The instant matter involves two
contested cases arising from similar facts and requiring the application of
similar law. Given such commonality, the parties agreed (and the Court
consented) to the consolidation of these two cases.
Docket No. 04-ALJ-07-0129
presents a challenge by Bruce and Barbara Olson (Olsons) to a decision by the
South Carolina Department of Health and Environmental Control, Office of Ocean
and Coastal Resources Management (OCRM) that authorizes a joint use dock for
Jack L. Sims and John McCown (Sims or McCown or Sims-McCown). Docket No.
04-ALJ-07-0302-CC presents a challenge by the Olsons to OCRM's decision to deny
the Olsons' request for a dock permit.
These challenges place contested
case jurisdiction in the Administrative Law Court under S.C. Code Ann. Sec.
48-39-150 (Supp. 2004) and Sec. 1-23-310 et seq. (Rev. 1987 &
Supp. 2004). Having considered the evidence and applicable law, I conclude the
Olsons' permit must be denied and the Sims-McCown joint use permit is proper.
Four issues are raised in the
contest. Two concern OCRM's denial of the Olsons' request for a dock permit,
and two relate to the Sims-McCown dock.
As to the denial of their dock
permit, the Olsons argue their lot cannot be denied due to the lot not being a
"waterfront" lot and that a dock for their lot is permissible within
the applicable statutes and regulations. Second, they argue that in all events
denying the dock permit violates their rights to equal protection.
The final two issues relate to
the Olsons' challenge to the Sims-McCown dock permit. The Olsons argue the
Sims-McCown dock permit should be denied since the history of that lot shows
that a joint-use dock is permissible but is permissible only for a Sims-Olson
dock, not a Sims-McCown dock. Finally, the Olsons argue that the Sims-McCown
permit must be denied since the procedure used in granting it violated due
process.
Based on the preponderance of the
evidence, the following Findings of Fact are entered:
Romain Retreat subdivision was
developed in the late1970's in Awendaw, Charleston County, South Carolina with
a portion of the subdivision bordering the Atlantic Intracoastal Waterway. The
Olsons own Lot 56. When standing on Lot 56 and facing the waterway, Olsons’ lot
borders on Lot 55 to the east (left) and on the south (front) lot 61. Lot 55
and lot 61 each have a dock with the dock on Lot 55 being a joint use dock with
lot 54. Sims owns Lot 55, McCown owns Lot 56, and Molly Ball owns Lot 61.
The initial price list for the
Romain Retreat subdivision as of August 18, 1978, listed Lot 55 as waterfront
property with 2.23 acres and listed Lot 56 as waterfront property with 2.15
acres. However, by July 1, 1981, the price list listed Lot 55 as waterfront
property with 2.29 acres but identified Lot 56 as marsh front property with
1.84 acres.
Bruce and Barbara Olson signed a
contract to purchase Lot 56 on August 27, 2001. The contract does not identify
the lot as being waterfront, does not state that the lot is entitled to a dock,
and does not state that the lot is entitled to a joint use dock with Lot 55.
The Olsons closed on Lot 56 on October 16, 2001 for $121,000 with a deed that
does not reference any marshland, that does not identify the lot as being
waterfront, and that does not reference a joint use dock with Lot 55 or an
easement across lot 55 to reach the dock.
On October 3, 2003, OCRM assigned
Gwenyth T. Reid's permit for Lot 54 to McCown. Soon thereafter on October 18,
2003, Sims and McCown both applied for amendments to their existing dock
permits asking to create a single joint use dock for Lots 55 and 54. The
amended permit provided for one walkway beginning at the intersection at Lots
54 and 55 leading to two pier heads, One pierhead was as originally requested
by Sims, and the other as originally requested by McCown. The total square
footage of both pierheads and floating docks was less than that which both
docks would have totaled if constructed individually.
On February 17, 2004, OCRM
granted the amendments requested by Sims and McCown and on March 23, 2004, the
Olsons challenged the amended permit for the joint use dock between Sims and
McCown. (Respondents' Exhibit 13).
In August 2004, the Olsons
submitted to OCRM an application for a dock permit for Lot 56. That
application was followed on August 13, 2004, by the issuance of a "JOINT
PUBLIC NOTICE" by the Corps of Engineers and OCRM.
The dock sought by the Olsons
will have a walkway in the drainage easement between Lots 55 and 61. The
walkway will then have a "bend" which will direct the walkway out to
the waterway and end at a fixed pierhead and floating dock. The floating dock
will be seven feet from the existing floating dock at Lot 61, and 44 feet from
Sims' dock at Lot 55. Installation of the dock will require removal of the existing
mooring piling located between Sims' and Ball's docks.
In a letter dated September 3,
2004, OCRM denied the Olsons' permit request. Subsequently, a challenge to
that decision as well as the Olsons' challenge to the amended permit for the
joint use dock between Sims and McCown gave rise to the matter now before the
ALC.
Based on the foregoing Findings
of Fact, I conclude the following as a matter of law:
OCRM and the Intervenors first
argue that the Olsons' request for a dock cannot be granted since the lot to
which they seek to attach a walkway and a dock is not a waterfront lot.
Second, OCRM and the Intervenors argue that even if the lack of waterfront
property is not fatal, the dock must still be denied since the requirements of
Regs. 30-11 and 30-12 have not been met. Each position is addressed below.
In large measure, OCRM denied the
Olsons' request for a dock since the lot is not waterfront property and since
the extensions of lot 56's property lines do not intersect a navigable creek.
As support for these positions, OCRM relies upon Regs. 30-11(B)(1),
30-1(D)(52), and 30-12(A)(2)(e). Why I find the permit must be denied, I
cannot agree with OCRM's position that the cited regulations warrant denying
the permit.
a. Regs.
30-11(B)(1)
Regs. 30-11(B)(1) explains that
for "assessing the potential impacts of projects in critical areas, [OCRM]
will be guided by . . . the following ten considerations [including] . . .
[t]he extent to which the activity requires a waterfront location or is
economically enhanced by its proximity to the water." Thus, the issue for
Regs. 30-11(B)(1) is measuring the extent to which the activity of constructing
a dock "requires a waterfront location or is economically enhanced by its
proximity to the water."
To even state the issue is to
essentially answer it. Indeed, with unbridled clarity, Regs. 30-12(A)(1)
explains that "[a] dock or pier is a structure built over and/or floating
on water and is generally used for the mooring of boats [with d]ocks and piers
[being] the most popular method of gaining access to deep water." Thus,
the very definition of a dock entails an activity that "requires a
waterfront location or is economically enhanced by its proximity to the water."
Therefore, Regs. 30-11(B)(1) is not a valid basis for denying a permit seeking
a dock since docks are "built over and/or floating on water."
b. Regs.
30-1(D)(52)
Regs. 30-1(D)(52) presents a
definition which explains that "[f]or purposes of these regulations
waterfront property will generally be defined as upland sites where a
straight-line extension of both, generally shore perpendicular, upland property
lines reaches a navigable watercourse within 1000' of the marsh critical
line." However, the language of Regs. 30-1(D)(52) does not deny a permit
to a lot that lacks waterfront attributes. On the contrary, the regulation
states that "for purposes of these regulations" wherever another
regulation uses the term "waterfront property" one must use the definition
found in Regs. 30-1(D)(52). Thus, the application of the definition requires
finding the term "waterfront property" in some other part of OCRM's
regulations and then applying the definition of Regs. 30-1(D)(52).
In OCRM's regulations, the term
"waterfront property" is used only in Regs. 30-11(B)(1) and in Regs
30-12(A)(2)(o)(ii). As discussed above in Regs. 30-11(B)(1), the term
"waterfront property" is used there in the context of asking whether
the activity undertaken is one for which waterfront property is required.
Thus, the definition gives guidance in deciding how dependent the activity is
on having "waterfront property" but it does not deny a permit for
lack of waterfront property.
As to Regs 30-12(A)(2)(o)(ii),
that provision explains that "[j]oint and multiple use docks will be
considered for adjacent waterfront properties." (Emphasis
added). Here, the Olsons seek a private dock for a single lot. Thus, Regs
30-12(A)(2)(o)(ii) is inapplicable to the Olsons' dock permit request.
2. Other
Requirements of Regs. 30-11 and 30-12
Regs.
30-12(A)(2)(e)
OCRM relies upon Regs.
30-12(A)(2)(e) as a basis for denying the Olsons' permit. That provision
explains that "standards are applicable for construction of docks and
piers" with one of those standards being as follows:
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, when appropriate.
This provision is simply not a
basis for denying the Olsons' permit request. Rather, the evidence establishes
that the Olsons' application accurately illustrates the alignment of the
Olsons' property boundaries with adjacent owners and that the application shows
the distance of the proposed dock from the extended boundaries. Thus, the
Olsons fully complied with 30-12(A)(2)(e).
Regs. 30‑11(B)(7)
OCRM also identifies S.C. Code
Regs. 30‑11(B)(7) as a basis for denial. That provision is likewise not
a basis for denial.
That regulation asks whether the
benefits of preservation of an unaltered area outweigh the economic benefits
from development. Here, no persuasive evidence shows the area is
"unaltered." Rather, numerous docks are present in the immediate
area and dock development is prevalent along this section of the Intracoastal
Waterway. In addition, no evidence exits of historical significance, cultural
value, or other unique characteristics associated with the area. The lack of
such is significant when the evidence demonstrates the economic benefit from
development. Lots with values of $175,000 will provide housing and associated
amenities sufficient to form a substantial property tax base for support of
county services. Thus, even if the area could be termed "unaltered,"
the benefits of preservation do not outweigh the economic benefits from
development.
Regs. 30‑11(B)(10)
OCRM presents S.C. Code Regs. 30‑11(B)(10)
as a basis for denial. I agree.
OCRM must consider the factor of
what impact a dock will have on the adjacent owner’s value and enjoyment. See
S.C. Code Regs. 30‑11(B)(10) (OCRM “will be guided by” several
considerations; “will” in its common understanding is used to convey certainty
and carries the mandatory sense of “must.” 94 C.J.S. Will
(1956)). In considering this factor, OCRM must not only examine the impact of
the dock on the adjacent owner's value and enjoyment of their own private
properties but also must consider the impact on the adjacent owners' value and
enjoyment of their use of the public trust property. Such an interpretation
furthers the goal of S.C. Code Ann. § 48‑39‑30 (Supp. 2004) by
focusing on public trust property and also considers the extent to which the
private use of public land may or may not impair the remaining trust property
and water. 73B C.J.S. Public Lands § 178 (1983).
In this case granting the Olsons'
request will place a new dock and pier in a proximity to existing docks and
piers that will significantly diminish the enjoyment of the public trust
property by the adjacent owners. If granted, the newly constructed dock will
exist as close as seven feet but no more than 28 feet from lot 61's floating
dock and pier. Such a proximity limits enjoyment due to congestion of boat
traffic and creating an encumbered access to the water.
In addition, enjoyment is negatively impacted since the Olsons' dock will
require the removal of a mooring piling which has been in existence for several
years.
Regs. 30‑11(C)(1)
OCRM argues that S.C. Code Regs.
30‑11(C)(1) requires denial as well. Again, I agree.
Regs. 30‑11(C)(1) explains
that consideration should be given to “[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.” Here, the
“cumulative effects” concern is that granting this permit will encourage others
to adopt the same practice and to potentially block or at least hinder
subdivision drainage easements in order to reach navigable water.
For example, in this case, the facts show that the extended property lines of
Olsons' lot 56 do not reach navigable water. Instead, the extended property
lines cross lot 61, a neighboring lot. However, by disregarding the extended
property lines, the Olsons can reach the navigable water of the Intracoastal
Waterway by constructing a walkway down a drainage easement, making a dogleg
right across marshland deeded to Sims and Ball,
and culminating with a dock on the waterway. By such a route the Intracoastal
Waterway can be reached at a distance of 815 feet.
However, allowing walkways to be
built in drainage ditches produces undesirable results. Likely results will
include congestion of docks which will diminish the enjoyment of the public
trust property by existing dock owners and the hindrance of drainage flow and
maintenance to existing drainage areas in coastal subdivisions.
B. Equal Protection
1. Findings of Fact
Based on the preponderance of the
evidence, the following findings of fact are entered:
The Olsons plan to construct a
single use private dock on Lot 56 . In order for that dock to reach the
Intracoastal Waterway, the location of the proposed dock requires placement of
the dock's walkway in a drainage ditch. However, the dock on Lot 55 does not
require utilization of a drainage ditch. Rather, the dock on Lot 55 extends
from the common boundary line of Lot 55 and Lot 54 to reach the Intracoastal
Waterway. Given that the common boundary between Lot 55 and Lot 54 is the origin
of the dock, the dock is a joint use private dock utilized by both lots 55 and
54.
2. Conclusions of Law
Based on the foregoing Findings
of Fact, I conclude the following as a matter of law:
OCRM permitting decisions are
subject to an equal protection analysis. See Weaver v. South Carolina
Coastal Council, 309 S.C. 368, 423 S.E.2d 340 (1992). When making such
an analysis, "[t]he sine qua non of an equal protection claim is a
showing that similarly situated persons received disparate treatment." Grant
v. South Carolina Coastal Council, 319 S.C. 348, 461 S.E.2d 388
(1995).
Here, the Olsons' equal
protection argument is that their lot 56 is similarly situated to lot 55 and,
despite the commonality of the two lots, that lot 56 is treated differently by
OCRM's denying a dock permit to lot 56 but granting one to lot 55. I am unable
to agree with the Olsons' position since at least two meaningful differences
allow different treatment and either difference alone is sufficient to blunt an
equal protection argument.
First, to reach the Intracoastal
Waterway, the shape and location of lot 56 requires the placement of the dock's
walkway in a drainage ditch. No such detriment exists on lot 55. As explained
in a prior section of this decision, placement within a drainage ditch is not
conducive to the granting of a permit.
Second, the requested dock on lot
56 is a private single use dock. However, the dock granted to lot 55 is a
joint use dock with the neighboring lot 54. Such a difference is meaningful
since joint-use docks are favored. See 23A S.C. Code Ann. Regs. 30-12(A)(2)(h)
(Supp. 2004).
C. Joint-Use Dock
1. Findings of Fact
Based on the preponderance of the
evidence, the following findings of fact are entered:
In July, 1981, Steve Graves purchased
Lot 55 and Steve Graves' mother, Ann Graves, purchased Lot 56. Seeking to
sell the two lots, Steve Graves and Ann Graves executed a contract in 1996 to
sell Lots 55 and 56 to William Blume. Further, on February 22, 1997, William
Blume submitted a permit application to OCRM seeking a dock "for private
recreational use" for Lot 55.
OCRM granted Blume's requested
permit and imposed Special Condition One which stated the permit was granted
"provided this is the only dock permitted for Lots 55 and 56."
However, William Blume did not sign or accept the permit. Accordingly, OCRM
cancelled the permit. In fact, William Blume advised Steve Graves and Ann
Graves that he was terminating the agreement to purchase the property because
he could not obtain a dock permit that was satisfactory to him.
On July 9, 1997, Steve Graves
submitted an application to OCRM for a dock permit "for private
recreational use." While OCRM's DBASE IV Information sheet listed the
permit type as "joint,"the permit application did not include the
owner of Lot 56 as the applicant, did not present a certified copy of any deed
or other instrument showing claim to Lot 56, and did not give a statement that
the purpose or use was for a joint use dock. Further, the application listed
the property for the dock as TMS #661‑00‑00‑072, an
identification number corresponding to Lot 55. Public notice of the proposed
"dock for private use at Lot 55, Romain Retreat" was provided in The
Post and Courier on July 9, 1997.
On August 25, 1997, OCRM issued
the requested dock permit for Lot 55 with a statement that "the purpose of
the proposed activity is for the property owner's private recreational
use." Further, the identical Special Condition One was placed on the
permit which stated the permit was granted "provided this is the only dock
permitted for Lots 55 and 56."
On January 30, 1998, Sims
purchased Lot 55 from Steve Graves with the deed for the property including the
marshland and tidal land in front of Lot 55 to the Intracoastal Waterway, also
referred to as Lot 55A. In August, 2002, Sims applied to OCRM seeking an
assignment to himself of Steve Graves' dock permit for Lot 55. OCRM granted the
request. Subsequently, on May 1, 2003, Sims requested a three‑year
extension to build the dock and that request was likewise granted.
The Olsons made an offer on Lot
56 just after September 11, 2001. Steve Graves accepted the offer with an
agreed price of $121,000.00. Prior to the purchase, the Olsons did not inspect
any permits in the OCRM office and did not make the purchase under the
impression that Lot 56 was entitled to a joint use of a dock on Lot 55.
After the purchase, the Olsons
approached Sims offering to contribute to the cost of Sims' dock in exchange
for use of the dock. Further, given the location of the dock as permitted, the
Olsons would need to cross Sims' property to get to the dock. Sims declined
the Olsons' offer and gave no permission to cross his property.
2. Conclusions of Law
Based on the foregoing Findings
of Fact, I conclude the following as a matter of law:
The Olsons contend that the
permit issued on August 25, 1997, to Steve Graves created a joint dock permit
for Lot 55 and Lot 56. I cannot agree.
As a practical matter, it is of
no small consequence that nothing in the evidence establishes a deed of
purchase by the Olsons showing that they secured an easement to cross Sims'
property to reach a dock located on Lot 55. Such a fact is pertinent since at
best OCRM's permits are mere licenses addressing a person, not a property. See
S.C. Code Ann. Regs. 30-4(2)(E) ("No permit shall convey, nor be
interpreted to convey, a property right in the land or water in which the
permitted activity is located."); S.C. Code Ann. Regs. 30-8(A) ("All
permits issued by the Department are revocable licenses."). In essence, a
license applicable to real property merely grants permission to engage in an
act or series of acts without possessing any interest in the land itself and
does not constitute an interest in land. 25 Am. Jur. 2d Easements and
Licenses § 137 (1996). Indeed,
a license for use issued by a governmental body conveys no property rights and
does not attach to land. Hilton Head Air Service, Inc. v. Beaufort County,
308 S.C. 450, 418 S.E.2d 849, 853 (Ct. App. 1992) ("[A] license to be on
the premises for an agreed purpose is a contractual right personal to the
licensee [and] . . . does not vest in the licensee any estate or interest in
the land [but] . . . conveys only the temporary privilege of being on the land
for some agreed purpose." (Internal citations omitted)). Therefore, given
this state of the law, even if a finding of a "joint-use" permit
could be reached, such a finding would grant only a mere license. It would not
give the Olsons access to or across Lot 55.
However, here, for several
reasons, no joint use permit exists between Lot 56 and Lot 55.
While it is true that the
application by Steve Graves resulted in an entry on OCRM's DBASE IV Information
sheet listing the permit type as "joint," the permit application
shows that a single use permit was being sought. For example, the application
did not include the owner of Lot 56 as the applicant, did not present a
certified copy of any deed or other instrument showing any claim to Lot 56, and
did not give a statement that the purpose or use was for a joint use dock.
Further, the application listed the property for the dock as TMS #661‑00‑00‑072,
an identification number corresponding to Lot 55. Consistent with the
application being for a single use, public notice in The Post and Courier on
July 9, 1997 listed a "dock for private use at Lot 55, Romain
Retreat."
Equally as compelling is the fact
that OCRM issued the permit on August 25, 1997 with the explanation that
"the purpose of the proposed activity is for the property owner's private
recreational use." The application's only reference to a property owner
is that of Steve Graves, the owner of Lot 55. Thus, the entry on OCRM's
Information sheet is simply an anomaly. Here, the facts establish that the
permit granted to Steve Graves was for a single use permit, not a joint use
permit.
The above conclusion of a single
use permit is not changed by the language of Special Condition One. That
condition states that the permit is granted "provided this is the only
dock permitted for Lots 55 and 56." The statement is one of exclusion.
Thus, it places Lot 56 in a non-permit status; it does not place Lot 56 in a
joint use status. On the contrary, to make Lot 56 permissible for a joint
dock, a much more affirmative and inclusive statement would be required.
Therefore, the language of Special Condition One is far too deficient to
transform Lot 56 into a joint use lot with Lot 55.
Finally, this is not a case in
which reliance for the purchase of Lot 56 rests upon a due diligence search of
OCRM's dock permits. Here, prior to the purchase, the Olsons did not inspect
any permits in the OCRM office and did not make the purchase under the
impression that Lot 56 was entitled to a joint use of a dock on Lot 55. In
fact, after the purchase, the Olsons attempted to acquire access to the Sims
dock by offering to contribute to the cost of Sims' dock in exchange for use of
the dock.
Accordingly, for all the above
reasons, no joint use dock permit exists between Lot 56 and Lot 55.
D. Due Process
1. Findings of Fact
Based on the preponderance of the
evidence, the following Findings of Fact are entered:
In seeking a joint use permit,
neither Sims nor McCown provided to OCRM a list including the Olsons as part of
the adjoining landowners. Thus, the Olsons did not receive direct notice of
the requested joint use dock. However, the Public Notice for the request was
published in The Post and Courier on January 10, 2004.
Given that the Olsons were not
listed as an adjoining landowner, the Olsons' did not receive automatic notice
from OCRM of the issuance of the amendment. However, the Olsons nonetheless
learned of the issuance and timely filed a challenge of that decision with the
Administrative Law Court..
2. Conclusions of Law
Based on the foregoing Findings
of Fact, I conclude the following as a matter of law:
The Olsons claim their rights to
procedural due process were violated by the actions of OCRM in granting the
Sims-McCown joint use dock permit. More particularly, they argue OCRM failed
to give them notice of the placing of the Sims‑McCown amendment "on
public notice" and of the granting of the permit itself. I cannot agree
that such actions constitute a violation of procedural due process.
"[D]ue process is flexible
and calls for such procedural protections as the particular situation
demands." Morrissey v. Brewer, 408 U.S. 471, 481, 92
S.Ct. 2593, 2600, 33 L.Ed.2d 484, 494 (1972). What procedural process a
particular case requires depends upon the importance of the interest involved
and the circumstances under which the deprivation may occur. South
Carolina Dep't of Social Serv. v. Beeks, 325 S.C. 243, 481
S.E.2d 703 (1997); Mathews v. Eldridge, 424 U.S. 319, 335,
96 S.Ct. 893, 903, 47 L.Ed.2d 18, 33 (1976) (in determining the process which
is due, courts will consider the private interest affected by the proceeding,
the risk of error created by the chosen procedure, and the countervailing
governmental interest supporting the challenged procedure). In all cases, the
fundamental requirement of due process is the opportunity to be heard at a
meaningful time and in a meaningful manner. South Carolina Dep't of
Social Serv. v. Beeks, supra. Finally, to prevail, the
complaining party must show that prejudice resulted from the manner in which
the administrative process was handled. Palmetto Alliance, Inc. v. South
Carolina Public Service Comm'n, 282 S.C. 430, 319 S.E. 2d 695 (1984).
Here, for two reasons, the
Olsons' rights to procedural due process have not been violated.
First, they received an
opportunity to be heard at a meaningful and in a meaningful manner. In this
case, the Olsons challenged the joint use dock between Lot 55 and Lot 54 and
received a full evidentiary hearing before the Administrative Law Court. At
that hearing they participated extensively by presenting evidence, eliciting
testimony, and confronting witnesses presented by the opposing parties. Such
activities establish that no deprivation of procedural due process exists in
this case.
Second, no prejudice resulted to
the Olsons from any failure to provide them with notice of the placing of the
Sims‑McCown amendment on public notice and of the granting of the permit
itself. Rather, for due process purposes, the Olsons received sufficient
notice of the actions of OCRM since the Olsons were able to obtain a hearing
before the ALC. That hearing provided them with all of the opportunities
required by due process. Further, the fact that the Sims-McCown dock has
already been constructed is not a basis for finding a lack of due process. On
the contrary, if the Olsons had been successful in this contested case, the ALJ
would have the authority to order the removal of the dock. Thus, whether the
dock was or was not completed, the Olsons due process rights are not impaired.
IV.
Order
Accordingly, having considered
the evidence and applicable law, the Olsons' permit request must be denied and
the Sims-McCown joint use permit is granted.
AND IT IS SO ORDERED
______________________
RAY N. STEVENS
Administrative
Law Judge
Dated: June 14, 2005
Columbia, South Carolina