ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
In the above-captioned matter, Petitioner Heron Point Villas HPR (Heron Point) challenges
the terms of a permit issued by Respondent South Carolina Department of Health and Environmental
Control, Office of Ocean and Coastal Resource Management (OCRM or Department) to Respondent
John Chapin (Chapin) for the construction of a joint-use recreational dock on Horseshoe Creek at
1737 Live Oak Park, Seabrook Island, in Charleston County, South Carolina. The proposed dock
will be located on a parcel of property that contains three town homes, known collectively as the
Fiddler Cove Villas, and is intended to serve and be used by the three owners of the town homes.
Petitioner Heron Point Villas, a neighboring property owner, timely filed a request for a contested
case hearing to challenge the permit on the ground that the permit, as issued, violates the standards
set forth in OCRM’s dock permitting regulations.
After timely notice to the parties, a hearing of this matter was held at the Administrative Law
Judge Division in Columbia, South Carolina, on May 28, 2003. Based upon the evidence presented
at the hearing and upon the applicable law, I find that OCRM’s decision to issue the permit in
question to Respondent John Chapin must be sustained and the permit upheld.
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.On July 30, 2002, Respondent John Chapin filed an application with OCRM for a
permit to construct a joint-use recreational dock on Horseshoe Creek at 1737 Live Oak Park,
Seabrook Island, in Charleston County, South Carolina. This parcel, TMS #149-01-00-250, contains
three town homes, including one owned by Chapin. The proposed dock is a joint-use dock that is
intended for the private use and enjoyment of the owners of the three town homes on the property.
2.The dock, as proposed, consists of a 4' by 210' walkway with handrails to an 8' by 20'
fixed pierhead with handrails and cantilevered benches. Two low-profile 8' by 8' boat lifts will be
constructed, one on either side of the fixed pierhead, with two piles located eight feet from the
pierhead for each boat lift.
3.On October 11, 2002, OCRM issued Permit Number OCRM-02-375-C to Chapin for
the construction of the proposed dock. In addition to standard conditions regarding the disturbance
of shellfish and the discovery of archaeological or paleontological remains, the Department imposed
three special conditions on the permit regarding the construction and use of the proposed dock.
Specifically, OCRM permitted the construction of the dock as designed, 1. Provided that no part of the dock may extend more than 1/4 the width of the creek
as measured from marsh vegetation, including the boat lifts and eventual boats[,]
2. Provided the handrails are limited [to] 36" in height or to what is minimally
required for safety[, and]
3. Provided the walkway and pierhead are constructed a minimum of 3' above mean
high water.
(Resp’t OCRM Ex. #5, at 1-2.)
4.Horseshoe Creek is a tributary of Bohicket Creek, which in turn flows into the Edisto
River. At the point at which the proposed dock reaches the creek, Horseshoe Creek is approximately
forty feet wide, when measured from marsh grass to marsh grass. There is no high ground within
1000 feet of the bank of Horseshoe Creek opposite the site of the proposed dock.
5.Petitioner Heron Point received notice of the issuance of the permit on November 11,
2002, and timely filed a request for a contested case to challenge the permit on November 25, 2002.
6.In its challenge, Petitioner contends that the permit, as issued, violates the provisions
of 23A S.C. Code Ann. Regs. 30-12(A)(2)(q)(ii) (Supp. 2002), in that the fixed pierhead of the
permitted dock exceeds the 120-square-foot size limitation applicable for docks in creeks of this size,
and 23A S.C. Code Ann. Regs. 30-12(A)(2)(s)(i), in that the permit allows for two boat lifts on the
proposed dock, despite the general rule limiting single-family docking facilities to one boat lift per
structure.
7.The Department, on the other hand, contends that it has properly exercised the
discretion afforded it by the plain language of Regulation 30-12(A)(2)(q)(ii) to permit docks in excess
of the 120-square-foot limitation where warranted by the circumstances and that it has properly
permitted a joint-use dock for two boat lifts, as the limitation on boat lifts found in Regulation 30-12(A)(2)(s)(i) only applies to single-family docking facilities.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
This tribunal has jurisdiction over this matter pursuant to S.C. Code Ann. § 48-39-150 (Supp.
2002) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2002). Under S.C. Code Ann. § 48-39-50(G) and (V) (Supp. 2002), the South Carolina Department of Health and Environmental
Control, through OCRM, is charged with reviewing and either approving or denying applications for
permits for proposed activities within the coastal zone. In order to carry out this responsibility, the
Department has promulgated regulations governing the evaluation of permit applications for dock
construction and other activities in the coastal zone and the critical areas.
See 23A S.C. Code Ann.
Regs. 30-1 to 30-17 (Supp. 2002).
For dock permits in the critical areas, two particular regulations are pertinent: the general
guidelines applicable to all critical area permits, 23A S.C. Code Ann. Regs. 30-11 (Supp. 2002), and
the specific regulations governing permits for dock construction, 23A S.C. Code Ann. Regs. 30-12(A) (Supp. 2002). Because Respondent’s proposed dock is to be located in the critical area,
these
regulatory provisions are applicable to the permit under consideration.
In the case at hand, Petitioner, as the party affirmatively asserting OCRM’s error in granting
the requested permit, 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 the dock as permitted does not comply with
the relevant statutory and regulatory criteria governing activities in the critical areas. 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).
The specific statutory and regulatory criteria at issue in the instant case are the dock size
limitations found at 23A S.C. Code Ann. Regs. 30-12(A)(2)(q) (Supp. 2002) and the boat lift
permitting standards found at 23A S.C. Code Ann. Regs. 30-12(A)(2)(s) (Supp. 2002). This order
will address each issue in turn.
Size of the Proposed Dock
Regulation 30-12(A)(2)(q) sets forth a series of permitting standards for the size and use of
pierheads and floating docks based upon the size of the creek in which a dock is to be located. These
size limitations do not include the square footage of walkways to or ramps on the proposed docks.
Id. In the case at hand, Horseshoe Creek is approximately forty feet wide, as measured from marsh
grass to marsh grass, at the point at which Respondent Chapin’s dock is to access the creek.
Therefore, the applicable regulatory standard is as follows:
Creeks between 20 and 50 feet, as measured from marsh vegetation on both sides,
shall be restricted to fixed pierhead and floating dock combinations up to 120 square
feet unless special geographic circumstances and land uses warrant a larger structure.
23A S.C. Code Ann. Regs. 30-12(A)(2)(q)(ii) (Supp. 2002) (emphasis added).
Here, Petitioner argues that, as the dock in question is permitted for a 160-square-foot (8' by
20') fixed pierhead in a 40-foot-wide creek, the dock permit violates Regulation 30-12(A)(2)(q)(ii)
and should be rejected. In raising this issue, Petitioner made no allegations and presented no evidence
to suggest how the additional square footage permitted for the dock would adversely affect its
interests. Rather, Petitioner’s objection to the size of the dock depends solely upon the terms of the
regulatory provision in the abstract. In response to Petitioner’s objection, OCRM maintains that the
plain language of Regulation 30-12(A)(2)(q)(ii) grants it discretion to exceed the 120-square-foot
limitation where special geographic circumstances and land uses warrant such a finding. For the
instant permit, OCRM determined that, because the geography of the area in question prevents docks
from being constructed to Horseshoe Creek on the side of the creek opposite the proposed dock and
because the property served by the proposed dock contains three town homes, each of which will
have access to the dock, special geographic circumstances and land uses at the location warranted
permitting the dock with forty square feet in excess of the regulatory guideline.
The plain language of Regulation 30-12(A)(2)(q)(ii) affords OCRM the discretion to exceed
the size guidelines contained therein where warranted by special circumstances. In the case at hand,
OCRM has not abused its discretion under that regulation by permitting the dock in question for a
160-square-foot fixed pierhead.
An agency abuses its discretion when it makes a decision that is controlled by an error of law
or that is without evidentiary support. See Ledford v. Penn. Life Ins. Co., 267 S.C. 671, 675, 230
S.E.2d 900, 902 (1976); Fontaine v. Peitz, 291 S.C. 536, 538, 354 S.E.2d 565, 566 (1987). In
permitting Respondent’s dock with forty square feet in excess of the regulatory guideline, OCRM
properly applied the provisions of the relevant regulation and had adequate evidentiary support for
its decision. The geography of the proposed dock location is such that the increased square footage
of the dock will not impede navigation in Horseshoe Creek, as no docks can extend to the creek from
the side opposite Respondent’s dock. Moreover, to further protect the navigability of Horseshoe
Creek, OCRM imposed a special condition upon the dock permit providing that, even with the
additional square footage, no part of the dock, including its boat lifts and attached boats, may extend
more than one-quarter of the width of the creek. Further, the property served by the proposed dock
is occupied by three town homes, rather than a single residence, and the proposed dock will be used
by the occupants of all three homes, rather than by a single family. It is reasonable to conclude that
the normal square footage of a single-family dock would have to be increased to adequately serve
three families. Therefore, given the geography of the area surrounding the dock and the use to which
the land served by the dock has been put, OCRM was well within its discretion under Regulation 30-12(A)(2)(q)(ii) when it permitted the proposed dock with a fixed pierhead of 160 square feet.
Number of Boat Lifts
Regulation 30-12(A)(2)(s) establishes the standards for permitting boat lifts and davit systems
on docks. The basic guideline for these boat lifts and davits is that “[b]oat lifts or davit systems are
allowed, provided the entire docking system is limited to the minimum structure size needed to
accomplish the intended use.” 23A S.C. Code Ann. Regs. 30-12(A)(2)(s) (Supp. 2002). This
regulation also sets out three specific standards regarding the construction and use of boat lifts and
davit systems on docks, including the provision at issue in this case, which states that “[s]ingle family
docking facilities will normally be limited to one lift per structure.” 23A S.C. Code Ann. Regs. 30-12(A)(2)(s)(i). Petitioner contends that OCRM violated this one family/one boat lift provision by
permitting two boat lifts for the dock in question, when the dock permit was issued in the name of
a single individual, John Chapin. The Department argues that this provision is simply inapplicable to
the permit at issue, as the dock is specifically permitted for the use of three property owners, not a
single family.
Petitioner’s argument must fail. Regulation 30-12(A)(2)(s)(i) clearly only applies to “single
family docking facilities.” Here, while the dock permit was issued with John Chapin listed as the sole
permittee, the “Description of the Project” in the permit states explicitly that “[t]he purpose of the
described activity is for the private, recreational use of the three lot owners.” (Resp’t OCRM Ex. #5,
at 1) (emphasis added). In addition, the corrected Public Notice for the dock permit noted that “the
dock is intended to be a shared dock for the three owners” (Resp’t OCRM Ex. #3), and the
Department evaluated the permit application as an application for a “joint use dock.” (Resp’t OCRM
Ex. #4, at 1.) In short, the proposed dock has been noticed, evaluated, and permitted as a joint-use
dock for the three town homes at the location. As such, the proposed dock is not a “single family
docking facility” that is normally limited to one boat lift under Regulation 30-12(A)(2)(s)(i). Rather,
the permitting of boat lifts on Respondent’s proposed dock is governed by the general provisions of
Regulation 30-12(A)(2)(s), which broadly allow for boat lifts so long as they are limited to the
“minimum structure size needed to accomplish the intended use.”
Here, the two low-profile boat
lifts permitted for the proposed dock are of the minimum structure size necessary to accomplish their
intended use and otherwise fall within the applicable regulations. Accordingly, OCRM’s decision to
allow for two boat lifts on Respondent’s proposed dock was proper under the regulations.
In conclusion, OCRM acted well within its discretion under the applicable regulations in
granting Respondent Chapin the requested permit for a dock with a 160-square-foot fixed pierhead
and two boat lifts, and Petitioner’s challenge to that permit must, therefore, fail.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated above,
IT IS HEREBY ORDERED that OCRM’s decision to issue Permit Number OCRM-02-375-C to Respondent John Chapin on October 11, 2002 is SUSTAINED.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
June 10, 2003
Columbia, South Carolina |
