SC Administrative Law Court Decisions

Dorman and May appealed the Panel’s Final Administrative Order to the Court of Common Pleas. The Honorable John L. Breeden, Jr. issued an Order affirming and reinstating Judge Bates’ Order. Legette appealed Judge Breeden’s Order to the South Carolina Court of Appeals, after which Adams was substituted for Legette as the real party in interest.^[2] The Court of Appeals issued its Opinion on May 28, 2002.

COURT OF APPEALS’ OPINION ^[3]

Judge Bates denied Adams’ permit partially on the finding that the dock would obstruct navigation and create problems with the adjoining dock based upon his interpretation of the meaning of navigation in 23A S.C. Code Ann. Regs. 30-12.A(2)(a) (Supp. 2001).^[4] After Judge Bates’ decision, the OCRM Panel, in interpreting the meaning of navigation in Regulation 30-12.A(2)(a), concluded: “It is the position of OCRM that any navigational issues between docks is a private property owner issue. It is not the policy of OCRM to police navigational disputes that should be dealt with among the adjacent property owners.” Therefore, the Panel held that “navigation, as contemplated in the regulation, did not encompass problems between neighbors or conflict with nearby docks but only applied to impediments to the general public's use of State waters.” Dorman, 565 S.E. 2d at 124. That interpretation differed from the interpretation made by Judge Bates. The Court of Appeals found that OCRM’s interpretation of its regulations is entitled to deference, and that OCRM’s subsequent interpretation of the meaning of navigation is binding upon the ALJD. The Court of Appeals, however, did not grant the Permit to Adams but rather found that:

Because the ALJ accorded significant weight to his interpretation of navigation under the regulations and stated that none of the subsections individually was a substantial enough reason to deny the permit, we remand this case to the ALJD for determination of whether the permit should issue in light of the Panel's interpretation of its own regulations.

Furthermore, the Court of Appeal determined that:

Because we remand for reconsideration by the ALJD, we do not find it necessary to address the other subsections of the regulation pertaining to water access, resting on the mud bottom, extended property lines, or roofs and the impact on neighboring views.

ISSUES FOR DETERMINATION

The ALJD is not “re‑vested” with jurisdiction but rather can only take such action that is consistent with the ruling of the Court of Appeals. Muller v. Myrtle Beach Golf and Yacht Club, 313 S.C. 412, 438 S.E.2d 248 (1993). Here, as a result of the Court of Appeals’ ruling, the original ALJ’s decision to deny Respondent Adams’ Permit is no longer supported by the finding that the dock would obstruct navigation and impede the Petitioners’ boat access to and from their docks. Nevertheless, the Court of Appeals found that “the ALJ’s factual findings are supported by substantial evidence in the record.” Therefore, this ALJ is without jurisdiction to review those matters decided by Judge Bates and affirmed by the Court of Appeals. Accordingly, the issue for determination in this case is limited to whether the Permit should now be issued to Adams in light of the Panel's interpretation of its own regulations based upon an evaluation of the record and the findings already established.^[5]

FINDINGS OF FACT

I make the following findings of fact based on the Record and prior Findings in keeping with that imperative set forth above:

1. On December 9, 1997, a Critical Area Permit Application was filed with OCRM for a permit to construct a private dock to access Murrells Inlet Creek (a/k/a Parsonage Creek) from Lot 7, Highway 17 Business, Murrells Inlet, South Carolina, in Georgetown County. The purpose of the proposed dock is the private and recreational use of the future owners. On January 26, 1998, OCRM issued the permit with conditions and attachments, Permit Number OCRM-97-568.^[6] The dock, as permitted, would consist of a 4'x122' walkway with handrails, leading to a 10'x12' covered dock, with a 3'x16' ramp leading from the fixed dock creekward to an 8'x15' floating dock.

2. Lot 7 is owned by Respondent Adams. The lot is triangular in configuration narrowing from its greatest width of 153.10' along its western boundary at Highway 17 to its most narrow width of 33.66' along its eastern boundary at the high water mark of the creek.

3. The proposed dock would be constructed between the existing May and Dorman docks. The total distance between the existing May and Dorman docks is 43.54'. Additionally, the proposed dock would be 14.52' south of Dorman’s existing fixed dock and 13.47' north of May’s floating dock. Because of the narrowing angle of the property lines and the length the dock must be constructed to reach navigable water, any dock built from the Adams’ property far enough to reach the creek must cross the extended boundary lines of her property, no matter what the angle or design of the dock construction. However, May’s dock also crosses the extended boundary lines of his property.

4. In many instances where property is determined to have water access and the extended property lines converge, OCRM establishes dock corridors as part of a “dock master plan” to ensure there is adequate alignment for dock construction. Dock corridors are a planning tool used by the U.S. Army Corps of Engineers and OCRM in situations where the existence of waterfront property and conflicting property lines are in question. However, no dock master plan or dock corridor plan exists for the Adams, May, or Dorman lots.

5. The proposed floating dock will rest on the creek bottom at extreme low tides. See Record at 75. However, many other docks in the area also rest on the creek’s bottom at normal or mean low tide. Though there may be an impact upon marsh organisms or vegetation by the dock resting on the mud bottom of the creek, the impact would be minimal. In fact, there was no evidence presented concerning any specific impacts the dock would have to the environment during the times it would rest upon the creek’s bottom.

6. The proposed dock of Adams would be covered. Because of its roof and the proximity of the proposed dock to the existing adjacent docks, the proposed dock would diminish the use and enjoyment of those properties from a recreational and aesthetic standpoint. However, both Dorman and May already have covered docks. Furthermore, Dorman did not have a house upon his property that would be effected by another covered dock. May’s house faces primarily in another direction from Adams’ proposed dock and his view of the proposed dock would be partially obstructed by an existing stand of trees. Moreover, some of the recreational impact that would occur to May are due to his placement of a floating dock that is not permitted for its location. Therefore, the impact of the dock upon the value and enjoyment of adjacent property owners would be minimal.

CONCLUSIONS OF LAW

Based on the foregoing findings of fact, I conclude the following as a matter of law:

1. S.C. Code Ann. § 48-39-150 (1987 & Supp. 2001) authorizes the Administrative Law Judge Division to hear contested cases arising under Chapter 39 of Title 48 of the 1976 Code. Therefore, the Division has jurisdiction over this matter pursuant to S.C. Code Ann. § 1-23-600 (1986 & Supp. 2001).

2. 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). Furthermore, the burden of proof in a contested case hearing is upon the moving party. See 2 Am. Jur. 2d Administrative Law § 360 (1994); Alex Sanders, et al., South Carolina Trial Handbook § 9:3 Party With Burden, Civil Cases (1999).

3. Permits for construction of private docks in the coastal zone are governed by the South Carolina Coastal Zone Management Act, S.C. Code Ann. § 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). Furthermore, the Office of Ocean and Coastal Resource Management 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).

4. The property in question is located in a critical area as defined in Section 48-39-10 and Regulation 30-1. Any person wishing to construct a dock in a critical area must apply for and receive a permit.

5. S.C. Code Ann. § 48-39-150(A) provides, in part, that in determining whether a permit application should be approved or denied, “the department shall base its determination on the individual merits of each application, the policies specified in Sections 48‑39‑20 and 48‑39‑30 and be guided by the following general considerations:

* * *

(8) The extent of any adverse environmental impact which cannot be avoided by reasonable safeguards;

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(10) The extent to which the proposed use could affect the value and enjoyment of adjacent owners.

Regulation 30-12.A(2)(p) also requires that: “No docks or pierheads . . . should normally be allowed to be built closer than 20 feet from extended property lines with the exception of common docks shared by two adjoining property owners. However, the Department may allow construction closer than 20 feet or over extended property lines where there is no material harm to the policies of the Act.” Additionally, Regulation 30-12.A(2)(n) provides, in pertinent part, that “floating docks which rest upon the bottom at normal low tide will not normally be permitted.”

Crossing of Extended Property Lines

Because of the angle of the property lines and the length which a dock must be constructed to reach navigable water, any dock constructed from Adams’ property must cross the extended boundary lines of both lots which adjoin this lot. Consequently, the proposed project necessitates a technical exception to the general rule of no construction over “extended property lines.” Nevertheless, it is not unreasonable to allow a dock at this location to be built which crosses an extended property boundary. See Regulation 30-12.A(2)(p). Moreover, May’s dock crosses the extended boundary lines of his property. A determination that it was reasonable to allow May to cross his extended property lines and not allow Adams to do likewise under closely similar circumstances would not be equitable. See Weaver v. South Carolina Coastal Council, 309 S.C. 368, 423 S.E. 2d 340 (1992).

Placement of Floating Dock

The OCRM regulations give no guidance in interpreting the phrase “will not normally be permitted,” nor do they provide direction in identifying reasonable circumstances under which floating docks which rest upon the bottom at normal low tide may or should be allowed. Nevertheless, the facts of this case offer guidance concerning the impact of the proposed floating dock resting on the creek bottom. The evidence established that the dock would only rest upon the creek bottom at extreme low tides. Furthermore, many other docks in the area also rest on the creek’s bottom at low tide. See id. Moreover, the placement of the floating dock is necessary to prevent the dock from obstructing public navigation through the creek and to limit the impact the dock would have upon the use and enjoyment of the adjacent property owners.

Effect Upon Property Value and Use of Adjoining Lots

Adams’ dock would diminish the use and enjoyment of those adjacent properties and, consequently, would have an impact upon the value of the adjoining lots and docks. However, both Dorman and May already have covered docks. Furthermore, Dorman did not have a house upon his property that would be effected by another covered dock. May’s house faces primarily in another direction from Adams’ proposed dock and his view of the proposed dock would be partially obstructed by an existing stand of trees. Moreover, some of the recreational impact that would occur to May are due to his placement of a floating dock that is not permitted for its location.

Conclusion

The proximity of the proposed dock to the two adjacent docks presents difficulties to the adjacent lot owners. Nevertheless, impact of the dock upon the value and enjoyment of adjacent owners would be minimal. Likewise, the overall impact to the environment of this one floating dock resting on the mud bottom is minimal. Moreover, the evidence did not establish any specific harm to the policies of the Act resulting from the crossing of the extended property lines. See S.C. Code Ann. § 48-39-30 (1987 & Supp. 2001); 23A S.C. Code Ann. Regs. 30-12.A(2)(p) (Supp. 2001); and 23A S.C. Code Ann. Regs. 30-1.A and B (Supp. 2001). Furthermore, the placement, size and configuration of the May and Dorman lots was their choosing. Therefore, the combination of these above factors do not warrant denial of the permit.

ORDER

IT IS THEREFORE ORDERED that OCRM’s issuance of Permit Number OCRM-97-568 is GRANTED.

AND IT IS SO ORDERED.

Ralph King Anderson, III

Administrative Law Judge

April 3, 2003

Columbia, South Carolina