STATEMENT OF THE CASE

This case is before me pursuant to a request for a contested case hearing filed by Petitioners Deborah Keil and Gerard Mallon, challenging the denial of their dock permit application by Respondent South Carolina Department of Health and Environmental Control (DHEC or Department), Office of Ocean and Coastal Resource Management (OCRM). A hearing in this matter was held at the offices of the Administrative Law Court (ALC or Court) in Columbia, South Carolina on March 24, 2005.

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 the evidence:

1. Petitioners are the owners of property located at 35 Rebellion Road, South Windermere subdivision, Charleston, South Carolina. Their property fronts a marsh which is in an L-shaped configuration that creates, in effect, a cove. Petitioners’ extended property lines are parallel to Coburg Creek, while some of the other property owners’ extended property lines along the L-shaped marshfront are perpendicular to Coburg Creek.

2. Petitioners first became involved in the dock permitting process when a neighbor, Dr. Harry Needle, applied for a private, recreational dock to reach Coburg Creek in 1999. Dr. Needle’s extended property lines reach Coburg Creek. Petitioners objected to the permit on the grounds that the dock would cross a tributary of Coburg Creek, which they contended was navigable. The Department nevertheless issued the permit to Dr. Needle and Petitioners subsequently appealed. The Honorable Ray N. Stevens reversed the staff and held that the permit application should be denied because the dock would cross a navigable creek and would prevent Petitioners' access to that creek. At the time of Judge Stevens’ decision, Petitioners had not submitted an application to the Department.

3. On February 19, 2002, Petitioners applied to DHEC for a dock permit. The permit application (P/N OCRM-02-087-M) stated that Petitioners were requesting a 204-foot joint use dock to reach a tributary of Coburg Creek. The drawing showed a walkway beginning from Petitioners' highground property, extending out for 84 feet, making a 90-degree turn, and extending another 120 feet to reach the tributary. The drawing also included perforated lines, which illustrated future walkway connections for which the other property owners could apply.

Petitioners testified that it is their wish for all of the property owners who front the marsh to have access to the water via a community dock. What they proposed to construct is the first leg of the community dock, in hopes that the remaining property owners on the marsh would be allowed to “tie in” to their walkway. However, the record reflects that the only individuals whose names were on the application were those of Petitioners. Even though they represented to the Court that there were verbal expressions of support, they presented no evidence of any written commitment or endorsement from the affected property owners; namely, those whose property fronts the marsh. Moreover, the application did not provide for access for any other properties along the marshfront.

4. Based on the description and the drawing, the staff placed the application on public notice as a private recreational dock and not a community dock. On, July 15, 2002, the dock permit was denied. The staff concluded that Petitioners’ property was not waterfront based on the drawing submitted with their application. Additionally, the application was denied on the grounds that the dock, as it was proposed, constituted a single-use dock and would, if constructed, have a negative impact on the adjacent property owners’ value and enjoyment. Thereafter, Petitioners requested a contested case hearing before this Court.

5. I find that though Petitioners intended to obtain a community dock, the application is in actuality seeking a single-use private dock. Furthermore, the evidence did not establish that a straight-line extension from Petitioners’ upland property would reach the navigable watercourse upon which they seek a dock within 1000' of the marsh critical line. Their proposed dock would also significantly cross extended property lines without sufficient evidence of consent by the affected property owners.

CONCLUSIONS OF LAW

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

1. The Administrative Law Court has subject matter jurisdiction in this proceeding pursuant to S.C. Code Ann. §§ 1-23-600(B) and 1-23-310 et seq. (Supp. 2004). Furthermore, S.C. Code Ann. § 48-39-150 (Supp. 2004) specifically authorizes the Administrative Law Court to hear contested cases arising under Chapter 39 of Title 48 of the Code.

2. S.C. Code Ann. §48-39-50 (Supp. 2004) gives DHEC the authority to promulgate regulations, which carry out the provisions of the Coastal Zone Management Act. Additionally, OCRM is the division within DHEC charged with implementing the State’s coastal zone policies and issuing permits for construction within the critical area.

3. After Petitioners rested their case, DHEC requested an involuntary non-suit contending Petitioners had not met their burden in their case in chief. Generally, in administrative proceedings, the burden of proof rests upon the party who asserts the affirmative of an issue. Leventis v. South Carolina Dept. of Health & Env. Control, 340 S.C. 118, 132-33, 530 S.E.2d 643, 651 (Ct. App. 2000). The burden is to persuade the Court 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). The Rules of the Administrative Law Court do not address the procedure for motions to dismiss following the presentation of a Petitioner's case. However, ALC Rule 68 provides that: “The South Carolina Rules of Civil Procedure may, where practicable, be applied in proceedings before the Court to resolve questions not addressed by these rules.” Rule 41(b), SCRCP, provides that: “After the plaintiff in an action tried by the court without a jury has completed the presentation of his evidence, the defendant. . . may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.” Furthermore, “Rule 41(b) allows the judge as fact finder to weigh the evidence and determine the facts.” Waterpointe I Property Owner's Ass'n, Inc. v. Paragon, Inc., 342 S.C. 454, 458, 536 S.E.2d 878, 880 (Ct. App. 2000). I find that application of Rule 41(b), SCRCP, is proper to this case. Therefore, after Petitioner(s) rest its case, the ALC as the trier of facts upon a motion for involuntary non-suit may determine the facts and render judgment against the Petitioner. Accordingly, Petitioners had the burden to prove that the decision to deny the dock permit was improper, or in other words, that they are entitled to the dock they requested in their application.

4. Petitioners contend that Judge Steven’s decision on December 11, 2000, should control the decision in this case, under the principle of issue preclusion, or collateral estoppel. In fact, they based their entire case upon this argument. I respectfully disagree. “Under the doctrine of collateral estoppel, once a final judgment on the merits has been reached in a prior claim, relitigation of those issues actually and necessarily litigated and determined in the first suit is 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); see also Carman v. South Carolina Alcoholic Beverage Control Comm'n, 317 S.C. 1, 451 S.E.2d 383 (1994) (applying collateral estoppel in administrative proceedings). The issue before Judge Stevens was whether the law permitted Dr. Needle to receive a dock permit. However, the issue of whether Mr. Mallon and Dr. Keil were entitled to a dock was not litigated before him, much less whether Petitioners were entitled to the dock that they are seeking in this case. Therefore, Judge Stevens’ decision does not preclude the litigation of the issues before me.

5. In the case at hand, it is clear that Petitioners’ goal is to acquire a community dock so that all of the property owners along the marsh can have access to the water.[1] Their hope is that the other property owners would ultimately "tie in" to their part of the structure. Obviously, an individual(s) cannot seek a permit on behalf of another person without their permission. This principle is reflected in OCRM's regulations. For instance, S.C. Code Ann. Regs. 30-2(B)(4) (Supp. 2004) requires that a permit applicant shall ordinarily be required to submit: “A certified copy of the deed, lease or other instrument under which the applicant claims title, possession or permission from the owner of the property to carry out the proposal.” Although Petitioners’ aspiration of achieving access for all of the property owners on the marsh is admirable, they did not submit sufficient evidence to show that the other property owners consent to this particular dock, or that they have the authority to speak for or act on behalf of those property owners.

Petitioners’ permit also fails if viewed as an application for single-use private dock. 23A S.C. Code Ann. Regs. 30-12 (A)(2)(o)(i)(b) (Supp. 2004)[2] provides that “[t]o be eligible for a single family dock, a lot must have:

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(b) 75 feet between its extended property lines at the location in the waterbody of the proposed dock.

23A S.C. Code Ann. Regs. 30-1 (D)(52) (Supp. 2004) further provides that:

For 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. Waterfront property may also be identified via an approved dock master plan where designated corridors differing from upland property line extensions are delineated.

Here, the evidence failed to establish that a straight-line extension from Petitioners’ upland property would reach the navigable watercourse upon which they seek a dock within 1000' of the marsh critical line. Consequently, since Petitioners’ do not own waterfront property, for purposes of this case, they are not entitled to a single-use private dock.

Therefore, I conclude that Petitioners did not establish that they are entitled to the permit proposed in the application. This is not to say, however, that Petitioners could not re-apply, or that the Department could not permit a community dock in this area. In other words, the denial of this application does not preclude Petitioners, or any future owners, from seeking a permit for a structure that is inclusive of all of the property owners in this vicinity.

ORDER

Therefore, based on the foregoing Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that an involuntary non-suit is granted and, accordingly, permit application number OCRM-02-087-M is denied.

AND IT IS SO ORDERED.

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Ralph King Anderson, III

Administrative Law Judge

June 23, 2005

Columbia, South Carolina