South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
George E. White vs. SCDHEC, et al

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioners:
George E. White

Respondents:
South Carolina Department of Health and Environmental Control and Coffin Point Plantation Homeowners Association
 
DOCKET NUMBER:
07-ALC-07-0371-CC

APPEARANCES:
Leslie S. Riley, Esquire, for the Petitioner

Elizabeth A. Dieck, Esquire, for Respondent DHEC

James J. Wegmann, Esquire, for Respondent Coffin Point HOA
 

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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