SC Administrative Law Court Decisions

STATEMENT OF THE CASE

The above-captioned case comes before this Court pursuant to the request of Petitioner J. Rutledge Young, Jr., for a contested case hearing. Petitioner challenges the decision of Respondent South Carolina Department of Health and Environmental Control, through its Office of Ocean and Coastal Resource Management (OCRM), to issue a permit to Respondents Boyce Miller and Carol Miller (Respondents) for the construction of a private recreational dock in Church Creek at Lot 11-D on Lonnie Taylor Lane on Wadmalaw Island in Charleston County, South Carolina.[1] In particular, Petitioner, a nearby property owner, challenges OCRM’s decision to permit the construction of a 10’ by 15’ four-pile boatlift on the dock, which Petitioner contends will spoil the view of Church Creek from his property. After timely notice to the parties, a hearing of this matter was held on June 13, 2006, at the South Carolina Administrative Law Court in Columbia, South Carolina. Based upon the evidence and arguments presented at that hearing and upon the applicable law, I find that OCRM’s decision to issue the dock permit in question, including the attached boatlift, must be sustained.

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:

1. Wadmalaw Island is an island located in Charleston County, South Carolina. The island is bounded by the Wadmalaw River, North Edisto River, Church Creek, and Bohicket Creek; the latter two separate the island from nearby Johns Island. Through certain special restrictive zoning measures and a number of conservation easements, Wadmalaw Island has remained primarily rural, with only limited residential development and no commercial development. While the island’s zoning regulations address the size of lots that may be created along Church Creek, the regulations do not restrict or otherwise regulate the construction of docks in the creek. Some of the conservation easements do, however, place limits upon the size and character of the docks that may be constructed on the protected properties.

2. Petitioner J. Rutledge Young, Jr., owns and resides part-time on property located along Church Creek on the northern side of Wadmalaw Island. Petitioner’s property is adjoined to the east by a large tract of rural land owned by Louis Hay and to the west by a roughly ten-acre parcel that has recently been subdivided into several smaller lots, including Respondents’ Lot 11-D on Lonnie Taylor Lane. Respondents’ lot is situated along Church Creek and is separated from Petitioner’s property by two intervening lots, Lot 11-B and Lot 11-C on Lonnie Taylor Lane. While Respondents’ lot is subject to the zoning regulations on Wadmalaw Island, it is not subject to any conservation easements or other restrictions that would affect the construction of a dock on the property.

3. Given the limited development on Wadmalaw Island, there are relatively few docks in Church Creek originating from property on Wadmalaw Island. In the stretch of Church Creek surrounding Respondents’ lot, there are approximately six docks on the Wadmalaw Island side of the creek, including a dock on Mr. Hay’s property; a dock on Petitioner’s property; a small crabbing dock located near the proposed location for Respondents’ dock; a dock on property owned by Alex Sanders; and, two additional docks located further down Church Creek towards its confluence with the Stono River. None of these existing docks has a roof, boatlift, or other superstructure. The owners of Lots 11-B and 11-C on Lonnie Taylor Lane have also obtained permits to construct private docks in Church Creek from their lots; however, pursuant to an agreement with Petitioner, these docks will have “jet docks,” rather than boatlifts, as originally permitted.[2]

4. While the Wadmalaw side of Church Creek is not heavily developed in the portion of the creek near Respondents’ lot, there are a number of docks in that portion of Church Creek that originate from Johns Island. There are approximately ten docks on the Johns Island side of Church Creek between Respondents’ lot on the west and Mr. Hay’s dock on the east, including several docks with boatlifts and at least two docks with both a boatlift and a roof. More broadly, within one mile to either side of Respondents’ lot, there are some 25 to 30 docks in the creeks surrounding Wadmalaw Island, including a number of docks with boatlifts and other superstructures, such as handrails and roofs.

5. On June 10, 2005, OCRM issued permit number OCRM-05-099-M to Dr. Samuel Riddle, III, for the construction of a private, recreational dock in Church Creek from Respondents’ lot, which Dr. Riddle owned at the time. The permit authorizes the construction of a 4’ by 440’ walkway leading to a 10’ by 20’ fixed pierhead and 10’ by 40’ floating dock. The permit also authorizes the placement of a 10’ by 15’ four-pile boatlift on the downstream side of the fixed pierhead. In conjunction with the sale of the property to Respondents, Dr. Riddle transferred the dock permit to Respondents on August 4, 2005.

6. Petitioner timely filed a request for a contested case with this Court to challenge the issuance of the permit in question. At the hearing of this matter, Petitioner clarified that his sole objection to Respondents’ dock permit was not to the basic structure of the dock, but to the boatlift attached to the dock. In particular, Petitioner is concerned that a boatlift on Respondents’ dock would interfere with the view of Church Creek from his property and would set a precedent for further boatlifts from docks on Wadmalaw Island. As an alternative, Petitioner proposes that Respondents use a “jet dock” for boat storage rather than a boatlift. From his back porch and immediate back yard, the only docks visible to Petitioner do not have boatlifts or roofs; these docks include a dock immediately across Church Creek from his property, the crabbing dock near the location for Respondents’ proposed dock, and the Sanders’ dock further down Church Creek. However, from Petitioner’s dock, several other docks are visible in Church Creek, including at least two docks with boatlifts and roofs originating from Johns Island.

CONCLUSIONS OF LAW

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

Jurisdiction and General Principles

1. This Court has jurisdiction over this matter pursuant to S.C. Code Ann. § 48-39-150 (Supp. 2005), S.C. Code Ann. § 1-23-600(B) (Supp. 2005), and 23A S.C. Code Ann. Regs. 30-6 (Supp. 2005).

2. In the case at hand, Petitioner, as the moving party challenging OCRM’s decision to issue the permit in question, bears 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, Petitioner must demonstrate, by a preponderance of the evidence, that Respondents’ dock permit fails to satisfy the relevant statutory and regulatory criteria governing the issuance of such permits. 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).

3. With regard to the issuance of permits for the construction of docks in the “critical areas” of the state,[3] two sets of regulatory criteria are pertinent: the general guidelines applicable to all critical-area permits, see 23A S.C. Code Ann. Regs. 30-11 (Supp. 2005), and the specific permitting standards for the construction of docks and piers in tidelands and coastal waters, see 23A S.C. Code Ann. Regs. 30-12(A) (Supp. 2005).[4] In the instant case, Petitioner contends that, under Regulation 30-11(B)(10) and (C)(1), Respondents should not be allowed to construct a boatlift on their dock because of the extent to which the visual impact of the boatlift would adversely affect the value and enjoyment of his property and because the precedent set by such a boatlift would have negative long-range, cumulative effects on the character of the area with the development of similar docks in the area.

The Specific Permitting Criteria for Boatlifts

4. Regulation 30-12(A)(2) sets forth a number of permitting standards applicable for the construction of private and joint-use docks in tidelands and coastal waters, such as the portions of Church Creek bordering Petitioner’s and Respondents’ properties on Wadmalaw Island. See 23A S.C. Code Ann. Regs. 30-12(A)(2) (Supp. 2005).

5. With regard to boatlifts on such docks, Regulation 30-12(A)(2)(e) provides that

Boat lifts or davit systems are allowed, provided the entire docking system is limited to the minimum structure size needed to accomplish the intended use. The following standards will be used in evaluating applications for boatlifts and davits:

(i) Single family docking facilities will be normally limited to one lift per structure.

(ii) Hull scraping, sandblasting, painting, paint removal, and major engine repair are prohibited on lifts and davits.

(iii) Boat lifts must be open sided with no enclosures. Catwalks are allowed to provide access on one side and shall be a maximum of 3 feet wide.

23A S.C. Code Ann. Regs. 30-12(A)(2)(e) (emphasis added).

6. As permitted, the boatlift on Respondents’ dock satisfies the requirements of Regulation 30-12(A)(2)(e). The entire docking system is limited to the minimum size necessary to accomplish its use as a boatlift, there is only one boatlift on the dock, and the boatlift is open-sided with no roof or other enclosure. Further, it does not appear that Respondents intend to conduct hull scraping, sandblasting, painting, paint removal, or major engine repair on boats stored on their boatlift. Therefore, Respondents’ boatlift meets the basic regulatory permitting criteria for its construction.

The Effect of the Boatlift on the Value and Enjoyment of Petitioner’s Property

7. Pursuant to Regulation 30-11(B), the potential impacts of a project in the critical area, such as Respondents’ construction of a boatlift, must be evaluated under ten general permitting considerations. 23A S.C. Code Ann. Regs. 30-11(B) (Supp. 2005). The tenth of these guidelines requires the consideration of “[t]he extent to which the proposed use [of the critical area] could affect the value and enjoyment of adjacent owners.”[5] 23A S.C. Code Ann. Regs. 30-11(B)(10).

8. In the case at hand, Petitioner contends that Respondents’ boatlift will impair the view of Church Creek from the rear of his house such that the boatlift will negatively affect the value of his property and his enjoyment of the property. However, I find that any potential impact to Petitioner’s view caused by Respondents’ boatlift is insufficient to support denial of Respondents’ permit to construct the boatlift. First, it must be noted that, while this Court is respectful of the interests of Petitioner and others with property along Church Creek in preserving their views of the creek and surrounding marshland, the law of this state does not grant private land owners 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). Even without such a prescriptive right, the Coastal Zone Management Act and its accompanying regulations provide that the potential impairment of Petitioner’s view by Respondents’ boatlift is a relevant consideration to be weighed in evaluating Respondents’ dock permit. See S.C. Code Ann. § 48-39-150(A)(10) (Supp. 2005); 23A S.C. Code Ann. Regs. 30-11(B)(10). Nevertheless, the potential disruption to Petitioner’s view caused by Respondents’ proposed boatlift is not significant enough to warrant the denial of the permit or the elimination of the boatlift from the permit. While Petitioner’s view of Church Creek from the rear of his house only includes a few, modest docks, there are several larger docks, including docks with both roofs and boatlifts, that are visible from Petitioner’s dock and from the creek adjoining Petitioner’s property. Further, the two properties between Petitioner’s property and Respondents’ property are permitted for the construction of additional docks within Petitioner’s view, albeit with “jet docks,” rather than full boatlifts. In short, the stretch of Church Creek surrounding Petitioner’s property is not a pristine wilderness, unmarked by docks and piers, but is a creek familiar with development, including docks with boatlifts and other boat storage methods. Moreover, any view impairment caused by Respondents’ boatlift is minimized by the fact that the lift, as required by regulation, does not have enclosed sides or a roof that would restrict Petitioner’s view of Church Creek. Accordingly, I cannot find that Respondents’ boatlift will affect the value of Petitioner’s property or his enjoyment of that property such that Respondents should not be permitted to construct a boatlift for which they otherwise satisfy the regulatory requirements.

The Long-Range, Cumulative Effects of the Boatlift

9. Regulation 30-11(C) sets forth several additional guidelines that must be considered when making permitting decisions regarding activities in the critical areas. 23A S.C. Code Ann. Regs. 30-11(C) (Supp. 2005). The first of these guidelines requires the consideration of “[t]he 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.” 23A S.C. Code Ann. Regs. 30-11(C)(1).

10. In the instant case, Petitioner argues that Respondents should not be allowed to construct a boatlift on the their dock not only because of the impact of that lift upon his view, but also because the boatlift may set a precedent for a proliferation of boatlifts on docks in Church Creek from Wadmalaw Island. For reasons similar to those stated above, this concern is also without merit. Although not immediately visible from Petitioner’s back porch, there are already a number of docks in the portion of Church Creek surrounding his property that have boatlifts and other superstructures, including roofs. And, other portions of Church Creek have similar, if not greater, levels of development. While much of this development originates from the Johns Island side of the creek, rather than from Wadmalaw Island, these docks and their boatlifts are situated in Church Creek, are visible from Wadmalaw Island, and do reflect the general character of the development in the area. Therefore, I cannot find that the construction of Respondents’ boatlift will be out-of-keeping with the general character of the area or will have any significant long-range, cumulative impact upon the nature of further development in the vicinity.

Conclusion

11. In conclusion, Respondents’ proposed boatlift plainly satisfies the specific regulatory criteria set forth in Regulation 30-12(A)(2)(e) for the construction of boatlifts. Further, given the development of similar docks with boatlifts in the stretch of Church Creek in question, Petitioner has failed to demonstrate that the construction of Respondents’ boatlift will have a significant negative effect upon the value or enjoyment of his property or have other negative long-range, cumulative effects upon the area as a whole such that the boatlift should not be permitted. In short, Petitioner’s concerns with development in Church Creek from Wadmalaw Island and its impact upon his view of the creek are best addressed through broader regulatory schemes, such as local zoning ordinances adopted by the county or special area management plans arranged with OCRM, rather than through a challenge to Respondents’ individual dock permit and the boatlift it authorizes in compliance with the regulatory permitting criteria for such lifts.

ORDER

Based upon the Findings of Fact and Conclusions of Law stated above,

IT IS HEREBY ORDERED that OCRM’s decision to issue permit OCRM-05-099-M for the construction of a private recreational dock with a four-pile 10’ by 15’ boatlift in Church Creek at Lot 11-D on Lonnie Taylor Lane on Wadmalaw Island in Charleston County, South Carolina, is SUSTAINED.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

1205 Pendleton Street, Suite 224

Columbia, South Carolina 29201-3731

August 21, 2006

Columbia, South Carolina