ORDERS:
FINAL ORDER AND DECISION
I. Introduction
In this contested case James A. Caulder, Jr. (Caulder) challenges a request by Sam Phlegar (Phlegar) for a permit to
construct a private dock and bulkhead on Molasses Creek at Lot 66, Calico Retreat in the Molasses Creek Subdivision in
Mt. Pleasant, South Carolina. The Department of Health and Environmental Control, Office of Ocean and Coastal Resource
Management (OCRM) granted the permit.
Caulder's opposition to the permit places contested case jurisdiction in the Administrative Law Judge Division under S.C.
Code Ann. § 48-39-150 (Supp.1999) and §§ 1-23-310 et seq. (Rev. 1987 & Supp. 1999). Considering the facts established
and the arguments made, the permit must be granted.
II. Issue
Should a permit be granted allowing Phlegar to construct a private dock consisting of a bulkhead, a walkway, a single pile
boat-lift, and a fixed pierhead on Molasses Creek in Mt. Pleasant, South Carolina?
III. Analysis
1. Positions of Parties
Caulder does not seek to have the permit denied. Rather, he seeks to have the permit adjusted in certain particulars.
Specifically, Caulder raises two points. First, the permit should be amended to site the dock within the extended property
lines of Lot 66, Phlegar's lot, rather than having the dock cross the extended property line of Lot 67, Caulder's lot. Caulder
argues that crossing extended property lines is inconsistent with OCRM's regulations and will also impair his view of the
marsh and creek. (1) Second, Caulder argues the permit allows a single pile boatlift, but does not indicate where the single pile
should be located. Caulder argues the boatlift should be sited to the Lot 66 side of the pierhead.
OCRM and Phlegar disagree with Caulder and argue the permit is proper as issued. Both assert that crossing extended
property lines is not prohibited, and further, both argue the pile for the boat lift is best configured on the lot 67 side of the
pier.
2. Findings of Fact
I find by a preponderance of the evidence the following facts:
a. General Background Facts
In general, the Mount Pleasant, South Carolina area here under review is a section of Molasses Creek containing at least 14
docks within a distance of 1100 feet. The precise area under review consists of Lots 67 and 66 in Molasses Creek
Subdivision. Phlegar, the owner of Lot 66, filed an application requesting a permit to construct a bulkhead and a private
dock terminating at Molasses Creek.
The requested bulkhead is to be approximately 225 feet in length and will aid in reducing erosion along an already eroding
shoreline adjacent to Molasses Creek at Lot 66, Calico Retreat, Molasses Creek Subdivision. The dock requested is that of
an angling walkway 4 feet wide by 269 feet long leading to a fixed pierhead 5 feet wide and 10 feet long on Molasses Creek.
The walkway will cross the extended property line of Lot 67.
After notice to the public and review by OCRM, the permit was issued, but with amendments. However, notwithstanding the
amendments, the configuration permitted by OCRM still allowed the crossing of Caulder's extended property line.
b. Crossing of Extended Property Lines
The area under review in this dispute is no stranger to docks that cross extended property lines. In fact, the immediate area
has at least three docks which already cross extended property lines.
Consistent with other dock permits, Phlegar's application sought the crossing of an extended property line, i.e., that of Lot
67. Under the initial application, the walkway was to originate on Lot 66 at a point approximately 45 feet from the property
line of Lot 67. From the origin on Lot 66, the walkway was to travel a distance of approximately 54 feet before angling
north for a distance of 215 feet where the dock would terminate at Molasses Creek. Over that course, the walkway would
cross the extended property line of Lot 67 approximately 60 feet from the waterfront side of Lot 67.
The original request, however, was modified when OCRM issued the permit. Under the permit as issued, the walkway must
originate on Lot 66 at a distance of 30 feet from the property line of Lot 67. Further, the walkway is required to run parallel
to the extended property line of Lot 67 for 100 feet and then turn north and run for a distance of 220 feet to access Molasses
Creek. Under this configuration, the walkway crosses the extended property line of Lot 67 approximately 140 feet from the
waterfront side of Lot 67.
Finally, using the configuration permitted by OCRM, Phlegar's dock will not block access to water for other waterfront
properties, will not impede navigation in the creek, and will not create any environmental harm. On the contrary, siting
Phlegar's dock in a manner that does not cross the extended property line of Lot 67 creates problems for other lot owners.
For example, Caulder's proposed alignment of siting the walkway along a line parallel to the entire extended property line of
Lot 67 prohibits two other lots in the area from gaining access to water.
c. Impairment of View and Loss of Value
Caulder does not seek to deny Phlegar access to the water. Rather, Caulder seeks to allow Phlegar access to the water but
in a fashion that keeps the dock out of Caulder's line of vision from his home. Caulder has occupied his home situated on
Lot 67 since 1987. That home is configured to provide a view of both the marsh and Molasses Creek. However, over time,
other homeowners have entered the area and have constructed docks attached to their properties. Currently, from Caulder's
home, three docks are visible to the left and four more docks are visible to the right.
Even though numerous docks have been constructed, properties continue being sold in the area. No sales data demonstrate
that any loss of value to existing homes has resulted from the presence of an increased number of docks.
d. Location of Boat Lift
With the increased number of docks have come boat lifts. In this case, the initial application asked for a 14 feet by 26 feet,
four pile boat lift on the "left side of the fixed pierhead." However, the four pile boat lift was deleted by OCRM and a single
pile boat lift granted instead. The proper location of the boat lift is a disputed item.
A significant concern for positioning the boat lift is navigation and safety. In this case a navigation hazard in the form of an
ox-bow exists in Molasses Creek. The ox-bow is near Lot 66. The greater the distance away from the ox-bow, the lesser
the difficulty in navigation. Accordingly, docking a boat is less difficult and safer if the boat lift is located on the Lot 67 side
of the pier.
While safety is a concern, the impact on view is also a concern. OCRM's amendment to the permit requires that a single pile
be used instead of the four piles originally requested. Thus, the reduction in the configuration of the lift lessens the impact
on Caulder's view.
3. Conclusions of Law
a. General Law
OCRM is charged with administering the State's coastal zone policies and issuing permits in coastal zone areas. S.C. Code
Ann. §§ 1-30-45(B), 48-39-35, and 48-39-50(C). To assist in accomplishing its task, the General Assembly has authorized
OCRM to promulgate regulations governing the management, development, and protection of the coastal zone areas of the
state. S.C. Code Ann. § 48-39-50(E) (Supp. 1999). Pursuant to that authority, OCRM promulgated regulations governing
permits for docks. For docks, two specific regulations are pertinent: the general guidelines applicable to all permits in critical
areas, 23A S.C. Code Ann. Regs. 30-11 (Supp. 1999) and the specific regulations governing docks, 23A S.C. Code Ann.
Regs. 30-12(A) (Supp. 1999). Here, the structure is to be built in a "critical area" as that term is defined in S.C. Code Ann.
§ 48-39-10 (J) (Supp. 1999), 23A S.C. Code Ann. Regs. 30-1(C)(4) and (12) (Supp. 1999) and Regs. 30-10(A) (Supp.
1999). Accordingly, OCRM's regulatory provisions apply.
b. Regulations: General Guidelines For All Critical Areas
General guidelines for evaluation of any proposed project in a critical area are provided in Regs. 30-11(B) and (C). While in
the instant matter, none of the requirements listed in Reg. 30-11(C) are in dispute; one of the ten general considerations
identified in Reg. 30-11(B) is disputed, i.e., the extent to which the proposed use could negatively affect the value and
enjoyment of adjacent owners.
i. Value
Caulder argues that the Phlegar dock will negatively impact the value of his property. Based on the evidence presented in
this case, I cannot agree.
Valuing real property creates a factual determination. Cf. Andrews Bearing Corp. v. Brady, 261 S.C. 533, 201 S.E.2d 241
(1973) (where the court explained that no factual issue was presented since there was "no question of valuation being in
issue."). Thus, the issue is one of fact and is that of deciding what impact on value will the placement of the Phlegar dock
have on Caulder's property.
In the instant case, the preponderance of the evidence does not support a conclusion that the proposed dock will have a
negative impact upon the value of Caulder's property. On the whole, no persuasive evidence supports the contention that
the proposed dock will reduce the value of Caulder's property. For example, no sales of similar property adjacent to docks
were presented in an effort to show such docks diminish the value of a neighboring lot. In the absence of convincing
evidence, an assertion that a loss of value will result from being able to view the dock of a neighboring property owner
cannot serve as a ground for denial or modification of a permit.
ii. Enjoyment
Somewhat related to the value concern is the concern that the presence of the dock will impact the enjoyment experienced by
Caulder. The argument is that Phlegar's dock will improperly interfere with Caulder's view of the marsh and creek.
Certainly, regulation 30-11(B)(10) imposes a duty to consider the enjoyment of all adjacent owners. Here, Caulder argues
Phlegar's dock should be given a different alignment since the permitted alignment will obstruct Caulder's view of the marsh
and creek. I cannot agree that such a position is a basis for changing the alignment.
First, to agree with Caulder would be tantamount to concluding that when a private land owner acquires property, that land
owner also acquires an easement to an unobstructed view across neighboring property. Such is simply not the law in South
Carolina. See Hill v. The Beach Co. et al., 279 S.C. 313, 306 S.E.2d 604 (1983); Schroeder v. O'Neill, 179 S.C. 310, 184
S.E. 679 (1936). Accordingly, no reasonable expectation existed at the time of Caulder's purchase that the then existing
view would remain the view over time. In fact, the view has not remained constant in that Caulder's view is not
uninterrupted. Currently, at least seven docks are visible from Caulder's property.
Second, since the State owns the property below the high water mark, with such property held in public trust for the State's
use, recreation, and preservation by and for all people in South Carolina, the view Caulder seeks to maintain is a view over
public trust property. State v. Hardee, 259 S.C. 535, 193 S.E.2d 497 (1972); Hobonny Club, Inc. vs. McEachern, 272
S.C. 392, 252 S.E.2d 133 (1979). Under such circumstances, no inherent right exists to assure that a view on one date will
continue to a future date. Rather, OCRM, the agency charged with overseeing the State's coastal public trust property, must
balance all of the legitimate uses of the public trust property. Therefore, obstruction of view, by itself, is not a sufficient basis
for denying a dock which seeks access to the public trust property. Further, when presented with the competing concern of
avoiding blockages of water access for other neighboring properties, obstruction of view is not a sufficient basis for
modifying a dock permit.
c. Regulations: Specific Guidelines for Docks
Even if one satisfies the general guidelines, a dock permit may still be denied if the requirements of 23A S.C. Code Ann.
Regs. 30-12(A) (Supp. 1999) are not met. Here, Caulder maintains that the proposed dock will improperly cross his
extended property line since normally docks or pierheads should not be allowed within 20 feet of an extended property line.
Regs. 30-12(A)(2)(p) (Supp. 1999).
While it is true that the "normal rule" is that docks and their associated structures should not be allowed closer than 20 feet
from extended property lines, an exception is made where "there is no material harm to the policies of the [Coastal Zone
Management] Act." (2) Regs. 30-12(A)(2)(p) (Supp. 1999). Under the facts of this case, I conclude that the dock's crossing
of Caulder's extended property line does no material harm to the policies of the Act.
The basic state policy in the implementation of the Act is to protect the quality of the coastal environment and to promote
the economic and social improvement of the coastal zone and of all the people of the State. S.C. Code Ann. § 48-39-30(A)
(Supp. 1999). In addition, the policies of the Act also include providing the combination of uses of critical areas which will
insure the maximum benefit to the people. S.C. Code Ann. § 48-39-30(D) (Supp. 1999) While these policies are stated in
general terms, obvious circumstances may present material harm to the policies of the Act. For example, crossing extended
property lines that will block access to water for other waterfront properties, will impede navigation in a creek, or will create
a significant environmental harm.
Here, no persuasive evidence establishes any factors presenting "material harm to the policies of the Act." For example, crossing an extended property line will have no impact upon navigation and will not create any environmental harm. Further, no property eligible for a dock will have access to the water blocked by Phlegar's dock. On the other hand,
Caulder's proposed alignment of siting the walkway along a line parallel to the entire extended property line would prohibit
two other lots in the area from gaining access to water. In short, no basis exists in this case for finding that crossing an
extended property line creates a material harm to the policies of the Act.
d. Location of Boat Lift
Boat lifts are allowed as a part of a dock permit. Regs. 30-12(A)(2)(s). In this case, the only dispute as to the boat lift is
whether the lift should be positioned on the Lot 66 side of the pier or on the Lot 67 side of the pier. Caulder suggests the
Lot 66 side is more appropriate since such a siting would be less intrusive of his view of the marsh and creek. Phlegar, on
the other hand, seeks a siting on the Lot 67 side of the pier since navigation is less hazardous from the Lot 67 side. I find the
boat lift is best sited on the Lot 67 side of the pier.
The evidence establishes that an ox-bow in Molasses Creek is closer to the Lot 66 side of the pier than to the Lot 67 side of
the pier and that the ox-bow presents a navigation hazard. Thus, navigation for docking is made less difficult by placing the
boat lift on the Lot 67 side.
Further, the chief objection to the boat lift's location is the impairment of view. However, that view impact has been
minimized by OCRM's amendment to the permit requiring a single pile instead of the four piles originally requested. Given
the reduction in the number of piles and given the greater degree of safety in navigability, the better location for the lift is the
Lot 67 side of the pier.
IV. Order
The permit with the requirements of Attachment A as issued by OCRM to Phlegar is a properly issued permit and Phlegar
shall construct his dock consistent with that permit.
AND IT IS SO ORDERED
______________________
RAY N. STEVENS
Administrative Law Judge
Dated: January 5, 2000
Columbia, South Carolina
1. Caulder also argues in the alternative that if the dock is allowed to cross extended property lines, the configuration of the
walkway must conform to the amended permit. Caulder argues the permit inaccurately describes the walkway as "a 4' by
269' angling walkway leading to a 5' by 10' fixed pierhead." He submits that an "Attachment A" to the permit amends the
dimensions and requires that the first 100 feet of the walkway must parallel Caulder's extended property line from a distance
of at least 30 feet from that extended property line. After the 100 foot mark, the walkway will angle to the north leaving
220 feet of walkway to reach Molasses Creek. I find that Caulder's alternative position is correct and, indeed, is virtually
undisputed.
Caulder is unquestionably correct on the configuration of the walkway. The permit issued by OCRM specifically conditions
the dock to being constructed "in accordance with Attachment A." Attachment A to the permit plainly provides a walkway
consistent with Caulder's measurements. Moreover, at the hearing neither OCRM nor Phlegar challenged such a position.
Thus, the walkway configuration is not further addressed in this Order since the configuration is controlled by Attachment A
to the permit.
2. Another exception is made when common docks are shared by two adjoining property owners. This exception does not
apply to this case. |