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 revoke Respondent’s dock permit, OCRM-01-1067 and requiring him to reapply for a new dock permit. Respondent conceded that drawings submitted by his dock builder on the application in 2001 inaccurately portrayed the location of the extended property lines. However, he denied that the error was legally sufficient to revoke the permit. A hearing was held on April 26, 2006, at the offices of the Administrative Law Court in Columbia, South Carolina.

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 Shane Gould owns an improved lot at 29 Sea Olive Road on Hilton Head Island in Beaufort County, South Carolina. The property is adjacent to Point Comfort Creek and has sufficient water frontage to entitle the owner to seek to a dock permit.

2. Mr. Gould submitted an application to OCRM for a dock permit in November, 2001. On December 19, 2001, Mr. Gould received a permit to construct a single family recreational dock on Point Comfort Creek. Construction of the dock began in 2003. During that construction, the adjacent property owner, Margaret Maxwell, contacted OCRM and complained that the dock crossed over her extended property line.^[1] OCRM met on-site during the construction of the dock and while OCRM required that the walkway alignment be changed to a more center point on Gould’s lot, no other changes in location or the structure were required. Nor did OCRM order that the construction be stopped. Ultimately, the dock, as built, crosses the extended lot lines of the adjacent property owner, Margaret Maxwell.

After construction, Mrs. Maxwell continued to complain to OCRM and government officials about the docks placement. In 2004, OCRM instituted an enforcement action, but later abandoned it in favor of this revocation action. The basis for the revocation action is the material inaccuracy of the drawings. The Department seeks to require Respondent to submit a new permit application with new permit drawings. Mrs. Maxwell also testified at the hearing, reiterating her concerns about the location of the dock and the impact on her view.

The permit drawings showed a 12' x 12' pier head and a 10' x 20' floating dock connected by a 3' x 24' ramp. The drawing which is not to scale shows the extended property lines of the lot to be parallel to the walkway in such a way that the pier head and float do not cross over any extended property lines. The builder’s drawing, however, inaccurately showed the location of the extended property lines. As a result, the pier head and float were built over the extended lot line between Lot 9, owned by Gould, and Lot 8, owned by Mrs. Maxwell. Therefore, the dock was not constructed as approved by OCRM.

It, nevertheless, is not unusual for docks to cross over property lines, and in fact a dock constructed on Lot 7 on Sea Olive Road, two doors down, crosses over the extended property line. Furthermore, the location of the dock over this property line does not block Maxwell’s dock access to the subject creek, impede navigation or create any environmental harm beyond that of any other dock.^[2] Nevertheless, the pierhead, which is located within Mrs. Maxwell’s extended property lines, does restrict her view of the marsh.

3. Respondent agreed that he would be willing to move his floating dock to the other side of the pier head in order to reduce any impacts to Mrs. Maxwell. Though that movement is restricted by the location of a large oyster bed, Respondent has room to move the floating dock to the opposite side. That change will significantly reduce the impact of Respondent’s dock upon Mrs. Maxwell. Nevertheless, the dock cannot be constructed on top of an oyster bed. Furthermore, even with the change proposed by Respondent, the pier head will still be located over the property line and will impact Mrs. Maxwell’s view of the marsh.

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. (Supp. 2005) and §§ 1-23-500 et seq. (Supp. 2005). Furthermore, S.C. Code Ann. § 48-39-150 (D) (Supp. 2005) 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. (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 direct 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. 2005); S.C. Code Ann. § 48-39-130 (Supp. 2005).

4. The issue before this Court is whether the submission of a drawing in support of Petitioner’s permit which inaccurately reflected the location of the dock within the extended property lines warrants revocation of the permit and requiring Respondent to submit a new permit application. The drawings submitted by Respondent’s dock builder on the application in 2001 inaccurately portrayed the location of the extended property lines. 23A S.C. Code Regs. Ann. 30-12(A)(1)(p) provides that:

“No docks, pierheads or other associated structures will be permitted closer than 20 feet from extended property lines with the exception of joint use docks shared by two adjoining property owners. However, the Department may allow construction closer than 20 feet or over extended property lines where there is no material harm to the policies of the Act.”

Other than the impact to Mrs. Maxwell’s view, Petitioner has provided no evidence of any material harm to the policies of the Act if Respondent’s floating dock is placed on the other side of the pier head. Nevertheless, 23A S.C. Code Regs. Ann. 30-12(A)(2)(d) (Supp. 2005) further provides that Roofs on private docks will be permitted on a case-by-case basis, with consideration given to the individual merits of each application.” The potential for impacting the view of others is also a specific consideration in whether to approve a roof. Here, the roofed portion of Respondent’s pierhead lies over Mrs. Maxwell’s extended property lines. Since OCRM was not aware that a roofed pierhead would be located over Mrs. Maxwell’s extended property lines, that consideration was not originally addressed by OCRM. I find that even if Respondent’s roofed portion of his pierhead abuts Mrs. Maxwell’s extended line, the roof is acceptable. However, any roofing that occurs over Mrs. Maxwell’s extended property lines presents an unacceptable impact to her view.

5. Based upon the above analysis, I find that this matter can be resolved without revoking the existing permit and requiring a new permit application. In other words, this case may be resolved by simply modifying the existing permit and rebuilding the dock in keeping with those modifications.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that Respondent’s Permit is amended as follows:

1. The gangway and float be moved from its current location to the opposite side of the pier head, provided that the location does not materially affect or damage the active oyster bed. The location must be marked in the field prior to construction and approved by OCRM consistent with the intent of this Order. Otherwise, this case must be remanded to OCRM to review an alterative dock alignment; and

2. Any roofed portion of the pierhead lying over the extended property lines must be removed. If only a portion of the roofing is removed, OCRM must approve that design in keeping with Regulation 30-12(A)(2)(d).

AND IT IS SO ORDERED.

______________________________

Ralph King Anderson, III

Administrative Law Judge

June 15, 2006

Columbia, South Carolina