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 (Department or OCRM) to issue a permit with conditions to
Petitioner, Virginia Mappus. Petitioner Mappus submitted an application for a
permit to construct a private, recreational dock to obtain access to Bohicket
Creek from her property located at 2644 Bohicket Road, Johns Island, Charleston County, South Carolina. OCRM however issued a permit authorizing
construction of a dock to an intervening, smaller tributary of Bohicket Creek.
Petitioner requested a Final Review Conference before the Board of Health and
Environmental Control (Board). After the Board conducted a review conference,
it affirmed the staff’s decision in an Order on May 9, 2008. Petitioner
requested a contested case hearing before the Administrative Law Court (ALC or
Court) on June 5, 2008. A hearing was thereafter held before me on November
12, 2008, at the Administrative Law Court.
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:
General
Findings
Petitioner Virginia
Mappus owns and resides at 2644 Bohicket Road, Johns Island, Charleston County,
South Carolina. In October of 2006, Petitioner submitted an application to
the Department for a critical area permit seeking the authorization of a dock.
Specifically, the application sought permission for the construction of a private
recreational use dock with the following features: a 4' by 983' walkway leading
to a 16' by 16' covered pierhead with a 3' by 20' ramp leading to an 8' by 30'
floating dock. The proposed terminus of the dock was Bohicket Creek. In order
to reach Bohicket Creek from the upland portion of the Mappus property, the
walkway would have to cross a tributary of the Bohicket that has a channel
approximately 25' wide.
The Department
determined that the tributary Petitioner proposed to cross was navigable and thus
could not be lawfully crossed. Therefore, the Department did not authorize the
dock as requested by Ms. Mappus but authorized a smaller dock terminating in a
small tributary in front of her property.
Permitting
Background
The history of
litigation between Petitioner, neighboring property owners, and OCRM regarding
access to Bohicket Creek is relevant to resolution of this contested case. In
2001, four of Petitioner’s neighbors -Steven Combos, Samuel Brownlee, Ernie
Driggers, and Richard Jolly (Neighbors) - who own lots adjacent to Bohicket
Creek submitted permit applications to OCRM seeking authorization to construct
private recreational docks extending to Bohicket Creek. As in this case, OCRM
issued conditional permits to Combos, Brownlee, Driggers, and Jolly limiting
dock construction to the intervening, smaller tributary. The basis for OCRM’s
decision was the staff’s determination that the intervening tributary was
navigable, and construction over the tributary would violate OCRM regulations
related to navigable creeks. The Neighbors filed requests for contested cases
before the ALC, and their cases were assigned as a consolidated action to this
Court. [2]
The Neighbors claimed
that the intervening tributary, where dock construction was authorized, was
non-navigable based on the existence of a dock, located at the mouth of the
tributary where it enters Bohicket Creek, referred to as the “Atkinson dock.” After
this Court conducted a contested case hearing regarding that issue, it issued
an Order on March 7, 2003, concluding that the Atkinson dock rendered the
tributary non-navigable.[3]
Accordingly, OCRM was ordered to either require that the Atkinson dock be moved
so as to render the tributary navigable or to authorize construction of the
four docks to Bohicket Creek. Subsequent to a Motion to Alter or Amend filed
by OCRM, this Court issued an Amended Order on April 23, 2003, ordering that OCRM
issue the permits to Bohicket Creek. The S. C. Court of Appeals issued an
opinion on January 29, 2007, reversing the Court of Common Pleas and affirming
the ALC Order. OCRM has appealed that decision to the S. C. Supreme Court.
Additionally, sometime
after the issuance of this Court’s Order, Combos constructed a dock to Bohicket
Creek. On July 29, 2004, OCRM issued an Administrative Order finding that the
Combos’ dock was built without authorization from the agency. Combos did not
appeal this Administrative Order. OCRM subsequently filed an action in the
Court of Common Pleas seeking enforcement of the Administrative Order. On
September 13, 2007, the Honorable Roger M. Young issued an Order finding that
the Combos dock was unauthorized and requiring removal of the dock. Combos also
appealed that Order. Therefore, along with the Brownlee and Jolly appeals,
this appeal is pending before the South Carolina Supreme Court. In the
meantime, the Combos dock extends to Bohicket Creek.
Navigation
Presently, Petitioner
is bound on either side by two docks of over 900' in length, which both extend
to Bohicket Creek. The dock to the east was authorized by the Department to
terminate in Bohicket Creek because the intervening tributary upon which the
Department permitted the Mappus’ dock ceased to be navigable at the point where
the dock crossed the tributary. In other words, the tributary begins to
terminate and take on the characteristics of a mudflat in close proximity to
where Petitioner seeks to cross the waterway. Petitioner’s adjacent property
owner to the west, Steven Combos, also has an existing dock that reaches
Bohicket Creek. The existence of that dock carries much greater significance
because it is under that dock that Petitioner must navigate to leave the small
tributary upon which the Department permitted her dock. The Combos dock
currently blocks the Petitioner’s access from her dock to the mouth of the
tributary, and will block access if Petitioner builds her dock in accordance
with the OCRM permit.
In fact, since the construction of the Combos’ dock, approximately four years
ago, Petitioner has not witnessed any boat traffic in the tributary. On the
other hand, as noted above, there is an existing Administrative Order requiring
Combos to remove the dock.
Nevertheless,
even if the Combos dock was not an impediment to navigation, the tributary upon
which the Department proposes to place Petitioner’s dock is not a navigable
waterway. As was the case when this Court heard and decided the Neighbors
matters, the Atkinson dock, which is located in the western end of the
tributary at its confluence with Bohicket Creek, has not been removed. Despite
the staff’s experience in navigating around the Atkinson dock, there is no
evidence that conditions at the mouth of the tributary have changed since this
Court heard the Neighbors matter. In particular, there is no evidence that the
impact of the location of the Atkinson dock has changed relative to the
navigable channel of the tributary or that navigation through the tributary
into Bohicket Creek had been enhanced or improved. Therefore, as I found in Combos
v. DHEC & Mappus, while the tributary itself can be navigated at
mid-tide and higher, the Atkinson dock which is situated at the mouth of the
tributary presents a hazard to safe navigation in and out of the tributary at
the ordinary tides due to the location of the channel of the tributary under
the Atkinson dock, the existence of the sand bar/mud flat on the side of the
mouth opposite the Atkinson dock, and the prevailing winds and currents.
CONCLUSIONS
OF LAW
1. This Court
has subject matter jurisdiction in this case pursuant to S.C. Code Ann. §
1-23-600(A) (as amended by 2008 S.C. Act No. 334) and S.C. Code Ann. §
44-1-60(F)(2) (2008). The hearing before the ALC is a contested case hearing
pursuant to the APA and is heard de novo. Marlboro Park Hosp. v. S.C. Dep’t of Health and Envtl. Control, 358 S.C. 573, 595 S.E.2d 851
(2004). The proper standard of proof to be applied is a preponderance of the
evidence. Anonymous (M-156-90) v. State Bd. of Med. Examiners, 329 S.C.
371, 496 S.E.2d 17 (1998); National Health Corp. v. Dep’t of Health and
Envtl. Control, 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989). Furthermore,
the burden of proof is upon the party asserting the affirmative of an issue
and, therefore, Petitioners bears the burden in this case of proving that the
agency decision was in error under the statutory and regulatory standards. Leventis
v. Dep’t of Health and Envtl. Control, 340 S.C. 118, 530 S.E.2d 643 (Ct.
App. 2000).
2. Permits for
the construction of private docks in the coastal zone are governed by the South
Carolina Coastal Tidelands and Wetlands Act, S.C. Code Ann. §§ 48-39-10 et seq. (1987 & Supp. 2006), and the regulations promulgated pursuant
to those provisions found at 23A S.C. Code Ann. Regs. 30-1 et seq.
(Supp. 2007). Those regulations govern the management, development, and
protection of the critical areas and coastal zone of this State. Furthermore,
OCRM is charged with carrying out South Carolina’s coastal zone policies and
issuing permits for docks and piers in the critical areas of the coastal waters
and tidelands. 23A S.C. Code Ann. Regs. 30-12(A)(1)(Supp. 2007); S.C. Code Ann
§48-39-130 (1987 & Supp. 2006).
3. Petitioner
asserts that the Department improperly required that her proposed dock
terminate in an unnavigable waterway. This case thus involves the application
of 23A S.C. Code Ann. Reg. 30-12(A)(1)(n), which governs the circumstances
under which a dock may cross a navigable tributary. That regulation provides:
Docks must extend to the first navigable creek, within
extensions of upland property lines or corridor lines, that has a defined
channel as evidenced by a significant change in grade with the surrounding
marsh; or having an established history of navigational access or use. Rare
geographic circumstances, such as very close proximity of a significantly
larger creek within extensions of property or corridor lines, may warrant dock
extension to a creek other than the first navigable creek. A creek with an
established history of navigational use may also be considered as navigable.
Such creeks cannot be bridged in order to obtain access to deeper water.
However, pierheads must be located over open water and floating docks that rest
upon the bottom at mean low tide will not normally be permitted. In exceptional
cases, the Department may allow an open water channel to be bridged if current
access is prohibited by other man made or natural restrictions or if
site-specific conditions warrant such a crossing.
“The true test to be
applied [in determining whether a waterway is navigable] is whether a stream
inherently and by its nature has the capacity for valuable floatage,
irrespective of the fact of actual use or the extent of such use.” Hughes v.
Nelson, 303 S.C. 102, 105, 399 S.E.2d 24, 25 (Ct. App. 1990), citing State
ex rel. Medlock v. S.C. Coastal Council, 289 S.C. 445, 449, 346 S.E.2d 716,
719 (1986). The term “valuable floatage” includes not only commercial vessels
but also use of a waterway by the general public for boating, hunting, and
fishing. State ex rel. Medlock v. S.C. Coastal Council, 289 S.C. 445,
346 S.E.2d 716 (1986). Furthermore, “[t]he test of navigability is not whether
a waterway is accessible at all times. Rather, the test is whether it is
accessible ‘at the ordinary stage of the water.’” Hughes, 399 S.E.2d at
26 (1990), quoting State v. Columbia Water, 82 S.C. 181,189, 63 S.E.
884, 888 (1909).
Petitioner contends
OCRM should be barred from raising the issue of whether the tributary to
Bohicket Creek is navigable since this Court has previously heard and decided
the issue in Stephen Combos, Samuel Brownlee, Richard Jolly, Ernie Driggers
v. DHEC-OCRM and Edward Mappus, Docket No. 02-ALJ-07-0126-CC (Combos).
“Under the doctrine of collateral estoppel, once a final judgment on the merits
has been reached in a prior claim, the relitigation of those issues actually
and necessarily litigated and determined in the first suit are precluded as to the parties and their
privies in any subsequent action based upon a different claim.” Richburg v.
Baughman, 290 S.C. 431, 434, 351 S.E.2d 164, 166 (1986). The party who
raises collateral estoppel as a defense must thus demonstrate that “the issue
was actually litigated and directly determined in the prior action and that the
matter of fact directly in issue was necessary to support the first judgment.” Beall v. Doe, 281 S.C. 363, 371, 315 S.E.2d 186, 191 (Ct. App.
1984). Furthermore, the party to be precluded from relitigating an issue must
be the same party or one in privity with that party. Carrigg v. Cannon,
552 S.E.2d 767, 347 S.E.2d 75 (Ct. App. 2001). The term “privity” under this
doctrine means “one so identified in interest with another that he represents
the same legal right.” 347 S.E.2d at 770 Ex Parte Allstate Ins. Co., 339 S.C. 202, 528 S.E.2d 679 (Ct. App. 2000).
In Combos, OCRM
denied the Petitioners’ permits on the grounds that the same tributary that is
at issue in this case was navigable and therefore could not be crossed pursuant
to Reg. 30-12(A)(1)(n). Upon review of OCRM’s decision, this Court determined
that the Atkinson dock constituted a man-made impediment to navigation of the
tributary. In particular, the Court found that the Atkinson dock created “a
hazard to safe navigation in and out of the tributary at the ordinary tides due
to the location of the channel of the tributary under the Atkinson dock, the
existence of the sand bar/mud flat on the side of the mouth opposite the
Atkinson dock, and the prevailing winds and currents.” The determination of
whether the Atkinson dock constituted an impediment to navigation was necessary
to resolution of the case and OCRM had a full and fair opportunity to litigate
the issue in the prior case.
Because this Court
rendered a final decision on this issue in the prior cases, OCRM is barred from
relitigating this issue involving the same parties or their privities unless it
can demonstrate a change in conditions. However, in the present case, OCRM
asserts, as it did in the prior case, that crossing it would violate Reg.
30-12(A)(1)(n) because the tributary is navigable. That assertion is made
despite the presence of the Atkinson dock in the same location. In fact, no
evidence was presented indicating the conditions in Bohicket Creek, the
tributary, or in and around the Atkinson dock changed. Moreover, Combos involved the same parties or privities as this case. Accordingly, the findings
made in Combos regarding the navigability of the tributary are binding
in this case.
Here, since the
tributary is non-navigable, there is no bar under S.C. Code Ann. Regs.
30-12(A)(1)(n) to the Petitioner bridging the tributary and constructing a dock
with access to Bohicket Creek. Furthermore, the termination of the tributary closely
near the location where Petitioner’s dock will cross over the tributary is an
exceptional geographic condition that warrants further consideration in
determining whether Petitioner should be allowed to extend her dock to Bohicket
Creek. Finally, since the dock crosses the tributary at a point where the
tributary begins to terminate and take on the characteristics of a mudflat, there
will be no negative effect on any adjacent property owners or members of the
public who desire to navigate in the smaller tributary if the Petitioner’s dock
extends to Bohicket Creek.
In
conclusion, Petitioner has met all applicable requirements under S.C. Code Ann.
Regs. 30-12 and is therefore entitled to a permit authorizing the construction
of a private recreational dock extending to the Bohicket Creek.
ORDER
Based upon the above
findings of fact and conclusions of law, it is hereby:
ORDERED that Petitioner
is authorized to construct a dock terminating at Bohicket Creek at the
location, and in the configuration, set forth in her permit application.
AND IT IS SO ORDERED.
______________________________
Ralph King Anderson, III
Administrative Law Judge
February 3, 2009
Columbia, South Carolina
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