ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
The above-captioned case is before this Court pursuant to S.C. Code Ann. § 48-39-150 (Supp. 2004), S.C. Code Ann. § 1-23-600(B) (Supp. 2004), and S.C. Code Ann. § 1-23-310 et seq. (2005) for a contested case hearing. Petitioner La Mar Moberly challenges the decision of Respondent South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management (OCRM or Department), to issue a permit to Respondent Crystal Beach Dock B Association, Inc. (Respondent) for the construction of a community dock on the May River in Bluffton, South Carolina. The proposed dock would be constructed at a community park in the Crystal Beach neighborhood of the Palmetto Beach subdivision in Bluffton and would provide water access to members of Respondent Crystal Beach Dock B Association. Respondent leases the site of the proposed dock from the Crystal Beach Neighborhood Association, Inc., an organization which is related to, but distinct from, Respondent. Petitioner, who owns and resides on property in the Palmetto Beach subdivision, contends that OCRM improperly issued the dock permit to Respondent because it has not established that the neighborhood association has legitimate ownership over the property containing the community park and proposed dock location so as to grant Respondent genuine permission to construct the dock.
After timely notice to the parties, a hearing of this matter was held on May 12, 2005, at the South Carolina Administrative Law Court in Columbia, South Carolina. Based upon the evidence presented at the hearing, the applicable law, and the arguments of counsel, I find that Respondent has adequately demonstrated that the neighborhood association has a sufficient claim of ownership over the Crystal Beach community park such that OCRM properly relied upon the lease between the association and Respondent in issuing the dock permit to Respondent.
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:
Historical Background of Crystal Beach and the Crystal Beach Neighborhood Association
1. The Palmetto Beach subdivision in Bluffton, South Carolina, which includes the Crystal Beach neighborhood, was originally platted by the Bluffton Real Estate Company in 1920. Petr.’s Ex. #2. Included in the plat were two waterfront areas designated as “parks”: the parcel at issue in this case, which came to be known as Crystal Beach, and another parcel that came to be known as Palmetto Beach. Petr.’s Ex. #2. As the lots in the Palmetto Beach subdivision were sold, the Bluffton Real Estate Company retained ownership of these “beaches,” which the company intended to be kept open for the use of the residents and property owners of the subdivision.
2. By the 1950s, certain property owners neighboring the Crystal Beach park had begun to assert control over the park. In June 1952, several nearby property owners formed an unincorporated association, the Crystal Beach Dock Association, in order to construct a community dock at Crystal Beach for the use of the members of the dock association. Respts.’ Ex. #9. Over the course of the following year, the dock association received a United States Army Corps of Engineers permit for the construction of the dock, constructed the dock at Crystal Beach, and executed an indenture regarding the use, maintenance, and control of the dock in July 1953. Respts.’ Ex. #9. This dock remains in place and is still used by the residents of the Crystal Beach neighborhood.
3. However, it appears that, at the time the first dock was constructed, the Bluffton Real Estate Company continued to hold title to Crystal Beach. In a 1955 letter, Joseph M. Gettys, the president of the company, stated that the company looked with “high disfavor on the apparent efforts of a few property owners to control the use of property owned by the Bluffton Real Estate Company adjoining the beaches in Bluffton,” as the property was to be kept open to the residents and property owners of the Palmetto Beach subdivision. Petr.’s Ex. #5. The letter further indicated that “Palmetto Beach and Crystal Beach, and the roads leading to the water at other points . . . have not been deeded to owners by the Bluffton Real Estate Company.” Petr.’s Ex. #5. While the Bluffton Real Estate Company went defunct sometime after 1955, there is no evidence in the record that legal title to the parcel containing Crystal Beach was ever formally conveyed from the company to any other person or entity.
4. For the next several decades, the Crystal Beach Dock Association maintained Crystal Beach, the community dock located there, and the private roads in the Crystal Beach neighborhood. See Petr.’s Ex. #7. In 1994, the dock association began paying property taxes with Beaufort County for the Crystal Beach park, see Petr.’s Ex. #20, at 14, and, since that time, has been recognized as the owner of Crystal Beach by Beaufort County, see Petr.’s Ex. #20, at 16. For example, in a 2002 letter, Beaufort County Public Works concluded that it was not authorized to cut trees in Crystal Beach, because the park was private property owned by the Crystal Beach Dock Association. Petr.’s Ex. #20, at 16. In 1996, the members of the Crystal Beach Dock Association incorporated their organization as a nonprofit South Carolina corporation, the Crystal Beach Dock Association, Inc. Subsequently, in 2003, the association changed its name to its current title, the Crystal Beach Neighborhood Association, Inc., and, as of January 2005, the association consisted of approximately two dozen members who own property in the neighborhood surrounding Crystal Beach.
5. Throughout these names changes, the association continued to maintain Crystal Beach and its dock, to pay Beaufort County property taxes on the park, and to otherwise exercise the incidents of ownership over Crystal Beach. For example, in 2000, the association applied for a permit to construct a new dock at Crystal Beach as the record owner of the property, see Petr.’s Ex. #15, and, in 2001, the association opposed an application filed by Joe Pitts, a nearby resident, for a permit to construct a private dock on a portion of Crystal Beach on the ground that the dock’s construction would infringe upon its ownership of the park property, see Petr.’s Ex. #13. However, neither of these dock projects ever came to fruition, and the association’s claims of ownership over Crystal Beach have not been formally resolved.
Crystal Beach Dock B Association, Inc., and the Current Dock Permit Application
6. In June 2003, four members of the Crystal Beach Neighborhood Association incorporated Respondent Crystal Beach Dock B Association, Inc., as a South Carolina nonprofit corporation for the purposes of constructing and maintaining a new community dock on the Crystal Beach property. See Petr.’s Ex. #22, at 5-8. To facilitate this construction and to provide a location for the dock, the neighborhood association leased a sub-parcel of the Crystal Beach park to Respondent on October 16, 2003. See Respts.’ Ex. #5. The leased property is approximately four-tenths of an acre parceled out of the four-and-a-half acres of the Crystal Beach property, and was leased to Respondent for a term of fifty years, with an option for Respondent to renew the lease for another fifty years. Respts.’ Ex. #5.
7. On or about December 22, 2003, Respondent submitted an application to OCRM for a permit to construct a community dock on the May River at its leased parcel on Crystal Beach. The dock, as proposed, would consist of a 6’ by 245’ walkway with handrails leading to a 16’ by 30’ fixed pierhead, of which a 16’ by 20’ section will be covered, and to which two 10’ by 30’ floating docks will be attached by 4’ by 15’ gangways. The purpose of the dock is to provide members of the Crystal Beach Dock B Association and their guests with recreational access to the May River and adjacent marshes. See Respts.’ Ex. #4. On October 28, 2004, the Department granted Respondent’s application and issued dock permit number 2004-1M-004-P to Respondent for the construction of a dock at Crystal Beach. The permit reduced the width of the dock’s walkway from 6’ to 4’ and imposed certain restrictions regarding the use of the dock, particularly with regard to the docking of boats, but otherwise approved the dock as proposed in Respondent’s application. See Respts.’ Ex. #3.
Petitioner La Mar Moberly
8. By a letter dated November 18, 2004, Petitioner La Mar Moberly informed OCRM of his objections to the issuance of the permit in question to Respondent and requested a contested case hearing to challenge the issuance of the permit. Petitioner and his wife own and reside at 22 All Joy Road, which is located outside of the Crystal Beach neighborhood in the larger Palmetto Beach subdivision. Petitioner’s residence is situated approximately 1.2 miles from the proposed location of the dock on Crystal Beach. See Petr.’s Ex. #2. Petitioner’s property was previously owned by his father, and Petitioner lived there for much of his childhood during the mid 1950s and early 1960s. Petitioner later returned to purchase and permanently reside at the property with his wife in the early 2000s.
9. In this matter, Petitioner contends that Respondent does not have proper permission to construct a dock on Crystal Beach because the park is not owned by the Crystal Beach Neighborhood Association, but is held in common by all property owners in the Palmetto Beach subdivision, as he contends was intended by the original developer of the subdivision. Accordingly, Petitioner challenges OCRM’s decision to issue the permit in question to Respondent. Previously, Petitioner had also objected to the 2001 application by Mr. Pitts for a permit to construct a private dock on a portion of Crystal Beach and the 2000 efforts of the neighborhood association to gate off portions of the roads in the Crystal Beach neighborhood based upon his contention that Crystal Beach and the roads accessing it are owned in common by, and must be held open to, the entire Palmetto Beach subdivision. See Petr.’s Ex. #4, #6.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
While the root of the dispute in this matter lies in the contested ownership of the Crystal Beach community park, the central and sole issue to be considered in the instant case is not whether the Crystal Beach Neighborhood Association holds legal title to Crystal Beach, but rather, whether Respondent Crystal Beach Dock B Association has satisfied the dock permit application requirement of demonstrating legitimate possession of, or permission to use, the property on which the dock is to be constructed. Neither the Department nor this Court is vested with the authority to quiet title to real property; however, the Department—and in contested matters, this Court—is charged with determining whether an applicant for a critical area dock permit has satisfied the statutory and regulatory requirements for the issuance of that permit, including the requirement that the applicant establish its authority to undertake the proposed project at the proposed location. In the case at hand, I find that Respondent made a sufficient showing that it has legitimate possession over the site of its proposed dock such that OCRM’s decision to issue the dock permit in question must be sustained.
Both statutory and regulatory provisions require an applicant for a critical area permit to make at least a prima facie showing that it has legitimate possession of, or permission to use, the property to be affected by the permit. Specifically, S.C. Code Ann. § 48-39-140(B)(4) (Supp. 2004) requires that “[e]ach application for a permit shall be filed with the [D]epartment and shall include . . . [a] 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.” Id. OCRM’s permit application regulation contains an almost identical provision. See 23A S.C. Code Ann. Regs. 30-2(B)(4) (Supp. 2004) (providing that a critical area permit is not complete unless it contains “[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”).
These provisions do not, however, require the Department to resolve property disputes or to determine title to real estate. As OCRM’s regulations make clear, critical area permitting decisions do not purport to confer any sort of property rights or otherwise reach any underlying property disputes. See 23A S.C. Code Ann. Regs. 30-4(E) (Supp. 2004) (“No permit shall convey, nor be interpreted to convey, a property right in the land or water in which the permitted activity is located . . . [and] [n]o permit shall be construed as alienating public property for private use or as alienating private property for public use.”) (emphasis added); cf. 23A S.C. Code Ann. Regs. 30-2(I) (Supp. 2004) (requiring the Department to suspend consideration of a critical area permit if a dispute over the ownership of the critical area in question is pending before circuit court pursuant S.C. Code Ann. § 48-39-220 (Supp. 2004)). Nevertheless, the Department cannot simply ignore questions of property ownership or rely upon patently incredible or absurd claims of ownership when granting critical area permits. Notwithstanding the disclaimers of Regulation 30-4(E), the credibility of the state’s regulatory scheme would be sharply called into question were the Department to grant a dock permit to a person with no cognizable interest, or plausible claim of an interest, in the property on which the dock is to be constructed. Rather, under Section 48-39-149(B)(4) and Regulation 30-2(B)(4), OCRM is required to find that an applicant for a critical area permit has, based upon the submission of credible documentation, made a prima facie showing that it owns or has permission to use the property on which the permitted activity is to be located. Once such a showing is made, the Department may grant a critical area permit to that applicant, even if certain underlying property disputes remain unresolved.
In the instant case, Respondent has made such a showing. It is true that Respondent has not presented a particular legal instrument that, standing alone, conclusively establishes its interest in the site of its proposed dock on Crystal Beach. Given the overlapping memberships of the neighborhood association and Respondent, and given the questions regarding the neighborhood association’s ownership of Crystal Beach, the lease from the neighborhood association to Respondent for the dock site, while technically sound, does little to establish that Respondent has a credible claim to the site. Further, Respondent concedes that neither it nor the neighborhood association holds a deed or other formal legal instrument granting it title to Crystal Beach. In fact, from the record in this matter, it does not appear that title to Crystal Beach was ever deeded from the original developer, the now-defunct Bluffton Real Estate Company, to any other party. However, the lease between Respondent and the neighborhood association does satisfy the requirements of Section 48-39-140(B)(4) and Regulation 30-2(B)(4) on a technical level—it is a “lease . . .under which [Respondent] claims . . . permission from the owner of the property[] to carry out the proposal”—and the totality of the documentation submitted by Respondent makes a sufficient prima facie case that its lessor, the Crystal Beach Neighborhood Association, has legitimate possession and control of the park. Specifically, the documents presented in this matter demonstrate that the Crystal Beach Neighborhood Association and its predecessor associations have exercised the incidents of ownership over Crystal Beach for more than fifty years. These associations obtained a federal permit for and constructed a community dock at Crystal Beach during the 1950s, have paid property taxes on the Crystal Beach property for over ten years, and have generally maintained, exercised control over, and held themselves out as the owners of Crystal Beach, its community dock, and the roads that access it since the establishment of the Crystal Beach Dock Association in 1952. Taken together, the documents demonstrating the Crystal Beach Neighborhood Association’s possession and control of Crystal Beach over the past five decades constitute a prima facie showing that the association has a credible claim of ownership over Crystal Beach. See, e.g., Miller v. Leaird, 307 S.C. 56, 61-63, 413 S.E.2d 841, 844 (1992) (holding that “title by adverse possession requires proof of actual, open, notorious, hostile, continuous, and exclusive possession by the claimant . . . for the full statutory period” and finding that evidence that a claimant paid the mortgage and taxes on a property, marked the boundaries of the property, and sold timber from the property was sufficient to sustain a claim of adverse possession).
As noted above, neither the Department nor this Court is authorized to quiet title to real property, and such a final resolution of the underlying property dispute in this case is not mandated by the dock permit application requirements. To the extent Petitioner seeks such a final, judicial resolution of the true ownership of Crystal Beach, he must look to another forum. Rather, the question in this case is whether Respondent has made a prima facie showing that it owns Crystal Beach or has permission from the owner of Crystal Beach such that it may be authorized to construct a dock on the property. Here, Respondent holds a valid lease for the site of the proposed dock from the Crystal Beach Neighborhood Association and has demonstrated that the neighborhood association has developed a strong, prima facie claim of ownership over Crystal Beach through its actions over the past fifty years. This prima facie showing, which has not been adequately rebutted by Petitioner, satisfies the requirements of Section 48-39-140(B)(4) and Regulation 30-2(B)(4) and constitutes a sufficient basis upon which OCRM may grant a permit to Respondent for the construction of a dock at Crystal Beach.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated above,
IT IS HEREBY ORDERED that the Department’s decision to grant permit number 2004-1M-004-P to Respondent for the construction of a community dock on the May River at Crystal Beach in Bluffton, South Carolina, is SUSTAINED.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
1205 Pendleton Street, Suite 224
Columbia, South Carolina 29201-3731
August 5, 2005
Columbia, South Carolina
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