property line.
4. Petitioner received
notice of the proposed community dock and immediately became concerned about
the dock’s proposed location. He submitted a written objection to DHEC-OCRM
and attached a copy of the Coffin Point HOA deed and plat to the letter, which
depicts Petitioner’s and the HOA’s shared property line. Petitioner also contacted
DHEC-OCRM by telephone to express his concerns. The staff informed him that
the dock would have to be constructed at least 20 feet away from his extended
property line.
5. DHEC-OCRM issued a
permit to Coffin Point HOA on November 15, 2004, based on the drawings
submitted. The approved drawings depict the dock and show an extended property
line as a straight-line extension of the high ground. More significantly, the floating
dock and pierhead are shown as being located 20 feet away from the HOA’s shared
extended property line with Petitioner. Petitioner had no objection to the
permit as shown and thus did not file an appeal.
6. When Respondent Coffin
Point HOA began constructing the dock in 2006, it became obvious to Petitioner
that the dock was going to be constructed over his extended property line. He
again contacted the DHEC-OCRM staff, who visited the site. Mr. White submitted
another letter of objection and had a survey done of the dock as constructed.
After no action was taken by the Department based on this information, Mr.
White wrote yet another objection letter asking DHEC-OCRM to take action to
bring the dock into compliance.
7. The record reflects that
a Notice of Violation was issued to Respondent Coffin Point HOA, although it is
unclear exactly when this occurred, because the Department could not locate the
enforcement file. The Notice of Violation and Admissions Letter, according to
the staff’s testimony, alleged that the dock was constructed out of compliance
with the issued permit. Following the initiation of the enforcement action,
the President of the Coffin Point HOA sent several letters and emails to the
Department, objecting to DHEC-OCRM’s position that the dock should be relocated.
8. As a result of those
communications, instead of pursuing the enforcement action and issuing an
enforcement order, the Department wrote Coffin Point HOA and directed them to
submit an as-built survey to include the dimensions of the dock, all adjacent
property owners, all water bodies within the extended property lines and the
distance from the dock structure to the extended property lines. After several
requests by DHEC-OCRM staff and several meetings with members of the HOA, Coffin
Point HOA submitted the survey. It did not contain any of the information the
Department requested. The survey does not depict a straight line extension of
the upland property line as required by Reg. 30-12(A)(1)(e). Instead, the submitted
survey depicts a line, purporting to be an extended property line, extending
out from the property line at an approximate 45 degree angle into the creek.
The survey contains the following disclaimer: “Property line as copied from
Beaufort County Tax Map R300 013 000 0177 0000.” However, the survey clearly
shows that the Coffin Point HOA Property is designated as parcel number R300
013 000 0377 0000. The Beaufort County tax records indicate parcel number “0177”
is a separate and distinct parcel from that owned by the Coffin Point HOA. Respondent
Coffin Point HOA did not produce to the Department or to this Court a deed to
parcel 0177.
9. Based on this survey, on
May 24, 2007, DHEC-OCRM issued an after-the-fact amendment approving the dock
as constructed.
Extended
Property Line
10. The DHEC-OCRM staff admitted
that the “extended property line” depicted on the survey submitted by Coffin
Point HOA is inconsistent with their practice of drawing a straight-line
extension of the high ground property line. The staff testified that extended
property lines are a regulatory tool used to ensure that docks are
appropriately aligned and that there is adequate space between them. They do
not purport to be actual property boundaries. If the property line is extended
straight, as is DHEC-OCRM’s practice, it is clear that the dock crosses Petitioner’s
extended property line. In fact, DHEC-OCRM witnesses testified that Reg.
30-12(A)(1)(e) requires them to extend the property line straight into Coffin
Creek.
11. I find that the permit
issued to Coffin Point HOA authorizes the construction of the dock to be
constructed 20 feet within the extended property line, and that the dock was
not constructed in its permitted location.
12. It is possible to realign
the dock to be located within the Coffin Point HOA’s extended property lines;
the Coffin Point HOA has adequate water frontage to realign the dock in order
to bring it into compliance.
Impacts
to Navigation
13. Petitioner testified as
to the impacts of the dock as constructed. He was qualified as an expert in
navigation of commercial shrimping vessels with over 38 years of experience
operating commercial shrimp boats. At one point in his shrimping career, he
owned five boats, ranging in length from 40 feet to 82 feet and weighing
between 60 and 120 tons. He has spent the vast majority of his career
operating from his commercial dock on Coffin Creek. He has navigated over a
thousand times to and from his commercial dock and, more significantly, has
done so approximately a half-dozen times since the Coffin Point HOA dock was
constructed.
14. Mr. White testified that a
shrimp boat, as opposed to most recreational vessels, has characteristics that
make navigation more difficult under what otherwise would be an easily
navigable situation. A shrimp boat draws more water, meaning that the hull is
set between five and eight feet deeper in the water than smaller vessels. A typical
shrimp boat has between 12 and 15 feet of height above the water. Wind and
current, therefore, have a greater effect on the ability of a shrimp boat
captain to maneuver a boat in this creek, especially given that the boats must
stop and change direction where the creek curves significantly.
15. Both Mr. White’s dock and
the Coffin Point HOA dock are located in a horseshoe-shaped bend in the creek.
On an incoming, or flood tide, the water flows in a southerly direction into
Coffin Creek from St. Helena Sound. On an outgoing, or ebb tide, the water
flows from the west, directly towards the Petitioner’s dock and around the
curve back out towards the Sound. Because of the curve in the creek, the
deepest part of the channel runs towards the Petitioner’s and Respondent’s
docks. A sand bar on the far side of the channel also limits the navigable
portion of the creek. Therefore, a large commercial boat must navigate closer
to the existing docks.
16. A shrimp boat typically
moors at Petitioner’s dock with the bow of the boat facing to the west and the
stern of the boat facing to the east. The length of these boats averages 70
feet. Petitioner’s floating dock is approximately 75 feet long and therefore most
boats take up the entire length of his dock while moored there. Navigating
around the Coffin Point HOA dock on an incoming tide is not normally dangerous,
according to the witnesses.
17. However, once a commercial
vessel departs the dock on an ebb tide, the conditions become difficult. The
tide is flowing directly towards Mr. White’s dock. Because of the location of
the dock in relation to the shoreline, a Captain must conduct a series of turns
in order to turn the boat around to head out to the Sound. During these turns,
the vessel is operating under limited power. When the Captain has reversed the
boat’s direction and the boat is still gaining speed, the current is pushing
the boat directly towards the Coffin Point HOA dock.
18. Winds and tides in this
area also are a factor. The tidal range is more significant in Beaufort County
than in other coastal areas in the State. Mr. White testified that the tidal
range is about two feet greater than in McClellanville, for example. The
greater tidal range means that water will be flowing in and out of the creek
more quickly than if the tidal range were less extreme.
19. In Petitioner’s expert
opinion, the Coffin Point HOA dock constitutes a navigational hazard in its
current location. In the event that an HOA member had a boat moored there, it
would be even more of a hazard, increasing the likelihood that a commercial
vessel could collide with the HOA dock. A shrimp boat could even cause
personal injury if there were individuals on the dock. If the Coffin Point HOA
dock were moved to the location authorized by the 2004 permit, there would be
at least a boat’s length of distance between the two docks, which would greatly
reduce the potential hazard.
20. Laten Reaves is a
licensed commercial shrimper who testified on behalf of Petitioner. He has
been a shrimper for 46 years and has been a customer of the Petitioner’s since
1989. His boats are 65 feet and 80 feet long. During peak shrimp season, from
May to December, he averages twice-a-week stops at Petitioner’s dock and has
navigated Coffin Creek approximately one hundred times since the Coffin Point HOA
dock was constructed. He testified that it is much more difficult to navigate
in and out of Coffin Creek since the Coffin Point HOA dock was constructed.
The location of the dock limits the times at which Mr. Reaves can access
Petitioner’s dock. Though he has never run into the Coffin Point HOA dock, he
has come close. He testified that under certain conditions, the dock
constitutes a significant hazard.
21. Richard Baldwin, another
commercial fisherman, testified that he has been in the business of shrimping
since 1970. He holds a captain’s license with the S.C. Department of Natural
Resources and captains his 78-foot long shrimp boat in Beaufort County. He is
a frequent customer of Mr. White’s. During shrimp season, he visits Petitioner’s
dock every ten days or so to purchase ice. The ideal time of day to navigate
into Coffin Creek is right after high tide for two reasons. First, the boat’s
size makes it very difficult to come in at low tide and second, according to
testimony, the shrimp are most easily caught when the water flow decreases, or
“slacks.” Therefore, each time he purchases ice from Petitioner, Mr. Baldwin
must purchase ice and then depart the dock on an ebb tide. Because of the
Coffin Point HOA dock, Mr. Baldwin has had to cut back on the number of times that
he purchases ice from Petitioner’s dock.
22. George Madlinger, an OCRM
project manager, testified that Coffin Point dock does not constitute a hazard
based on the fact that he has navigated Coffin Creek in a commercial shrimping
vessel. However, it has been over nineteen years since those trips and the
Coffin Point HOA dock was not in existence at the time. I find that Mr.
Madlinger’s testimony is outweighed by the expert testimony of Petitioner and
the two other commercial shrimpers who have all had experience with navigating
in Coffin Creek since the Coffin Point HOA dock was constructed.
23. Though obviously it is
possible to navigate the tributary without incident, unpredictable winds and
currents can make it hazardous to navigate Coffin Creek in the vicinity of
Respondent Coffin Point HOA’s dock. Further, customers of Mr. White’s are reluctant
to patronize his business because of this hazard. I find that this constitutes
a significant impact on Petitioner.
24. The DHEC-OCRM staff based
their conclusion that the dock should be approved as built on their review of
the survey submitted by Coffin Point HOA and the fact that the survey shows the
docks being approximately 48 feet apart, though Mr. White testified that the
docks were closer than that. They determined that there would be no
navigational hazard based on this distance alone; none of the DHEC-OCRM staff conducted
a boat trip as part of their review. The normal distance that the Department considers
to be an acceptable distance between docks is 40 feet. This distance, however,
does not take into account the specific circumstances in this case. Large
commercial vessels, which require additional clearance and are more affected by
the wind and tide, are forced to navigate close to the existing docks because
of the geography of the creek. The staff recognized that having a commercial dock
so close to a recreational dock is an unusual circumstance in the coastal zone.
25. The DHEC-OCRM staff
testified that a material harm to the policies of the act would result if there
is a “significant impact” to an adjacent property owner.
CONCLUSIONS
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. (Supp. 2007). and §1-23-500 et
seq. (Supp. 2007). Furthermore, S.C. Code Ann. §48-39-150 specifically
authorizes the Administrative Law 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 & Env. 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. (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, DHEC-OCRM is charged with carrying out
South Carolina’s coastal policies and issuing permits for docks and piers in
the critical areas of the coastal waters and tidelands. 23A S.C. Code Ann.
Regs. 30-12(A)(1)(Supp. 2005); S.C. Code Ann §48-39-130 (1987 & Supp. 2005).
4. 23A S.C. Code Ann. Reg.
30-12(A)(1)(e) provides that “all applications for docks and piers should
accurately illustrate the alignment of property boundaries with adjacent owners
and show the distance of the proposed dock from such extended property
boundaries. For the purpose of this section, the extension of these boundaries
will be an extension of the high ground property line. The Department may
consider an alternative alignment if site specific characteristics warrant or
in the case of dock master plans, where appropriate.”
There is no
evidence to suggest that an alternative alignment is warranted in this case.
The approved survey does not utilize straight line extensions of the shore
perpendicular upland property line; instead, the surveyor extended the property
line by essentially drawing an angle at the critical line and beginning a new
line that extends into Coffin Creek. Because this is inconsistent with the
agency’s application of the regulation, I conclude that the survey is
unreliable. Furthermore, the parcel that the survey utilized to demonstrate an
alternative extension is located below the mean high water mark; therefore, for
purposes of DHEC-OCRM’s permitting program, the State is presumed to own that
parcel. Lowcountry Open Land Trust v. State of South Carolina & Atkins,
347 S.C. 96, 552 S.E.2d
778 (Ct. App. 2001). Coffin
Point has not even claimed ownership of that separate parcel, nor has it filed
an action to quiet title to the marsh under S.C. Code Ann. §48-39-220, and,
therefore, I conclude that treating this property line as an extended property
line is improper.
5. 23A S.C. Code Ann. Reg.
30-12(A)(1)(p) provides, “No docks, pierheads or other associated structures
will be permitted closer than 20 feet from extended property lines with the
exception of joint use docks shared by two adjoining property owners. However,
the Department may allow construction closer than 20 feet or over extended
property lines where there is no material harm to the policies of the Act.”
6. The policies of the
Coastal Management Program include “docks and piers will not be approved where
they interfere with navigation or reasonable public use of the waters.”
Coastal Management Program, Chapter III-38.6. DHEC-OCRM must consider the
extent to which “the proposed use could affect the value and enjoyment of
adjacent owners.” §48-39-150(A)(10). The Department must consider also the
“extent to which the development could affect existing public access to tidal
and submerged lands, navigable waters and beaches or other recreational coastal
resources.”
7. I conclude that the dock
was constructed out of compliance with the permit issued in 2004. It does not
automatically follow, however, that the after-the-fact permit must be denied.
There must also be a material harm to the policies of the Act. “Material
harm” results when the crossing of extended property lines has a significant
effect on an adjacent property owner or on navigation. See Tracey
Walker and Randy Marvin v. DHEC & Mike Carroll, Docket No.
05-ALJ-07-0477-CC (filed July 30, 2007); SCDHEC v. Shane Gould, Docket
No. 05-ALJ-07-0249-CC (filed June 15, 2006); Burt Karmiel v. DHEC &
Ballenger, Docket No. 00-ALJ-07-0456-CC (filed May 30, 2001).
8. Based on the expert
testimony of Petitioner and the testimony of Petitioner’s actual customers, I
conclude that the location of this dock constitutes a significant navigational
hazard and thus a material harm to the policies of the Act. In this case,
there is a significant risk of property damage because of the size of the boats
navigating to and from Petitioner’s dock and because of the route that the
boats must utilize. There is also evidence that at least two of the
Petitioner’s customers have been inhibited from purchasing ice and fuel from
Mr. White due to the location of the Coffin Point HOA dock. I find that the
dock, as constructed, is a significant enough impediment to navigation such
that it should be relocated to its previously permitted location.
9. The Department staff
based their conclusion that there is no material harm to the policies of the
act on their contention that the distance between the docks in and of itself
cannot ever constitute a navigational hazard. This position does not take into
account the “individual merits of each application” as required by S.C. Code
Ann. §48-39-150(A) and the unique circumstances here, in which large, unwieldy
commercial vessels are forced to maneuver around the Coffin Point HOA dock in
order to conduct business. If the dock were relocated, it would greatly
improve the situation.
10. Both Respondents argued
that because Coffin Point HOA “intended” for the original dock application to
show the dock being constructed over the old HOA dock, this is somehow a basis
for approving it where it is. However, the drawings attached to a permit
govern, not what a party intended. The impact to Petitioner remains. He has
consistently objected to the dock being built to close to his dock because of
the danger and impact on his business. What was placed on public notice
originally and what was initially approved would have far less impact on Mr.
White as an adjacent property owner.
ORDER
Based on the
foregoing findings of fact and conclusions of law, I conclude that Respondent
Coffin Point HOA must relocate their dock so that the entire structure is built
within the shared extended property line with Petitioner. This will alleviate
the navigational hazards associated with the dock’s current location.
THEREFORE,
IT IS ORDERED that the decision of the Department to approve the
after-the-fact amendment is hereby reversed. Respondent Coffin Point HOA is
directed to bring the community dock into compliance with the critical area
permit, permit number 2004-1E-257-P, issued on November 15, 2004.
AND
IT IS SO ORDERED.
___________________________________
CAROLYN
C. MATTHEWS
ADMINISTRATIVE
LAW JUDGE
January 28, 2009
Columbia, South Carolina
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