ORDERS:
CONSENT ORDER
This matter involves two contested case appeals of permitting decisions of the South
Carolina Department of Health and Environmental Control, Office of Ocean and Coastal
Resource Management. A trial on the merits in the Mattox case was begun on February 27, 2003.
At the close of the Petitioners’ case, the parties announced that they had reached a tentative
settlement, and requested that the hearing be adjourned until the parties could either submit a
proposed consent order or inform the undersigned that the hearing would have to be reconvened.
I granted the motion to adjourn. Subsequently, the parties did in fact reach a settlement, and they
have submitted the settlement to the undersigned in the form of this consent order, and have
requested that the agreement be made the final administrative order in this case.
The parties have agreed to the following:
The parties stipulate to the following facts:
1. On February 6, 1992, the South Carolina Coastal Council (now known as the South
Carolina Department of Health and Environmental Control, Office of Ocean and Coastal
Resource Management) issued Permit Number 91-3D-185-P to Tamsberg Properties.
2. At the time Permit Number 91-3D-185-P was issued to Tamsberg Properties, the
Coastal Council was in the process of preparing a Special Area Management Plan (“SAMP”) for
the Ashley River corridor.
3. The Ashley River SAMP was approved by the Coastal Council in February 1992. The
process of preparing the SAMP was begun in April 1990, and involved a series of public
meetings, a draft SAMP document, a public hearing on the draft SAMP document, a second
public hearing on a revised draft document, and review and approval by the Coastal Council’s
Management Committee and the full South Carolina Coastal Council.
4. The South Carolina Department of Archives and History initiated the Ashley River
SAMP by petitioning the South Carolina Coastal Council. The Department also provided a
portion of the funding for the work done in preparation of the Ashley River SAMP. The
Department has an interest in the continuing implementation of the Ashley River SAMP and the
protection of historical resources of the Ashley River Historic District.
5. Tamsberg Properties applied for Permit No. 91-3D-185-P in July 1991, after the draft
SAMP document was distributed for public comment, and shortly before the public hearing on
the draft SAMP document. The application sought a permit for a number of community docks,
joint use docks, and private single-family docks, at a residential real estate development known
as Bakers Landing Subdivision.
6. The Tamsberg Properties application was the subject of a number of adverse public
comments, and several public agencies and private groups urged the Coastal Council to require
the Tamsberg Properties application to meet the standards provided for in the Ashley River
SAMP.
7. As a result of the controversy surrounding the Tamsberg Properties subdivision, and as
a result of the incomplete nature of the Ashley River SAMP during the Tamsberg Properties
permitting process, a compromise was reached regarding the Tamsberg Properties application.
The South Carolina Coastal Council proposed, and Tamsberg Properties agreed, to impose
special conditions on the Tamsberg Properties permit, Number 91-3D-185-P, to limit the number
of docks at Bakers Landing Subdivision to eight (8) private docks and one (1) community dock,
to delete a proposed boat ramp, and to stipulate that “no additional docks or modifications to
permitted docks are permitted within this subdivision.”
8. The eight docks allowed under Permit 91-3D-185-P have been built, and although
there have been minor, insignificant modifications to the permitted docks, no new docks have
been permitted within Bakers Landing Subdivision since February 1992 when the Tamsberg
Properties permit was issued.
9. Kenny and Lisa Mattox are the owners of Lot 4 in the portion of Bakers Landing
Subdivision known as Bakers Landing Two.
10. In April 2002 Kenny and Lisa Mattox applied for a permit to construct a single family
dock at their lot.
11. The Mattox permit application was denied by DHEC/OCRM on May 21, 2002, based
on the special condition in the Tamsberg Properties permit prohibiting additional docks in
Bakers Landing Subdivision.
12. Kenny and Lisa Mattox appealed the denial of their permit to the Administrative Law
Judge Division.
13. Permit No. 91-3D-185-P originally called for a “joint-use” dock between Lots 5 and 6
in Bakers Landing Two. The permit was later amended to move the dock to between Lots 3 and
4, by letter dated February 24, 1992. Although this dock has always been used as a community
dock, and not just as a joint-use dock for Lots 3 and 4, the permit was never amended to allow its
use as a community dock. In addition, the DHEC/OCRM records indicate that a request to
relocate the joint use dock to between Lots 4 and 5 was approved by letter dated May 29, 1992.
14. The confusion about the location and use of this joint use dock was discovered during
the review of the Mattox and Wood permit applications, and Tamsberg Properties was informed
about this confusion regarding its permit.
15. Tamsberg Properties filed an application for an amendment to Permit No. 91-3D-185-P in 2002, seeking permission to keep the dock located between Lots 3 and 4, Bakers Landing
Two, and to designate the dock as a community dock. That application is pending as Corps of
Engineers and DHEC/OCRM Joint Public Notice No. 2002-1E-512-P.
16. Lot 5 in Bakers Landing Two is owned by Marvin E. and Carol T. Wood. Marvin and
Carol Wood have also filed an application for a permit for a single family dock. DHEC/OCRM
denied their application based on the special condition to the Tamsberg Properties permit.
Marvin and Carol Wood appealed that denial decision, and their appeal is pending in the
Administrative Law Judge Division as Docket No. 02-ALJ-07-0401-CC.
The parties further stipulate and agree to the following conclusions and directives, and
that the following actions are appropriate and shall constitute the disposition of this appeal:
1. Due to the confusion surrounding the location and use of the dock built between Lots 3
and 4, Bakers Landing Two, Kenny and Lisa Mattox shall be issued a permit allowing the
construction of a “joint-use” dock, to be used jointly with Marvin and Carol Wood. The permit
shall be issued in the names of Kenny and Lisa Mattox and Marvin and Carol Wood, and the
boardwalk shall be built to begin at the common boundary line of Lots 4 and 5. The permit shall
provide for a fixed pierhead no larger than 12 feet by 16 feet, two floating docks each no larger
than 10 feet by 16 feet, and two two-piling uncovered boat lifts.
2. The South Carolina Department of Archives and History is hereby allowed to
intervene and made a party to this proceeding.
3. Tamsberg Properties is hereby made a party to this proceeding.
4. The dock located between Lots 3 and 4 shall be allowed to remain as constructed, and
shall be allowed to be used as a community dock for the Bakers Landing Subdivision. Tamsberg
Properties Permit No. 91-3D-185-P is hereby amended to allow this change, and DHEC/OCRM
hereby grants its permit and coastal zone consistency certification for Corps of Engineers Permit
No. 2002-1E-512-P, and requests that the Corps of Engineers issue its approval for same.
5. As amended by the provisions of paragraphs 1 and 2 immediately above, Tamsberg
Properties Permit No. 91-3D-185-P, including specifically special condition number two of said
permit (“Provided that no additional docks or modifications to permitted docks are permitted
within this subdivision”) is hereby reaffirmed. The expiration date stated in Permit No. 91-3D-185-P was a construction deadline. Due to the fact that the docks allowed under Permit No. 91-3D-185-P have been built, the expiration date does not apply to the special conditions, which
shall continue and remain in effect. DHEC/OCRM shall not grant any permits for additional
docks in the Bakers Landing Subdivision.
6. The limitations imposed by the conditions of permit no. 91-3D-185-P were in
contemplation of the overriding policy of the Ashley River Special Area Management Plan - that
the proliferation of docks on the Ashley River has had, and will have, a negative impact on the
Ashley River Historic District. Therefore, any future permitting decisions involving Bakers
Landing Subdivision will be governed by application of these permit conditions.
7. The case of Marvin E. & Carol T. Wood v. South Carolina Department of Health and
Environmental Control, Office of Ocean and Coastal Resource Management, ALJD Docket No.
02-ALJ-07-0401-CC, is hereby consolidated with the case of Kenny and Lisa Mattox v. South
Carolina Department of Health and Environmental Control, Office of Ocean and Coastal
Resource Management, ALJ Docket No. 02-ALJ-07-0258-CC.
8. All of the undersigned parties shall have the right to enforce the terms of this order in
the Administrative Law Judge Division or any other appropriate forum having jurisdiction over
the parties.
The undersigned Administrative Law Judge has reviewed this agreement and accepts it as
the final disposition of this consolidated proceeding and as the order of the Administrative Law
Judge Division.
AND IT IS SO ORDERED.
_________________________________________
Ralph King Anderson, III
ADMINISTRATIVE LAW JUDGE
April 2, 2003
Columbia, South Carolina |
