ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This is a contested case brought by Thomas Stone, contesting an administrative order
issued by South Carolina Department of Health and Environmental Control, Office of Ocean and
Coastal Resource Management (OCRM), revoking Respondent’s dock permit, P/N OCRM-01-300-R.
The hearing was held before me on April 13, 2005, at the offices of the Administrative
Law Court in Columbia, South Carolina. Both parties were present and represented by counsel
at the scheduled hearing.
ISSUES
The grounds raised by Respondent Stone are as follows:
1.Whether OCRM complied with the procedural and substantive
requirements of 23A S.C. Code Ann. Regs. 30-8 (Supp. 2003).
2.Whether 23A S.C. Code Ann. Regs. 30-2(I) (Supp. 2003) and/or S.C.
Code Ann. § 48-39-220 (Supp. 2003) are proper bases for revocation of a
permit issued more than three years before OCRM became aware of a
private claim of ownership of marsh.
3.Whether the U.S. Department of the Navy knew or should have known of
Respondent Stone’s 2001 permit application, and failed to properly assert
its interests and protect its alleged rights prior to issuance of the permit.
4.Whether OCRM knew or should have known in 2001 of the alleged claim
by the U.S. Department of the Navy of private ownership of public
tidelands, and failed to act accordingly in its review of Respondent
Stone’s permit application.
5.Whether Respondent acted in reliance on the U.S. Department of the
Navy’s failure to respond to the permit application, and on OCRM’s
failure to take note of the Navy’s alleged claim, and suffered a detriment
as a consequence of this reliance.
6.Whether the U.S. Department of the Navy had an affirmative duty to
provide notice to adjacent upland owners of its claim of ownership of
public tidelands.
7.Whether the condemnation action filed on behalf of the U.S. Department
of the Navy before the United States District Court could have the force
and effect of alienating public trust lands.
8.Whether the general conditions included in all of OCRM’s critical area
permits support revocation of this permit.
9.Whether Respondent has violated any terms or conditions of the permit
that is the subject of this revocation.
10.Whether revocation of Respondent's dock permit, P/N OCRM-01-300-R,
is inconsistent with S.C. Code Ann. § 48-39-150(E) (Supp. 2003).
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed
upon their credibility, taking into consideration the burden of persuasion by the parties, I make
the following Findings of Fact by a preponderance of evidence:
Background
Respondent Thomas Stone is the owner of a three (3) acre tract located adjacent to
Yellow House Creek in Berkeley County, South Carolina, described as Lot 12, Little House
Place, Wando. He purchased Lot 12 with the intent of investing in a waterfront lot with access
to Yellow House Creek. In fact, Respondent’s contract to purchase Lot 12 was expressly
contingent upon receipt of a dock permit and Respondent purposely did not close on the contract
for the purchase of Lot 12 until after issuance of this permit. Upon entering into a contract to
purchase Lot 12, but prior to closing, Respondent applied for a dock permit for Lot 12. On July
23, 2001, OCRM issued permit P/N OCRM-01-300-R to Respondent, authorizing construction
of a dock consisting of a pierhead, floating dock and boatlift on Yellow House Creek.
Respondent has not built the dock authorized under this permit.
In August of 2004, over three (3) years after Respondent’s permit was issued, the United
States Navy, from its offices located at the Naval Weapons Station in Goose Creek, South
Carolina, notified OCRM that it claimed ownership of a tract of marsh located between
Respondent’s property and Yellow House Creek. On August 19, 2004, OCRM requested that
the Department of the Navy file an action to establish title to the marsh in accordance with S.C.
Code Ann. § 48-39-220 (Supp. 2003) and 23A S.C. Code Ann. Regs. 30-(I) (Supp. 2003). The
Navy refused and instead provided OCRM with a copy of a Judgment of the United States
District Court, Charleston Division, dated December 1, 1969, along with some pleadings and
exhibits. The Judgment was issued in the matter entitled United States of America v. 72.50
Acres of Land, More or Less, in the County of Berkeley, State of South Carolina, et al., Civil
Action 8795. It is in the form of a Consent Order and arose from a condemnation proceeding
filed by the United States of America.
Upon receipt of the Judgment and other documents related to that Civil Action, OCRM
then issued a Notice of Intent to Revoke to Mr. Stone, dated November 22, 2004, based on the
information provided by the Department of the Navy. On December 14, 2005, OCRM issued a
Default Order of Revocation which revoked Respondent’s permit based on OCRM’s conclusion
that “the U.S. Government, particularly the U.S. Navy, owns the critical area marsh in question
and substantiated this with DHEC-OCRM on September 8, 2004.”
Notice
The Navy’s ownership of the marshland was purportedly established by the 1969
Judgment referenced above. However, Respondent’s closing attorney, Robert J. Donaldson, III,
performed an extensive title search on Lot 12 based on the fact that Lot 12 was part of a larger
parcel of “heirs” property. Mr. Donaldson found no recorded documents in the form of plats,
deeds, or mortgages to provide notice of the 1969 Judgment in the Office of the Register of
Mesne Conveyances for Berkeley County.
The Department of the Navy simply has taken no
steps to provide record notice of its ownership claim. Therefore, Respondent had no knowledge,
or reasonable means of obtaining knowledge, of the Navy’s purported ownership of the marsh in
question.
On the other hand, Public Notice of Respondent’s permit application was provided to the
Navy. Respondent advertised his permit application, in accordance with OCRM’s requirements,
in The Post and Courier, a newspaper of general circulation in Berkeley, Charleston and
Dorchester Counties. Furthermore, individual notice was given to persons shown on
Respondent’s application as adjoining property owners, and notification was provided to each
individual or entity that appeared on Petitioner’s “General Public Notice Mailing List.” Various
federal agencies were provided notice of this permit application along with the United States
Marine Corps.
No entity affiliated with the United States Government commented or objected
to Respondent’s proposal to construct a dock.
Compliance with Permit
Respondent has, to date, performed no action authorized under the permit. Furthermore,
he has not failed or refused to comply with the terms or conditions of his permit. Rather, OCRM
revoked Respondent’s permit pursuant to 23A S.C. Code Ann. Regs. 30-8 (A) (Supp. 2003)
because Respondent failed to list the Navy’s Naval Weapons Station as an adjacent property
owner in his permit application and because he provided inaccurate information. Both reasons
stem from OCRM’s determination that the Navy owned the adjacent marshland property.
In submitting his permit application, Respondent did not provide information to OCRM
regarding the Department of the Navy’s claim of ownership of marsh located between Lot 12
and Yellow House Creek. However, the Judgment of the United States District Court references
72.50 acres, but the records from the Berkeley County tax assessor’s office, obtained in 2004
during OCRM’s investigation of the Navy’s claim, indicate a parcel between Yellow House
Creek and Respondent’s high-ground in excess of one hundred (100) acres. Absent any properly
proffered evidence from the Navy to clarify or explain this discrepancy, this Court cannot
assume or conclude that the Judgment applies to marsh impacted by Respondent’s dock permit.
Therefore, the Navy’s claim of ownership, which is the sole basis for OCRM’s revocation, was
not properly substantiated before this Court.
Furthermore, the evidence indicates that the parcel of marsh subject to the Navy’s claim
is not directly adjacent to Respondent’s high-ground. The marsh purportedly owned by the
Navy is separated from Respondent’s high-ground by another parcel of marsh, presumably
owned by the State of South Carolina. Therefore, Respondent did not provide materially
erroneous information to OCRM when it supplied OCRM with the names and addresses of
adjoining property owners.
CONCLUSIONS OF LAW
Based on the foregoing Findings of Fact, I conclude the following as a matter 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. 2003), and §§ 1-23-500 et seq.
(Supp. 2003). Furthermore, S.C. Code Ann. § 48-39-150(D) (Supp. 2003) specifically
authorizes the Court to hear contested cases arising under Chapter 39 of Title 48 of the 1976
Code.
2.In civil cases, the burden of proof rests upon the party who asserts the affirmative
of an issue. 29 Am.Jur.2d Evidence § 127 (1994); Alex Sanders, et al., South Carolina Trial
Handbook § 9:3 Party With Burden, Civil Cases (2000). That burden of proof is carried by a
preponderance of the evidence. Nat'l Health Corp. v. S.C. Department of Health and
Environmental Control, 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989).
3. 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. S.C.
Code Ann. § 48-39-130 (Supp. 2003). Permits for the construction of private docks in the
coastal zone are also governed by the South Carolina Coastal Zone Management Act. See 23A
S.C. Code Ann. Regs. §§ 30-1 et seq. (Supp. 2003). Those regulations govern the management,
development, and protection of the critical areas and coastal zone areas of the State. More
specifically, the regulatory policies governing all permit decisions and project standards for
docks and piers are found at Regulation 30-12.
4.S.C. Code Ann. § 48-39-50(H) (Supp. 2003) authorizes OCRM to “revoke and
suspend permits of persons who fail or refuse to carry out or comply with the terms and
conditions of the permit.” Furthermore, Section 48-39-150(E) provides that “[a]ny permit may
be revoked for noncompliance with or violation of its terms after written notice of intention to do
so has been given the holder and the holder given an opportunity to present an explanation to the
department.” Therefore, a permit may be revoked when the permitee fails to comply with the
permit. However, the evidence did not establish that Respondent failed or refused to carry out or
comply with the terms and conditions of the permit.
Furthermore, OCRM’s critical area permits do not alter or affect the status of title of the
State or any person to lands below the mean highwater mark. S.C. Code Ann. § 48-39-190
(Supp. 2003). Moreover, the permit itself sets forth the following general condition:
That this permit does not convey, expressly or impliedly, any property rights in
real estate or material nor any exclusive privileges; nor does it authorize the
permittee to alienate, diminish, infringe upon or otherwise restrict the property
rights of any other person or the public; nor shall this permit be interpreted as
appropriating public properties for private use.
Therefore, if Respondent were to build the dock upon land own by the Navy, the permit, even if
it could, does not grant Respondent any ownership rights to the land.
The Department relies upon the language of Regulation 30-8(A) to revoke Respondent's
permit. Regulation 30-8(A) authorizes revocation when “materially erroneous or fraudulent
information has been provided by either the permit applicant, or resource agencies charged with
the responsibility of providing background information for the permitting process.”
Indeed,
notice must be published to the adjoining landowners. Section 48-39-140 (B)(5) provides that an
application for a permit must provide “[a] list of all adjoining landowners and their addresses or
a sworn affidavit that with due diligence such information is not ascertainable.” OCRM relies
upon that list to give notice to the adjoining landowners.
Respondent Stone did not list the Navy as an adjoining landowner. However, the
evidence did not establish that the Navy is an adjoining landowner.
Here, it appears that
Respondent does not share a boundary with the Department of the Navy. More importantly, the
1969 Judgment references a track of land but the evidence did not establish what portion of the
condemned property is owned by the Navy. Furthermore, the evidence did not establish that the
Navy evens owns the disputed land. The 1969 Judgment did not clearly set forth that the
property upon which Respondent’s dock will lie is the property that was condemned to the
United States.
Additionally, the purpose of discovering the identity of adjoining property owners is to
provide notification of the permit application. Here, despite Respondent’s failure to provide this
information, the Department of the Navy received notification of the permit application.
Though the Navy received notification of the permit application, it failed to respond or comment
to OCRM in a timely manner. Because the Navy received actual notice, Respondent’s omission
of this information is not materially erroneous.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that P/N OCRM-01-300-R issued to Thomas Stone authorizing construction
of a dock to Yellow House Creek is reinstated.
AND IT IS SO ORDERED.
____________________________________
Ralph King Anderson, III
Administrative Law Judge
June 3, 2005
Columbia, South Carolina |
