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:
Bruce and Barbara Olson vs. SCDHEC

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioners,:
Bruce and Barbara Olson

Respondent:
South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resources Management

Intervenors:
Jack L. Sims and John McCown
 
DOCKET NUMBER:
04-ALJ-07-0302-CC

APPEARANCES:
Petitioners & Representatives:
Bruce and Barbara Olson, C. C. Harness, Esquire and Amber S. Deutsch, Esquire

Respondent & Representative:
South Carolina Department of Health and Environmental Control, Office of Coastal Resource Management, Leslie S. Riley, Esquire

Intervenors & Representative:
Jack L. Sims and John McCown, William A. Scott, Esquire
 

ORDERS:

FINAL ORDER AND DECISION

I. Introduction

 

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.

 

II. Issues

 

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.

 

III. Analysis

 

A. Waterfront Lot & Applicable Statutes and Regulations

 

1. Findings of Fact

 

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.

 

2. Conclusions of Law

 

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.

 

1. "Waterfront Property"

 

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.[1] 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.[2] 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,[3] 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


Brown Bldg.

 

 

 

 

 

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