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, Office of Ocean and Coastal Resource Management
("OCRM") to issue a permit to Respondent Jessica E.B. Evans. The Petitioner, Robert R.
Crowder, requested a contested case hearing before the Administrative Law Judge Division. A
hearing was conducted on August 9, 2002.
BACKGROUND
In June of 2000, Respondent Evans applied for a dock permit, to be located on and
adjacent to a tributary of Hobcaw Creek in Mount Pleasant, Charleston County, South Carolina.
The permit was denied on July 21, 2000, and Ms. Evans timely filed an appeal of the decision.
No party moved to intervene. During preparation for trial, OCRM staff reconsidered the
circumstances surrounding the permit denial, including the fact that another permit had been
issued under similar circumstances on the other side of the Petitioner’s property. The parties
reached an agreement, and entered into a Consent Order whereby the dock permit was issued as
applied for.
Subsequent to the entry of the Consent Order, Respondent Evans requested an
amendment to the permit that would reduce the size of the square footage of the pierhead to what
was allowed by the regulations. That request was granted on April 20, 2001.
After commencement of the dock’s construction, the Petitioner contacted OCRM to
inquire about the structure, as this was the first notice that he had of the permit’s issuance. On
June 7, 2002, the Petitioner filed a Notice of Appeal of the permit, as well as a motion for a
temporary injunction against any further construction during the pendency of the requested
contested case proceedings. OCRM visited the site and determined that the dock was being
constructed out of compliance with the approval. Consequently, OCRM issued a cease and
desist order on June 12, 2001, and the motion for temporary injunction was dismissed as moot.
On July 19, 2001, OCRM approved the as-built configuration, imposed a $100 fine for
non-compliance with the approved permit and concluded the enforcement action. After work
commenced again on the dock, the Petitioner filed a second motion to stop construction, this
time in the form of a motion for a temporary restraining order. That motion was heard on July
27, 2001. On August 3, 2001, I issued an Order granting the motion, finding that the amendment
approved by OCRM should have been placed on public notice, because the change in
configuration warranted such notice and opportunity to contest the approval. In that order I held
that the Petitioner lacked standing to appeal the original permit, which was issued through a
Consent Order of the Division. Mr. Crowder was notified of Ms. Evans’ appeal of the denial and
informed that in order to protect his rights he must file a motion to intervene in the proceedings.
He did not do so. Pursuant to the Order, OCRM placed the amendment request on public notice
and the amendment was approved on January 28, 2002. The Petitioner appealed.
As a result of the foregoing events, the issues before me for decision in this appeal are
limited to those raised by the issuance of the amendment to the original permit.
FINDINGS OF FACT
After hearing the testimony at the hearing and reviewing the evidence, taking into
account the burdens imposed on the parties, I make the following findings of fact by a
preponderance of the evidence:
1.The Petitioner, Robert R. Crowder, is the owner of property located at 447 Channel
Creek Court, in the Hobcaw Creek Subdivision, Mount Pleasant, South Carolina.
2.Respondent Evans is the owner, along with her husband, of the home located at 451
Channel Creek Court, which is located adjacent to the Petitioner’s property. On January 28,
2002, Respondent Evans received an amendment to her dock permit, permit number OCRM-00-289-J, which was originally issued through a Consent Order of this Division, filed on October
19, 2000 (ALJ Docket No. 00-ALJ-07-0479-CC).
3.The amendment approved an as-built configuration of the dock, which was originally to
consist of a 4’ by 510’ walkway, leading to a 6’ by 8’ fixed pierhead and a 6’ x 12’ floating
dock. The walkway/pier, as approximately halfway built, is identical to the originally approved
configuration, except that the walkway is constructed 34.74’ closer to the Petitioner’s extended
property line than the original drawings indicated. All other aspects of the structure, including
the location of the pierhead, remain the same in the amended permit
. Additionally, the 35-foot
movement of the walkway/pier on the high ground narrows to 0 feet at the pierhead/dock.
4.The amendment contains Special Condition One, which provides that “upon completion
of the walkway to the edge of the marsh vegetation the location of the pierhead, floating dock
and boatlift
are staked in the field and approved by OCRM staff prior to their installation. This
is to ensure that navigation is not hindered between this dock and other existing docks in the
area.”
5.Mr. Crowder estimates that the total cost of his lot and the construction of his home was
approximately $350,000 to $375,000. It was appraised two years ago for $775,000. Mr.
Crowder built his own dock around the same time that the house was constructed.
6.The Petitioner objects to the dock primarily on the ground that it will obstruct his view of
the marsh. When he purchased the property, he expected to have a relatively unobstructed view
when looking from his house towards the marsh and across the Respondent’s extended property
lines. However, he acknowledged that several other docks are visible from his house, including
the community dock for access to Hobcaw creek.
7. In addition to his view concerns, the Petitioner objects to the dock on the ground that it
will impact his and his neighbors’ ability to navigate in Hobcaw Creek. However, the location
of the pierhead and floating dock were not changed by the amendment. Moreover, even if the
amendment had changed the location of the pierhead and floating dock, Special Condition One
of the amendment was placed on the amendment to ensure that the structure would be located so
as to minimize any impact on navigation in Hobcaw Creek.
8.The Petitioner alleges that the structure crosses a navigable creek, in violation of 23A
S.C. Code Ann. Regs. 30-12(A)(2)(n). However, the fact that the dock crosses this tributary or
water feature is true for either configuration. Even so, I find that the Petitioner did not submit
any evidence to support his contention. He never had a professional survey done of the feature
he describes as a creek, which also runs under his own dock. He has taken water depth
measurements, but no width or elevation change measurements. The only evidence submitted
with regard to actual navigation was that the Petitioner has navigated a small portion of this
feature at high tide. In response, OCRM submitted the testimony of Curtis Joyner, Manager of
Critical Area Permitting for OCRM, who has reviewed hundreds of dock permits and evaluated
similar numbers of tributaries or water features for purposes of applying the applicable
regulations. He has observed the tributary in question and has concluded that it is not a
navigable creek under Reg. 30-12(A)(2)(n).
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 Judge Division has subject matter jurisdiction in
this action pursuant to S.C. Code Ann. Sections 1-23-310 et seq. (1986 & Supp. 2002), and
Sections 1-23-500 et seq. (1986 & Supp. 2002). Pursuant to S.C. Code Ann. Section 48-39-150(D) (1976 & Supp. 2002), the Division is authorized to hear contested cases arising under
Chapter 39 of the 1976 Code.
2.In a contested case proceeding, "the ALJ is not sitting in an appellate capacity and is not
restricted to a review of the decision below. Instead, the proceeding before the ALJ is in the
nature of a de novo hearing." Reliance Ins. Co. v. Smith, 327 S.C. 528, 489 S.E.2d 674, 677 (Ct.
App. 1997). The trier of fact must weigh and pass upon the credibility of evidence presented.
See S.C. Cable Television Ass'n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d
586 (1992).
3.The standard of proof in a contested case hearing is a preponderance of the evidence.
National Health Corp. v. South Carolina Dept. of Health & Env. Control, 298 S.C. 373, 380
S.E.2d 841 (Ct. App. 1989). The Petitioners, therefore, have the burden of proof to show, by a
preponderance of the evidence, that the proposed structure would violate the Coastal Zone
Management Act and the regulations promulgated thereunder. In civil cases, the burden of proof
rests upon the party who asserts the affirmative of an issue. 29 Am. Jur. 2d Evidence Sec. 127
(1994); Alex Sanders, et al., Trial Handbook For South Carolina Lawyers, Sec. 9:3 Party With
Burden, Civil Cases (2000). A preponderance of the evidence means "the greater weight of the
evidence," or "superior evidentiary weight that, though not sufficient to free the mind wholly
from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of an
issue rather than the other." Black's Law Dictionary 120 (7th ed. 1999).
4.In any decision to grant or deny a coastal zone permit, OCRM exercises significant
discretion. See 1 Am. Jur. 2d Administrative Law Sec. 118 (1962). In exercising that discretion,
OCRM must apply its statutory principles in a reasoned judgment supported by a rational basis;
to do otherwise would produce an arbitrary decision. Cf. Deese v. State Bd. of Dentistry, 286
S.C. 182, 332 S.E.2d 539 (Ct. App. 1985).
5.The issues that are before me are limited to whether the amendment issued January 28,
2002, was properly granted. At the hearing, all issues and evidence relating to the issuance of
the original permit were excluded. Therefore, the Petitioner has the burden of proof to show
how the approved change in alignment in the amended permit will impact him. Issues relating to
the original permit are not before this tribunal.
6.I conclude that the change of approximately 35 feet in the alignment of the walkway does
not affect the Petitioner’s view to such a degree that it must be denied. The slight change in
location of the walkway/pier from the amendment diminishes from only 35 feet to 0 over the
more than 400 feet it travels to the pierhead. The photographs in evidence clearly show that Mr.
Crowder’s residence is located more channelward than Respondent Evans’ home and the
structure would be in view with the original permit as much as with the amendment. Moreover,
the law is clear that there is no right to an unobstructed view. See Hill v. Beach Company, 306
SE2d 604, 279 SC 313 (1983). Furthermore, the Petitioner’s view is not even unobstructed
currently; he conceded that several other docks are visible from his house.
7.The Petitioner raises the issue of whether this dock violates Reg. 30-12(A)(2)(n) and
crosses a navigable creek, “which is defined as having a defined channel as evidenced by a
significant change in grade.” I conclude that the Petitioner has not carried his burden of proof
with regard to this issue. The Petitioner has not demonstrated any difference between the
proposed dock’s original configuration and the amended configuration with regard to this issue.
Even if this issue were properly before me, the only evidence in the record is the testimony of
Curtis Joyner, who has reviewed hundreds of dock permits and observed the tributary in
question. His conclusion that the tributary in question is not navigable for purposes of the
regulation is persuasive, given the fact that the Petitioner entered no specific measurements or
evidence with regard to whether this is a defined channel with a significant change in grade. In
addition, Petitioner admitted that his own dock crossed the same tributary, as was clearly visible
in the photographs entered into evidence.
8.The Petitioner raised navigational concerns with regard to the placement of the pierhead.
He testified that the location of the pierhead/dock would impede navigation to a water feature in
the marsh he had used for boating. However, I conclude that this issue is without merit. The
pierhead/dock location was not changed by the amendment, and cannot per se cause any effect
differently from the original location.
Even if this issue were before me, there is evidence in the record to refute the Petitioner’s
claims. The permit requires that the pierhead must be staked in the field and approved by
OCRM prior to construction. This condition was placed in order to ensure that navigation would
not be hindered. Furthermore, OCRM has the enforcement authority to require that the pierhead
be moved, if its placement creates a navigational hazard. See S.C. Code Ann. §48-39-50(I)
(supp. 2002).
9.Petitioner Crowder provided no evidence showing any harm from the amendment, i.e.,
the relocated starting point of the walkway/pier, as opposed to the originally permitted location.
All evidence presented by petitioner characterized the alleged effect of the walkway/pier or dock
with no distinction or characterization of the alleged harm as being due to the movement of the
landward side of the walkway/pier. The only distinction made by petitioner Crowder regarding
the change was that the walkway/pier took approximately seventy-five (75) more feet of marsh
from his extended property line than the original drawing. However, no harm was alleged from
such increase in the amount of marsh affected from his extended property line.
10.At the close of Petitioner’s case, both Respondents moved for dismissal pursuant to
SCRCP Rule 41(b). Rule 68 of the Rules of Procedure for the Administrative Law Judge
Division provides that the Rules of Civil Procedure may be applied where the Rules of the
Administrative Law Judge Division do not specifically address the issue at hand. The Division's
rules do not address the procedure for motions to dismiss following the presentation of the
Petitioner's case. Therefore, I find that application of SCRCP Rule 41(b) is proper in this case.
That rule sets forth the following:
After the Plaintiff in an action tried by the court without a
jury has completed the presentation of his evidence, the
defendant, without waiving his right to offer evidence in the
event the motion is not granted, may move for a dismissal on the
ground that upon the facts and the law the plaintiff has shown no
right to relief. The court as the trier of facts may then determine
them and render judgment against the plaintiff or may decline to
render any judgment until the close of all the evidence.
See Johnson v. JP Stevens & Company, Inc., 308 S.C. 116, 417 S.E.2d 527 (1992) ("Rule 41(b)
allows the Judge as the trier of facts to weigh the evidence, determine the facts and render a
judgment against the Plaintiff at the close of his case if justified"). See also Town of Kiawah
Island, Petitioner V. S.C. Department of Health and Environmental Control, Office of Ocean and
Coastal Resource Management, and Jeffrey Graves, Docket No. 01-ALJ-07-0439-CC, April 5,
2002.
After consideration of the evidence presented and the scope of the issues raised by this
appeal, which are limited solely to the alleged effect of the amendment of Respondent Evans’
permit, I find that Petitioner has not carried his burden, and has not shown any harm solely due
to the amended permit.ORDER
Therefore, after reviewing the evidence and testimony before me and the applicable law,
I conclude that the Petitioner has failed to show that he is harmed by the amended permit, and
that amendment was properly issued by OCRM.
THEREFORE, it is ORDERED that the issuance of the amendment to permit number
OCRM-00-289-J is hereby affirmed and this action is dismissed.
AND IT IS SO ORDERED.
______________________________
CAROLYN C. MATTHEWS
ADMINISTRATIVE LAW JUDGE
Columbia, SC
March 25, 2003 |
