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
(Department) to amend a critical area private dock permit issued to Respondents
Mr. Lee Metz and Mr. George Smith. Petitioners filed a request for a hearing
objecting to the amendment of the permit. At the hearing, Petitioners asserted
that the amendment was improperly issued because: 1) Respondents Smith/Metz
should have provided a survey as ordered by Judge Kittrell before seeking
authorization to place a boat lift downstream of the pierhead; 2) the request
for a permit amendment failed to satisfy the requirements of 23A S. C. Code
Ann. Reg. 30-12, regarding the restrictions on dock sizes relative to creek
widths; 3) the construction of the boat storage dock and boat lift OCRM the
impacts to navigation; and 4) 23A S. C. Code Ann. Reg. 30-12(2)(c)(ii)
prohibits construction of the boat lift and boat storage dock. After
timely notice to the parties, a hearing of this matter was held on March 14,
2006, at the South Carolina Administrative Law Court.
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
Lee Metz is the owner of Lot 42 in the Wexford Sound Subdivision on James Island in Charleston County, which has the street address of 1482 Springwater Court. Respondent
George B. Smith is the owner of Lot 41 in the Wexford Sound Subdivision on James Island in Charleston County, which has the street address of 1486 Springwater Court.
The Metz and Smith lots are adjacent to each other and are adjacent to an
unnamed tributary of Clark Sound hereinafter referred to as Clarks Creek.
All
of the Petitioners have docks constructed on Clarks Creek. Petitioners George,
Downey, and Lang’s docks are located upstream from the Smith/Metz dock.
Petitioner Johnson’s dock is directly across Clarks Creek from the Smith/Metz
dock. They currently have 120 square feet of dock, including the pierhead and
floating dock and, in addition, have recently received authorization to install
a boat-lift. Petitioners Arthur L. and Martha Y. Crosby have a joint-use dock
that is immediately downstream from the Metz/Smith dock and located on the same
side of Clarks Creek. Their dock consists of approximately 150 square feet of
float and pierhead combined.
Permitting
History
2. The
developer of Wexford Sound Subdivision obtained an approved Dock Master Plan
(DMP) for portions of the development, but the DMP did not include Lots 41
(Smith) and 42 (Metz). Lot 42 had sufficient water frontage at the critical
line on Clarks Creek to qualify for an individual dock but Lot 41 only
qualified for a joint use dock because it possessed less than 75 feet of water
frontage at Clarks Creek. Consequently, this Court determined that Metz was entitled to issuance of a single-use dock for Lot 42, but remanded the matter for
consideration of whether an agreement could be reached between Smith and Metz regarding a joint use dock.
OCRM, Smith, and Metz then reached an agreement which authorized a 10’ by 10’ pierhead and two 7' by 10'
floating docks, for a total of 240 square feet. This permit was appealed by
Mark Tesniar. Tesniar claimed that the permitted dock would obstruct access to
an unnamed tributary, which flows into Clarks Creek. Judge Kittrell found that
“the dock, if constructed as permitted, will not pose a navigational hazard.”
However, in order to ensure that the dock would be built in its proper location,
Judge Kittrell ordered that:
Respondents Smith and Metz shall have a survey
conducted of the dock and provide it to OCRM prior to receiving a construction
placard in order that the structure, as built, will not pose a navigational
hazard and conform to the provisions of this order.
Respondents Smith and Metz provided OCRM a survey, dated March 4, 2004, and no party objected that the survey did
not comply with Judge Kittrell’s Order.
In June, 2003, Smith
and Metz sought an amendment to the permit. This amendment, issued July 17,
2003, was not challenged and was the result of negotiations with concerned
neighbors The amendment authorized combination of the two 7' by 10' floats to
allow for one 10' by 14' float at the upstream end of the pierhead.
July
21, 2005 Amended Permit
3. Respondents
Smith and Metz currently have a joint use dock adjacent to Clarks Creek
consisting of a 10' by 10' pierhead and 10' by 14' float. Respondents’
pierhead is located near the mouth of a small tributary which is an offshoot of
Clarks Creek. On October 14, 2004, Smith and Metz sought an amendment to the
permit to construct a single-pile boat lift downstream of the existing pierhead
and a 7’ by 12’ jet float[2] upstream of the existing floating dock.
Respondents’ Smith and Metz amendment request was initially denied by OCRM because the width of the creek was only
12' wide, and its regulations specifically prohibit boat lifts on creeks less
than 20’ wide. Smith and Metz were notified of the denial of this permit on February
8, 2005. No appeal was taken by Smith and Metz with regard to this
determination. However, OCRM later determined that its measurements were
incorrect based on creek width measurements provided by Petitioner Robert
Johnson. Therefore, though Smith and Metz made no new application, OCRM
determined that Smith and Metz were entitled to the amendment. They were thus
notified that their amendment request had been approved on July 21, 2005.
Single-Pile
Boat Lift
4. The proposed
single-pile boat lift is located at the intersection of Clarks Creek and an
offshoot of Clarks Creek. The permit amendment indicates a single pile with
two forks connected to the side of the pierhead facing the tributary extending
from Clarks Creek. It appears that the proposed boat lift will be located
immediately adjacent to the mouth of that tributary.
No measurements have
been provided of the width or characteristics of this small tributary.
Nevertheless, Clarks Creek is barely navigable at mid-tide by ordinary
watercraft. The tributary extending off of Clarks Creek appears to be far less
navigable.[3] Although Petitioner Crosby navigates in that tributary with a kayak, a 14 foot
aluminum boat with an outboard, and a 14 foot sailboat, the evidence simply did
not establish that this small tributary was navigable by ordinary watercraft at
any tidal stage other high tide. Moreover, I do not find that placement of the
boat lift as approved by OCRM will impede Petitioner Crosby’s current use of
tributary.
Jet
Float
5. Petitioners
contend that the proposed jet float location is at an area of Clarks Creek
which is less than 20 feet across and where it will interfere with navigation.
Clarks Creek provides direct access to Clarks Sound. A typical, small pleasure
craft with an out-board motor can navigate the creek from mid-tide to mid-tide
in Clarks Creek at Petitioners’ docks and the Smith/Metz dock.
The width of Clarks
Creek at the location of Respondent’s pierhead is 24 feet. Petitioners contend,
however, that the width of the creek is 17 feet where the jet float would
attach to the floating dock and would be only 15 feet at the upstream end of
the jet float. However, the accuracy of Petitioner’s measurements was suspect.
Nevertheless,
the Smith/Metz floating dock is affixed to two pilings. The furthest upstream
piling is located in the creek, as opposed to being located at the marsh line,
or in the marsh. The proposed jet float would extend further into the
navigable creek than the existing floating dock. Moreover, the deepest section
of the channel actually flows under the upstream corner of the existing 10' by
14' floating dock. Clarks Creek also begins to narrow immediately upstream of
the Smith/ Metz pierhead. Therefore, at present the 10' by 14' float creates
navigational difficulties. Though the current complexity to navigation is
limited, the jet float will leave only seven to ten feet of creek open for
navigation of small watercraft. Accordingly, I find that that the proposed jet
float will negatively effect access through Clarks Creek and restrict
navigation.
CONCLUSIONS
OF LAW
Based
upon the above Findings of Fact, I conclude the following as a matter of law:
General
Conclusions
1. The Administrative Law Court has subject matter jurisdiction in this action pursuant to S. C.
Code Ann. §§ 1-23-500 et seq. (Supp. 2005) and S. C. Code Ann. §
48-39-150(D) (Supp. 2005). In the instant case, Petitioners, as the parties
affirmatively asserting error in the Department’s issuance of the permit
amendment, bear the burden of proof in this matter. See Leventis v.
S.C. Dep't of Health & Envt’l Control, 340 S.C. 118, 530 S.E.2d 643
(Ct. App. 2000). Therefore, Petitioners must demonstrate, by a preponderance
of the evidence, that the Department’s issuance of the permit amendment was in
error under the relevant statutory and regulatory criteria governing activities
in the critical areas. See Anonymous (M-156-90) v. State Bd.
of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998).
2. Respondent
Smith and Metz seek to amend their permit authorizing their joint-use dock. Permits
for the 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. (Supp. 2005), and the regulations promulgated pursuant to those
provisions found at 23A S.C. Code Ann. Regs. 30-1 et seq. (Supp.
2005). Those regulations govern the management, development, and protection of
the critical areas and coastal zone of this state. Furthermore, 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. 30-1 et seq. (Supp. 2005);
S.C. Code Ann. § 48-39-130 (Supp. 2005).
“An amendment to a
permit can be made without the requirements of a new permit if the proposed
change on the amendment does not significantly increase the size or change the
use of the permitted project.” 23A S.C. Code Ann. Regs. 30-4(H) (Supp. 2005). In
reviewing any application for a critical area permit, the Department is also
guided by a number of general considerations. See S.C. Code Ann. §
48-39-150(A); 23A S.C. Code Ann. Regs. 30-11(B). Among other factors, the
Department is required to consider the extent to which a proposed project would
"harmfully obstruct the natural flow of navigable water," “affect
existing public access to tidal and submerged lands, navigable waters and
beaches,” cause “adverse environmental impact which cannot be avoided by reasonable
safeguards,” utilize feasible safeguards to avoid environmental impacts, and
"affect the value and enjoyment of adjacent owners [sic]." See 23A
S.C. Code Ann. Regs. 30-11(B)(2), (5), (8), (9) & (10).
Additionally, in 2004,
23A S. C. Code Ann. Reg. 30-12 (A)(2) (Supp. 2004), set forth the standards for
construction of docks and accordingly, the amendment of permits for docks the
coastal zone. Regulation 30-12 (A)(2)(c) provided that “[t]he size and
extension of a dock or pier must be limited to that which is reasonable for the
intended use.” Furthermore, Regulation 30-12 (A)(2)(q) provided the standards
for size and use of pierheads and floating docks. Docks were not permitted on
creeks less than 20 feet wide as measured from marsh vegetation on either side
unless the lot had “greater than 500 feet of water frontage or no potential
access via dockage from the opposite side of the creek.” 23A S.C. Code Ann.
Reg. 30-12 (A)(2)(q)(i) (Supp. 2004). If a creek was “between 20 and 50 feet,
as measured from marsh vegetation on both sides, total allowable dock square
footage shall be restricted to 120 square feet unless special geographic
circumstances and land uses warrant a larger structure.” 23A S.C. Code Ann.
Reg. 30-12 (A)(2)(q)(ii) (Supp. 2004).
Applicability
of Regulatory Amendments Effective June 24, 2005
3. OCRM denied
the Smith/Metz amendment request on February 8, 2005, and then later determined
that it made an errant decision upon the application made by Smith and Metz. Therefore, on July 21, 2005, OCRM notified Smith and Metz that their amendment
request was approved. Petitioners contend that regulations promulgated by
OCRM, effective June 24, 2005, prohibit OCRM’s approval of the amendment.
More specifically, they argue that the request for a permit amendment failed to
satisfy the requirements of Regulation 30-12(2)(c) regarding the restrictions
on dock sizes relative to creek widths.
At the time of Smith and Metz’s application, the binding Regulations were the
regulations that were implemented effective May 24, 2002. Since that
application, new regulations were promulgated that were effective on June 24,
2005. The differences between the amended Regulations and the Regulations
that were placed in effect in May, 2002, as they relate to this appeal are: a)
OCRM’s dock Regulation 30-12(A)(2) now includes the prefatory language that
“[t]he following standards in addition to those in 23A S. C. Code Ann. Reg.
30-12(A)(1) are applicable for the construction of private and joint use
docks.” (emphasis added); b) Regulation (A)(2)(c) now requires a
permit applicant to choose between a boat lift or boat storage dock; and, c)
Regulation OCRM 30-12(A)(2)(c)(ii) now prohibits boat storage docks on creeks
less than 20 feet wide.
The Petitioners are correct that at the time of adoption of the June 2005
amendments there was no pending permit application from Smith and Metz seeking to add a boat lift and jet float. In this case, OCRM determined that it
made an errant decision upon the application made by Smith and Metz. Timely corrections of incorrect decisions by state agencies are acts that
should be lauded. Here, the reconsideration was made in a reasonable period of
time. Additionally, Petitioners have cited no authority that OCRM may not
reconsider a permit decision or retract a decision made on errant facts.
In reconsidering its decision, the Department correctly considered the case in
light of the regulation in effect at the time of the application. See Leventis v. S.C. Dep’t of Health and Envtl. Control, 340 S.C. 118, 530
S.E.2d 643 (Ct. App. 2000). Therefore, the requisites of amended
Regulation 30-12 were properly disregarded.
Dock
Size
4. OCRM
implements a policy of approving, for purposes of joint use docks, twice the
allowable square footage as is provided for in 23A S. C. Code Ann. Reg.
30-12(A)(2)(c). Based on the width of Clarks Creek at the location of their
pierhead, Smith and Metz are entitled, under OCRM’s policy, to 240 square feet,
as opposed to 120 square feet as provided in the regulations for creeks between
20 and 50 feet wide. The combined square footage of the Smith/Metz dock as
constructed is consistent with OCRM’s policy at 240 square feet. Furthermore,
under the 2004 Regulations the single-pile boat lift, the area bounded by the
proposed lift, does not count against the limitation of square footage.
Navigation
5. Petitioners
assert that the amended permit impedes navigation. The South Carolina
Constitution provides that: “All navigable waters shall forever remain public
highways free to the citizens of the State and the United States … .” Art. XIV,
Sec. 4. See also S.C. Code Ann. § 49‑1‑10 (Supp. 2005).
OCRM, however, is not charged by statute with protecting navigation in this
state. Nevertheless, it is required to consider the extent to which a proposal
may affect existing access to tidal and navigable waters. 23A S.C. Code Ann.
Regs. 30‑12 (A)(1)(a) & (b) (Supp. 2004) provides that a
dock “shall not restrict the reasonable navigation or public use of State lands
and waters.” See also S. C. Code Ann. § 48-39-150(5) (Supp. 2005).
Furthermore, Regulation 30‑12 (A)(2)(n) sets forth that:
Docks must generally extend to the first navigable
creek, within extensions of upland property lines or corridor lines, that has a
defined channel as evidenced by a significant change in grade with the
surrounding marsh; or having an established history of navigational access or
use.
OCRM’s regulations further
recognize the relationship between the width of a creek, the size of docks, and
navigation. 23A S. C. Code Ann. Reg. 30-12 (A)(2)(c)(i) through (c)(v).
“The true test to be
applied [in determining whether a waterway is navigable] is whether a stream
inherently and by its nature has the capacity for valuable floatage, irrespective
of the fact of actual use or the extent of such use.” Hughes v. Nelson,
303 S.C. 102, 105, 399 S.E.2d 24, 25 (Ct. App. 1990), citing State ex rel.
Medlock v. South Carolina Coastal Council, 289 S.C. 445, 449, 346 S.E.2d
716, 719 (1986). The term “valuable floatage” includes not only commercial
vessels but also use of a waterway by the general public for boating, hunting,
and fishing. State ex rel. Medlock v. S.C. Coastal Council, 289 S.C.
445, 346 S.E.2d 716 (1986). Furthermore, “[t]he test of navigability is not
whether a waterway is accessible at all times. Rather, the test is whether it
is accessible ‘at the ordinary stage of the water.’” Hughes, supra at 26 (1990), quoting State v. Columbia Water, 82 S.C. 181,189, 63 S.E.
884, 888 (1909).
Here, the evidence does
not support Petitioners’ contention that the small tributary extending from
Clarks Creek is navigable at the ordinary stage of the water. The only
instances of navigation provided by Petitioners were in small watercraft. To
the contrary, the evidence established that a reasonable boater would take an
ordinary watercraft into the tributary only at high tide. Because of the ebb
and flow of water on the South Carolina coast during high and low tides, most
tidal areas are navigable at high tide. Furthermore, Petitioners did not
establish that the tributary extending from Clarks Creek has a defined channel or
an “established history” of navigation. Accordingly, placement of the proposed
single-pile boat lift would not infringe the requirements of Regulation
30-12(A).
On the other hand,
Clarks Creek is a navigable waterway with an “established history” of
navigation. Furthermore, the location of the proposed jet float would restrict
navigation in that waterway. Therefore, the proposed jet float contravenes the
provisions of Regulation 30-12(A).
Survey
Requested By Judge Kittrell
6. Petitioners
contend that the survey required by Judge Kittrell’s Order does not reflect the
unnamed tributary, nor does it reflect the dock construction. However,
Respondents Smith and Metz provided OCRM a survey, dated March 4, 2004.
No party objected that the survey did not comply with Judge Kittrell’s
Order. The Petitioners were not parties and did not seek to be parties in
the case of Mark Teseniar v. SCDHEC-OCRM, supra. See 73A C.J.S. Public Administrative Law and Procedure § 142 (1983)
(objections and exceptions to matters in administrative proceedings may be lost
by waiver, as by acts or conduct indicating an intention not to raise such
objections or exceptions). Moreover, an objection to the failure to
properly supply a survey is barred under the principle of laches. Hallums v. Hallums, 296 S.C. 195, 198, 371 S.E.2d 525, 527 (1988) (“Laches is
neglect for an unreasonable and unexplained length of time, under circumstances
affording opportunity for diligence, to do what in law should have been
done.”).
ORDER
Based upon the above
findings of fact and conclusions of law, it is hereby:
ORDERED that the
request for authorization to amend OCRM-01-059-M by adding a 7' by 12' jet
float is DENIED. The request for authorization to amend OCRM-01-059-M by
adding a single pile boat lift is APPROVED, subject to the following condition:
Prior to issuance of a
construction placard, Respondents Smith and Metz must provide OCRM a survey of
their dock in relation to the unnamed tributary, depicting the location and
dimensions of the boat lift. This survey must provide information regarding
the distance between the boat lift and the edge of the tributary. The boat
lift must be located to insure sufficient off-set from the mouth of tributary
to allow for placement of a boat without impacting the navigation of Petitioner
Crosby’s kayak or 14 foot aluminum boat.
AND IT IS SO ORDERED.
______________________________
Ralph
King Anderson, III
Administrative
Law Judge
May 17, 2006
Columbia, South Carolina
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