SC Administrative Law Court Decisions

DISCUSSION

Construction in the coastal zone of South Carolina is governed by the South Carolina Coastal Zone Management Act, S.C. Code Ann. Section 48-39-10 et seq. (1987 & Supp. 2000), and the regulations promulgated thereunder, 23A S.C. Code Ann. Regs. 30-1 et seq. (Supp. 2000). Respondent OCRM is charged with administering and enforcing these provisions. The rules governing the permitting of docks and piers are found at 23A S.C. Code Ann. Regs.

30-12(A)(Supp. 2000). The Petitioners object to the permitted structure on several grounds – the two most significant being that the structure would interfere with navigation in the area in violation of Regulation 30-12(A)(2)(a), and that it would amount to an impermissible bridge to a small island in violation of Regulation 30-12(N).

OCRM and Edwards assert that the tidal mudflat over which this walkway would cross is not a navigable creek within the meaning of the applicable regulations because the point at which it would cross is not a “defined channel” as evidenced by a “significant change in grade with the surrounding marsh.” See Regulation 30-12(A)(2)(n). Additionally, they argue that the regulation regarding access to small islands does not apply to this permit, or, alternatively, that application of this regulation to this permit request would not result in its denial.

FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the hearing and taking into account the burdens of proof imposed upon the parties, I make the following Findings of Fact by a preponderance of the evidence:

1. Respondent Thomas P. Edwards owns upland property located at 31 Coosaw River Road. He also owns a small island in the Coosaw River approximately 500 feet north of that property. The island is approximately 1 mile long and 20 feet wide at its deepest point. It is separated in the middle by a critical area that is under water by mid-tide.

Respondent Edwards applied for and received a permit from OCRM on April 1, 2002, (OCRM-01-1071) allowing him to construct a 4' x 500' walkway from his upland property at 31 Coosaw River Road to his island for his private, recreational use. The permit contains a number of special conditions, including a requirement that the walkway be constructed at least four feet above mean high water.

2. Petitioners John and Jackie Dansby own property immediately adjacent to and east of Respondent Edwards’ property. Petitioner Stonebraker owns property in the area and uses the water that fills the tidal marsh area in question for recreational purposes. They object to the permitted structure primarily on the basis that it will restrict navigation in the marsh area. In particular, the Dansbys object to the permit because permitting another walkway to Edwards’ property will cut off their access via their sailboat to navigable waters. Edwards owns Lots 55 and 31 on Coosaw River Road. The Dansbys own the property that is located between those lots. Edwards already has an existing walkway that has been built to Coosaw Island from Lot 55. The Dansbys contend that if this permit is granted they will be essentially “locked in.”

However, the Petitioners did not take measurements of the water depth or of any defined channels in the area. The Petitioners have used a sunfish sailboat and kayak in the area.^[1] Nevertheless, the use of the waterway is limited to navigation by small watercraft and for swimming, fishing and crabbing. During a low tide there is no measurable water in the tidal flat. In fact, OCRM employee George Madlinger walked from the highland property to the island near low tide. More important, the average water depth of the waterway at mid-tide is approximately two feet or less. The use of the channel at mid-tide where the proposed walkway has been permitted is limited to vessels that can float in very shallow water, such as small sail- boats and kayaks. A motorized boat during mid-tide would likely cause turbidity upon the channel’s bottom, which is an environmental concern. Additionally, OCRM’s special permit condition that this walkway must be constructed four feet above high water will allow reasonable access by the Dansbys’ to the local waterways and would specifically allow access to the waterways by kayak or small sailboats.

Furthermore, there is no discernible channel in the area of the proposed walkway. The coastal area which fronts the properties in question is merely a tidal mudflat. The mudflat is fed by Lucy Creek to its west and Coosaw River to its north. At the mouth of the tidal flat, there is a discernible creek. However, as you move eastwardly, the water tends to alluviate, or fan out, and the area simply becomes a large sand and mud flat.

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 Judge Division has subject matter jurisdiction in this action pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2000), and §§ 1-23-500 et seq. (1986 & Supp. 2000). Furthermore, S.C. Code Ann. § 48-39-150(D) (1987 & Supp. 2000) specifically authorizes the Division 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). Furthermore, the burden of proof in a contested case hearing is upon the moving party. See 2 Am. Jur. 2d Administrative Law § 360 (1994); Alex Sanders, et al., South Carolina Trial Handbook § 9:3 Party With Burden, Civil Cases (1999) (In civil cases, generally, the burden of proof rests upon the party who asserts the affirmative of an issue.). Therefore, the Petitioners have the burden of proof to establish by a preponderance of the evidence that a permit should not have been granted to Respondent Edwards. Nat’l Health Corp., supra.

3. As set forth above, permits for the construction of private docks or other structures in the coastal zone are governed by the South Carolina Coastal Zone Management Act, S.C. Code Ann. §§ 48-39-10 et seq. (1987 & Supp. 2000), and the regulations promulgated pursuant to those provisions found at 23A S.C. Code Ann. Regs. 30-1 et seq. (Supp. 2000). Those regulations govern the management, development and protection of the critical areas and coastal zone of the State. Furthermore, 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. 30-1(A)(1) (Supp. 2000); S.C. Code Ann. § 48-39-130 (1987 & Supp. 2000).

4. Respondent Edwards’ property is located in a critical area as defined in Section 48-39-10 (1987 & Supp. 2000) and Regulation 30-1(D)(14) (Supp. 2000) Any person wishing to construct a dock in a critical area must apply for and receive a permit. Regulation 30-2(B) (Supp. 2000). The Petitioners argue that the proposed walkway was improperly permitted because the walkway would impede navigation of the waterway in front of their property and the property of Edwards. Regulation 30-12(A)(2)(a) provides, in part, that a dock or pier “shall not impede navigation or restrict the reasonable public use of State lands and waters. . . .” Furthermore, a dock or walkway is prohibited if it is proposed to cross a navigable creek. Regulation 30-12(A)(2)(n) (Supp. 2000). That regulation provides, in relevant part:

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. . . . Such creeks cannot be bridged in order to obtain access to deeper water.

Therefore, if a creek is navigable and has a defined channel, OCRM cannot permit a structure to cross it. In determining the navigability of a waterway, “[t]he true test to be applied is whether a stream inherently and by its nature has the capacity for valuable floatage, irrespective of the fact of actual use or the extent of such use.” State ex rel. Medlock v. S.C. Coastal Council, 289 S.C. 445, 346 S.E.2d 716 (1986). The term “valuable floatage” includes not only commercial vessels but also use of a waterway by the general public for boating, hunting, and fishing. Id. Furthermore, “[t]he test of navigability is not whether a waterway is accessible at all times. Rather, the test is whether it is accessible ‘at the ordinary stage of the water.’ ” Hughes v. Nelson, 303 S.C. 102, 106, 399 S.E.2d 24, 25 (1990) quoting State v. Columbia Water, 82 S.C. 181,189, 63 S.E. 884, 888 (1909).

Here, while the evidence supports the Petitioners’ contention that this area is navigable by small watercraft at high tides, the only vessels that can navigate in the tributary in front of Edwards’ property at an ordinary stage of the tide are vessels such as small sailboats or kayaks. The South Carolina Court of Appeals has held that: “A waterway which only supports use by small fishing or pleasure craft does, in the appropriate case, meet the ‘valuable floatage’ test for navigability.” State v. Head, 330 S.C. 79, 90, 498 S.E.2d 389, 395 (Ct. App.1997).^[2] However, the fact that the tributary can be navigated by a small motorboat at high tides is not significant. Because of the amount of water that ebbs and flows in the South Carolina Coastal Zone during regular high and low tides, most tidal areas are navigable at high tides. Furthermore, vessels such as kayaks do not appear to meet the “valuable floatage” standard. Therefore, the Petitioners failed to establish that the tributary had the capacity for valuable floatage “at the ordinary stage of the water,” especially in light of the facts of this case.

Additionally, in the cases above, the Courts developed a policy on the significance of preserving navigation. However, the fact scenarios that gave rise to those decisions are distinguishable from this matter: in those cases the private citizens sought to completely obstruct, or eliminate, public trust lands or public waterways. The type of construction contemplated in this case is not comparable to the construction of gates, or a dam across public waterways and public trust lands. Here, because of its shallow water, the mudflat can accommodate only limited navigation by small watercraft. In fact, the Petitioners use only kayaks and sunfish sailboats in this area. In recognition of that use, the Edwards’ permit requires that the walkway be constructed at least four feet above mean high water. The four-foot height of the walkway will allow reasonable access to the type of watercraft that are capable of navigating in the area. In other words, the Petitioners failed to establish that Respondent Edwards’ dock will be placed in a manner that does not allow the current watercraft using the area to pass under the walkway. Therefore, this walkway will not impede navigation or restrict reasonable public use of the tidal mudflat.

Furthermore, as referenced above, the mere existence of a navigable waterway is not enough to satisfy the provisions of Regulation 30‑12(A)(2)(n). Rather, the regulation prohibits the crossing of a waterway with a defined channel. A defined channel is one “evidenced by a significant change in grade with the surrounding marsh.” Accordingly, the Petitioners must prove that the proposed structure crosses a creek that has a significant change in grade. In this case, the evidence simply did not show that there is a defined channel where the walkway would cross, nor did the evidence show a significant change in grade. The only evidence that was submitted by the Petitioners was their personal observations of the depths of the water. There was no expert testimony about the changes in elevation in the water body or other evidence of a defined channel in the area in question. Rather, the evidence reflects that the walkway will cross this tidal area at a point where the waterway becomes a shallow mudflat.^[3] Therefore, the evidence does not establish that the walkway will violate Regulation 30-12(A)(2)(n).

5. The Petitioners also contend that the permit should be denied because it allows structures to be built upon one piece of property in violation of Regulation 30-12(A)(2)(a). Regulation 30-12(A)(2)(a) provides: “Docks and piers shall normally be limited to one structure per parcel. . . .” 23A S.C. Code Ann. Regs. 30-12(A)(2)(a)(Supp. 2000).^[4] “A statutory provision should be given a reasonable and practical construction consistent with the purpose and policy expressed in the statute.” Hay v. South Carolina Tax Comm'n, 273 S.C. 269, 273, 255 S.E.2d 837, 840 (1979). Here, though the Respondent owns both Lots 31 and 55 on Coosaw River Road, these are clearly two distinct “parcels” of land. Furthermore, though the island is currently one parcel of land, it is separated by a critical area making it for practical purposes two separate properties. More important, the walkways from Lots 31 and 55 originate from two distinct highland properties and go to an island that is completely surrounded by critical area. A “reasonable and practical construction” of this statute is to limit the structures to one highland parcel of land, as has occurred in this case. Such a construction is in keeping with the policies set forth in S.C. Code Ann. § 48‑39‑30 (1987 & Supp. 2000). Therefore, I find that permitting walkways from both Lots 31 and 55 to Coosaw Island complies with Regulation 30-12(A)(2)(a).

6. The Petitioners assert that the walkway would reduce the value and enjoyment of their property in violation of 23A S.C. Code Ann. Regs. 30-11(B)(10) (Supp. 2000). OCRM must consider the extent to which the adjacent property owners’ value and enjoyment of their property is affected by a proposed structure. However, OCRM must balance the interests of adjacent property owners against the interests of the applicant. In this case, the Petitioners’ evidence flagrantly failed to establish that the value of their property will be diminished by the construction of the walkway, and therefore, this is not a basis for denying the permit.

7. Finally, the Petitioners argue that OCRM failed to properly apply the regulation governing access to small islands. 23A S.C. Code Ann. Regs. 30-12(N) (Supp. 2000) states:

Inappropriate development can affect the values set forth in Section 48-39-20(E) and the policies the Department is required to implement pursuant to Section 48-39-30. To prevent inappropriate access to small islands, permanent filling for access is prohibited, except for the expansion of existing causeways. Bridging will be considered based upon:

(1) Distance of bridging required;

(2) Type of bridging and dimensions of bridging requested;

(3) Configuration of shoreline;

(4) Size of the island including highland and critical area;

(5) The existence of feasible alternative access;

(6) Public need;

(7) Impacts on protected resources;

(8) The ability of the owner to tie into existing sewer utilities or meet SCDHEC standards for septic tanks;

(9) Impact upon the values set forth in Section 48-39-20(E);

(10) The island is subject to stormwater and management polices set forth in the Program Document; [and]

(11) The owner must provide a dock master plan, and a development plan. Mitigation will be required for any fill placed in the critical area for widening causeways.

Although OCRM concedes that the walkway is in effect a “bridge” to the island, it argues that this regulation does not apply to the proposed walkway because the island is not developable.^[5] Additionally, OCRM argues that even if this Division were to determine that the regulation does apply, consideration of the eleven criteria therein would not result in the denial of this permit. I agree that, under the unique facts of this case, Regulation 30-12(N) does not apply.

The purpose of Regulation 30-12(N) is to prevent the inappropriate development of small coastal islands. The eleven criteria listed above reflect this purpose. Furthermore, the regulation refers to S.C. Code Ann. § 48-39-20(E) (1987 & Supp. 2000) which declares the legislative finding that “[i]mportant ecological, cultural, natural, geological and scenic characteristics, industrial, economic and historical values in the coastal zone are being irretrievably damaged or lost by ill-planned development that threatens to destroy these values.” Edwards’ proposed walkway is for the personal use and enjoyment of his property. He is prohibited from developing this island. Because the island cannot be developed, the purpose of the Regulation to prevent ill-planned and inappropriate development is already fulfilled. Consequently, application of Regulation 30-12(N) in this case would be an exercise in futility and, therefore, I find that it does not apply. See Berkebile v. Outen, 311 S.C. 50, 426 S.E. 2d 760 (1993) (It is presumed that the legislature intended to accomplish something in enacting a statute, rather than to engage in a futile exercise.).

Furthermore, even if Regulation 30-12(N) applied to this case, the facts would not warrant denial of the permit. Regulation 30-12(N) requires OCRM to weigh the eleven listed criteria to determine whether the proposed bridging is appropriate in light of the legislative policy of encouraging “development of coastal resources ¼ with due consideration for the environment and within the framework of a coastal planning program that is designed to protect the sensitive and fragile areas from inappropriate development. . . .” S.C. Code Ann. § 48-39-30(B)(1) (1987 & Supp. 2000).

With regard to the first four criteria, the Petitioners presented no persuasive evidence to establish that the distance of the proposed bridging, when considered in light of the type and dimensions of the bridging requested, is inappropriate for the surrounding geography. Additionally, there is no evidence that the walkway will impact protected resources (criterion 7). The evidence also clearly demonstrates that factors (8), (10) and (11) are not applicable in light of the fact that the island is not developable. As for feasible alternative access (criterion 5), walking to the island is an option only at low tide and during that time the trek would have to be made through a mud flat. The only other means of access to the island is by boat. However, access by boat is inhibited by the mud flat at low tide and shallow water which prevents navigation in the area during the predominate remaining tidal cycles. Therefore, neither walking to the island nor boat access is a feasible alternative. Finally, although there is no public need for the walkway (criterion 6), this factor alone does not outweigh all the others which support the granting of the permit.

ORDER

Based upon the foregoing finding of facts and conclusions of law,

IT IS ORDERED that OCRM’s decision to issue Permit No. OCRM-01-1071 to Respondent Thomas P. Edwards is upheld.

AND IT IS SO ORDERED.

___________________________________

Ralph King Anderson, III

Administrative Law Judge

June 4, 2003

Columbia, South Carolina