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 Office of Ocean and Coastal
Resource Management (“DHEC” or “the Department”) to amend a private dock permit
issued to Respondent Wilson F. Baker, so as to relocate the boatlift further
out into Rum Gully Creek Boat Basin. Petitioner Len Senior, who is an adjacent
property owner, filed a request for a contested case hearing alleging that the
Respondent did not comply with the terms of the issuance of the permit and did
not relocate the boatlift in compliance with the permit. A hearing was held on
January 31, 2006 at the offices of the Administrative Law Court in Columbia, South Carolina. Based on the following Findings of Fact and Conclusions of Law,
I conclude that the permit amendment should be affirmed.
ISSUE
The issue before this
court is whether or not the structure, specifically the boat lift, of the
Respondent Baker was built according to the permit issued by Respondent,
SCDHEC.
FINDINGS OF FACT
Having observed the
witnesses and exhibits presented at the hearing and taking into consideration
the burden of persuasion and the credibility of the witnesses, I make the
following findings of fact by a preponderance of evidence:
1. Respondent
Wilson F. Baker is the owner of Lot 84 at 917 Mt. Gilead Road, Murrells Inlet, Georgetown County, South Carolina. Petitioner Len Senior owns a lot adjacent to Mr. Baker
and has a private, recreational dock. Both lots face an existing boat canal,
which was constructed many years before the matters involved in this case
arose.
2. On
March 10, 2004, Respondent Baker applied for a permit from the Department
allowing him to relocate his existing floating dock from the western side of
the pierhead to the eastern side and to install a 12’ by 12’ boatlift. Respondent
Baker submitted a drawing of the proposed structure in support of his
application.
The Petitioner was listed as an adjacent property owner on the application and
consented to the proposed activity. Afterwards, OCRM permit number 04-515 was
issued on April 19, 2004. The Special Conditions of the permit required that
the structure be built in accordance with the submitted drawings and that the
dock extend “no farther into the creek than the existing, adjacent docks.”
Subsequent
to the permit’s issuance, Respondent Baker hired Ron Walker, who works with
OCRM on a regular basis, to install the permitted boatlift. Mr. Walker is a
licensed builder who has extensive experience in working on docks and boatlifts
in this area. Pursuant to Special Condition Two that “the dock extends no
farther into the creek than existing, adjacent docks”, Mr. Walker constructed
Baker’s boatlift and dock in line with the end of his neighbor’s dock. In
other words, Mr. Baker’s original boatlift was built no further channelward
than the existing, adjacent docks. Furthermore, he took several steps to
ensure that the boatlift was constructed in accordance with the permit. First,
he stretched a string from the dock on the neighbor’s property across the
corner of the existing Baker floating dock and nailed that string to the
bulkhead at the front of Mr. Senior’s property. This measurement was designed
to ensure that the lift would not be constructed any farther into the channel
than the other, existing structures. Mr. Walker then constructed the boatlift
so that the pilings were all landward of the string. The boatlift was
completed in May of 2004 and Respondent Baker utilized it without complaint
until the Spring of 2005.
On March
23, 2005, Respondent Baker applied for an amendment to replace the existing
boatlift and move its location three feet channelward, in order to accommodate
a new, larger boat he had purchased. During the review process, the OCRM staff
communicated with the Petitioner about the proposed change. In fact, Cindy
Fitzgerald, the Department’s project manager for the permit and amendment, met
with Petitioner on site. At that meeting she inspected the existing docks and
listened to Petitioners concerns. Despite assertions to the contrary, she did
not make any statement to the effect that the original construction was out of
compliance. Following the meeting, Ms. Fitzgerald returned to her office and
after reviewing the permit file, concluded that the boatlift had been
constructed in the right place.
On
May 31, 2005, the Department issued an amendment to Respondent’s permit
(04-515) which authorized the relocation of the existing boat lift three feet
channelward. After the amendment was issued, Respondent Baker again hired Ron
Walker to relocate the boatlift. The new boatlift was installed in June of
2005. To determine the location of “three feet further channelward” Mr. Walker
ran a string from the exact nail he placed on the neighbor’s dock to determine
the original location of the dock. It is clear that the nail had not been
moved or altered in any way and that the string line run by Ron Walker came
from that dock. I therefore find that the new boatlift was installed three
feet further channelward from its previous location.
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. 2004)
and §§ 1-23-500 et seq. (1986 & Supp. 2004). Furthermore, S.C. Code Ann.
§ 48-39-150 (D) (1987 & Supp. 2004) 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 eight coastal counties are
governed by the South Carolina Coastal Zone Management Act, S.C. Code Ann. §§
48-9-10 et seq. (1987 & Supp. 2004), and the regulations promulgated
pursuant to those provisions found at 23A S.C. Code Ann. Regs. 30-1 et seq.
(Supp. 2004). Those regulations govern the management, development, and
protection of the critical areas and coastal zone of the State. Furthermore,
DHEC/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. 2004); S.C.
Code Ann. § 48-39-130 (1987 & Supp. 2004).
4. Petitioner
alleges that the relocation of the boatlift was unauthorized because the
construction under the original permit was out of compliance. In other words, Petitioner
contends that Respondent Baker errantly placed his boat lift in the critical
area because his starting point for moving three feet channelward was based
upon an erroneous placement of his boat lift in 2004. The issuance of the
original permit was not appealed. Furthermore, until the issuance of the 2005
Permit, Petitioner has never challenged the location of the original dock or
boatlift.[3] Cf. Triska v. Department of Health and Environmental Control, 292
S.C. 190, 355 S.E.2d 531 (1987) (“A delay of two and one-half years before the
Association challenged the certification was not proper, and an adjudicatory
hearing should not have been granted.”); Taylor v. Roche, 271 S.C. 505,
248 S.E.2d 580 (1978) (“[W]e hold that the plaintiff's failure to pursue his
statutorily provided remedies precludes this attack on the election process.”).
Accordingly, any challenge based upon the location of the dock pursuant to the
permit is an error because the delay was excessive.
Additionally,
Petitioner’s assessment that the 2004 permit was not in compliance is based on
the drawing that was submitted to the Department, showing that the adjacent
property owner’s boatlift was located in line with the end of that owner’s
dock. Surveys were not required as part of the application. Therefore, the
drawing was simply a sketch of the proposed structure. Petitioner’s reliance
upon that sketch as binding concerning the exact location of the boatlift is
misplaced. Rather, Special Condition Two of the 2004 permit provides for
certitude as to the location of the dock and boatlift. It states that dock and
boatlift are acceptable “[p]rovided that the dock extends no farther into the
creek than existing, adjacent docks.” In 2004 Respondent Baker’s boatlift was
placed in line with the end of his neighbor’s dock.
Petitioner,
on the other hand, contends that the neighbor’s boatlift, at least in 2005, was
not in line with the end of the neighbor’s dock but was instead approximately
four feet closer to the high ground. He therefore argues that the original
permit only allowed Respondent Baker to build his boatlift in line with his
neighbor’s boatlift, and not with the end of his neighbor’s dock, as was
actually done. Neither the Permit, nor particularly Special Condition Two, provides
that the boatlift must not be located any further channelward than the
neighbor’s lift. Furthermore, the Department has interpreted the language of
the permit as permitting the location of the boatlift even with the dock. I
find that the Department’s interpretation of it own permitting language was
reasonable. Cf. Brown v. Bi-Lo, Inc., 354 S.C. 436, 581 S.E.2d
836 (2003) (“We recognize the Court generally gives deference to an
administrative agency's interpretation of an applicable statute or its own
regulation.”). Therefore, I find that it was the neighbor’s dock and not his
boatlift that set the parameter for the location of the boatlift.
I conclude that the permit amendment was properly issued and
that the relocation of the boatlift complies with the amendment.
ORDER
Based upon the
foregoing Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that OCRM’s
decision to issue Permit No. 04-515 to
Respondent Wilson F. Baker is upheld.
AND IT IS SO ORDERED.
______________________________
Ralph
King Anderson, III
Administrative
Law Judge
March 27, 2006
Columbia, South Carolina
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