ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This contested case proceeding arises from a decision of the South Carolina Department of Health and Environmental Control’s Bureau of Ocean and Coastal Resource Management (OCRM) to amend a private dock permit previously issued to Respondent Arthur Moore (Moore) so as to realign the walkway and provide access to the Wando River. Petitioners Evan and Leslie Jones, who are Moore’s adjacent property owners, filed a request for contested case hearing appealing OCRM's decision to the Administrative Law Court (ALC or Court). A hearing was held on May 3, 2005, at the offices of the Administrative Law Court in Columbia, South Carolina.
ISSUES
Petitioners raise two basic issues in this contested case. First, did OCRM properly apply its rules and regulations in approving this amended permit, and, second, did OCRM commit a procedural error in its review and permitting process.
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 evidence:
Background
Petitioners and Respondent Moore own adjacent lots at The Point at Rivertowne Country Club (Rivertowne) subdivision in Mount Pleasant, South Carolina. Moore purchased his property (Lot 39) in 2001 and the Petitioners purchased their property (Lot 38) in July 2004. Prior to 2001, the developers of Rivertowne submitted a Dock Master Plan (DMP) for the subdivision to OCRM which approved the DMP with certain conditions. Both the Petitioners and Moore's lots had dock corridors established for them on the DMP. However, the Moore dock corridor extended to a tributary of the Wando River while the Petitioners' dock corridor was to the Wando River.
Petitioners’ property consists of a highground section and an island portion which is connected to the remainder of the lot by a bridge. The island portion is restricted from being developed with habitable structures but does have a dock to the Wando River. Consequently, the Petitioners' have unimpeded water access by way of a dock to the Wando River.
Respondent Moore also applied for a dock permit for his property. In keeping with the Rivertowne DMP, OCRM issued Moore a permit to construct a dock.[1] However, this structure was to terminate in the unnamed tributary to the Wando River. Afterwards, Respondent Moore determined that the tributary did not provide sufficient access to the local waterways to be functional. Accordingly, Moore sought to amend the permit to have the dock extend to the Wando River so as to allow a larger pier and float and unrestricted water access at all tidal stages. After considering the extended property lines and determining that the Rivertowne DMP could be amended, OCRM amended Moore’s permit to provide for a dock terminating in the Wando River. The amended permit provides for a 632 foot walkway and a pierhead and float totaling 600 square feet. Furthermore, a condition of the permit is that Moore must stake the dock location in the field and have the location of the walkway and pier approved by OCRM prior to construction.
Dock Master Plan
Petitioners complain that the relocation of the Respondent’s dock from a tributary of the Wando River to a location directly on the Wando River is inconsistent with the Dock Master Plan. Though the Rivertowne DMP originally required that Moore receive a permit for a dock to a tributary off of the Wando River, the DMP has been amended several times to add or change corridors and lot dimensions as well as size restrictions.[3] In fact, the letter approving the DMP specifically provided that it would “take precedence over applications inconsistent with this plan unless new information is revealed in an application to address and overcome the concerns identified” in the DMP. Moreover, Evan Jones was aware that the Rivertowne DMP was amendable. Additionally, of the properties in Rivertowne with docks permitted in the tributary, only Moore’s property was waterfront to the Wando River. Furthermore, under OCRM’s regulations and procedures for determining water front property, the Moore lot is waterfront both to the tributary and to the Wando River. In other words, an extension of Moore’s upland property lines demonstrates the requisite amount of frontage along both the tributary and the river. I find that amendment of the DMP was warranted because of the difficulty in accessing the main tributary off of the Wando River and the de minimus impacts to navigation set forth below.
Navigation
The walkway authorized in the amended permit will cross over a small creek before it reaches the Wando River. Petitioners assert that the walkway will restrict their navigation of the tributaries in the area because, in order to access those tributaries from their bridge connecting their island to the highland, they must at some point cross under the proposed walkway.[4] More specifically, Petitioners contend that the walkway will:
· Impede their navigation of the small tributaries in order to observe the indigenous wildlife and their access to their high ground property; and
· Prevent them from reaching a small bridge between the highland and a small island they own.
In that regard, Petitioner Evan Jones testified that he has navigated many times from his bridge to the tidal tributary, up and down the main tributary, and has traversed the “horseshoe” loop off the tributary multiple times. Furthermore, he testified that he has navigated in those tributaries near low tide. Petitioners' son also testified that he has often driven his 20 foot power boat through the tributaries to his parents' bridge to pick up supplies and other items rather than having to haul those items across the bridge and island. He was also concerned that Moore’s pier would be too close to the mouth of the tributary and would block access at that point.
The entrance to the main tributary off of the Wando River is obstructed by a shell mound on the bank where the tributary enters the river. In addition, once past the shell bank there is a mud bank before the tributary starts to turn. There are small tributaries branching from the main tributary that lead to Petitioners’ bridge. Nevertheless, those tributaries have little if any water in them at low tide. I concur with OCRM’s observations that the area next to Petitioners' bridge is “a mud flat” and would not be considered navigable at mid-tide or below by any craft other than boats that require minimal water depth such as kayaks or canoes. Similarly, the “horseshoe” area was not navigable to any water craft other than kayaks or canoes. Furthermore, the tributaries in the area of the Jones’ bridge and in the “horseshoe” area have no defined channels as evidenced by a significant change in grade with the surrounding marsh.
Though Evan Jones navigated in the tributaries, that navigation occurred while paddling in a kayak which requires no more than a few inches of water to float. Furthermore, the navigation by Petitioners' son occurred around high tide or what he described at one point as “a good mid-tide.” It appears that that navigation was closely limited to the times near high tide.
Environmental Impact
The approved permit allows a 632 foot walkway and a pierhead and float totaling 600 square feet. The previously permitted dock was only 350 feet long with a pierhead totaling 120 square feet. Petitioners contend that the amended permit should be denied because the additional walkway length and dock size will result in a greater environmental impact. I recognize that Ms. Rodgers originally found that a dock extending to the tributary was less environmentally damaging than a dock walkway to the Wando River with pierhead and float totaling 600 square feet. Nevertheless, her supervisor, Mr. Curtis Joiner, explained that locating docks in smaller and shallower creeks potentially creates much greater environmental impacts than extending a walkway across those creeks to a larger waterway. The smaller tributaries are more productive for marine life, and boating in these areas has negative impacts on that productivity. Accordingly, I find that the environmental impact to the area would be greater if the amended permit is not granted.
Property Lines
Petitioners also offered evidence that Moore’s dock will cross their extended property lines. They contend that the extended property lines are 4 feet from the "horseshoe" creek mentioned above. Nevertheless, Petitioners did not establish that the dock, as amended, will cross their extended property lines. Petitioners' evidence was based upon their own attempts to locate and determine where their extended property lines would be in the marsh area in front of their property. That evidence was simply not persuasive. Moreover, the distance from the pole on the edge of the “horseshoe” which Evan Jones testified was the location of his extended property line is 95 feet from his island. From the highground of Moore’s property through the marsh and out to the Wando River on the line he proposes to construct his dock, his dock would pass between the island and the “horseshoe” creek without crossing Petitioners’ marker or intruding into the “horseshoe.” Furthermore, the manner in which Moore demonstrated the extension of property lines on his application was consistent with the way the agency extends such lines. Accordingly, the evidence did not establish that Moore cannot construct a dock and walkway from his lot to the Wando River without crossing within 20 feet of the extended property line between his lot and that of Petitioners.
In addition, even if Moore’s dock does cross the extended property line separating Moore's and Jones’ property, it would not result in “material harm” to the coastal zone policies because it would not block anyone’s navigation. Furthermore, Petitioners will continue to have unimpeded access to the Wando River by virtue of their existing dock.
CONCLUSIONS OF LAW
Based on the foregoing Findings of Fact, I conclude the following as a matter of law:
1. The South Carolina Administrative Law Court has subject matter jurisdiction in this action pursuant to S.C. Code Ann. §§ 1‑23‑310 et seq. (1986 & Supp. 2001) and §§ 1‑23‑500 et seq. (1986 & Supp. 2001). Furthermore, S.C. Code Ann. § 48‑39‑150 (D) (1987 & Supp. 2001) specifically authorizes the Court to hear contested cases arising under Chapter 39 of Title 48 of the 1976 Code.
2. The standard of proof in weighing the evidence and making a decision on the merits at a contested case hearing is 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).
3. Permits for the construction of private docks in the coastal zone are governed by the South Carolina Coastal Zone Management Act, S.C. Code Ann. Sec. 48‑39‑10 et seq. (1987 & Supp. 2001), and the regulations promulgated pursuant to those provisions found at 23A S.C. Code Ann. Regs. 30‑1 et seq. (Supp. 2001). Those regulations govern the management, development, and protection of the critical areas and coastal zone of the State. Furthermore, OCRM is charged with carrying out South Carolina's coastal zone policies and issuing permits for docks and piers in the critical areas of the coastal waters and tidelands. 23A S.C. Code Ann. Regs. 30‑10(A)(1) (Supp. 2001); S.C. Code Ann. § 48‑39‑130 (1987 & Supp. 2001).
Due Process
4. On September 28, 2004, OCRM issued a letter signed by the Permit Administrator Curtis Joyner, to the OCRM staff and Respondent Moore's attorney Christopher McG. Holmes, stating that the dock permit amendment was denied. The next day, OCRM sent a memorandum to all interested parties (including the Petitioners) stating the following: “This is to inform you that the above-referenced permit was denied on September 28, 2004.” However, at the hearing, Mr. Joyner explained that he had not decided what action to take and had drafted both a denial and an approval letter. However, the “denial” letter was inadvertently mailed. Nevertheless, he ultimately decided to approve the amendment. Mr. Joyner testified that the reasons set forth in the draft denial letter were not defensible under the facts and physical conditions of the site. Therefore, on November 23, 2004, Leslie Riley, Chief Counsel for OCRM, sent a letter stating that the denial letter was a mistake, and that the denial was revoked.
Petitioners contend that the amendment could not be resurrected after denial. They argue that when the OCRM sent the letter in September 2004 informing interested parties that the amendment request had been denied, this operated as a final agency decision. Furthermore, when the agency realized its mistake, it did not send notice to anyone but the applicant. Article I of the South Carolina Constitution provides that the Petitioners “shall not be finally bound by a judicial or quasi-judicial decision of an administrative agency affecting private rights except on due notice and an opportunity to be heard. . . .” S.C. Const. art. 1, § 22. To prove the denial of due process, a party must show that it has been substantially prejudiced by the administrative process. Palmetto Alliance, Inc. v. S. C. Public Service Comm’n., 282 S.C. 430, 319 S.E.2d 695 (1984). Petitioners have not identified any fundamental right at stake here which can only be addressed by their having an earlier opportunity to be heard before OCRM and which right can only be protected by imposing an additional procedure at the Department level. See Ogburn-Matthews v. Loblolly Partners, et al., 332 S.C. 551, 505 S.E.2d 598 (Ct. App. 1998). Furthermore, in Ross v. Medical University of South Carolina, 328 S.C. 51, 68, 492 S.E.2d 62, 71 (1997), the South Carolina Supreme Court held that:
Article I, § 22 requires an administrative agency provide notice and an opportunity to be heard, but does not require notice and an opportunity to be heard at each level of the administrative process. It mandates notice and opportunity to be heard at some point before the agency makes its final decision.
The ALC, as part of the executive branch of South Carolina government, provides notice and opportunity to be heard before the final administrative decision. See S.C. Code Ann. §§ 1-23-500 et seq. In this instance, Petitioners were provided notice of the decision to approve the amendment, and they have exercised their right to be heard by seeking a contested case hearing before this Court. Furthermore, Petitioners have cited no authority for the position that OCRM may not reconsider a permit decision or retract an improper notification prior to a contested case proceeding being filed with the ALC. So long as Petitioners’ rights to notice, opportunity for hearing, and judicial review are preserved, there is no denial of due process.
Moreover, In Bennett v. City of Clemson, 293 S.C. 64, 66-67, 358 S.E.2d 707, 708-709 (1987), the Supreme Court held that:
In cases permitting an agency to reconsider its decision, courts have emphasized that an agency's power to reconsider or rehear a case is not an arbitrary one, and such power should be exercised only when there is justification and good cause; i.e., newly discovered evidence, fraud, surprise, mistake, inadvertence or change in conditions.
Therefore, even if OCRM’s decision was a final agency determination, the agency can reconsider its decision if it was issued as a result of a mistake. Here, the evidence clearly establishes that the decision was errantly issued and as a result was properly reconsidered.
Navigation
5. Petitioners assert that the amended permit impedes navigation in violation of the South Carolina Coastal Zone Management Act. They argue that the walkway in the amended permit will restrict their navigation of the tributaries in the area. 23A S.C. Code Ann. Regs. 30‑12 (A)(2)(a) & (b) (Supp. 2002) (eff. May 24, 2002) provide that a dock “shall not impede navigation or restrict the reasonable navigation or restrict the reasonable public use of State lands and waters.” See also S.C. Const. art. XIV, § 4; S.C. Code Ann. § 49‑1‑10 (Supp. 2001). Furthermore, Regulation 30‑12 (A)(2)(n) sets forth that:
Docks must generally extend to the first navigable creek, within extensions of upland property lines or corridor lines, that has a defined channel as evidenced by a significant change in grade with the surrounding marsh; or having an established history of navigational access or use.
“The true test to be applied [in determining whether a waterway is navigable] is whether a stream inherently and by its nature has the capacity for valuable floatage, irrespective of the fact of actual use or the extent of such use.” Hughes v. Nelson, 303 S.C. 102, 105, 399 S.E.2d 24, 25 (Ct. App. 1990), citing State ex rel. Medlock v. South Carolina Coastal Council, 289 S.C. 445, 449, 346 S.E.2d 716, 719 (1986). The term “valuable floatage” includes not only commercial vessels but also use of a waterway by the general public for boating, hunting, and fishing. State ex rel. Medlock v. S.C. Coastal Council, 289 S.C. 445, 346 S.E.2d 716 (1986). Furthermore, “[t]he test of navigability is not whether a waterway is accessible at all times. Rather, the test is whether it is accessible ‘at the ordinary stage of the water.’” Hughes, supra at 26 (1990), quoting State v. Columbia Water, 82 S.C. 181,189, 63 S.E. 884, 888 (1909).
Here, the evidence does not support Petitioners’ contention that this creek is navigable. The only instances in which Petitioners have navigated this tributary in anything other than a kayak or canoe was at high tide or close to high tide. Because of the ebb and flow of water on the South Carolina coast during high and low tides, most tidal areas are navigable at high tide. Accordingly, in order for a tributary to be legally navigable, it must be navigable at the ordinary stage of the water. In other words, the fact that an area within the tributary can be navigated by a small motorboat at high tide is not significant.
Furthermore, Regulation 30-12 (A)(2)(n) sets forth that a “navigable creek” must have a defined channel. A defined channel is one "evidenced by a significant change of grade with the surrounding marsh." In this case, Petitioners did not establish that the dock will cross a creek with a defined channel, nor did the evidence show a significant change in grade. The only evidence that was submitted by Petitioners was their personal observations of the waterways. When weighed against the OCRM staff’s observations and experience in applying Regulation 30-12 (A)(2)(n), I conclude that their evidence is not persuasive. Furthermore, although the location of the dock has not been exactly staked out in the field, the testimony in the record reflects that the dock will cross the creek area leading to Petitioners’ bridge at a point where the channel spreads into a shallow mudflat.
Regulation 30-12 (A)(2)(n) also sets forth that a channel with “an established history of navigational access or use” cannot be crossed. The evidence in this case, however, did not demonstrate an “established history” of navigation in the tributaries. Petitioners’ use of Evan Jones’ canoe or kayak for a period of a few months subsequent to acquisition of high ground adjacent to that marsh does not constitute an established history of navigational use. Moreover, a kayak or canoe is not a vessel that would be considered “valuable floatage.” Furthermore, their son’s even more limited use of the local tributaries to access the high ground of their property certainly did not demonstrate “an established history of navigational access or use.”
Therefore, Petitioners failed to establish that there are any navigable creeks or creeks
with defined channels as evidenced by a significant change in grade in the alignment proposed by Moore and approved by OCRM. Accordingly, a dock can be constructed to the Wando River without violating either Regulation 30-12 (A)(1)(a) or Regulation 30‑12(A)(2)(n).
Nevertheless, I find that raising the height of the walkway at the intersection of the channel leading to Petitioners’ bridge is warranted. Evan Jones did not believe he could get from his bridge to the local tributaries in his canoe or kayak by passing under the dock walkway. I do not agree with his view in that regard. In fact, he was unaware that walkways must be elevated at least three feet above mean high water. See Regulation 30-12 (A)(1)(f). However, when questioned by the Court, Respondent Moore stated he would be willing to elevate any portion of his walkway above the requisites of the law to insure Petitioners’ access to the local tributaries. OCRM further confirmed that raising the height of the walkway would not cause any adverse impacts. Therefore, I find requiring the elevation of Moore's walkway to five feet above mean high water is warranted to insure that Petitioners have unimpeded access to the marsh area.
6. Petitioners also contend the pier and floating dock may be situated so close to the mouth of the tributary as to create an obstacle to navigation. Regulation 30-12(A)(2)(a) provides that “[d]ocks and piers . . . shall not impede navigation or restrict the reasonable public use of State lands and waters.” There was some dispute as to where the pier and floating dock will be situated in relation to the mouth of the tributary. Obviously, locating those structures too close to the mouth could affect access to the tributary. Nonetheless, I find that the requirement in the amended permit that Respondent Moore stake the location in the field and obtain OCRM’s approval prior to construction of the dock will help to insure that the pier and floating dock are not located so close to the mouth of the tributary so as to create an obstacle to navigation. Furthermore, OCRM could require placement of the floating dock either upstream or in front of the pier if it is too close to the tributary's mouth.
Extension of Dock to the First Creek
7. Petitioners argue that the amended permit also violates Regulation 30-12 (A)(2)(n) since the Wando River is not the “first” navigable creek from Moore’s highground. In other words, they contend that a dock must be permitted to the waterway which is the shortest distance from the proposed dock owner's property. Regulation 30‑12 (A)(2)(n) does require that “[d]ocks must extend to the first navigable creek.” However, that regulation does not require docks to be built to the closest navigable creek to an applicant's property.
As when seeking to determine the meaning of statutes, the rules of statutory construction apply to the interpretation of the meaning of regulations. See Converse Power Corp. v. South Carolina Dept. of Health and Environment Control, 350 S.C. 39, 564 S.E.2d 341 (Ct. App. 2002). Accordingly, the legislative intent of a regulation’s meaning must “prevail if it can be reasonably discovered in the language used, and that language must be construed in light of the intended purpose of the [regulation].” McClanahan v. Richland County Council, 350 S.C. 433, 438, 567 S.E.2d 240, 242 (2002). Moreover, a regulation “must receive practical, reasonable, and fair interpretation, consonant with the purpose, design, and policy of lawmakers.” TNS Mills, Inc. v. South Carolina Dept. of Revenue, 331 S.C. 611, 624, 503 S.E.2d 471, 478 (1998). In reviewing the policies of the Coastal Zone Management Act, there is no expression of limiting the utility of docks for the citizens of this State. See S.C. Code Ann. § 48-39-30 (Supp. 2001); 23A S.C. Code Ann. Regs. 30-1 & 30-11 (Supp. 2001). Therefore, I find that the most reasonable interpretation of this Regulation 30‑12 (A)(2)(n) is that the dock must be placed in the first navigable waterway that it reaches. Nevertheless, the alignment of the dock is within the property owner’s discretion as long as the chosen alignment complies with the other provision of the regulatory laws such as Regulation 30-12 (A)(2)(d) (Docks and piers should use the least environmentally damaging alignment.).
Dock’s Size
8. Petitioners raised the issue that the size of the dock approved in the amended permit in unreasonable for its intended use. Regulation 30-12 (A)(2)(c) provides that “[t]he size and extension of a dock or pier must be limited to that which is reasonable for the intended use.” Here, however, though Petitioners presented evidence that Moore’s dock should be located in the tributary rather than in the Wando River, they wholly failed to show that the size of the approved dock is unreasonable for the Wando River.
Environmental Impact
9. Petitioners contend that the amended dock permit does not follow the least environmentally damaging alignment. 23A S.C. Code Ann. Regs. 30-12 (A)(2)(d) provides that “[d]ocks and piers should use the least environmentally damaging alignment.” I conclude that at a minimum the amended dock follows an alignment that is no more environmentally damaging. In fact, even though the walkway is approximately 280 feet longer than the original permit it appears that since a dock in the Wando River will not create the adverse impact on aquatic life as would the smaller dock in the tributary, it will have less of a detrimental impact upon the environment.
Use and enjoyment
10. Petitioners argue that Moore’s dock will adversely effect their use and enjoyment of their property. S.C. Code Ann. § 48-39-150 (A)(10) (Supp. 2001) provides that in determining whether to grant a permit OCRM is to consider “[t]he extent to which the proposed use could affect the value and enjoyment of adjacent owners.” See also 23A S.C. Code Ann. Regs. 30-11 (B)(10). Therefore, the interests of adjacent property owners must balance against the interests of the applicant and, presumably, the public. This factor, however, is only one of many factors to consider.
Petitioners paid approximately $900,000 for their property because it had deep water access and a pristine view. Nevertheless, the amended permit will not impact Petitioners' deep water access by any means. Furthermore, I do not find that their view will be significantly impacted. This is even more evident in light of the fact that their home is yet to be built. Moreover, a private landowner does not acquire a prescriptive right to an unobstructed view over adjoining property. Hill v. The Beach Co. et al., 279 S.C. 313, 306 S.E.2d 604 (1983). Thus, no reasonable expectation existed at the time of Petitioners’ purchase that their existing view would remain unchanged over time. This is even more apt for a view overlooking public trust property.
Petitioners also purchased Lot 38 because it provided access to the adjacent marshes and wetlands and areas that Evan Jones could access with a canoe and kayak. Again, though the tributary at his bridge is not legally navigable, the proposed walkway, nevertheless, will not restrict his access to those tributaries. This is especially true in light of the raised height of the walkway.
Petitioners also contend that their son needs to utilize the tributaries with his power boat. They argue that he cannot utilize the bridge to the island to bring supplies for his boat by a wheelbarrow or other wheeled cart because of the softness of the soil on the island. I find this argument unpersuasive and more reflective of a lack of convenience rather than an inability to use or enjoy their property. Moreover, if the tributary is navigable at mid-tide, it appears there would be plenty of height for their son to bring his boat under Moore’s walkway. Furthermore, even near high tide, the required height of four feet will grant their son access to the bridge. Finally, no matter what the result, Petitioners simply do not have the privilege of unimpeded access to tributaries that are not navigable.
Moore on the other hand, though he has a lot that warrants receiving a dock, was only inhibited from doing so by the Dock Master Plan discussed above. Moreover, the original permit placed him in a tributary that had limited access because of the encumbrances at its entrance and overall depths. Access to the Wando River would allow Moore’s dock to reach deeper water, so as to accommodate larger boats and allow them to tie up for longer periods. The pierhead and float will also be significantly larger and a boat lift can be added. Therefore, I find that the impact on the Petitioners' use and enjoyment is outweighed by justification for granting the permit amendment.
Dock Master Plan
11. Petitioners contend that the dock’s realignment violates the Dock Master Plan approved for the subdivision. The amended permit in this case was issued on August 21, 2002. Accordingly, 23A S.C. Code Ann. Regs. 30-12 (A)(2)(h) (Supp. 2002) (eff. May 24, 2002) provided that:
Developers of subdivisions and multiple family dwellings are encouraged to develop plans which include joint-use docks and/or community docks at the time of required dock master plans. The approved Dock Master Plan must be recorded in the appropriate County Office of Deeds prior to lot sales in the subdivision. Reference to this DMP must be given in all contracts for lot sales. Lots in subdivision with approved Dock Master Plans as of the date of enactment of this regulation are exempt from R.30-12.A(2)(q)(i) as amended by this regulation. R.30-12.A(2)(q)(i) as amended by this regulation does not apply to other lots of record that exist as of the date of enactment of this regulation until the later of July 1, 2007 or the expiration of any permit issued prior to that date.
Nevertheless, Regulation 30-12 (A)(2)(h) did not reference dock corridors. Moreover, Regulation 30-12 (A)(2)(e) provided that “[t]he Department may consider an alternative alignment if site specific characteristics warrant or in the case of dock master plans, when appropriate.” Thus, the existence of a DMP in 2002 did not restrict OCRM or property owners to only those docks and corridors depicted on the plan. In fact, the Rivertowne DMP has been amended or revised several times in the past to add or change corridors and lot dimensions as well as size restrictions. Furthermore, there is no evidence in the record that the DMP relied upon by the Petitioners was ever recorded. Additionally, new information since the approval of the DMP raised valid reasons to grant an alternative alignment to the Wando River. Therefore, I find that OCRM’s use of an alternative alignment in the amended permit was warranted under the facts of this case.
Illustration the Location of the Dock or Walkway
12. Petitioners also contend that the dock application did not accurately illustrate the location of the dock or walkway in relation to Petitioners' land in violation of Regulation 30-12 (A)(2)(e). That regulation provides, in part, that “[a]ll 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.” Nonetheless, a condition of the permit is that Moore must stake the dock location in the field and have the location of the walkway and pier approved by OCRM prior to construction. I find that requirement will insure that the pier and floating dock are located in accordance with the amended permit and in keeping with OCRM’s regulations.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the decision of the South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management to issue the permit amendment in this matter is AFFIRMED with the following additional conditions:
a. The walkway is to be elevated at the point where it intersects with the area of marsh leading from Petitioners' bridge to the tributary to an elevation of five feet above mean high water; and
b. The location of the pier, as shown by staking in the field prior to construction, may not be closer than twenty feet to the mouth of the tributary, and, if the floating dock is closer than twenty feet to the mouth of the tributary, it shall be relocated to the upstream side of the pier or in front of the pier.
AND IT IS SO ORDERED.
_________________________________
Ralph King Anderson, III
Administrative Law Judge
October 11, 2005
Columbia, South Carolina
|
