ORDERS:
FINAL ORDER AND DECISION
I. Introduction
Jeffrey McCall (McCall) holds a permit to construct a walkway, pier, and floating dock on the Atlantic Intracoastal Waterway at Lot
5, Block G, Waterway Boulevard, Isle of Palms, Charleston County. McCall now seeks to amend the permit to enlarge the pierhead,
add a roof to the pier, and install a boat lift. The South Carolina Department of Health and Environmental Control, Office of Ocean
and Coastal Resource Management (OCRM) granted the amendment. Patricia and Herbert Stevenson (Stevenson) challenged
OCRM's decision and have now presented this contested case. Jurisdiction to decide this controversy is in the Administrative Law
Judge Division under S.C. Code Ann. §§ 48-39-150 (Supp.1999), 1-23-310 et seq. (Supp.1986 and 1999).
After considering the evidence and applicable law, I conclude the amendments to the permit must be granted.
II. Issue
Should an amendment to an existing permit be granted to McCall to allow him to enlarge the permitted fixed pierhead from a 10' x 20'
structure to a 16' x 20' structure, add a roof to the pierhead, and add a four-pile boatlift?
III. Analysis
Amendment to Permit
1. Positions of Parties
The Stevensons' objection is that the amendment will increase the size of the overall structure (increased pierhead, addition of roof,
and boat lift) to such an extent that the Stevensons' view of the marsh and waterway will be improperly impacted. In opposition,
McCall and OCRM argue that the impact on view is minimal and that the size of the structure as well as the addition of the roof is
consistent with existing structures in the area.
2. Findings of Fact
I find by a preponderance of the evidence the following facts:
On April 13, 2000, OCRM issued to McCall an amendment to permit number 96-1E-309-P. The amendment allows McCall to
increase the size of the permitted fixed pierhead from 10' x 20' to 16' x 20', to install a four-pile boat lift on the left side of the pierhead,
and to add a roof to the pierhead. In all events, the permit requires that the structure be built parallel to the adjacent property owners'
dock. The requirement to be parallel is in conformity with an April 1, 1997 consent order which ended an earlier dispute on the
original permit when that permit was held by a previous property owner.
When constructed, McCall's pier and floating dock will be reached by a walkway of 700 feet from the high ground property owned by
McCall. At that point the waterway is between 300 to 350 feet wide. When McCall increases the pierhead by 6', the increase will
lengthen the pier further into the waterway. In other words, none of the 6' increase will increase the size of the structure when
measured on the shore side between the extended property lines. In fact, without counting the distance occupied by the four piles
constituting the boat lift, the amendment will decrease the actual "wood-to-wood" measurements of McCall's structure from 55' to
51'.
The size and roof amendments are not inconsistent with other configurations along the waterway. For example, the size of the
extended pierhead is comparable to others along the waterway since in the general area it is not uncommon to find fixed pierheads
having dimensions of 20' x 20'. Likewise, it is not uncommon to find fixed pierheads in the general area with roofs. Rather,
photographs and testimony confirmed several roofs in the general area so that the amendment is not inconsistent with other nearby
covered pierheads.
A boat lift is also a common feature along the waterway. The Intracoastal Water Way carries a significant amount of recreational and
commercial boat traffic and that traffic produces a potentially destructive wake. To prevent damage to boats moored at docks for any
length of time, a boat lift is required. Numerous docks in this area have such lifts.
The authorized revisions will not significantly impair the Stevensons' ability to view the marsh and waterway. The distance from the
dock to the high ground is 700'. While a roof over the pier will have some impact on view that impact is lessened by the distance from
the land to the pierhead.
3. Conclusions of Law
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. Application of Law to Facts
Guidelines for evaluation of any proposed project in a critical area are provided in Regs. 30-11(B) and (C) and Regs. 30-12. Of the ten
general considerations identified in Reg. 30-11(B), the only one in dispute is Reg. 30-11(B)(10), the extent to which the proposed use
could negatively affect the value and enjoyment of adjacent owners. None of the requirements listed in Reg. 30-11(C) are disputed,
but Regs. 30-12(A)(2)(r) is disputed since the Stevensons assert a roof should not be allowed on the fixed pierhead. OCRM and
McCall argue that neither Reg. 30-11(B)(10) nor Regs. 30-12(A)(2)(r) warrant denying the permit. I agree with OCRM and McCall.
i. Impact on View
OCRM and McCall argue that the joint-use dock will not unduly impact the Stevensons' view and their corresponding enjoyment of
the marsh and water way. Under the facts of this case, I agree.
While the regulations clearly impose a duty to consider the enjoyment of all adjacent owners, that duty requires balancing the
competing concerns of those owners in a fair and reasonable manner. Regs. 30-11(B)(10). In calculating that balance, 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.
In considering both the impact on the neighbors' use of their private properties as well as the neighbors' use of the public trust
property, a relevant consideration is the South Carolina law on restrictions to existing views. In this State, 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 can exist at the time of purchase that the then existing view will remain unchanged 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.
Accordingly, while the Stevensons have every right to maximize their view of the public trust property, a limited impairment of that
view as established in this case is not a sufficient basis for denying the amendment. For instance, the roof on the pierhead will be 700
feet from the shore. Such a distance serves to minimize the impact on the view window available to Stevenson. Further, the
amendment actually reduces the length of the shore side of McCall's proposed structure from 55' to 51'. While a boat lift is being
added, the four-pile construction of that structure has only a limited impairment on view. Accordingly, the impact on view is an
insufficient basis for denying the amendment.
ii. Roof on Pierhead
Additionally, the Stevensons argue the roof is improper. I cannot agree.
The controlling regulation is Regs. 30-12(A)(2)(r) (Supp. 1999). That regulation explains that roofs on private docks will be
permitted on a case-by-case basis, but that precedent in the vicinity for similar structures will be considered along with the potential for
impacting the view of others. In this case, the evidence confirms other roofed structures in the area. Further, the impact on view is
not a significant factor. Accordingly, the amendment allowing a roof in the vicinity is a proper amendment.
IV. Order
OCRM is ordered to grant McCall's request to amend his permit to construct a walkway, pier, and floating dock on the Atlantic
Intracoastal Waterway at Lot 5, Block G, Waterway Boulevard, Isle of Palms, Charleston County so as to allow McCall to enlarge the
pierhead from a 10' x 20' structure to a 16' x 20' structure, add a roof to the pierhead, and add a four-pile boatlift. All such changes
must be consistent with the requirements of the consent order dated April 1, 1997.
AND IT IS SO ORDERED
______________________
RAY N. STEVENS
Administrative Law Judge
Dated: August 7, 2000
Columbia, South Carolina |
