SC Administrative Law Court Decisions

This matter is before me pursuant to S. C. Code Ann. §1-23-600 (1986 & Supp. 1998) of the Administrative Procedures Act and S. C. Code Ann. § 48-39-150(D) (1987 & Supp. 1998) of the Coastal Zone Management Act. The South Carolina Department of Health and Environmental Control, Bureau of Ocean and Coastal Resource Management (OCRM) issued permit #99-1E-382-P authorizing Store Creek Trust to construct a floating community dock and a floating private dock, both attached by walkways to a fixed covered pierhead with a 638' walkway extending to Store Creek at 8764 Peters Point Road, Edisto Island, Charleston County, South Carolina. The proposed community dock is intended to serve seven non-waterfront lots located in Spartina Bay Subdivision and the private dock being built is to benefit 8764 Peters Point Road.

The South Carolina Coastal Conservation League and James and Karen Andrews appealed the issuance of this permit in November 2000. Afterwards, Karen Andrews and the South Carolina Coastal Conservation League withdrew as Petitioners during discovery. The remaining Petitioner, James Andrews, argues that this Court should deny the application for a permit for Store Creek Trust to construct a pier and dock in a critical area. A contested case hearing on this matter was held on May 30, 2001, at the offices of the Administrative Law Judge Division in Columbia, South Carolina.

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion by the parties, I make the following Findings of Fact by a preponderance of evidence:

1. On April 2, 1999, Peters Point Trust purchased a 2.3 acre tract of land (Lot B) from Allen W. Wannamaker at 8764 Peters Point Road, Edisto Island, Charleston County, South Carolina. Peters Point Trust plans to build a residential home upon the property. The lot is rectangular in shape and measures approximately 134' by 444' with the northeast property line turning slightly to the east a short distance before the high ground meets the marshes of Store Creek.

On November 21, 2000, OCRM reissued permit # 99-1E-382-P to Store Creek Trust. The Petitioner, James Andrews, objects to permit # 99-1E-382-P on the grounds that the permit would cause a trespass across Lot A, the dock would violate a dock easement he claims to have been executed to benefit Lot A, and the community dock was too large for the general area. However, the Petitioner does not allege that permit # 99-1E-382-P violates any OCRM statutes or regulations.

2. On December 17, 1998, Allen W. Wannamaker, the predecessor in title to Peters Point Trust, was issued OCRM-98-350-E for the construction of two private docks at Lot B. The first dock consisted of a 4' by 511' walkway leading to a 10' by 20' fixed pierhead with a 3' by 15' ramp connecting a 10' by 20' floating dock. The second dock consisted of a 4' by 755' walkway leading to a 10' by 20' fixed pierhead with a 3' by 15' ramp connecting a 10' by 20' floating dock. One of these docks was permitted to benefit a dock easement executed by Allen W. Wannamaker on November 25, 1998 across Lot B.

After Peters Point Trust purchased Lot B, Store Creek Trust was issued P/N # 99-1E-382-P for the construction of a 5' by 700' walkway leading to a 20' by 20' covered fixed pierhead with a 10' by 99' floating dock attached to the pierhead by a 3' by 20' ramp on February 4, 2000. This permit consolidated the two docks issued under OCRM-98-350-E. Therefore, the original dock permitted by permit # 99-1E-382-P was for the private recreational use of the future homeowners of Lot B and the Spartina Bay Subdivision, an adjacent property owned by the beneficiaries of Peters Point Trust. As part of the permit application, Newton C. Boykin submitted an Affidavit of Ownership or Control as the Trustee of Peters Point Trust and Store Creek Trust.

3. Permit # 99-1E-382-P was appealed to the Administrative Law Judge Division shortly after its issuance. Store Creek Trust voluntarily remanded permit # 99-1E-382-P to OCRM in order to reduce the size of the dock.

4. On November 21, 2000, permit # 99-1E-382-P was reissued to Store Creek Trust. The current permit allows for the construction of a single 5' by 638' walkway leading to a 10' by 20' covered fixed pierhead. Two 3' by 20' walkways will extend from diametric ends of the pierhead. One walkway will lead to a 10' by 40' floating community dock constructed for the benefit of the non-waterfront property owners in Spartina Bay Subdivision. The other walkway will lead to a 10' by 30' private floating dock to benefit the future owner of Lot B.

5. Spartina Bay Subdivision was issued Final Plat approval for the subdivision plat of

the Peters Point Trust property on February 28, 2001 by the Charleston County Planning Department. The Petitioner, among others, appealed this subdivision plat to the Charleston County Planning Commission. The Petitioner claims that the subdivision does not have proper access so as to be entitled to a community dock. However, the Charleston County Planning Commission held a hearing in this matter on April 23, 2001 at which the Petitioner was given an opportunity to voice his objections. Nevertheless, the Charleston County Planning Commission unanimously approved the subdivision plat on April 26, 2001. This decision was not appealed and the plat for Spartina Bay Subdivision is therefore a Final Plat.

Trespass

6. The Petitioner also claims that the community dock will necessitate a trespass across his lands for access in violation of an Order executed on September 29, 2000 in Civil Action Number 99-CP-10-4330. The Final Plat for Spartina Bay Subdivision plainly shows that the access to the subdivision has been changed and that the community dock will not necessitate a trespass across any of the Petitioner's property.

7. Petitioner James Andrews and his wife, Karen Andrews, own Lot A (TMS No. 025-00-00-009). ⁽¹⁾ Lot A borders Lot B at Lot B's south boundary line. However, Lot A has no frontage on Store Creek or any other waters in the area. When Lot B was sold to Peters Point Trust, it was sold subject to an easement which granted access through Lot B to a dock. This dock easement was recorded with the deed from Allen W. Wannamaker to Peters Point Trust for Lot B. The dock easement does not designate a grantee but is signed by Allen W. Wannamaker. The Petitioner claims this dock easement was executed for his use to gain waterfront access for Lot A. The Petitioner testified that he was told by a real estate agent that when he purchased his property he would own the easement. However, he submitted no written evidence in support of this contention.

To the contrary, Allen W. Wannamaker executed an "Agreement As To Dock Easement" on April 2, 1999 that was recorded in the Charleston County RMC Office. The Agreement references the Dock Easement and states: "Allen Weir Wannamaker has never granted unto any person whatsoever any rights now or forever in the use or benefit of said Dock Easement." Mr. Wannamaker specifically assigned permit # OCRM-98-350-E (the predecessor permit) to Peters Point Trust on April 2, 1999.

8. The Petitioner contends that the community dock was too large for the general area. He testified that he has ridden up and down the creek and has not seen any docks the size of the proposed dock. ⁽²⁾ Furthermore, the Petitioner cited no regulations in support of this contention. In fact, the Petitioner did not present any pictures of docks or permits for docks in the area to support his contention.

Community docks of this size are common and in fact permits for larger structures are often permitted. For example, permit # OCRM-96-218-G was issued to Fuller Street Corporation on August 13, 1996. This permit was issued for the construction of 32 docks for private use on and adjacent to St. Pierre Creek, Bailey Creek and Coffin Creek, on Bailey Island, Edisto Island, Charleston County, South Carolina. Store Creek is a tributary of St. Pierre Creek, just as Bailey Creek and Coffin Creek, and is in the general area of the property the subject of this permit. Permit # OCRM-96-218-G allows for, among other things, the construction of sixteen 10' x 40' floating docks into Bailey Creek, a creek less wide than Store Creek, and nine 10' x 60' floating docks into St. Pierre Creek, a creek wider than Store Creek.

1. The Administrative Law Judge Division has jurisdiction over this matter pursuant to S.C. Code Ann. §1-23-600 (1986 & Supp. 1998) and S.C. Code Ann. § 48-39-150 (1987 & Supp. 1998).

2. The standard of proof in weighing the evidence and making a decision on the merits at a contested case hearing is a preponderance of the evidence. Nat'l Health Corp. v. S.C. Department of Health and Environmental Control, 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989). This is an appeal of the issuance of a permit. As such, the burden of proof is on the Petitioner to establish, by a preponderance of the evidence, facts sufficient to support the denial of the permit. See Rule 29(B), ALJDRP.

3. 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. (1987 & Supp. 1998), and the regulations promulgated pursuant to those provisions, 23A S.C. Code Ann. Regs. 30-1 et seq. (Supp. 1999). ⁽³⁾ Therefore, OCRM is charged with carrying out South Carolina's coastal zone policies and issuing permits for docks and piers in the critical areas of the coastal waters and tidelands. 23A S.C. Code Ann. Regs. 30-10(A)(1) (Supp. 1999); S.C. Code Ann. § 48-39-130 (1987 and Supp. 1998).

The project in question is located in a critical area as defined in S.C. Code Ann. § 48-39-10 (1987 and Supp. 1998) and 23A S.C. Code Ann. Regs. 30-1(C)(4) and (12) (Supp. 1999). Any person wishing to construct a dock in a critical area must apply for and receive a permit. The application must include, inter alia, a plan or drawing describing the proposed activity, a plat or copy of a plat of the area in which the proposed work will take place, and an Affidavit of Ownership or Control for the area over which construction shall take place. 23A S.C. Code Ann. Regs. 30-2(B) (Supp. 1999).

4. Respondent Store Creek Trust filed a Motion for Summary Judgment on March 6, 2001, and by agreement of all parties this motion was heard prior to the hearing on the merits on May 30, 2001. Respondent Store Creek Trust requested summary judgment on the issues of trespass and the issues related to the dock easement raised in the Petitioner's Prehearing Statement.

Summary Judgment is appropriate when it is clear there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 56, SCRCP; Vermeer Carolina's, Inc. v. Wood/Chuck Chipper Corp., 336 S.C. 53, 59, 518 S.E.2d 301, 304 (Ct. App. 1999). In determining whether any triable issue of fact exists such as to preclude summary judgment, the evidence and all inferences reasonably drawn therefrom must be viewed in the light most favorable to the non-moving party. Strother v. Lexington County Recreation Comm'n., 332 S.C. 54, 61, 504 S.E.2d 117, 121 (1998).

The Petitioner contends that access to the community dock will necessitate a trespass across his lands. In support of this motion, Respondent Store Creek Trust presented a Final Plat approved by the Charleston County Planning Department and the Charleston County Planning Commission and recorded at the Charleston County RMC Office. This Final Plat shows that the access for the community dock will not cross Lot A, the Petitioner's property. The Petitioner offered no evidence to the contrary and made no attempt to rebut the validity of the Final Plat. Therefore, having viewed the evidence in the light most favorable to the Petitioner, this Court found there was no triable issue of material fact as to the trespass issue and, as such, this Court granted the Respondent's summary judgment on this issue.

As to the issue of the dock easement, 23A S. C. Code Ann. Regs. 30-2 (I)(1) (Supp. 1999) provides that "[a]ll permit applicants must provide information in writing concerning the ownership of critical area in or over which a project is to be constructed." Furthermore, 23A S. C. Code Ann. Regs. 30-2 (I)(3) provides that:

If the alleged adjoining landowner of critical area files a written objection to the permit application within the period prescribed in Section 48-39-140 (15 days for minor and 30 days for major permits) based upon a claim of ownership and indicates an intention to file a court action pursuant to Section 48-39-220, the application will be deemed incomplete and further processing of the permit will not take place until a final judicial decision is rendered by a court of competent jurisdiction. However, written proof of filing a court action pursuant to Section 48-39-220 must be received by the Department within 30 days of the date of the expiration of the comment period. If no such written proof is timely received, the permit will be processed pursuant to law.

Newton C. Boykin submitted an Affidavit of Ownership or Control as the Trustee of Peters Point Trust and Store Creek Trust. Additionally, there is no evidence that the Petitioner filed a court action pursuant to S.C. Code Ann. § 48-39-220 (1987 and Supp. 1998). Moreover, the dock easement was never signed by the Petitioner, references no property owned by the Petitioner, does not reference the Petitioner, was not recorded with the Petitioner's deed to Lot A, and does not designate a Grantee. Rather, the "Agreement As To Dock Easement" executed by Allen W. Wannamaker references the Dock Easement the Petitioner relies upon and specifically sets forth: "Allen Weir Wannamaker has never granted unto any person whatsoever any rights now or forever in the use or benefit of said Dock Easement."

The Petitioner offered no evidence in rebuttal to the Agreement. The Petitioner merely relied on inadmissable hearsay evidence that a real estate agent suggested to the owners of Lot A that the Petitioner be granted a dock easement across Lot B. Therefore, having viewed the evidence in the light most favorable to the Petitioner, this Court found there was no triable issue of material fact as to the trespass issue and, as such, this Court also granted the Respondent(s) summary judgment on this issue.

5. The Petitioner's remaining argument is that the community dock is too large for the

general character of the area. However, the proposed dock met all of OCRM's regulations. Furthermore, community docks of this size are common and in fact permits for larger structures are often issued.

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the decision of the South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management to issue permit # 99-1E-382-P to Store Creek Trust be upheld and said permit issued.

AND IT IS SO ORDERED.

__________________________________

Ralph King Anderson, III

Administrative Law Judge

June 18, 2001

Columbia, South Carolina

1. The Petitioner purchased Lot A from David W. Wannamaker, Gordon T. Wannamaker, and Allen W. Wannamaker on December 4, 1998. The deed was recorded on December 21, 1998.

2. The Petitioner also testified that the general sentiment of the neighbors in the area does not support the issuance of the permit because of the size of the community dock. However, that testimony was patent hearsay. Furthermore, the Petitioner failed to present any evidence of this sentiment.

3. The Coastal Division regulations, found at 23A S.C. Code Ann. Regs. 30-1 et seq., were rewritten, effective June 25, 1999. This Final Order and Decision references the rewritten regulations.