ORDERS:
CONSENT ORDER OF DISMISSAL
This matter is before
upon motion and consent of all parties. This is a contested case appeal of a
dock permit issued by Respondent the South Carolina Department of Health and
Environmental Control, through its Office of Ocean and Coastal Resource
Management (“SCDHEC” or “OCRM”), to Cyrus Alfieris, OCRM-05-135-M, for
construction of a joint use dock extending to a small tributary of Wallace
Creek for use by Lots 14 and 15, Jacobs Point subdivision, Charleston County,
S. C.
Based on the agreement of
the parties, I find as follows:
1. Petitioner is the record
owner of Lots 14 and 15, Jacobs Point subdivision, located in Charleston County,
South Carolina. Petitioner purchased Lots 14 and 15 from Templeton and Huff,
LLC. John Templeton and Charles Huff, the principals of Templeton and Huff,
LLC, were the developers of Jacobs Point. Petitioner purchased Lots 14 and 15
with the intent of obtaining individual dock permits for these lots to Wallace Creek.
2. John Templeton and Charles
Huff, through their agent Butch Clark, had obtained approval from OCRM for a
dock master plan for Jacobs Point. The approved Dock Master Plan indicated a dock
corridor for Lot 15 that extended to an intervening tributary of Wallace Creek. The approved Dock Master Plan did not provide for a dock corridor for Lot 14. In fact, Templeton and Huff through their agent Butch Clark had agreed to
eliminate a corridor for Lot 14 in exchange for a community dock adjacent to Lot 14.
3. The Jacobs Point approved
Dock Master Plan was not recorded in the RMC Office. Nor was reference made to
the Dock Master Plan in the Contract for Sale of Lots 14 and 15 to Petitioner.
Finally, there is no reference to the Dock Master Plan in the deeds provided by
Templeton and Huff, LLC, to Petitioner. Pursuant to regulations of OCRM, and
the enforceable policies and procedures set forth in the Coastal Zone
Management Program Document, approved Dock Master Plans shall be recorded and
reference given to the Dock Master Plan on all contracts for lot sales.
4. Despite the approved Dock
Master Plan, Lots 14 and 15 were marketed by Templeton, Huff, and their agents
as waterfront lots with dock corridors extending to Wallace Creek. In fact, Petitioner received written documentation from Templeton, Huff, and their
agents that Lots 14 and 15 were approved for dock corridors on Wallace Creek. In addition, the contracts for sale between Petitioner and Templeton and
Huff, LLC, indicate incentives in the form of a “dock allowance” for each lot.
5. It was only when
Petitioner began the process of submitting an application to OCRM that he
learned that Lot 15 did not qualify for a dock on Wallace Creek, due to the
location of the small intervening tributary. Therefore, Petitioner designed a
joint use dock for Lots 14 and 15 to Wallace Creek and attempted to avoid the
intervening tributary.
6. It was only upon receipt
of a conditional permit from Respondent authorizing construction of a joint use
dock to the small tributary of Wallace Creek that the Petitioner learned of the
existence of the approved Dock Master Plan, and of the differences between the
approved Plan and the representations made by Templeton, Huff, and their
agents.
7. Petitioner contemplates
civil action against the developer of Jacobs Point, but filed this appeal in an
effort to mitigate damages through exhaustion of available administrative
remedies.
8. Petitioner has demonstrated
that Lots 14 and 15 are waterfront properties located on a tributary of Wallace Creek. Moreover, Petitioner has demonstrated that the width of the tributary is
sufficient to allow dock construction for Lots 14 and 15.
9. The parties have agreed to
allow construction of a single family dock on Lot 14 reflected on Attachment A
of this Order. The parties agree, as is reflected in Attachment A, that Petitioner
can construct a walkway extending approximately 160 linear feet to the
tributary of Wallace Creek, and can construct a pierhead and a float extending
in a perpendicular direction from the walkway, into the tributary of Wallace Creek. Because Wallace Creek is between 20 and 50 feet wide at this point, the
parties agree that Petitioner is entitled to a combination pierhead/float not
to exceed 120 combined square feet.
10. The parties have further
agreed to construction of a single family dock on Lot 15. This dock will
extend from the centerline of Lot 15 to the tributary of Wallace Creek, as is depicted on Attachment B of this Order. Because of the width of the tributary at
the location of the dock, + 22 feet, Petitioner is only entitled to
construct a pierhead with dimensions not to exceed 120 square feet.
11. Both parties agree that
nothing herein shall prohibit Petitioner or his successor(s) in interest from
seeking to amend this authorization to construct docks at Lots 14 and 15 should
Petitioner be in possession of reliable evidence to demonstrate the width of
the creek at Lot 15 is sufficient to support a floating dock, and/or should
Petitioner be in possession of reliable evidence that the intervening tributary
of Wallace Creek has been rendered non-navigable with the passage of time and
changes in circumstances.
Based on these facts and
the consent of all parties, it is, hereby, Ordered, that:
1. Petitioner is entitled to
construct single family docks at Lots 14 and 15 Jacobs Point subdivision, in
accordance with Attachments A and B to this Order.
2. OCRM shall issue permits to
Petitioner authorizing construction consistent with this Consent Order.
3. This contested case is,
hereby, dismissed.
March
28, 2006 ______________________________
Carolyn C. Matthews
Administrative
Law Judge
I
so move:
___________________________
Mary
D. Shahid, Esq., for Petitioner
I
consent:
___________________________
Leslie
S. Riley, Esq., for Respondent |
