SC Administrative Law Court Decisions

STATEMENT OF THE CASE

In the above-captioned matter, Petitioner Mary Ruth Lever seeks a permit to construct a private boat ramp in an unnamed tributary of Parsonage Creek at her property located at 379 Parsonage Lane in Murrells Inlet, South Carolina. On February 18, 2004, Petitioner filed an application with Respondent South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management (OCRM), to amend her current critical area permit to authorize a 12’ by 64’ concrete boat ramp in addition to the existing bulkhead and private dock on the property. By a letter dated July 27, 2004, OCRM denied Petitioner’s permit amendment request on several grounds. On August 10, 2004, Petitioner timely requested a contested case hearing before this Court to challenge OCRM’s denial of her request to amend her critical area permit. By motions dated September 16, 2004, and November 1, 2004, certain neighboring property owners moved to intervene in this matter in opposition to Petitioner’s permit amendment request. These motions were granted by Orders dated October 7, 2004, and November 18, 2004, respectively.

After timely notice to the parties, a hearing of this case was held on March 2, 2005, at the South Carolina Administrative Law Court in Columbia, South Carolina. Based upon the evidence presented at the hearing, the arguments of counsel, and the applicable law, I find that OCRM’s decision to deny Petitioner’s requested permit amendment must 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:

1.Petitioner Mary Ruth Lever owns the property located at 379 Parsonage Lane in Murrells Inlet, South Carolina. The property is situated adjacent to a small, unnamed tributary of Parsonage Creek, which, in turn, runs into Murrells Inlet Creek. This unnamed tributary is commonly referred to as a swash by nearby residents. In October 2003, Petitioner received a critical area permit from OCRM, number OCRM-03-522, for (1) the construction of a bulkhead along the boundary between her property and the swash, and (2) the construction of a private, recreational dock, consisting of a walkway, pierhead, ramp, and floating dock, in the swash. See Pet’r Ex. #3, at 1. The bulkhead and dock authorized by Petitioner’s critical area permit have been constructed at the property, although the dock was constructed without the permitted walkway. See Intervenors May & Atkinson Ex. #1, #11.

2.On February 18, 2004, Petitioner submitted an application for an amendment to her critical area permit to authorize the additional construction of a 12’ by 64’ concrete boat ramp into the swash adjacent to the previously permitted floating dock and pierhead. See Pet’r Ex. #4, at 1. The proposed boat ramp project also requires the construction of two 6’ bulkhead wingwalls where the boat ramp would cut out the existing bulkhead. See id. By a letter dated July 27, 2004, OCRM denied Petitioner’s permit amendment request on several grounds, including (1) Petitioner’s lack of ownership of or legal rights to the access road leading to the proposed boat ramp location, (2) the availability of at least two public boat ramps in close proximity to Petitioner’s property, and (3) concerns about the cumulative effects of the proposed boat ramp on the general character of the area, the specific effects of the boat ramp on the environment of the swash, and the effects of the ramp on the neighboring property owners’ use and enjoyment of their properties. See Pet’r Ex. #2, at 1-2.

3.At the point where the swash adjoins Petitioner’s property, the swash is approximately forty-four feet wide and is lined on both sides by bulkheads. See Intervenors May & Atkinson Ex. #4, #11. As a tidal creek, the swash fills with several feet of water at high tide and runs nearly dry at low tide. See Pet’r Ex. #9D; Intervenors May & Atkinson Ex. #1. Petitioner’s existing pierhead and floating dock extend approximately twenty-two feet into the swash, placing the floating dock directly above the middle of the main channel of the swash. See Pet’r Ex. #3, at 3-4; Intervenors May & Atkinson Ex. #1, #11, #13. Petitioner’s proposed boat ramp would extend thirty-four feet into the swash, and would thus intrude even farther into the swash than the existing dock. See Pet’r Ex. #4B, at 1. I find that the proposed boat ramp would extend beyond the main channel of the swash and would unduly restrict navigation and impede tidal flow within the swash.

4.By extending at least 34 feet into the swash, Petitioner’s proposed boat ramp would cover approximately 392 square feet of critical area and its construction would require the excavation of 17.5 cubic yards of wetland area from the swash. See Pet’r Ex. #4B, at 1, 3. Clusters of oysters and marsh vegetation are currently growing along Petitioner’s bulkhead at the location of the proposed boat ramp. See Intervenors May & Atkinson Ex. #14, #15. If the boat ramp is constructed as proposed, these resources would be permanently lost. Further, a healthy stand of marsh vegetation that is growing on the opposite side of the swash from Petitioner’s property would also be jeopardized by boat traffic making use of the proposed boat ramp. See Intervenors May & Atkinson Ex. #14, #15.

5.There are four public boat ramps within six miles of Petitioner’s property, including a large, public boat ramp and landing less than one mile from the property. Hr’g Tr. at 41, 227. This landing, The Murrells Inlet Public Boat Landing, is a sizable public boat landing facility with concrete boat ramps, deep water access, and a large parking lot that includes handicapped-accessible parking. Hr’g Tr. at 42, 209.

6.Petitioner Mary Ruth Lever and her husband, Lawson Lever, reside at their lakefront property on Lake Murray, in Irmo, South Carolina, and lease the property in question to their friend, Juli Rhame. Accordingly, while the Levers have visited Murrells Inlet sporadically in recent years, they have not launched a boat in the water at Murrells Inlet since before 1989 and have not attempted to use any of the existing public boat ramps in Murrells Inlet. Ms. Rhame has, until recently, kept two fishing boats on Petitioner’s property, and currently has one twenty-foot fishing boat stored on the property.

7.Intervenors Atkinson and Edwards own the adjoining properties on either side of Petitioner’s property along the swash. Intervenor May also owns property on Parsonage Lane; however, his property is not situated along the swash. With regard to Petitioner’s application to construct a boat ramp, Intervenors are primarily concerned about (1) the harmful effects of such a boat ramp upon the swash, including its effects upon water flow, plant and animal life, and navigation in the swash, and (2) the unwanted vehicular traffic the existence of such a boat ramp would bring to Parsonage Lane. Intervenor Atkinson also holds a four-foot-wide walkway easement at the mean high water line along Petitioner’s property to the shell beach on Parsonage Creek. Intervenors May & Atkinson Ex. #25, at 1. The construction of the proposed boat ramp would effectively block this easement, because of the “cut out” of the bulkhead required for the boat ramp. See Pet’r Ex. #4B, at 3.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:

1.This Court has jurisdiction over this matter pursuant to S.C. Code Ann. § 48-39-150 (Supp. 2004), 23A S.C. Code Ann. Regs. 30-6 (Supp. 2004), and S.C. Code Ann. § 1-23-600(B) (Supp. 2004). Under S.C. Code Ann. § 48-39-50(G) and (V) (Supp. 2004), the South Carolina Department of Health and Environmental Control, through OCRM, is charged with reviewing and either approving or denying applications for permits for proposed activities within the coastal zone. In order to carry out this responsibility, the Department has promulgated regulations governing the evaluation of permit applications for the construction of boat ramps and other activities in the coastal zone and the critical areas. See 23A S.C. Code Ann. Regs. 30-1 to 30-17 (Supp. 2004).

2.The South Carolina Coastal Zone Management Act prohibits any person from utilizing a critical area without a permit from OCRM. See S.C. Code Ann. § 48-39-130(A) (Supp. 2004). For permits to construct boat ramps in the critical areas, two particular regulations are pertinent: the general guidelines applicable to all critical area permits, 23A S.C. Code Ann. Regs. 30-11 (Supp. 2004), and the specific regulations governing permits for boat ramp construction, 23A S.C. Code Ann. Regs. 30-12(B) (Supp. 2004). Because Petitioner’s proposed boat ramp is to be located in a critical area, these regulatory provisions are applicable to the permit amendment application under consideration.

3.In the case at hand, Petitioner, as the party affirmatively asserting her eligibility for the requested permit amendment, 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) (holding that the burden of proof in administrative proceedings generally rests upon the party asserting the affirmative of an issue); 73A C.J.S. Public Administrative Law and Procedure § 128, at 35 (1983) (“In administrative proceedings, the general rule is that an applicant for relief, benefits, or a privilege has the burden of proof, and the burden of proof rests upon one who files a claim with an administrative agency to establish that required conditions of eligibility have been met.”). Therefore, Petitioner must demonstrate, by a preponderance of the evidence, that her proposed boat ramp satisfies the relevant statutory and regulatory criteria governing activities in the critical areas. See Anonymous v. State Bd. of Med. Exam’rs, 329 S.C. 371, 375, 496 S.E.2d 17, 19 (1998) (holding that the standard of proof in an administrative proceeding is generally the preponderance of the evidence).

General Guidelines for All Critical Areas

4.In reviewing any application for a permit to utilize a critical area, OCRM is guided by a number of general considerations. See S.C. Code Ann. § 48-39-150(A) (Supp. 2004); 23A S.C. Code Ann. Regs. 30-11(B) (Supp. 2004). These considerations are designed to “reduce the irreversible loss of productive tidelands, coastal waters, beaches, and dunes while meeting long-range State development needs.” 23A S.C. Code Ann. Regs. 30-11(A) (Supp. 2004). Among other factors, OCRM is required to consider the extent to which a proposed project would “harmfully obstruct the natural flow of navigable water,” “affect the production of fish, shrimp, oysters, crabs, or clams or any marine life or wildlife, or other natural resources in a particular area,” and “affect the value and enjoyment of adjacent owners [sic].” 23A S.C. Code Ann. Regs. 30-11(B)(2), (3), (10). Further, OCRM must consider “[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) (Supp. 2004).

5.In the instant matter, I find that OCRM properly determined that the construction of Petitioner’s proposed concrete boat ramp into the middle of the swash would impede water flow and navigation in the swash, injure oysters, marsh grass, and other plant and animal life in the swash, and impair the ability of neighboring property owners to use and enjoy the swash and the lands surrounding the swash. OCRM also properly concluded that, if it granted Petitioner’s permit to construct a boat ramp, it would have difficulty denying future applications for private boat ramps in the Murrells Inlet area, thus leading to a proliferation of such private boat ramps that would be damaging to the residents and wildlife of Murrells Inlet.

Specific Project Standards for Boat Ramps in Tidelands and Coastal Waters

6.OCRM’s critical area permitting regulations also contain specific project standards for the construction of boat ramps. See 23A S.C. Code Ann. Regs. 30-12(B). As a general matter, the regulation describes the basic purpose and nature of boat ramp construction:

Boat ramps provide access to the water for those who do not have water access by means of docks, piers, or marinas. However, boat ramp construction may require filling or, in some cases, dredging of wetland areas.

Id. 30-12(B)(1). Further, the regulation sets out several specific project review standards for evaluating proposed boat ramps. Id. 30-12(B)(2). Among other things, these standards strongly disfavor the construction of boat ramps for private use, rather than public use, and the construction of boat ramps where the filling or excavating of wetland areas is required. See id. 30-12(B)(2)(c) (ranking “private use” boat ramps—i.e., ramps used by “one citizen or family”—as the lowest priority justification for boat ramp construction behind public use and restricted use boat ramps), 30-12(2)(d) (suggesting that private boat ramps should only be approved “in cases where private use is necessary”) (emphasis added), 30-12(2)(a) (“Filling or excavating of vegetated wetlands for boat ramp construction is prohibited unless no feasible alternatives exist in non-vegetated wetland areas.”) (emphasis added), 30-12(B)(2)(e) (“Boat ramp location[s] requiring dredging or filling of wetlands to provide deep water access to the ramp, parking areas for the ramp, or other associated facilities are prohibited unless no feasible alternatives exist and environmental impacts can be limited.”) (emphasis added). While these regulatory provisions pertaining to boat ramp construction are inartfully drafted in many respects, it is evident from both the general pronouncement of Regulation 30-12(B)(1) and the itemized standards of Regulation 30-12(B)(2) that the construction of private boat ramps should be limited to those instances where such construction is necessary because the water adjoining the property in question is not accessible by other means of launching a boat. Moreover, the regulations make it clear that private boat ramps are particularly disfavored where the construction would require the excavation or filling of wetland areas and would result in permanent damage to wetland vegetation. See also, e.g., 23A S.C. Code Ann. Regs. 30-12(B)(2)(d) (“In cases where private use is necessary, siting of ramps must, wherever feasible, be located in areas where the least environmental impact will accrue to the area . . . .”).

7.In the case at hand, I find that OCRM properly concluded that Petitioner’s application to construct a private boat ramp on her Murrells Inlet property did not satisfy the boat ramp permitting standards of Regulation 30-12(B). In particular, Petitioner’s proposed boat ramp is not necessary for water access at her property as there are four existing public boat ramps within a few miles of the property, including a large public boat landing less than a mile away, and as Petitioner’s property is already equipped with a floating dock and pierhead in the swash. Further, the construction of Petitioner’s proposed boat ramp would require the excavation of 17.5 cubic yards of wetland area and, once constructed, the boat ramp would cover 392 square feet of critical area, including areas formerly occupied by marsh grass and clusters of oysters.

8.Despite the general accessibility of Petitioner’s property to the waters of Murrells Inlet through nearby public boat landings and a dock on the property, Petitioner further asserts the disabilities suffered by her and her husband as a justification for obtaining the boat ramp, because these disabilities limit their ability to launch a boat at other facilities, thus restricting their access to the water. However, the reference to “access to the water” in Regulation 30-12(B)(1) does not address the individual physical capabilities of those who might seek to use the proposed boat ramp, but rather speaks generally to the availability of access to the water by means of docks, piers, or marinas in relation to the property for which the boat ramp is requested. The disability of an applicant for a permit to construct a boat ramp is simply not a factor considered in evaluating such an application under the general critical area permitting considerations or the specific permitting standards for boat ramps. See 23A S.C. Code Ann. Regs. 30-11(B), (C), 30-12(B). Moreover, as the Levers maintain their residence in Irmo, South Carolina, visit Murrells Inlet only sporadically, and have not launched a boat in Murrells Inlet for over fifteen years, this tribunal is not convinced that they would utilize a boat ramp in Murrells Inlet to any meaningful extent, even if such a ramp were permitted for and constructed on the property.

ORDER

Based upon the Findings of Fact and Conclusions of Law stated above,

IT IS HEREBY ORDERED that OCRM’s denial of Petitioner’s permit amendment request for the construction of a boat ramp on her property at 379 Parsonage Lane in Murrells Inlet, South Carolina, is SUSTAINED.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667

April 27, 2005

Columbia, South Carolina