ORDERS:
CONSENT ORDER OF DISMISSAL
This matter is before me upon motion by the Petitioners, Gloria and Redden Tuten, for entry of an Order of Dismissal in accordance with the terms and conditions of the parties’ agreement, as set forth herein. Respondents have consented to this Order of Dismissal, as is evidenced by their signatures below.
This is a contested case appeal of a permit authorizing construction of a private dock for the joint use of William Hall and Michael Bailey. William Hall resides at 1 Cardinal Lane, Okatie, Beaufort County, S. C. Michael Bailey’s property adjoins Hall’s, and is described as 277 Baileys Rd., Okatie, Beaufort County, S. C. Michael Bailey is, by profession, a marine contractor and is also serving as William Hall’s authorized agent for purposes of obtaining a dock permit. Gloria and Redden Tuten own property adjacent to Bailey, at 275 Old Bailey’s Road, with frontage on the Okatie River. The permitted dock will be located parallel to the Tutens’ property - or bluff - line, and terminates at the Okatie River. The alignment for this dock is shown on the permit drawing attached to this Consent Order as Exhibit “A.” Based on Exhibit A, the dock is aligned parallel to a small tributary of the Okatie River that is located immediately adjacent to Bailey’s and Hall’s upland property, and also runs parallel to the Tutens’ property line.
The Tutens object to the permitted dock based on their desire to preserve water access to this navigable tributary. While it does not appear from the permit drawings that the Hall/Bailey dock will obstruct, extend over, or block navigation in this tributary, it would prevent access from the back portion of the Tutens’ property to the tributary. At present, Michael Bailey has constructed a dock to this tributary and, under appropriate circumstances, the Tutens could qualify for a dock similar to the one presently providing access to Bailey. However, in order to facilitate construction of the dock to the Okatie River that is the subject of this appeal, Bailey is planning to remove his dock located on the smaller tributary.
At this time the Tutens do not qualify for access to the tributary to the Okatie River. The Tutens’ property is not subdivided, and they already have water access by way of a dock located on the Okatie River. However, the Tutens intend to subdivide, and in furtherance of their intent they have obtained a permit to install a separate septic tank, approval from the Beaufort County building official to install a guest cottage, and a 911 address (279 Old Bailey Rd). If the Tutens complete the subdivision process successfully, and if Hall and Bailey constructed their dock as permitted, it would prevent access to the tributary from the back portion of the Tuten’s property.
In an effort to prevent any potential loss of access, the parties have agreed to the following terms and conditions:
1. The Tutens have the right to be added as joint users of the dock permitted to William Hall and used jointly by William Hall and Michael Bailey for the benefit of 1 Cardinal Lane, Okatie, and 277 Bailey’s Rd., Okatie. However, this right is specifically contingent on the following:
a. Successful subdivision of the property described as:
All that certain piece, parcel, or tract of land, with buildings and improvements thereon situate, lying and being in the Baileys Section of Beaufort County, South Carolina, being shown and designated as Parcel “A” on a Plat prepared by Forrest F. Baughman R.L.S. for I. A. Nimmer, Jr., which is dated August 17, 1983 and recorded in the office of the Clerk of Court for Beaufort County, South Carolina, in Plat Book 33 at page 78.
b. For purposes of interpreting this Order, subdivision of this property is successful if the Tuten’s have complied with all requirements of Beaufort County, or the appropriate local government, in order to qualify for subdivision and are in possession of an approved subdivision plat or approval letter from the governing authority.
c. The subdivided property must include sufficient water frontage to qualify for a dock under the regulations of the South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management.
d. Compensation to Bailey and Hall, in an amount to be agreed between the parties at such time as successful subdivision is completed and the Tutens are ready to commence use of the dock, provided that such compensation shall not exceed 1/3 of the initial construction costs for the common walkway of the dock. In addition, compensation will include 100% of the cost of materials and labor to tie into the dock and any additions to the dock to facilitate boat moorage.
2. It is the responsibility of the Tutens to provide written notification to SCDHEC-OCRM that construction is proceeding in accordance with this Consent Order. Such notification must include the detailed drawings depicting the size and location of any additions to the dock. In entering into this Consent Order it is the intent of all parties to authorize joint use and provide access to the rear portion of the Tutens’ property, however, any additional construction proposed by the Tutens must comply with the regulations of the South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resources. For purposes of this Consent Order, compliance with these regulations means compliance with requirements for 1) water-frontage for the newly subdivided lot; 2) walkway width for the tie-in; and 3) dimensions of any proposed floating dock or additional boatlift.
3. This agreement to share the use of this dock is binding between the parties, and the direct descendants of Gloria and Redden Tuten. In the event that the Tutens sell their property, or their direct descendants sell the property for which joint use is authorized, then Respondent William Hall and Michael Bailey have the right to either negotiate with the purchaser of the Tuten property or remove the tie-in. All parties agree that nothing herein is intended to prevent Respondent William Hall and Michael Bailey from entering into an Agreement with successive purchasers of the Tuten property to provide for continued joint use between 1 Cardinal Lane, 277 Old Bailey’s Road, and 275 Old Bailey Rd. Furthermore, all parties agree that nothing herein is intended to prevent the Tutens, their direct descendants, or their successors in title from entering into an Agreement with successive owners of Hall’s and Bailey’s property for continued use of the joint use dock.
4. The Tutens agree to dismiss the captioned contested case appeal.
Based on the parties’ agreement it is, hereby, Ordered that this contested case is dismissed subject to the matters set forth herein.
And it is so ordered.
26th day of October, 2005 ______________________________
The Honorable Marvin F. Kittrell, Chief Judge, Administrative Law Court
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