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:
Stephen Vaughn vs. SCDHEC

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Stephen Vaughn

Respondent:
South Carolina Department of Health and Environmental Control

Intervenor:
Beresford Creek Homeowners’ Association
 
DOCKET NUMBER:
04-ALJ-07-0417-CC

APPEARANCES:
Mary D. Shahid, Esquire
For Petitioner

Leslie S. Riley, Esquire
For Respondent

James D. Myrick, Esquire
For Intervenor
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

The above-captioned matter is before this tribunal upon the request of Petitioner Stephen Vaughn for a contested case hearing. Petitioner challenges the decision of Respondent South Carolina Department of Health and Environmental Control, through its Office of Ocean and Coastal Resource Management (OCRM), to deny his application for the construction of a private dock at Lot 18 on Rivershore Drive in the Beresford Creek subdivision on Daniel Island in Berkeley County, South Carolina. OCRM denied the dock permit because Lot 18 is not a waterfront lot under the applicable regulations as its extended property lines do not reach Beresford Creek within 1000 feet of the critical line and the lot is not approved for a dock corridor on the neighborhood’s dock master plan.

Without objection, the Beresford Creek Homeowners’ Association was granted leave to intervene in this matter in opposition to Petitioner’s permit application on February 3, 2005. After timely notice to the parties, a hearing of this matter was held on August 16, 2005, at the South Carolina Administrative Law Court in Columbia, South Carolina. Based upon the evidence and arguments presented at the hearing and upon the applicable law, I find that OCRM’s denial of Petitioner’s dock permit application must be sustained.

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:

1. On July 8, 2004, Petitioner Stephen Vaughn entered into a contract with Nemisio Dedios to purchase Lot 18 on Rivershore Drive in the Beresford Creek subdivision on Daniel Island in Berkeley County, South Carolina. This contract was extended on August 15, 2005.

2. On August 20, 2004, Petitioner filed an application with OCRM for a permit to construct a private dock in Beresford Creek at Lot 18. The proposed dock would consist of a 4’ by 620’ walkway with handrails leading to a 20’ by 20’ fixed pierhead with a roof and handrails, which, in turn, is attached to a 10’ by 20’ floating dock and a 12’ by 20’ six-pile boatlift.

3. By a letter dated November 2, 2004, OCRM denied Petitioner’s permit application because “the lot in question . . . [is] not waterfront to Beresford Creek as considered by OCRM definition and Regulations.” (Petr. Ex. #1, at 1.) In particular, OCRM found that Lot 18 is not waterfront because “the projected property lines do not intersect with the creek under 1000’ as required by [the regulatory] definition” and “the property does not possess a dock corridor on the approved Dock Master Plan (DMP)” for the Beresford Creek subdivision. (Petr. Ex. #1, at 1.) In support of its decision, OCRM cited to the regulatory definition of waterfront property found at 23A S.C. Code Ann. Regs. 30-1(D)(52) (Supp. 2004) and several of the general considerations for critical area permitting found at 23A S.C. Code Ann. Regs. 30-11(B) (Supp. 2004), including the consideration related to whether the activity to be permitted requires a waterfront location.

4. Lot 18 is not waterfront property by its geography. Straight-line extensions of both of the lot’s generally shore-perpendicular, upland property lines do not reach Beresford Creek or any other navigable watercourse within 1000 feet of the marsh critical line on the property. (OCRM Ex. # 1.)

5. Lot 18 is not waterfront property by inclusion in a dock master plan. Lot 18 is subject to the terms and conditions of the Declaration of Covenants, Conditions and Restrictions for the Beresford Creek subdivision as recorded with Berkeley County on November 29, 2000. Section 4.1 of those covenants and restrictions provides that only lots with approved dock corridors as shown on the neighborhood’s dock master plan shall be allowed to construct docks. (Intervenor Ex. #2, at 9.) Lot 18 is not shown on the Beresford Creek dock master plan as having a dock corridor to Beresford Creek, and, thus, is not authorized by the plan for the construction of a dock to Beresford Creek. (Petr. Ex. #19.) In short, the dock master plan for Beresford Creek does not define Lot 18 as a waterfront lot.

CONCLUSIONS OF LAW

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

In the instant case, the determination of whether OCRM properly denied Petitioner’s dock permit application turns upon the resolution of two basic questions: (1) whether Lot 18 is waterfront property as defined by OCRM regulations, and (2) if Lot 18 is not waterfront property, whether that fact is a sufficient basis for denying a dock permit for the lot. In its denial of Petitioner’s application, OCRM concluded that Lot 18 did not meet the regulatory definition of waterfront property, and that, accordingly, the lot was not a suitable location for the construction of a dock. Petitioner, however, contends that Lot 18 does meet the definition of waterfront property, and that, at any rate, the failure of the property to satisfy that definition does not necessitate the denial of the dock permit application. For the reasons set forth below, I find that Lot 18 is not waterfront property and that, as such, Petitioner’s application for a permit to construct a dock on that lot must be denied.

Waterfront Property

Lot 18 is not waterfront property. The regulatory definition of waterfront property is found at 23A S.C. Code Ann. Regs. 30-1(D)(52) (Supp. 2004), which provides:

For the 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.

 

Id. Lot 18 satisfies neither of these regulatory requirements for waterfront property.

First, straight-line extensions of both of the lot’s generally shore-perpendicular, upland property lines—here, the eastern and western boundaries of the lot—do not reach Beresford Creek or any other navigable waterway within 1000 feet of the critical line on the lot. While Petitioner presented expert testimony from an engineer who testified that straight-line extensions of property lines on Lot 18 could reach Beresford Creek within 1000 feet, I do not find this testimony to be credible.[1] Specifically, the engineer did not use straight-line extensions of both of the lot’s shore-perpendicular, upland property lines to reach his conclusion. Rather, for one extension, he extended the eastern shore-perpendicular, upland property line by creating an angle at the critical line and beginning a new line toward Beresford Creek, instead of simply extending the property boundary in a straight line; for the second extension, he extended a segment of the OCRM critical line toward Beresford Creek, rather than extending the other shore-perpendicular upland property line on the lot’s western boundary. In essence, Petitioner’s expert did not extend the upland property lines of Lot 18, as required by the regulatory definition, but drew an angled dock corridor for the lot similar to the other dock corridors for other lots in the subdivision.

Second, Lot 18 is not identified on the dock master plan for the Beresford Creek subdivision as a waterfront lot. While Petitioner has attempted to have the dock master plan amended to include Lot 18 with a dock corridor, and while a dock corridor can be drawn for Lot 18 that is generally consistent with the other dock corridors on the master plan, the simple fact remains that Lot 18 is not identified as waterfront property with a dock corridor on the current version of the Beresford Creek dock master plan. Further, to the extent Petitioner contends that his efforts to amend the dock master plan have been improperly thwarted, such claims are beyond the scope of this tribunal’s review and are perhaps more suitable for another forum. Therefore, Lot 18 cannot be considered waterfront property based upon the current version of the Beresford Creek dock master plan.

Lack of Waterfront Property as a Basis for Permit Denial

The fact that Lot 18 is not waterfront property is a sufficient reason for the denial of Petitioner’s application to construct a dock on the property. Under both the Coastal Zone Management Act and OCRM’s regulations, the first general consideration OCRM is required to weigh in determining whether to issue a dock permit, or any other critical area permit, is “[t]he extent to which the activity requires a waterfront location or is economically enhanced by its proximity to water.” 23A S.C. Code Ann. Regs. 30-11(B)(1) (Supp. 2004) (emphasis added); see also S.C. Code Ann. § 48-39-150(A)(1) (Supp. 2004). The construction and use of a dock are clearly activities that require a waterfront location. See, e.g., 23A S.C. Code Ann. Regs. 30-12(A)(1) (Supp. 2004) (describing a dock as “a structure built over and/or floating on water . . . generally used for the mooring of boats”); id. 30-12(A)(2)(n) (Supp. 2004) (providing that docks “must generally extend to the first navigable creek, within extensions of upland property lines or corridor lines, that has a defined channel”); id. 30-12(A)(2)(q) (Supp. 2004) (setting forth sizing standards for docks depending upon the widths of the water bodies into which the docks are situated). In fact, certain dock permitting regulations specifically condition a lot’s eligibility for a dock upon the width of the lot’s frontage on the water. See 23A S.C. Code Ann. Regs. 30-12(A)(2)(o) (Supp. 2004); id. 30-12(A)(2)(q)(i) (Supp. 2004). Therefore, while Regulation 30-1(D)(52) is a purely definitional section, not a substantive dock permitting regulation, the definition of “waterfront property” provided in that section is important for determining a whether a proposed dock project is located in a “waterfront location” and thus can satisfy the first general consideration for evaluating critical area activities under the Coastal Zone Management Act and OCRM’s regulations.

In the case at hand, Lot 18 is not waterfront property as defined by Regulation 30-1(D)(52). Nevertheless, Petitioner seeks a permit from OCRM to construct a dock on the lot. Put simply, Petitioner has requested a permit to undertake an activity the requires a waterfront location—namely, the construction of a dock—on property that is not waterfront, and, as such, his request fails to satisfy the first general permitting consideration set forth in Section 48-39-150(A)(1) and Regulation 30-11(B)(1). And, Petitioner’s failure to satisfy this general permitting consideration is a sufficient ground upon which to deny his dock permit application.

Therefore, as Lot 18 is not waterfront property, and thus not suitable property for the construction of dock, I find that OCRM properly denied Petitioner’s application to construct a dock on the lot.

ORDER

Based upon the Findings of Fact and Conclusions of Law stated above,

IT IS HEREBY ORDERED that OCRM’s decision to deny Petitioner’s application for a permit to construct a private dock in Beresford Creek at Lot 18 on Rivershore Drive in the Beresford Creek subdivision on Daniel Island in Berkeley County, 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

 

October 5, 2005

Columbia, South Carolina

 



[1] Where an expert's testimony is based upon facts sufficient to form the basis for an opinion, the trier of fact determines its probative weight. Berkley Elec. Coop. v. S.C. Pub. Serv. Comm'n, 304 S.C. 15, 20, 402 S.E.2d 674, 677 (1991). A trier of fact is not compelled to accept an expert's testimony, but may give it the weight and credibility he determines it deserves. Florence County Dep't of Social Servs. v. Ward, 310 S.C. 69, 72-73, 425 S.E.2d 61, 63 (Ct. App. 1992). The trier of fact may also accept the testimony of one expert over another. S.C. Cable Television Ass’n. v. S. Bell Tel. & Tel. Co., 308 S.C. 216, 221-22, 417 S.E.2d 586, 589 (1992).


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