SC Administrative Law Court Decisions

In the above captioned matter, Petitioners Betty Poore and Mark Burris seek a permit to construct a private use recreational dock on Cedar Creek in Charleston County, South Carolina. On January 14, 2002, Petitioners filed an application for the dock construction permit with Respondent South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management (OCRM). However, by letter dated April 9, 2002, OCRM denied Petitioners’ permit application. Subsequently, Petitioner Betty Poore timely requested a contested case hearing before this tribunal to challenge OCRM’s decision to deny her application. By motions dated July 18, 2002, and October 7, 2002, several nearby property owners moved for leave to intervene in this matter in opposition to the requested permit. These motions were granted by Orders dated July 29, 2002, and October 31, 2002, respectively. On December 2, 2002, Intervenors further moved to add co-applicant Mark Burris as a petitioner in this matter. With the consent of Mark Burris and all parties, this motion was also granted.

After timely notice to the parties, a hearing of this case was held at the Administrative Law Judge Division in Columbia, South Carolina, on December 10, 2002. Based upon the evidence presented at the hearing and upon the applicable law, I find that OCRM’s decision to deny Petitioners’ permit application must be reversed.

FINDINGS OF FACT

Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:

On January 14, 2002, Petitioners Betty Poore and Mark Burris filed an application with OCRM for a permit to construct a private recreational dock on Cedar Creek at their residence at 16 Seagrass Lane, Isle of Palms, in Charleston County, South Carolina. The proposed dock consists of a 4' by 903' walkway to a 8' by 10' fixed pierhead with cantilevered benches. An 8' by 10' floating dock will be located on, and connected by a 3' by 15' ramp to, one side of the pierhead, and a four-pile, 12' by 12' boat lift with a catwalk will be situated on the other side of the pierhead.^[1] This proposed dock will extend from the northern end of Petitioners’ property directly to Cedar Creek, angling slightly to avoid a small tidal creek that feeds into Cedar Creek. The dock, as proposed, will cross only tidal mudflats and marshland.

The proposed dock would replace an existing dock that connects Petitioners’ property to the small feeder creek that runs into Cedar Creek. The existing dock consists of a walkway approximately 50 feet in length and a 5' by 10' fixed pierhead. This unnamed feeder creek is roughly 15 feet wide at Petitioners’ existing dock and terminates within several yards of the dock. While the existing dock once extended into the tributary creek, there is now approximately 6 feet of marsh grass and pluff mud between the end of the dock and the edge of the creek. Additionally, several oyster banks have developed in front and to either side of the existing dock. This dock will be removed in its entirety upon construction of the proposed dock.

While there are no lots upstream from Petitioners’ property along the unnamed feeder creek, several properties downstream from Petitioners’ residence front upon the tributary as it deepens and flows into Cedar Creek. These properties include those of Intervenors Marc and Ann Gustafson at 17 Seagrass Lane, Martin and Nancy Wisse at 18 Seagrass Lane, Chris Kendig and Sandra Ralston at 20 Seagrass Lane, and Paul and Marilyn Ammon at 21 Seagrass Lane. However, as these properties lie downstream from Petitioners’ residence and as the feeder creek terminates at Petitioners’ property, the construction of Petitioners’ proposed dock will not interfere with Intervenors’ or others’ navigation of the tidal creek.^[2] Intervenors Marc and Ann Gustafson and Martin and Nancy Wisse currently have docks that extend to the feeder creek, and Intervenors Chris Kendig and Sandra Ralston have received a permit to construct a dock to the creek. Although at least one of these docks stretches some 200 feet and includes a davit system, these docks are essentially similar in size and scope to Petitioners’ existing dock. There are currently no docks extending from these properties on Seagrass Lane directly to Cedar Creek, nor are there currently any docks in this area of the size and scope of Petitioners’ proposed dock.^[3]

On January 20, 2002, and February 22, 2002, Tess Rogers, a project manager with OCRM,^[4] visited Petitioners’ property as part of the review of Petitioners’ permit application. During these visits, Ms. Rogers observed and photographed Petitioners’ existing dock and the feeder creek, but did not make any field measurements or collect any other concrete data regarding the location and alignment of the proposed dock or the navigability of the feeder creek at or past Petitioners’ existing dock. (Hr’g Tr. at 210.) Further, while Ms. Rogers had scheduled a boat trip to review the affected area, Curtis Joyner, the manager of critical area permitting at OCRM, determined that further review of the location was unnecessary for the evaluation of the permit application and canceled the boat trip. (Hr’g Tr. at 228.) As a result of her review of Petitioners’ property, Ms. Rogers recommended that Petitioners’ permit application be denied, not based upon a careful analysis of whether the proposed dock satisfied the relevant criteria, but rather upon the conclusion that Petitioners’ existing dock was functional and need not be replaced and that Petitioners also had access to a community dock. (Hr’g Tr. at 146, 161-62; Resp’t Ex. #4, at 2.)

Mr. Joyner accepted Ms. Rogers’ recommendation (Hr’g Tr. at 214, 228), and, by letter dated April 9, 2002, denied Petitioners’ permit application. As justification for this denial, OCRM cited to the following statutory and regulatory provisions:

Sections 48-39-3[0](A) and (B)(1), (B)(2): (Legislature’s policies for permitting structures in the critical area);

Regulation 30-11(B)(10): The extent to which the proposed use could affect the value and enjoyment of adjacent owners.

Regulation 30-11(C)(1): The extent to which long-range, cumulative effects of the project may result within the context of other possible development and the general character of the area.

Regulation 30-12[(A)](2)(d): Docks and piers should use the least environmentally damaging alignment.

(Resp’t Ex. #3, at 1.) See also S.C. Code Ann. § 48-39-30(A), (B)(1), (B)(2) (Supp. 2002), 23A S.C. Code Ann. Regs. 30-11(B)(10), (C)(1) (Supp. 2002), 23A S.C. Code Ann. Regs. 30-12(A)(2)(d) (Supp. 2002). The opposition of Intervenors to Petitioners’ permit application is centered upon two concerns: (1) that Petitioners’ proposed dock will span a navigable portion of the feeder creek and thereby interfere with Intervenors’ navigation in the creek, and (2) that Petitioners’ proposed dock will spoil Intervenors’ view of the marshland surrounding Cedar Creek and thereby impair their enjoyment of their properties.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:

This tribunal has jurisdiction over this matter pursuant to S.C. Code Ann. § 48-39-150 (Supp. 2002) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2002). Under S.C. Code Ann. § 48-39-50(G) and (V) (Supp. 2002), the South Carolina Department of Health and Environmental Control, through OCRM, is charged with reviewing and either approving or denying applications for permits for proposed activities within the coastal zone. In order to carry out this responsibility, the Department has promulgated regulations governing the evaluation of permit applications for dock construction and other activities in the coastal zone and the critical areas.^[5] See 23A S.C. Code Ann. Regs. 30-1 to 30-17 (Supp. 2002).

For dock permits in the critical areas, two particular regulations are pertinent: the general guidelines applicable to all critical area permits, 23A S.C. Code Ann. Regs. 30-11 (Supp. 2002), and the specific regulations governing permits for dock construction, 23A S.C. Code Ann. Regs. 30-12(A) (Supp. 2002). Because Petitioners’ proposed dock is to be located in the critical area,^[6] these regulatory provisions are applicable to the permit application under consideration.

In the case at hand, Petitioners, as the parties affirmatively asserting their eligibility for the requested permit, bear the burden of proof in this matter. See Leventis v. S.C. Dep’t of Health & Envtl. Control, 340 S.C. 118, 132-33, 530 S.E.2d 643, 651 (Ct. App. 2000) (holding that the burden of proof in administrative proceedings generally rests upon the party asserting the affirmative of an issue); 2 Am. Jur. 2d Administrative Law § 360 (1994) (same). Therefore, Petitioners must demonstrate, by a preponderance of the evidence, that their proposed dock satisfies the relevant statutory and regulatory criteria governing activities in the critical areas. See Anonymous v. State Bd. of Med. Exam’rs, 329 S.C. 371, 375, 496 S.E.2d 17, 19 (1998) (holding that the standard of proof in an administrative proceeding is generally the preponderance of the evidence).

The specific statutory and regulatory criteria at issue in the instant case are: (1) the legislative declarations of policy at S.C. Code Ann. § 48-39-30(A), (B)(1), (B)(2) (Supp. 2002); (2) the general critical area guidelines at 23A S.C. Code Ann. Regs. 30-11(B)(10), (C)(1) (Supp. 2002); and (3) the project standards for dock construction at 23A S.C. Code Ann. Regs. 30-12(A)(2)(d), (n) (Supp. 2002). This order will address each issue in turn.

Legislative Declaration of State Policy

In Section 48-39-30(A), the General Assembly set forth a “basic state policy” for the Coastal Zone Management Act of “protect[ing] the quality of the coastal environment” and “promot[ing] the economic and social improvement of the coastal zone.” These two basic policies are reiterated in Section 48-39-30(B)(1), which recognizes that the economic and social improvement in the coastal zone must be undertaken with “due consideration for the environment,” and Section 48-39-30(B)(2), which restates the goal of protecting and, where possible, enhancing South Carolina’s coastal resources for current and future generations. Here, Petitioners’ proposed dock is consistent with these general policies. It appears that the development represented by Petitioners’ dock was conceived with due consideration for the environment,^[7] and there has been no evidence presented to suggest that the dock as proposed is incompatible with efforts to protect resources in the coastal zone. Moreover, it should be noted that neither in the denial letter nor at the hearing of this matter did OCRM articulate a rationale for denying Petitioners’ permit application based upon the precatory language of these policies.

General Guidelines for All Critical Areas

Beyond general declarations of state policy, OCRM denied Petitioners’ application based upon two of the regulatory guidelines applicable to all critical area activities. Pursuant to Regulations 30-11(B)(10) and 30-11(C)(1), OCRM, in assessing proposed projects in the critical area, must take into consideration the “extent to which the proposed use could affect the value and enjoyment of adjacent owners,” and the “extent to which long-range, cumulative effects of the project may result within the context of other possible development and the general character of the area.” The first consideration, that regarding the potential impact of the project on the “value and enjoyment of adjacent owners,” was included in OCRM’s denial letter to reflect Intervenors’ concerns that Petitioners’ proposed dock will interfere with their navigation of the feeder creek and impair their view of the surrounding marshland. (Hr’g Tr. at 219-20.) However, neither this regulatory guideline considered by OCRM nor the concerns raised by Intervenors constitute sufficient grounds upon which to deny Petitioners’ permit application.

As noted above, Petitioners’ proposed dock is specifically aligned to avoid the unnamed feeder creek, which terminates at Petitioners’ property. Consequently, the construction of the dock will not interfere with Intervenors’ or others’ navigation in the creek itself. Intervenors will still have full access to their docks, to the entire length of the feeder creek, and to Cedar Creek. Rather, the only activities affected by Petitioners’ proposed dock would be those occasions on which Intervenors, at high tide, skim over the marshlands beyond the feeder creek in kayaks or johnboats. This limited restriction upon the boating activities of certain Intervenors does not impair adjacent property owners’ enjoyment of their property to such a degree that Petitioners should be denied a dock for which they are otherwise eligible.

Similarly, the potential impairment of Intervenors’ views of the marshland is insufficient to support denial of Petitioners’ permit. While this tribunal is respectful of the fact that Intervenors carefully selected their properties and designed their homes to maximize their view of the marshland surrounding Cedar Creek, the law of this State is clear that private land owners do not have prescriptive rights to unobstructed ocean views, breezes, light, or air over adjoining properties, public or private. See Hill v. The Beach Co., 279 S.C. 313, 315, 306 S.E.2d 604, 605 (1983); see also Joseph v. S.C. Dep’t of Health & Envtl. Control, Docket No. 01-ALJ-07-0044-CC (Admin. Law Judge Div. Feb. 26, 2002) (citing Hill and holding that “[a] neighboring property owner’s objection[] to view is not a reason in and of itself to deny an application”). Nevertheless, while Intervenors have no prescriptive right to their view, the potential impairment of that view by Petitioners’ dock is a relevant consideration to be weighed in evaluating Petitioners’ permit application. Here, however, the disruption to Intervenors’ view caused by Petitioners’ proposed dock is not significant enough to support denial of the permit. The marshland surrounding the unnamed creek, while relatively undeveloped, is not a pristine wilderness. Intervenors’ views of the marshland are already disturbed by several docks, see, e.g., Intervenor Ex. #1G, 1P, 13, 14, including at least one 200-foot dock with a boat hoisted out of the water by a davit system. And, another dock of similar size has been permitted for construction on the feeder creek. Further, Petitioners have agreed to remove handrails from the walkway of the dock to minimize the extent to which the dock might affect views of the marshland. Accordingly, while Petitioners’ proposed dock is significantly longer than other docks in the area, the construction of Petitioners’ dock would not impair or otherwise disrupt Intervenors’ views of the marshland such that the permit should be denied.

In addition to the possible impact upon Intervenors’ enjoyment of their properties, OCRM cited the potential “long-range, cumulative effects of the project” as a ground for denying Petitioners’ permit application. In particular, OCRM was concerned that, if constructed, Petitioners’ dock would set a precedent in the area and encourage other nearby property owners to seek docks of similar size. (Hr’g Tr. at 221.) This concern, however, is unavailing. As noted above, geographic limitations, most notably the location of the navigable feeder creek and Seagrass Lane itself, prevent other property owners in the area from constructing docks extending directly to Cedar Creek. See 23A S.C. Code Ann. Regs. 30-12(A)(2)(l), (n), (o) (Supp. 2002) (prohibiting docks from extending longer than 1000 feet, from crossing navigable creeks, and from being constructed from lots without 75 feet of water frontage). Further, there is no reason to conclude that the granting of Petitioners’ permit and the construction of their dock at this location would create a precedent that would be applicable to other geographic areas or that would bind OCRM in any way in its evaluation of other permit applications.

Specific Project Standards for Docks in Tidelands and Coastal Waters

As a final basis for denying Petitioners’ permit, OCRM cited Regulation 30-12(A)(2)(d), which provides that “[d]ocks and piers should use the least environmentally damaging alignment.” OCRM included this provision in the denial letter to reflect its determination that, because Petitioners’ existing dock to the feeder creek is functional, they should not be permitted to construct a longer dock to Cedar Creek. (Hr’g Tr. at 221-22.) However, this provision is misapplied.

Regulation 30-12(A)(2)(d) is concerned with finding the least damaging alignment of a particular dock project, not with comparing the environmental merits of one dock project against those of another, separate dock project. That is, Regulation 30-12(A)(2)(d) requires an analysis of how the proposed dock in question should be aligned between the high ground and the creek so as to minimize its environmental impact; it does not call for a comparison between the environmental impact of a proposed dock to one creek and the environmental impact of an existing dock in another creek. Therefore, when Regulation 30-12(A)(2)(d) is properly applied to the proposed dock in question in this matter, and the dock is considered on its independent merits, it is clear that Petitioners’ proposed dock uses the least environmentally damaging alignment between Petitioners’ property and Cedar Creek. The walkway of the proposed dock is angled slightly near Petitioners’ property to ensure that it avoids the end of the feeder creek and otherwise extends directly, along a straight line, to Cedar Creek. This orientation of the dock allows it to reach Cedar Creek along the shortest possible route without impeding navigation in, or otherwise interfering with, the feeder creek, and as such, this orientation is the least environmentally damaging alignment for the proposed dock.

While not specifically cited by OCRM in its denial letter, both OCRM and Intervenors cite Regulation 30-12(A)(2)(n), which prohibits docks from bridging navigable creeks “in order to obtain access to deeper water,” as a ground for the denial of Petitioners’ dock permit.^[8] Specifically, OCRM and Intervenors contend that the proposed dock will impermissibly bridge a navigable portion of the feeder creek. However, the evidence presented in this matter indicates that the dock will not cross a navigable waterway as it extends to Cedar Creek.

Regulation 30-12(A)(2)(n) provides, in relevant part, 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 of grade with the surrounding marsh; or having an established history of navigational access or use. . . . Such creeks cannot be bridged in order to obtain access to deeper water.