ORDERS:
FINAL ORDER
THIS MATTER comes before this Court upon application of Petitioner, being represented by
Howell V. Bellamy, Jr. and George W. Redman, III, of Bellamy, Rutenberg,
Copeland, Epps, Gravely & Bowers, PA., and whereby Respondent is
represented by Leslie S. Riley, Esquire, of the Office of General Counsel for
the South Carolina Department of Health and Environmental Control. Having carefully
considered the matters set forth herein as set forth by counsel of record, this
Court makes the following Findings of Fact and Conclusions of Law:
FINDINGS
OF FACT
At the outset this
Court notes that this case was not contested, and that the following findings
of fact were stipulated by counsel of record:
1. This action involves a
request to relocate the position of a portion of the oceanfront
Jurisdictional Baseline as maintained and monitored by the South Carolina
Department of Health and Environmental Control’s Ocean and Coastal Resource
Management division (hereinafter “OCRM” or the “Department”).
2. Petitioner owns real
property that is located at 3500 North Ocean Boulevard in North
Myrtle Beach, South Carolina, and bears a tax map number of 145-06-11- 003
(hereinafter referred to as the “Property”).
3. Petitioner has made
application to this Court to relocate that specific portion of the
Jurisdictional Baseline located on the seaward property line of Property.
4. Said Petition was filed
directly with this Court on May 18, 2006, pursuant to S.C. Code
§48-39-280(A)(4), and 23A SC Code Regulation 30-14(G).
5. By way of letter dated
April 18, 2006 from Kevin Blayton, P.E., as Public Works Director and
City Engineer for the City of North Myrtle Beach, the City of North Myrtle
Beach formally certified that Petitioner’s Request to Relocate the Jurisdictional
Baseline is “consistent with the objectives and policies of the City’s Beachfront
Management Plan, provided the Applicant meets the criteria set forth in
South Carolina Regulation 30-14(G), to which a copy of said letter is attached hereto
and incorporated herein this Order as “Exhibit A.”
6. By way of letter dated
May 24, 2006, Mr. William C. Eiser, as Assistant Director of Regulatory
Programs for OCRM, certified that the OCRM had conducted a survey and
study of Petitioner’s request to relocated the Jurisdictional Baseline and
concluded that “a seaward adjustment to the baseline, to a location 15 feel landward
of the revetment crest, would be appropriate from a scientific point of view,”
to which a copy of said letter is attached hereto and incorporated herein this
Order as “Exhibit B.”
7. By way of letter dated
June 22, 2006, Mr. William C. Eiser, as Assistant Director of
Regulatory Programs for OCRM, certified that the initial department-approved beach
renourishment project in this area was constructed in 1997, that the project had
stabilized by 1998, and therefore, that it has been more than three (3) years since
the initial beach renourishment project has been completed, to which a copy of
said letter is attached hereto and incorporated herein this Order as “Exhibit
C.”
8. The parties to this
action have agreed and stipulated, based upon the aforementioned survey,
study, and conclusions of the City and the Department, that the
Jurisdictional Baseline should be specifically relocated as set forth by the Department’s
rendering of the Jurisdictional Baseline which fronts the Property, to
which a copy of said rendering is attached hereto and incorporated herein this Order
as “Exhibit D, Pages 1 and 2.”
CONCLUSIONS
OF LAW
THEREFORE, based
upon the foregoing uncontested Findings of Fact, this Court concludes as a
matter of law that:
1. Pursuant to Rule 2(B) of
the Rules of Procedure for the Administrative Law Court, this Court
obtains jurisdiction as provided by South Carolina law, whereas this
Court has jurisdiction by and through S.C. Code §48-39-280(A)(4), which provides
in pertinent part:
Where a department-approved beach renourishment
project has been completed, [a] landowner with notice
to the local government, may petitioner an
Administrative Law Judge to move the baseline… .
2. Petitioner has made
application to this Court as a landowner of the Property pursuant to S.C.
Code §48-39-280(A)(4), and therefore this Court has jurisdiction to hear
the Petition and to issue this Final Order.
3. S.C. Code
§48-39-280(A)(4) provides that a landowner petitioning this Court to move
the Jurisdictional Baseline must provide notice to the local government, and as
set forth above, the Property which is the subject of this Action is within the
City of North Myrtle Beach (hereinafter referred to as the “City”).
4. S.C. Code of Regulations
R. 30-14(G) provides that the local government must thereafter
certify to the Department that Petitioner’s proposed relocation of the Jurisdictional
Baseline must be consistent with the objectives and policies of the City’s
Local Comprehensive Beachfront Management Plan.
5. The Parties to this
Petitioner have agreed and stipulated, and this Court concludes as a
matter of law, that based upon the representations within Exhibit A, the City:
a. Has been
provided with timely actual notice of this Petitioner’s request to move
the Jurisdictional Baseline on the Property;
b. Has adopted
and enforces a Local Comprehensive Beachfront Management
Plan based upon and in compliance with the South Carolina Beach
Management Act, S.C. Code 1976 § 48-39-10 et seq.; and,
c. Has
certified that Petitioner’s request to move the Jurisdictional Baseline is
consistent with the objectives and policies of the City’s Local Comprehensive
Beachfront Management Plan.
6. As noted above, S.C.
Code §48-39-280(A)(4) applies where a department- approved beach
renourishment project has been completed, and that no new construction may
occur in the area between the former baseline and the new baseline
for three years after the initial beach nourishment project has been completed
as determined by the Department.
7. The Parties to this
Petition have agreed and stipulated, that based upon the representations
of the Department within Exhibit B and Exhibit C, this Court concludes
as a matter of law that the Department has:
a. Certified
that a department-approved beach renourishment project has been
completed at the Property;
b. Conducted a
study including a review of beachfront surveys, as well as a technical
review of other data supplied by Petitioner in the request to relocate
the Jurisdictional Baseline;
c. Certified
that it would be appropriate that to adjust the baseline at the Property
seaward, specifically “to a location of 15 feet landward of the line
labeled ‘Top of Revetment (Rip Rap)’ on the [reference April 20, 2006]
survey, [being] approximately 25 feet seaward of the existing baseline
location.”; and,
d. Certified
that the three-year ban on new construction between the former baseline
and Petitioner’s proposed new baseline has expired.
8. Based upon the foregoing
Findings of Fact and Conclusions of Law, this Court concludes as a
matter of law that Petitioner’s Request to relocate the baseline on the
Property as reference in Exhibit B, and as is specifically set forth by the Department
in Exhibit D, Pages 1 and 2, is hereby GRANTED; and that
9. Therefore, upon the
entry of this Order, the Jurisdictional Baseline at the Property shall
be and is relocated as set forth above,
AND IT IS SO
ORDERED!
______________________________
Ralph
King Anderson, III
Administrative
Law Judge
Columbia, South Carolina
July 17, 2006 |
