SC Administrative Law Court Decisions

Gerald Mallon and Debra Keil (Petitioners) seek a contested case hearing to challenge a decision by the South Carolina Department of Health and Environmental Control, Bureau of Ocean and Coastal Resource Management (OCRM) granting a critical area permit to Harry R. Needle (Needle) for the construction of a dock on Wappoo Creek in Charleston, South Carolina.

The disagreement on the issuance of 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). After considering the evidence and law applicable to this matter, I conclude that the permit must be denied.

1. Should a permit be granted to Needle allowing the construction of a private dock extending 510' to Wappoo Creek in Charleston, South Carolina?

2. Did OCRM improperly fail to condition the permit to allow use of the dock as a joint-use or community dock?

1. Positions of Parties

Mallon and Keil argue that the permit should be denied on the grounds that building the structure is inconsistent with the regulations governing docks. More particularly, Mallon and Keil argue that the dock will improperly affect the value and enjoyment of their property (23A S.C. Code Ann. Regs. 30-11(B)(10) (Supp. 1999)), improperly crosses a navigable creek having a defined channel (Regs. 30-12(A)(2)(n) (Supp. 1999)), and improperly crosses their extended property lines, blocking their access to the water (Regs. 30-12(A)(2)(p) (Supp. 1999)).

OCRM and Needle argue that none of the regulations warrant denying the permit. Specifically, they argue that Needle's dock as permitted will not cross any creek with a significant change in grade with the surrounding marsh, and that the crossing of Mallon's and Keil's extended property lines does no material harm to the policies of the Coastal Zone Management Act. While OCRM's Director of Permitting admits that a portion of the tributary near its mouth is navigable, OCRM maintains that the tributary is not navigable at the point where the Needle dock would cross it.

2. Findings of Fact

I find by a preponderance of the evidence the following facts:

Needle owns property at 92 Chadwick Drive in Charleston, South Carolina and seeks to build a private dock to access Wappoo Creek, which is approximately 510' from Needle's property. When completed, the structure will consist of a 4' x 510' walkway leading to a 10' x 12' fixed pierhead. The downstream side of the pierhead will have a ramp leading to a 10' x 16' floating dock.

In reaching Wappoo Creek, Needle's dock would cross marsh affected by tidal inflows during mid-tide and high tide. During mid-tide and high-tide, the inflow provides a depth of water of at least two feet in a tributary of Wappoo Creek which crosses the marsh in the path of the proposed dock. At mid-tide and high-tide, pleasure boats are able to navigate in the tributary. Measurements taken by Clarence Matthews, an expert in measurement and identification of tributaries, indicate that the tributary has a fairly uniform width of ten feet throughout its length of approximately two hundred feet. Matthews' measurements also indicate depths ranging from five feet near the tributary's mouth at Wappoo Creek to two feet at its terminus, which is located a few feet beyond Needle's upstream extended property line. Notably, OCRM's employees did not take measurements of the depth of the tributary.

The evidence shows that the tributary is defined, with a significant drop in elevation from the surrounding marsh throughout its surveyed length. While a couple of isolated spots in the channel have marsh grass growing in them, the testimony establishes that there is a distinct difference between the characteristics of mud in the tributary and the marsh mud. Further, the point where the proposed dock would cross the tributary has a depth of at least two feet. ⁽¹⁾ In its past dock permitting decisions, OCRM has denied applications due to a proposed dock's crossing of channels as small as two to three feet wide and eighteen inches deep.

Aerial orthophotography of the area taken in 1967 and 1992 indicate that the tributary has been growing in length over time. From 1967 to 1992, the tributary grew twenty feet in length. Based on its present surveyed location, the tributary has grown another twenty feet in length since 1992. Gered Lennon, an expert in coastal geology, erosion and sediment transport, testified that this lengthening of the tributary will continue in the future, as long as there are no artificial interferences with that process. From his examination of the tributary and the surrounding marsh, Lennon concluded that the tributary is being scoured rather than filling in with sediment deposits. The placing of dock pilings in the tributary, however, would negatively affect the navigability of the tributary to a great extent by causing more sedimentation locally.

Mallon and Keil own property at 35 Rebellion Road, which runs perpendicular to Chadwick Drive. Their property, which is adjacent to the marsh, is not directly adjacent to Needle's property, but is located in an "L-shaped" configuration of residential properties, beginning with properties on Chadwick Drive which are upstream of Needle's property, moving downstream to Needle's property, and continuing at a ninety degree angle onto Rebellion Road. (See Petitioner's Exhibit 35). Although Mallon's and Keil's property does not directly face Wappoo Creek, as does Needle's, their property is considerably closer to the creek than Needle's property. Mallon's and Keil's neighbor to the west, Dr. Friedman, is even closer to the creek. Dr. Friedman owns the lot at the end of Rebellion Road which directly faces Wappoo Creek, and he has an existing dock that extends to the creek. (See Petitioner's Exhibit 35).

Mallon has shrimped, fished and boated in the tributary at issue in this case. The evidence indicates that Mallon is able to navigate a twenty foot boat in the tributary during mid-tide. Mallon and Keil have expressed a desire to build their own dock to the tributary in the future, although they have not yet filed any formal permit application with OCRM. Needle's dock, as permitted by OCRM, would cross Mallon's and Keil's extended property lines and block their access to the tributary. The dock would also cross the extended property lines of other owners on Rebellion Road and block their access to the tributary.

In evaluating Needle's permit application, OCRM did not consider the dock's crossing of these extended property lines to be a factor warranting denial of the permit. OCRM's reasoning was that these properties were not "waterfront" lots and therefore the owners of these properties were not entitled to build their own docks. OCRM did not consider the tributary over which Needle's dock would cross to be navigable, and therefore OCRM reasoned that there was no right of access to this tributary.

While there is no applicable regulation which defines "waterfront," OCRM labels a property as "waterfront" after it determines that a dock extending from that property within its extended property lines could reach navigable water within one thousand feet. OCRM bases this determination on two regulations governing docks: Regulation 30-12(A)(2)(l), which prohibits docks in excess of 1,000 feet in length, and Regulation 30-12(A)(2)(p), which generally prohibits docks from crossing the extended property lines of other property owners. Regulation 30-12(A)(2)(p), however, makes an exception where crossing extended property lines would not do any material harm to the policies of the Coastal Zone Management Act. OCRM employee Mark Caldwell testified that OCRM considers "material harm to the policies of the Act" to be when there is a block in access to water for "waterfront" properties, navigation of a creek is impeded, or there is significant environmental harm.

3. Conclusions of Law

Based on the foregoing Findings of Fact, I conclude the following as a matter of law:

Under the facts of this case, the issue becomes determining whether OCRM properly applied the applicable law in granting the permit.

a. Applicable 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. In fact, 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

Guidelines for evaluation of any proposed project in a critical area are provided in Regs. 30-11(B) and (C). Of the requirements listed in Reg. 30-11(C), none of the requirements are in dispute. Of the ten general considerations identified in Reg. 30-11(B), the only ones in dispute are the extent to which the activity would harmfully obstruct the natural flow of navigable water, the extent to which the development could affect existing public access to recreational coastal resources, and the extent to which the proposed use could negatively affect the value and enjoyment of adjacent owners. Mallon and Keil argue that these factors warrant denying the permit. With the exception of the extent to which the development could affect existing public access to recreational coastal resources, I agree with Mallon and Keil.

i. Natural flow of navigable water

Regs. 30-11(B)(2) explains that consideration should be given to "[t]he extent to which the activity would harmfully obstruct the natural flow of navigable water." Here, the evidence shows that the tributary to Wappoo Creek over which Needle's proposed dock would cross is navigable, that it has been growing in length over time and that it will continue to grow in length if there are no artificial interferences with that process. ⁽²⁾ The evidence also shows that dock pilings for Needle's proposed dock would negatively affect the navigability of the tributary to a great extent by causing more sedimentation locally. Therefore, I conclude that the placing of dock pilings for Needle's dock would harmfully obstruct the natural flow of the tributary and interfere with its future growth.

ii. Existing public access

Mallon and Keil argue that the dock as permitted violates Regs. 30-11(B)(5), which requires that consideration be given to "[t]he extent to which the development could affect existing public access to tidal and submerged lands, navigable waters and beaches, or other recreational coastal resources."

I disagree.

While a concern exists as to the blocking of other property owners' access to the tributary, these owners' potential access is private in nature. There is no existing access to Wappoo Creek or its tributary in this immediate area for members of the general public. Therefore, Regs. 30-11(B)(5) does not apply to this case.

iii. Value and Enjoyment of Adjacent Property Owners: Regs. 30-11(B)(10)

- Value -

Mallon and Keil argue that the Needle dock would negatively impact the value of their 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 Needle dock have on Mallon's and Keil'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 Mallon's and Keil's property. Mallon and Keil presented no evidence to support their contention that the proposed dock will reduce the value of their property. Further, their contention is not supported by sales in the market place of similar property adjacent to docks. 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 of a permit.

- Enjoyment -

Somewhat related to the value concern is the concern that the presence of the dock will impact the enjoyment experienced by Mallon and Keil. They assert that Needle's dock would improperly interfere with their view of the marsh and creek and with their activities in the tributary, as well as block their access to the tributary.

Regulation 30-11(B)(10) clearly imposes a duty to consider the enjoyment of all adjacent owners. In evaluating this factor, at least two areas of impact must be considered. First, the degree to which the permit will impact the neighbors' use of their private properties. Second, the degree to which the permit will impact the neighbors' use of the public trust property.

Here, as to the use of the private property, Mallon and Keil assert their enjoyment of their private property will be significantly impaired since Needle's dock will obstruct their view. Absent the view concern, the proposed dock will not otherwise diminish the enjoyment of the private property. For example, the presence of the dock will not interfere with daily living associated with a residential use such as outside recreational activities or the rest and quiet of home life. As to the public trust property, the objection is that the dock would diminish their enjoyment of the tributary, since the dock would interfere with their activities in the tributary and would block their access to the tributary.

I conclude that the dock's impact on Mallon's and Keil's use of their private property does not present a degree of obstruction so detrimental as to serve as a ground for denying the permit. The dock's impact on their use of the public trust property, however, presents an unacceptable obstruction that requires denial of the permit.

As to the private use, a private land owner does not acquire an easement that provides an unobstructed ocean view, breeze, light or air over adjoining property. 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). Thus, no reasonable expectation existed at the time of purchase that the then existing view would remain the view over time. Instead, especially for a view overlooking public trust property, no inherent right to a continued view exists. 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.

As to the enjoyment of the public trust property, however, the dock would obstruct navigation in the tributary and would block access to the tributary for Mallon and Keil as well as other owners on Rebellion Road. ⁽³⁾ I conclude that such an obstruction places an unreasonable restriction on the neighboring owners' use of the public trust property and thus requires denial of the permit.

c. Regulations: Docks in Particular

Even if one satisfies the general guidelines, a dock permit is still denied if the requirements of 23A S.C. Code Ann. Regs. 30-12(A) (Supp. 1999) are not met. Mallon and Keil maintain that the following requirements are not met here (1) in an attempt to reach deeper water, one cannot bridge a navigable creek having a defined channel (30-12(A)(2)(n)), and (2) the proposed dock must not improperly cross the extended property line of neighboring property owners since normally docks or pierheads should not be allowed within 20 feet of an extended property line.

i. A Navigable Creek Having A Defined Channel

- Introduction -

When a navigable creek with a defined channel is present then "[s]uch creeks cannot be bridged in order to obtain access to deeper water." 23A S.C. Code Regs. 30-12(A)(2)(n). Further, a defined channel is one that is "evidenced by a significant change in grade with the surrounding marsh." Id.

Mandatory criteria must be applied since an agency cannot disregard its own regulations. Triska v. Department of Health and Environmental Control, 292 S.C. 190, 355 S.E.2d 531 (1987). Given the regulation's mandatory language of "cannot," the issue is whether a navigable waterway with a defined channel is crossed by the proposed dock in the instant case.

- Navigability -

In making this determination, navigability is required. Navigability is not met unless the water source has the capacity for "valuable floatage." This requirement of valuable floatage is satisfied even where the only use is by pleasure boats. State ex rel. Medlock v. S.C. Coastal Council, 289 S.C. 445, 346 S.E.2d 716 (1986). Likewise, the fact that traffic cannot be sustained at all times is not controlling since navigability is met so long as accessibility is obtainable at the "ordinary stage" of the water. Hughes v. Nelson, 303 S.C. 102 399 S.E.2d 24 (Ct. App. 1990).

Here, the facts establish navigability. For instance, persuasive testimony establishes that at mid-tide to high tide, the water depth in the tributary ranges from two feet to five feet. Further, Mallon has undoubtedly navigated a twenty foot boat in the tributary, as evidenced by photographs. Accordingly, the waters in the tributary in question are navigable.

- A Defined Channel -

The mere existence of a navigable body of water is not enough to satisfy the plain provisions of 23A S.C. Code Ann. Regs. 30-12(A)(2)(n). Rather, the prohibition on construction requires the presence of a body of water with a defined channel. The regulation explains that a defined channel is one "evidenced by a significant change in grade with the surrounding marsh." Under the facts proven in this case, persuasive evidence demonstrates that the dock will cross a waterway having a defined channel.

The tributary has a fairly uniform width of ten feet throughout its length of approximately two hundred feet. It has depths ranging from five feet near its mouth at Wappoo Creek to two feet at its terminus, which is located a few feet beyond Needle's upstream extended property line. The point where Needle's proposed dock would cross the tributary has a depth of at least two feet.

Persuasive testimony establishes that the tributary is a clearly defined channel, with a significant change in elevation from the surrounding marsh throughout its surveyed length. The photographs at low-tide and mid-tide demonstrate that the tributary fills and empties with the tide and also demonstrate a significant drop in grade from the surrounding marsh. Although a couple of isolated spots in the channel have marsh grass growing in them, the expert testimony clearly establishes that this very isolated growth has no significance to the characterization of the tributary as a defined channel.

Further, aerial orthophotography of the area taken in 1967 and 1992 indicate that the tributary has been growing in length over time. From 1967 to 1992, the tributary grew twenty feet in length. Based on its present surveyed location, the tributary has grown another twenty feet in length since 1992, and it is expected to continue to grow, as long as there are no artificial interferences with that process. Therefore, the preponderance of the evidence establishes that the tributary in question is a "defined channel" as that term is used in Regs. 30-12(A)(2)(n).

ii. Extended property lines

The normal rule is that docks and their associated structures should not be allowed closer than 20 feet from extended property lines. 23A S.C. Code Ann. Regs. 30-12(A)(2)(p) (Supp. 1999). However, an exception is made where "there is no material harm to the policies of the [Coastal Zone Management] Act." ⁽⁴⁾ Under the facts of this case, I conclude that the dock's crossing of Mallon's and Keil's extended property lines, as well as the extended property lines of other owners on Rebellion Road, does material harm to the policies of the Coastal Zone Management Act.

The testimony establishes that OCRM's practice is to find material harm to the policies of the Act when there is a block in access to water for "waterfront" properties, navigation of a creek is impeded, or there is significant environmental harm. I agree with OCRM that any of these factors would constitute material harm to the policies of the Act, which are set forth in S.C. Code Ann. § 48-39-30. 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). The policies of the Act also include providing the combination of uses of critical areas which will insure the maximum benefit to the people. These policies are harmed by the crossing of extended property lines when such crossing results in the blocking of access for a property that is legally entitled to access the water.

In evaluating Needle's permit application, OCRM did not consider the dock's crossing of extended property lines to be a factor warranting denial of the permit. OCRM's reasoning was that the affected properties were not "waterfront" lots and therefore the owners of these properties were not entitled to build their own docks. Further, OCRM did not consider the tributary over which Needle's dock would cross to be navigable, and therefore OCRM reasoned that there was no right of access to this tributary.

While there is no applicable statute or regulation which defines "waterfront," OCRM labels a property as "waterfront" after it determines that a dock extending from that property within its extended property lines could reach navigable water within one thousand feet. ⁽⁵⁾ OCRM bases this determination on two regulations governing docks: Regulation 30-12(A)(2)(l), which prohibits docks in excess of 1,000 feet in length, and Regulation 30-12(A)(2)(p), which generally prohibits docks from crossing the extended property lines of other property owners.

Mallon and Keil argue that OCRM has developed an illegal test for determining whether a property is waterfront. They maintain that OCRM has developed a binding standard that has not been properly promulgated as a regulation, and therefore, OCRM has overstepped its statutory authority. While I find that OCRM improperly applied Regs. 30-12(A)(2)(p) to this case, I cannot agree that OCRM developed any new binding standards.

Although OCRM has made use of a convenient label, it has not developed any new standards independent of the existing regulations which determine a property's legal entitlement to access water. Rather, for purposes of determining whether blocking water access to a property does material harm to the policies of the Act, OCRM's determination is simply one of deciding whether that property is legally entitled to access the water. That determination is guided by the regulations governing docks, including Regs. 30-12(A)(2)(l) and (p). OCRM has merely adopted the term "waterfront" as shorthand for the concept that a property is legally entitled to access the water under the regulations governing docks. Therefore, the error in OCRM's analysis does not lie with the label it has utilized. Rather, the error in OCRM's analysis is in its incompleteness.

In evaluating whether Mallon's and Keil's property would be legally entitled to access the water, OCRM has ignored the very language of Regs. 30-12(A)(2)(p) which it uses to justify granting Needle's dock: "The Department may allow construction . . . over extended property lines where there is no material harm to the policies of the Act." Application of this language to determine whether Mallon and Keil would be entitled to access water requires consideration of all of the surrounding circumstances. Such consideration necessarily includes looking at the area as a whole.

Mallon's and Keil's property is within such close proximity to a body of water that it cannot be summarily dismissed as having no legal entitlement to access water. On the contrary, it is reasonable to assume that a dock extending from Mallon's and Keil's property to Wappoo Creek's tributary would not do material harm to the policies of the Act by crossing the extended property line of their neighbor to the west, Dr. Friedman. ⁽⁶⁾ Dr. Friedman has an existing dock which directly faces Wappoo Creek. Therefore, Dr. Friedman has existing access to Wappoo Creek which will not be blocked by a dock extending from Mallon's property to the tributary. ⁽⁷⁾ Therefore, it is more likely than not that Mallon and Keil would have legal entitlement to access the tributary, and Needle's proposed dock would do material harm to the policies of the Act by blocking that access.

On the other hand, the evidence shows that a dock extending from Mallon's and Keil's property to the tributary would not necessarily block Needle's access to that tributary. With advanced planning on the part of the permit applicants and OCRM, both parties could conceivably access the tributary.

B. Joint-Use or Community Dock

1. Positions of Parties

Mallon and Keil argue that if Needle's permit is not denied, Needle should be required to amend his permit application to convert his proposed single-use dock into a joint-use or community dock. In support of their argument, Mallon and Keil cite S.C. Code Ann. § 48-39-150(B) (Supp. 1999), which states that a permit may be conditioned upon the applicant's amending the proposal to take whatever measures the department feels are necessary to protect the public interest. They also cite S.C. Code Ann. § 48-39-30(D) (Supp. 1999), which states that critical areas shall be used to provide the combination of uses which will insure the maximum benefit to the people. Mallon and Keil maintain that OCRM's willingness to place other conditions on Needle's permit is inconsistent with its refusal to condition the permit to require the dock to be available to multiple users.

OCRM takes the position that it cannot force a permit applicant to share a dock with adjacent property owners. OCRM also maintains that a joint-use dock is not appropriate for properties that are not "waterfront" properties, although all owners in the community may use a community dock if one is authorized by OCRM.

2. Findings of Fact

After Mallon and Keil learned of Needle's permit application, they each met with OCRM employee Fred Mallet to discuss the impact of the dock. During the course of his discussion with Mallon, Mallet raised the possibility of a shared or "community" dock for Needle and adjacent property owners. Mallon was receptive to this idea. Keil met separately with Mallet and presented to him a drawing showing a proposed dock originating from Needle's property with walkways connecting to three different properties on Rebellion Road, including Mallon's and Keil's property. Mallet reacted favorably to the proposal. Upon being presented with the proposal, however, Needle declined to amend his application to convert his proposed single-use dock to a multiple-use dock.

3. Conclusions of Law

S.C. Code Ann. § 48-39-150(B) (Supp. 1999) allows OCRM to condition a permit upon the applicant's amending the proposal to take whatever measures the department feels are necessary to protect the public interest. "Public interest" is defined in OCRM's regulations as the beneficial and adverse impacts and effects of a project upon members of the general public, especially residents of South Carolina who are not the owners and/or developers of the project. 23A S.C. Code Ann. Regs. 30-1(D)(42) (Supp. 1999). Further, S.C. Code Ann. § 48-39-30(D) (Supp. 1999) provides that critical areas shall be used to provide the combination of uses which will insure the maximum benefit to the people. Mallon and Keil argue that OCRM should have required Needle to amend his dock proposal to allow for multiple users. I cannot agree.

Admittedly, the development of joint-use and community docks are favored by law. See 23A S.C. Code Ann. Regs. 30-12(A)(2)(h) (Supp. 1999) ("Developers of subdivisions . . . are encouraged to develop joint-use or community docks when their plans are in the development stage."); see also 23A S.C. Code Ann. Regs. 30-12(A)(1) (Supp. 1999) (exhibiting the need to contain dock proliferation: "Docks and piers are the most popular method of gaining access to deep water. Although they are least objectionable from an ecological point of view, docks and piers sometimes pose navigational problems, restrict public use of the water, and under certain circumstances, possess potential for creating environmental problems.").

However, conversion from a single-use dock to a multiple-use dock changes the nature and intended use of the structure to such an extent that it is neither reasonable nor suitable for OCRM to require such an amendment to a permit. The additional practical issues generated by a multiple-use dock proposal, such as consent of the affected property owners and distribution of costs, make such a proposal inappropriate as an amendment to an original application for a single-use dock.

Rather, if the surrounding circumstances indicate that a community or joint-use dock is more appropriate than a single-use dock in a certain area, due to the access needs of neighboring properties, denial of the permit for a single-use dock is appropriate. See S.C. Code Ann. § 48-39-150 (Supp. 1999) ("After considering the views of interested agencies, local governments and persons, and after evaluation of biological and economic considerations, if the department finds that the application is not contrary to the policies specified in [the Act,] it shall issue to the applicant a permit." (supporting the counter proposition that if OCRM finds that the application is contrary to the policies of the Act, it may deny the permit)). Such a denial may be followed by the granting of a new application for a multiple-use dock, provided it meets statutory and regulatory requirements.

Here, the result is a denial of the Needle permit. Thus, a new application for a multiple-use dock, not otherwise contrary to the statutes and regulations, may be considered by OCRM in the future.

The South Carolina Department of Health and Environmental Control, Bureau of Ocean and Coastal Resource Management is directed to deny the request for a single-use dock permit sought by Harry R. Needle to construct access to Wappoo Creek at 92 Chadwick Drive, Charleston, South Carolina.

AND IT IS SO ORDERED

______________________

RAY N. STEVENS

Administrative Law Judge

Dated: December 11, 2000

Columbia, South Carolina

1. Petitioners' Exhibits 30 and 31 locate the Needle dock 30' downstream of Needle's upstream extended property line. Clarence Matthews testified that he based his location of the dock on the drawing attached to Needle's permit application. OCRM, however, conditioned Needle's permit on the dock being located only 10' downstream of Needle's upstream extended property line.

2. See discussion of Regulation 30-12(A)(2)(n), which requires docks to extend to the first navigable creek with a defined channel, infra.

3. I disagree with OCRM's position that Mallon and Keil and other property owners on Rebellion Road would have no right of access. See discussion of Regulation 30-12(A)(2)(p), infra.

4. Another exception is made when common docks are shared by two adjoining property owners. This exception does not apply to this case.

5. A dictionary definition of "waterfront" is land abutting a body of water. American Heritage College Dictionary 1524 (3rd ed. 1993). To "abut" means to touch at one end or side of something; lie adjacent; to border upon; be next to. American Heritage College Dictionary 6 (3rd ed. 1993). Under this definition, even Needle's property would not be considered "waterfront," since it merely abuts the marsh and not a "body of water."

6. The evidence shows that a dock extending from Mallon's and Keil's property would have to cross the extended property line of their neighbor to the west to reach Wappoo Creek's tributary.

7. A dock extending from Mallon's and Keil's property would not reach Wappoo Creek without either crossing the tributary, which this tribunal has found to be navigable, or running into the small island to the northwest of the tributary.