ORDERS:
FINAL ORDER AND DECISION
Burt Karmiel (Petitioner or Karmiel) seeks 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) denying a requested amendment to a critical area permit for the construction of a
private dock on the Isle of Palms, South Carolina. James and Susan Ballenger oppose this amendment
and were allowed to intervene in these proceedings. The disagreement on the denial of the requested
amendment vests contested case jurisdiction in the Administrative Law Judge Division under S.C. Code
Ann. § 48-39-150 (Supp. 2000) and S.C. Code Ann. § 1-23-310 et seq. (1987 & Supp. 2000). After
notice to all parties, a hearing was conducted on January 17, 2001 at the ALJD in Columbia, South
Carolina.
PROCEDURAL BACKGROUND
Karmiel owns property at 23 Seagrass Lane on the Isle of Palms. The Ballengers own the adjacent
property at 24 Seagrass Lane. The marsh in front of lots 23 and 24 has two tidal tributaries that connect
to Cedar Creek. During the hearing, the parties referred to these tributaries as Karmiel Creek and
Ballenger Creek. Karmiel Creek terminates within Karmiel's extended property lines. Ballenger Creek
terminates within the Ballengers' extended property lines.
1. The First Application
In the spring of 1998, Karmiel sought a permit to construct a dock at 23 Seagrass Lane. Karmiel sought
to build a walkway which extended 400 feet from his property to Ballenger Creek. The walkway was to
begin on the highland 20 feet from the extended property line of lot 24 and extend out 100 feet into the
marsh. The walkway would then turn at an angle toward 24 Seagrass Lane and extend approximately
another 300 feet to a fixed pierhead. Approximately 260 feet of the angled walkway would be across
the extended property line of lot 24. In response to public notice by OCRM which advertised this
proposal, the Ballengers filed a written objection to the dock contending the structure would cross the
extended property line and diminish the value oftheir property. The Ballengers had not finished
constructing their home.
Curtis Joyner was the project manager assigned to review the application. Joyner consulted an aerial
photograph and noted a water body within Karmiel's extended property lines. The water body was
approximately 750 feet from Karmiel's property. To determine whether the water body was a navigable
creek with a significant change in grade with the surrounding marsh, he visited the site in a 16-foot
Boston Whaler. He navigated from Cedar Creek into Karmiel Creek to the location where Karmiel was
ultimately permitted to build. Joyner measured the width of the creek in the location as 10 feet. He
measured one foot of water in the creek and noted the time of his measurement in a memorandum.
Using a tide chart, Joyner calculated at trial that his measurement was recorded three and one-half hours
before high tide.
Joyner concluded that a dock to Karmiel Creek would not be reasonable for the intended use. He
further concluded that a dock to Ballenger Creek would not be reasonable for the intended use. He
recommended that the application be denied.
At that time, Richard Chinnis, OCRM's Director of Permitting and Joyner's superior, rejected Joyner's
recommendation and OCRM issued a permit to Karmiel to construct a dock centered between his
extended property lines. Karmiel did not accept this permit. OCRM canceled this permit on September
2, 1998.
2. The Second Application
In January of 1999, Karmiel reapplied for a second permit to build a dock to Ballenger Creek. Karmiel
sought to build a walkway extending 430 feet from his property to Ballenger Creek. The walkway was
to begin on the highland 20 feet from the extended property line with lot 24 and extend out 150 feet into
the marsh. The walkway would angle 80 feet towards the extended property line and then angle 200
feet to the fixed pierhead, which was to be approximately 180 feet across the extended property line.
Joyner was once again assigned as the project manager for this second application. Richard Chinnis
remained the Director of Permitting, but Mark Caldwell occupied the position between Joyner and
Caldwell known as Permit Coordinator. Caldwell discussed the application with Chinnis, Joyner, and
other project managers. The decision remained the same and OCRM issued Karmiel a permit to
construct a dock to Karmiel Creek with the dock to be centered between the extended property lines.
In March of 1999, the permit was amended to allow Karmiel some flexibility in placing the dock in
Karmiel Creek. OCRM allowed Karmiel to locate the walkway and pierhead in the area most suitable
for its intended use provided the dock was no closer than 20 feet from the extended property lines.
Karmiel accepted this permit with the amendment in April of 1999. However, Karmiel never began
constructing this dock.
3. The Amendment Request
In June of 2000, Karmiel applied for an amendment to the permit. Karmiel, once again, sought to build
the dock to Ballenger Creek. Karmiel sought to build a 410 foot walkway, which would leave the
highland 20 feet from the extended property line with the Ballengers. After traveling 110 feet, the
walkway would angle approximately 300 feet to the fixed pierhead. The angled portion of the walkway
would run approximately 40 feet to the extended property line with lot 24 and then another 260 feet
across the extended property line to the fixed pierhead, which would be approximately 180 feet over the
extended property line.
Joyner was the project manager for this amendment request and Caldwell remained the Permitting
Manager. OCRM denied the amendment request, although Joyner testified at the hearing that in his
opinion the amendment request should have been granted. Karmiel testified that he felt that the nature
of the area had changed because, since Karmiel's second application, the Ballengers had begun
construction of a 900 foot walkway to the Ballenger Creek. Joyner testified that the Ballengers' view
had already been compromised and, therefore, the amendment request should be granted.
4. The Ballengers' Objections
The Ballengers consistently lodged their objections to each of Karmiel's applications and amendment
requests. The Ballengers talked with OCRM representatives about their objections and even met with
representatives in their home. The Ballengers oppose Karmiel's attempts to build a dock across the
extended property lines because such a dock would mar their views of the marsh, invade their privacy,
and lesson the value and enjoyment of their property.
The Ballengers testified at the hearing that a dock that is located across their extended property lines
will spoil their view of the marsh. The Ballengers hired an architect to help them design their house to
take full advantage of the views of the marsh and creeks. The architect helped the Ballengers in
selecting a building site and in designing the house. The Ballengers tried to maximize their views of the
marsh, and the view they sought to maximize the most was the view off the back of the property
towards Ballenger Creek and beyond.
The Ballengers' house has several porches to foster inside/outside living. The dining room is in the rear
of the first floor and empties onto the main porch. The master bedroom and bathroom are above the
dining room, with a porch off the bedroom. Mrs. Ballenger's sculpting studio is beneath the dining
room on the ground floor. All of these rooms and porches face the marsh towards Ballenger Creek.
The Ballengers described the views from these rooms and porches as their primary view which they
sought to take advantage of in designing their home.
The Ballengers also testified at the hearing that a dock that crosses their extended property lines invade
their privacy. The Ballengers' house incorporates many windows and glass doors to take advantage of
their views. The windows have no curtains and no fixtures are installed on the windows on the side of
the house that faces Ballenger Creek. The bath and shower in the master bathroom have windows
looking out over the marsh. Since there are no curtains or blinds over the Ballengers's windows,
someone standing on a dock that crosses their extended property lines to Ballenger Creek would be able
to look into their dining room, studio, master bedroom, and master bathroom. The Ballengers' feel that
this would be a gross invasion of their privacy and they would have designed their house differently had
they known that a dock would be placed in this proposed location.
Furthermore, the Ballengers' testified at the hearing that a dock in this proposed location would
substantially lower the value and enjoyment of her property. Because of the design of the house, the
Ballengers' feel that this dock would change their way of living and spoil an extraordinary view.
5. Karmiel's Contentions
Karmiel argues that the Ballengers' objections should be disregarded and he should be allowed to cross
the extended property line for two reasons: (1) the location where he has been permitted to build is
useless to him while the proposed location is perfect; and (2) the proposed location can be reached with
a significantly shorter dock and, therefore, is less damaging to the environment.
Karmiel testified that the purpose of his dock would be to facilitate kayaking. Karmiel's kayak's are
seventeen and one-half feet long. Karmiel believes that the location in Karmiel Creek where he has
been permitted to build is useless because it is too narrow and shallow. However, he testified that
Ballenger Creek is much wider and deeper and it would be easier to maneuver a kayak in creek.
Dr. Ballenger visited both locations in his kayak and introduced pictures that he took at the locations
into evidence at the hearing. Dr. Ballenger paddled from Cedar Creek into Karmiel Creek to the
location where Karmiel has been permitted to build. He turned his kayak sideways in the creek and
stuck his paddle in the water to the bottom of Karmiel Creek. Respondent's Exhibit 23 is a photograph
of this exercise. Using his kayak as a measuring stick, Dr. Ballenger estimated that Karmiel Creek was
approximately 13 feet wide in that location. Using his paddle, Dr. Ballenger estimated that the depth of
the water as five feet. He also testified that he had no trouble navigating his kayak up to the permitted
location in Karmiel Creek, turning around, and coming back out.
Dr. Ballenger went through this same exercise in the location in Ballenger Creek where Karmiel wants
to build his dock. Dr. Ballenger turned the kayak sideways in the creek and stuck his paddle to the
bottom of the creek. Respondent's Exhibit 29 is a photograph of this exercise. He estimated that the
width of Ballenger Creek in that location is about the same as the location in Karmiel Creek. However,
Dr. Ballenger did note that Ballenger Creek is about two feet wider than Karmiel Creek as you get
closer to Cedar Creek. Dr. Ballenger stated that the location in Ballenger Creek was five to six inches
shallower than Karmiel Creek, but pointed out that the measurement was taken fifteen minutes later on
a falling tide. Dr. Ballenger concluded that Ballenger Creek and Karmiel Creek have about the same
width and about the same depth.
Karmiel's second contention is that the proposed location can be reached with a significantly shorter
dock and, therefore, is less damaging to the environment. Karmiel has been permitted to build a dock
that would be approximately 750 feet long. He wants to build a dock that would be approximately 410
feet long. Karmiel argued that the latter dock is better for the environment.
Joyner testified that all other things being equal, his preference would be to try to lessen the
environmental impact of a dock by making it shorter. He conceded that all other things are not equal in
this case, however, because the permitted location was within Karmiel's extended property lines while
the proposed location is not.
Caldwell testified that the permitted dock would be no more detrimental to the marsh than the proposed
shorter one. Caldwell has reviewed 200 to 300 dock applications for OCRM and part of his
responsibility in reviewing these applications is to assess the biological impacts of the proposed
structures.
FINDINGS OF FACT
Having carefully considered the testimony and the arguments, and taking into account the credibility of
the evidence, I find the following by a preponderance of the evidence:
1. Notice of the time, date, place, and subject matter of the hearing was given to all the
parties in a timely manner.
2. Karmiel has a permit to build a dock to a creek within his extended property lines. The
creek is navigable and has a defined channel with a significant change in grade with the surrounding
marsh. The location where he is permitted to build is approximately 10 to 13 feet wide. Around high
tide, the depth of the water at this location is approximately five feet. The creek can be navigated at
least 14 hours per day.
3. Karmiel's purpose for seeking a dock is to facilitate kayaking. He testified that he could
not accomplish that purpose at the permitted location because he could not turn his kayak around at that
spot. However, Joyner testified that three and one-half hours before high tide, he navigated Karmiel
Creek in a 16-foot Boston Whaler. Joyner had no trouble reaching the permitted location, turning
around, and traveling back out. Similarly, Dr. Ballenger took his 18-foot kayak to the permitted
location in Karmiel Creek and had no trouble turning around and coming back out.
4. Karmiel seeks to cross the extended property line to reach what he contends is a better
spot for kayaking because Ballenger Creek is wider and deeper. However, according to Dr. Ballenger's
testimony, the alternative locations have about the same width and depth. Dr. Ballenger's testimony is
bolstered by the photographs introduced which document the method he used for measuring the widths
and the depths of the creeks. Therefore, I find that the two locations have about the same width and
same depth.
5. Karmiel made a proffer of proof for the record that a measurement of the creek at the
location which Karmiel seeks permission to build a dock shows a width of 26 feet from marsh grass to
marsh grass. This proffer of proof is permitted.
6. The dock that Karmiel seeks to build would cross 180 feet over the extended property
line between Karmiel and the Ballengers. The dock would run through the marsh immediately behind
the Ballengers' house, from one side to the other. This would not be an insignificant crossing, but a
substantial one.
7. The proposed dock would have a significant impact on the Ballengers' view of the marsh
from the back of their house. The Ballengers carefully selected this building site and designed this
house to take advantage of the views of the marsh. The dining room, main porch, master bedroom,
master bathroom, master bedroom porch, and studio would look directly toward the dock.
8. The proposed dock would also have a significant impact on the Ballengers' privacy.
Since the Ballengers' designed their house to take advantage of the views, they included many windows
and glass doors. If the proposed dock is permitted, anyone using the dock would be able to see into the
along the rear of the Ballengers' house.
9. Allowing Karmiel to build this proposed dock would also lessen the value and
enjoyment of their property. Dr. Ballenger testified that his property would be worth less to him if the
proposed dock is built. Mrs. Ballenger stated that her enjoyment of the property would lower
significantly.
10. Karmiel contends that a dock to Ballenger Creek would be less environmentally
damaging than a dock to Karmiel Creek. However, Caldwell, who is an expert in assessing the
biological impacts of docks, refuted this contention at the hearing. Caldwell testified that the permitted
dock would be no more damaging to the environment than the proposed shorter dock.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude, as a matter of law, the following:
1. Permits for the construction of private docks in the coastal zone are governed by the South
Carolina Coastal Zone Management Act, S.C. Code Ann. § 48-39-10 et seq. (Supp. 2000), and the
Regulations promulgated pursuant to those provisions, 23A S.C. Code Ann. Regs. 30-1 et seq. (Supp.
2000). 23A S.C. Code Ann. Regs. 30-11 and 30-12 are particularly instructive.
2. 23A S.C. Code Ann. Regs. 30-12A(2)(p) provides a starting point for considering Karmiel's
amendment request. The regulation states:
No docks or pierheads or other associated structures should normally be allowed to be built closer than
20 feet from extended property lines with the exception of common docks shared by two adjoining
property owners. However, the Department may allow construction closer than 20 feet or over
extended property lines where there is no material harm to the policies of the Act.
3. This regulation establishes a preference for keeping docks within extended property lines, but
provides OCRM with discretion to allow docks to be built closer than 20 feet from extended property
lines, and even across extended property lines, if OCRM concludes that there is no material harm to the
policies of the South Carolina Coastal Zone Management Act.
4. Karmiel seeks to build a dock 180 feet over the extended property line. He contends he should be
allowed to do so because the permitted location is useless for his purpose of kayaking, while the other
location is more suitable for kayaking. However, I found that Ballenger Creek and Karmiel Creek are
similar in width and depth and, therefore, both are suitable for kayaking.
5. S.C. Code Ann. Regs. 30-12A(2)(c) states: "The size and extension of a dock or pier must be limited
to that which is reasonable for the intended use." The permitted location accommodates Karmiel's
intended use. I conclude that the size and extension of the permitted dock is limited to that which is
reasonable for its intended use.
6. 23A S.C. Code Ann. Regs. 30-12A(2)(d) states: "Docks and piers should use the least
environmentally damaging alignment." The permitted dock does not violate this regulation. Caldwell
testified that the permitted dock would be no more damaging to the environment than the proposed
shorter dock. In any event, this regulation cannot be read in isolation. Each applicable statutory
provision and regulation should be considered in evaluating an application.
7. S.C. Code Ann. § 48-39-150(A)(10) and S.C. Code Ann. Regs. 30-11(B)(10) state that in evaluating
this type of application, OCRM should consider "[t]he extent to which the proposed use could affect the
value and enjoyment of adjacent owners."
8. Karmiel's proposed dock would have a significant affect on the Ballengers' enjoyment of their
property. The proposed dock would affect the Ballengers' view of the marsh and invade their privacy.
Furthermore, the proposed dock would lessen the value of the Ballengers' property. Therefore, I
conclude that the proposed dock across the extended property line would violate the policies of the
South Carolina Coastal Zone Management Act.
ORDER
IT IS THEREFORE ORDERED that Burt Karmiel's request for an amendment to his permit is
denied.
IT IS FURTHER ORDERED that Karmiel's proffer of proof is permitted.
AND IT IS SO ORDERED.
________________________________
C. Dukes Scott
Administrative Law Judge
May 30, 2001
Columbia, South Carolina |
