South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Len Senior vs. SCDHEC, et al

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Len Senior

Respondents:
South Carolina Department of Health and Environmental Control and Wilson F. Baker
 
DOCKET NUMBER:
05-ALJ-07-0247-CC

APPEARANCES:
Ronald R. Norton, Esquire, for Petitioner

W. Duvall Spruill, Esquire, for Respondent Wilson F. Baker

Leslie S. Riley, Esquire, for Respondent DHEC
 

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. [1]

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.[2] 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



[1] The Petitioner acknowledged at the hearing that the issue of notice with respect to the application process was moot and that the sole issue to be addressed was whether the structure was built in compliance with the permit as issued. The Petitioner also indicated in his request for a contested case hearing that he did not receive notice of Respondent Baker’s permit amendment. It is clear, however, that he received notice of the pendency of the amendment request at least by the time that Ms. Fitzgerald met him on site, if not before. He certainly had notice well in advance of the deadline to file a contested case hearing. Finally, in his Notice of Appeal and Prehearing Statement, Petitioner raised the issue of navigation and alleged that the boatlift, as constructed, would impede his ability to access his dock. However, no evidence was presented establishing that concern. Moreover, the evidence in the record reflects that the boat moored at Petitioner’s dock navigates to and from the dock without any difficulty.

[2] Surveys, however, were not required as part of an application. Therefore, the drawing Petitioner submitted was not a registered survey done by an engineer, but simply a sketch of the proposed structure.

[3] Petitioner Senior testified that the reason for his failure to challenge the location of the dock was that he was unaware that the boatlift was not constructed where he thought it was going to be located until the Spring of 2005. Nevertheless, under Petitioner’s version, he knew of the construction of the dock and boat lift next to the property and never inspected the construction. In fact, he testified that he lives a short distance from Lot 84 and though he drives by this particular lot three or four times a day, he never looked at the location of the original boatlift for an entire year following its construction.


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