STATEMENT OF THE CASE

The above-captioned case is before this Court pursuant to S.C. Code Ann. § 48-39-150 (Supp. 2004), S.C. Code Ann. § 1-23-600(B) (Supp. 2004), and S.C. Code Ann. § 1-23-310 et seq. (2005) for a contested case hearing.

Petitioner, Too Tacky Partnership (hereinafter “Petitioner” or “Too Tacky”), challenges the decision of Respondent South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management (“OCRM” or “Department”), to issue a permit to Respondent Read for the construction of a private, joint-use dock on Leadenwah Creek in Charleston County, South Carolina. After notice to the parties, a hearing in this matter was held at 10:00 a.m. on April 12, 2006, at the offices of the Administrative Law Court in Columbia, South Carolina.

As explained herein, I have determined that the Department correctly applied the applicable regulations in the issuance of Respondent Read’s permit request and such issuance is affirmed.

FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the duly noticed hearing conducted on April 12, 2006, and taking into consideration the burden of persuasion and credibility of the witnesses, I make the following findings of fact by a preponderance of evidence:

1.                  The Petitioner and Respondent Read are adjacent property owners on Wadmalaw Island in Charleston County. On October 28, 1986, both the Petitioner’s and Respondent Read’s predecessor-in-title subdivided roughly 17.71 acres into four (4) roughly equal lots designated as Lots 1 through 4, via a plat entitled “Plat of Division of Lands of Alma E. Wagner” located at the end of Tacky Point Road on Wadmalaw Island near Leadenwah Creek (hereinafter the “Plat”). (Read Ex. 1).

2.                  The Plat depicts a 50 foot wide pathway labeled “50’ drainage – easement & Creek Access for Lots 1, 2 & 3” across the rear or landward edge of Lot 4. The Plat was signed by the then owner of all four lots (Alma E. Wagner); was stamped as approved by the Clerk for Charleston County Council; and was then recorded in the RMC Office in Charleston County at Plat Book BK, Page 145. (Read Ex. 1). Lot 2 and Lot 3 do not have direct deep-water access due to the expanse of marsh directly in front of those properties. (Read Ex. 1; Tr. at p. 132, l. 16 – p.133, l. 17; Tr. at p. 134, ll. 11-20).

3.                  Sometime after the 1986 subdivision of the 17.71 acres into four lots, the Petitioner purchased Lot 4; Respondent Read purchased Lot 3; and Respondent Read’s parents purchased Lot 1 and Lot 2.[1] The later deeds for all four lots, including the respective deeds into Respondent Read and the Petitioner, each specifically incorporated the Plat by reference.[2] (Read Exs. 1, 2, 3; Pet. Exs. 7, 7-A, 8).

4.                  The Petitioner was aware of the recorded Plat and the language regarding “Creek Access for Lots 1, 2 & 3” contained in the Plat prior to purchasing his property. (Tr. at p. 128, l. 19 – 129, l. 8; Tr. 141, ll. 20-24). The Petitioner explained his interpretation of the Plat’s language regarding “Creek Access for Lots 1, 2 & 3” as permitting the easement holders to walk down to the creek or, in his words, “…come down to the creek.” Additionally, the Petitioner explained his interpretation that after the easement holders traveled down the easement and arrived at the creek that they could then do, “Whatever they wanted.” (Tr. at p. 147, ll. 14-22).

5.                  The Petitioner has never taken any legal action to contest the language regarding “Creek Access for Lots 1, 2 & 3” contained in the Plat. (Tr. at p. 142, ll. 13-16). Additionally, the Petitioner had never directly communicated to the owners of Lots 1, 2, and 3 that the Petitioner disputed the easement language in the Plat. (Tr. at p. 148, ll. 8-16; Tr. p. 127, ll. 19-25). Conversely, Respondent Read’s father explained that he and other owners of Lots 1, 2, and 3 used the path shown on the Plat for recreational walking purposes. (Tr. at p. 122, l. 21 – p. 123, l. 21).

6.                  On or about August 26, 2004, Respondent Read applied for a private, joint-use dock on behalf of and to serve Lots 1, 2, and 3 with the express permission of the owners of Lots 1 and 2 (i.e., his parents). (Tr. at p. 127, ll. 12-18; DHEC Ex. 1). The Permit Application was accompanied by supporting documents including an Affidavit of Ownership or Control which expressly related that the dock was at the “end of right of way.” (DHEC Ex. 1). There was some confusion at the hearing as to whether the Permit Application was accompanied by the Plat, but the Department explained that it certainly possessed the Plat prior to issuing the dock permit and, potentially, an oversized copy of the Plat was actually submitted along with the Permit Application itself. (Tr. at p. 37, ll. 3-13; Tr. at p. 39, ll. 8-11; Tr. at p. 76, l. 21 – p. 77, l. 13; Tr. at p. 82, ll. 15-25). Similarly, the Petitioner’s letter objecting to the dock application expressly acknowledged that the Plat had been provided to the Department prior to the issuance of the permit. (Pet. Ex. 5, p. 2). Curtis Joyner, Manager of Critical Area Permitting, testified that applications often are not complete when the application is first submitted and that the staff places applications on public notice that are sometimes not complete. (Tr. At p. 107, ll. 21-25, p. 108, ll. 1-25). Moreover, the Department explained that no party had ever claimed that the submitted Plat was altered, forged, or inaccurate. (Tr. at p. 83, ll. 1-11).

7.                  Contrary to the Petitioner’s assertion, the permitted dock is to be constructed entirely below the mean high water mark and, accordingly, is not located on the Petitioner’s property. (DHEC Ex. 1). Rather, consistent with the Petitioner’s interpretation of the Plat’s language, the pathway labeled “Creek Access for Lots 1, 2 & 3” would be used exclusively to walk to and from the dock site. In turn, the dock would actually be located on the state’s land. (DHEC Ex. 1; Read Ex. 1).

8.                  The Petitioner was duly notified of Respondent Read’s dock application and submitted a letter, through legal counsel, opposing the issuance of the dock permit. (Pet. Ex. 5). In turn, Respondent Read, through his legal counsel, responded to the Petitioner’s opposition. (Pet. Ex. 6).

9.                  In response to the Department’s concern that the proposed dock may impact shellfish beds, otherwise considered a “geographic area of particular concern” (a/k/a “GAPC”), the Department notified the S.C. Department of Natural Resources (“SCDNR”) of the Respondent’s dock application since, as the Department explained, the SCDNR has jurisdiction over shellfish beds. In turn, the SCDNR responded to the Department, via letter dated December 6, 2004, that it did not object to the proposed dock. (DHEC Ex. 14; Tr. p. 77, l. 17 – p. 78, l. 9).

10.              Consistent with S.C. Code Ann. § 48-39-150(A) and 23A S.C. Code Ann. Regs. 30-11(B), the Department considered the ten factors enumerated before issuing the dock permit. (Tr. at p. 72, ll. 17-20). The Department explained that it determined that Respondent Read had submitted a credible claim to a property right, in this instance an easement, to access the dock site to satisfy the statutory and regulatory requirements. (Tr. at p. 91, ll. 7-12).

11.              On March 30, 2005, the Department issued the dock permit subject to certain special conditions such as eliminating the requested roof over the pierhead and reducing the size of both the pierhead and float to address the Petitioner’s concerns. (Tr. at p. 80, ll. 12-24; DHEC Ex. 7).

CONCLUSIONS OF LAW

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

1.                  The Administrative Law Court has subject matter jurisdiction in this action pursuant to S.C. Code Ann. §§ 1-23-500 et seq. (2005). In the instant case, the Petitioner, as the party affirmatively asserting error in the Department’s issuance of the permit, bears the burden of proof. See Leventis v. South Carolina Dept. of Health and Environmental Control, 340 S.C. 118, 530 S.E.2d 643 (Ct. App. 2000). Therefore, the Petitioner must demonstrate by a preponderance of the evidence that the Department’s issuance of the permit was in error under the relevant statutory and regulatory criteria pertaining to activities in the critical area. See Anonymous (M-156-90) v. State Bd. of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998).

2.                  Respondent Read requested a permit for the construction of a joint-use recreational dock. Such a permit is 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 in South Carolina. The Department’s Office of Ocean and Coastal Resource Management is charged to uphold the policies of the Act when acting on permits for docks within the critical area.

The Dock Permit Application - 23A S.C. Code Ann. Regs. 30-2(D)(4)

3.                  Neither the Department nor this Court is vested with the authority to quiet title to real property; however, the Department - and in contested matters, this Court - is charged with determining whether an applicant for a critical area dock permit has satisfied the statutory and regulatory requirements for the issuance of that permit, including the requirement that the applicant establish prima facie authority to undertake the proposed project at the proposed location. The Department “is required to find that an applicant for a critical area permit has, based upon the submission of credible documentation, made a prima facie showing that it owns or has permission to use the property on which the permitted activity is to be located. Once such a showing is made, the Department may grant a critical area permit to that applicant, even if certain underlying property disputes remain unresolved.” Moberly v. South Carolina Department of Health and Environmental Control, Docket No. 04-ALJ-07-0408-CC, 2005 WL 2089815, p. 4 (S.C. Admin. Law Court, August 5, 2005).

4.                  In other words, the focal statutory provisions require an applicant for a critical area permit to make a prima facie showing that it has legitimate possession of, or permission to use, the property to be affected by the permit. Specifically, S.C. Code Ann. § 48-39-140(B)(4) (Supp. 2004) requires that “[e]ach application for a permit shall be filed with the [D]epartment and shall include... [a] copy of the deed, lease or other instrument under which the applicant claims title, possession or permission from the owner of the property, to carry out the proposal.” The Department’s permit application regulation contains an almost identical provision.

5.                  In this instance, the focal issue is whether the Department erred in concluding that Respondent Read made a prima facie showing of possession of, or permission to use, the property to be affected by the permit. More specifically, the issue is whether Respondent Read made a prima facie showing that he owned an easement to travel to and from the proposed dock site.

A Plat is an “Instrument”

6.                  Respondent Read submitted a Permit Application which was accompanied by supporting documents and was either originally accompanied by a copy of the Plat, or the Plat was later provided. (Tr. at p. 37, ll. 3-13; Tr. at p. 39, ll. 8-11; Tr. at p. 76, l. 21 – p. 77, l. 13; see Read Ex. 1). The Plat, in this instance a formal document signed by the landowner, was stamped as approved by Charleston County Council and then recorded in the RMC office. Therefore, the Plat is an “instrument” which satisfies the statutory and regulatory requirement. See Sutcliffe v. Laney Bros., Inc., 247 S.C. 417, 147 S.E.2d 689, 690 (1966) (referring to a “survey or other instrument of record”); Hamilton v. CCM, Inc., 274 S.C. 152, 263 S.E.2d 378, 379 (1980) (“the outcome of this litigation is largely controlled by the construction given an instrument referred to as the Harbour Town Townhouse Plat.”). Consistently, the Department’s Summary of Review sheet indicates that the Department has historically interpreted a plat to be an “instrument.” (Pet. Ex. 1 – listing “deed, plat or lease”).

Uncertified Copy of the Plat

7.                  However, the copy of the Plat which the Department reviewed was not itself a certified copy. The Petitioner has gone to some length to suggest that the Department erred in issuing a permit without having a certified copy of the Plat. As an initial matter, pursuant to S.C. Code Ann. § 48-39-140(B)(4), an applicant must submit, among other information, “A copy of the deed, lease or other instrument under which the applicant claims title, possession or permission from the owner of the property, to carry out the proposal.” Simply stated, as is evident from the above-quoted language, there is no statutory requirement that a copy of a plat must be a certified copy.[3]

8.                  Similarly, the focal regulation, 23A S.C. Code Ann. Regs. 30-2(B)(4), provides, as pertinent, that “The following minimum information shall ordinarily be required before a permit application is considered complete:….(4) a certified copy of the deed, lease or other instrument under which the applicant claims title, possession or permission from the owner of the property, to carry out the proposal.” (Emphasis added).

9.                  In this instance, the Department analyzed an uncertified copy of the Plat and explained that:

(a)                The Department interprets 23A S.C. Code Ann. Regs. 30-2(B) to mean that the applicant’s Affidavit of Ownership or Control may satisfy the certification for other documents required by the regulation or, alternatively, serve as a substitute for it; (Tr. at p. 35, ll. 16-19; Tr. at p. 41, ll. 12-15; see DHEC Ex. 1);

(b)               The Department explained that it actually reviewed a copy of the Plat prior to issuing the permit; (Tr. at p. 37, ll. 3-13; Tr. at p. 39, ll. 8-11; Tr. at p. 49, ll. 20-22; Tr. at p. 76, l. 21 – p. 77, l. 13); and

(c)                No party to this dispute has suggested that the submitted Plat was not identical to the one on file at the RMC Office in Charleston County (i.e., not altered, forged, or inaccurate). (Tr. at p. 83, ll. 1-11). Notably, Respondent Read introduced a certified copy of the Plat at the hearing and no party offered evidence or suggested that the Plat deviated, in any way, from the one the Department reviewed with the application. (Read Ex. 1).[4]

10.              As to the Department’s interpretation of the regulation regarding certified copies, “the decision of an administrative agency interpreting its own regulations is given great deference.” Earl v. HTH Associates, Inc./Ace Usa Ins. Co. of North America, 368 S.C. 76, 627 S.E.2d 760, 762 (Ct. App. 2006). Such deference creates an elevated threshold of evaluation or presumption since “[c]ourts defer to the relevant administrative agency’s decisions with respect to its own regulations unless there is a compelling reason to differ.” S.C. Coastal Conservation League v. South Carolina Dept. of Health and Environmental Control, 363 S.C. 67, 75, 610 S.E.2d 482, 486 (2005). Certainly, given that the applicable regulation uses the phrase “shall ordinarily be required,” the Department has some discretion to depart from the requirement that the copy of the Plat be a certified copy by virtue of the word “ordinarily.” See, e.g., Burns v. Gower, 34 S.C. 160, 13 S.E. 331, 332 (S.C. 1891) (“under the well-settled rule of statutory construction . . . a court is bound, if possible, to give some place and effect to every word found in a statute . . . .”).

11.              Alternatively, since no party asserts that the uncertified copy of the Plat upon which the Department relied was somehow altered, forged, or otherwise inaccurate then the reliance on an uncertified copy is a harmless error. See McNeil v. South Carolina Department of Corrections, Docket No. 05-ALJ-04-00230-AP, 2005 WL 2147192 (S.C. Admin. Law Court, August 11, 2005) (recognizing the doctrine of harmless error).

12.              Moreover, the Department’s interpretation is consistent with prior holdings from this Administrative Law Court that “certified” copies are not always required. See Burgess v. South Carolina Department of Health and Environmental Control, Docket No. 99-ALJ-07-0167-CC, 2000 WL 378877, p.5 (S.C. Admin. Law Judge Div., March 30, 2000) (involving a challenge to an uncertified deed, and finding that the applicant’s submission of a contract of sale met the minimum regulatory requirements). The Department’s interpretation of the certification requirement is also consistent with the intent of the legislature and consistent with the policies of the Coastal Zone Management Act, which promote and encourage water access.

Prima Facie Showing of an Easement to the Dock Site

13.              As related above, the Petitioner’s and Respondent’s predecessor-in-title subdivided her land into four lots and included on the Plat the language, “50’ drainage – easement & Creek Access for Lots 1, 2 & 3.”[5] In addition, the respective deeds into Respondent Read and the Petitioner each specifically incorporate the Plat by reference.[6] (Read Ex. 1; Pet. Exs. 7, 7-A, 8; Read Exs. 2, 3). In South Carolina, “[w]here land is subdivided, platted into lots, and sold by reference to the plats, the buyers acquire a special property right in the roads shown on the plat….. If the deed references the plat, the grantee acquires a private easement for the use of all streets on the map.” Davis v. Epting, 317 S.C. 315, 318, 454 S.E.2d 325, 327 (Ct.App. 1994) (emphasis added). In other words, under South Carolina law, “where a deed describes land as is shown on a certain plat, such plat becomes part of the deed.” Blue Ridge Realty Company, Inc. v. Williamson, 247 S.C. 112, 145 S.E.2d 922, 924 (1965); see also S.C. Code Ann. § 30-5-250 (1991).

14.              Significantly, when a deed references a plat showing an easement, that easement is created as a matter of law in South Carolina. Newington Plantation Estates Ass’n v. Newington Plantation Estates, 318 S.C. 362, 365, 458 S.E.2d 36, 38 (1995) (“Absent evidence of the seller’s intent to the contrary, a conveyance of land that references a map depicting streets conveys to the purchaser, as a matter of law, a private easement by implication with respect to those streets, whether or not there is a dedication to public use. [citations omitted]. As between an owner who has conveyed lots according to a plat and the grantee, the dedication of a private easement is complete when the conveyance is made.” (emphasis added)); see Billings v. McDaniel, 217 S.C. 261, 60 S.E.2d 592 (S.C. 1950) (where property sold is described with reference to a plat upon which streets and ways are shown, an easement therein is implied).

15.              In short, for the analysis of a prima facie showing, the Department’s interpretation that the Plat is suitable prima facie evidence of an easement (and part of all four of the deeds) is consistent with and supported by South Carolina law.[7]

16.              Furthermore, the Department’s interpretation is consistent with legal interpretations involving easements providing for water “access” similar to the Plat and, correspondingly, the deeds in this instance. Monahan v. Hampton Point Association, Inc., 264 A.D. 2d 764, 695 N.Y.S.2d 385 (1999) (“the subject dock, located at the end of an easement leading to a waterway, was a reasonable and incidental use of the easement. Under the circumstances of this case, the creation of the easement would have been without purpose if not for the dock giving access to the waterway.”); Winkler v. Petersilie, 124 Fed. Appx. 925, 932, 2005 WL 450595 (6^th Cir. 2005) (“we agree with the district court that these deeds expressly conveyed riparian rights through an easement for free access and use of Watauga Lake.”); see In the Matter of Tideland’s License, 326 N.J. Super. 209, 740 A.2d 1125 (1999) (easement supported construction of a dock).

17.              In summary, the Petitioner has failed to prove that the Department erred in its decision that Respondent Read established a prima facie claim to an easement as contemplated by S.C. Code Ann. § 48-39-140(B)(4) and 23A S.C. Code Ann. Regs. 30-2(B).

S.C. Code Ann. § 48-39-150

18.              The Department explained that, consistent with S.C. Code Ann. § 48-39-150(A) and 23A S.C. Code Ann. Regs. 30-11(B), the Department did consider the ten enumerated factors prior to issuing a dock permit. (Tr. at p. 72, ll. 17-20).

19.              In response, the Petitioner focused only on the last of the ten enumerated factors - the impact on adjacent landowners. But, the interests of adjacent property owners must be balanced against the interests of the applicant and, presumably, the public. Indeed, this factor is only one of many factors to consider. As to this one factor, the Petitioner submitted no substantiated evidence of detrimental impact from the proposed dock other than it was relatively near his house and the presumed use of the dock might be “noisy.” (Tr. at p. 141, ll. 4-11). There was no evidence that the permitted dock impacted the Petitioner’s own access to navigable water, nor was there any evidence to suggest that the dock would diminish the Petitioner’s property value, such as an appraisal comparing the value with the dock and without.

20.              As to the proximity to the Petitioner’s house, the Petitioner was aware of the easement’s proximity when the Petitioner purchased the property. It seems, therefore, inconsistent to complain of that proximity now. As to potential noise, the Petitioner merely related that he suspected that the dock usage would be noisy, but such criticism was purely speculative.

21.              Alternatively, any impact on the Petitioner’s view would also not be a compelling reason to deny a permit application. See Hill v. The Beach Co., 279 S.C. 313, 306 S.E.2d 604 (1983) (holding that there is no prescriptive right to an ocean view in South Carolina). In addition, the Department addressed that potential concern when it issued the dock permit subject to certain special conditions such as eliminating the requested roof over the pierhead and reducing the size of both the pierhead and float. (Tr. at p. 80, ll. 12-24; DHEC Ex. 7).

22.              Conversely, the Department “has historically looked favorably on the issuance of joint-use docks. [The Department] has made it a policy to encourage community and joint-use dock structures, as these structures reduce the impacts normally associated with docks, such as environmental and navigational impacts.” Teseniar v. South Carolina Department of Health and Environmental Control, Docket No. 01-ALJ-07-0224-CC, 2002 WL 385054, p. 4 (S.C. Admin. Law Judge Div., Feb. 12, 2002).

23.              In summary, the Petitioner has failed to prove that the Department erred in the Department’s analysis of the factors enumerated in S.C. Code Ann. § 48-39-150(A) and 23A S.C. Code Ann. Regs. 30-11(B).

ORDER

Based upon the above findings of fact and conclusions of law, it is hereby ORDERED that the Department’s decision granting Respondent Read’s request for a private, joint-use recreational dock is affirmed.

AND IT IS SO ORDERED.

___________________________

JOHN D. MCLEOD

Administrative Law Judge

August 17, 2006

Columbia, South Carolina