South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Duke R. Highfield vs. SCDHEC

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Duke R. Highfield

Respondent:
South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management

Intervenor:
Bayview Farms Homeowners Association
 
DOCKET NUMBER:
01-ALJ-07-0087-CC

APPEARANCES:
Palmer Freeman, Esquire, for the Petitioner

Leslie W. Stidham, Esquire, for the Respondent Mary Leigh Arnold, Esquire, for the Intervenor
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before me pursuant to the South Carolina Department of Health and Environmental Control (DHEC), Office of Ocean and Coastal Resource Management's (OCRM), denial of Petitioner's application for a single use dock permit at 1138 Tidal View Lane, Bayview Farms Subvision, Charleston County, South Carolina. OCRM denied the dock permit because the proposed dock was not an approved dock lot on the Dock Master Plan for Bayview Farms. Additionally, OCRM stated the area over which the dock is to be placed has no defined creek or channel. OCRM gave the following references on which staff relied in denying the permit:

(1) Sections 48-39-30 (A) and (B)(1)and (B)(2) - Legislature's policies for permitting structures in the critical area;

(2) Section 48-39-150 (A)(1) and Regulation 30-11 (B)(1) - The extent to which the activity requires a waterfront location or is economically enhanced by its proximity to the water;

(3) CH III VI (D)(4)(c) - The dock master plan shall be presumed to take precedence over applications inconsistent with such plan unless new information is revealed in the application to address and overcome concerns identified in the Dock Master Plan;

(4) Regulation 30-11 (B)(8) - The extent of any adverse environmental impact, which cannot be avoided by reasonable safeguards;

(5) Regulation 30-11 (B)(10) - The extent to which the proposed use could affect the value and enjoyment of adjacent owners;

(6) Regulation 30-11 (C)(1) - The extent to which long-range, cumulative effects of the project may result within the context of other possible development and the general character of the area;

(7) Regulation 30-12 (A)(2)(d) - Docks and piers should use the least environmentally damaging alignment.

A hearing was held in this case on December 6, 2001 at the Administrative Law Judge Division. At that time, it was brought to the attention of the court that Petitioner was not prepared to address the issue of whether his lot had 75 feet of water frontage because OCRM did not give that as a reason for denying the permit. The first notice Petitioner was given of this requirement was in Intervenor's Prehearing Statement filed March 27, 2001 which stated: "...the lot on which the proposed dock was to be placed does not consist of the required footage to be approved for a dock." No reference to the specific requirement was included so Petitioner may have thought this was a requirement of the Dock Master Plan. After presentation of other evidence, the hearing was continued until March 14, 2002, to allow the parties to prepare for and present any evidence regarding the issue of water footage of Petitioner's property.

MOTION TO EXCLUDE EVIDENCE

AS TO 75 FEET OF WATER FRONTAGE



On March 14, 2002, the Petitioner moved to have all evidence concerning whether his property has 75 feet of water frontage excluded from the hearing. He contended that because DHEC did not list it as a reason for the denial of the permit, the issue could not be raised for the first time at the hearing. This motion was held in abeyance at the time of the hearing and the hearing went forward. After consideration of the motion, I find that any evidence as to the requisite 75 feet of waterfront footage should be allowed. This is a contested case hearing as allowed by the Administrative Procedures Act. All issues as to whether the dock permit should be issued are properly before this Division provided all parties have adequate time to prepare. This issue was heard separately in order to accord Petitioner due process of law.

THEREFORE, IT IS HEREBY ORDERED that Petitioner's motion is DENIED and this court will consider evidence presented as to the amount of water footage on Petitioner's property.



FINDINGS OF FACT

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 the evidence:

1. Petitioner is the owner of 1138 Tidal View Lane, Lot 127, Bayview Farms Subvision, Charleston County, South Carolina. He entered into a contract with Landura Homes to buy the property on September 9, 1998, and finalized the purchase in March 1999.

2. The lot is located on the marsh or tidal creek of Clark Sound. Petitioner received a

letter written May 11, 1999, from Intervenor Bayview Homeowers Association, advising him that a dock would not be approved for his lot. The Petitioner testified that this was the first time he had heard he would not be allowed to place a dock on his property. After a series of letters with the homeowners association, the Petitioner made application to OCRM on or about February 2, 2000, for a permit to construct a private dock to consist of a 4 foot by 50 foot walkway leading to a 10 foot by 10 foot fixed pierhead. He and his family intend to use the dock for private, recreational purposes.

3. On January 17, 2001, OCRM denied the permit. In denying the permit, OCRM

informed the Petitioner that since his lot was not included in the Dock Master Plan for Bayview Farms Subdivision, he was not eligible for a single use dock because general permits may only be issued for docks covered by a dock master plan, as outlined in Ch.III.C.3.VI.D of the Coastal Zone Management Plan.

4. The Petitioner contends that OCRM improperly denied his permit because he was

never told of a Dock Master Plan indicating he could not place a dock on his property. The contract for sale did not have any language concerning a Dock Master Plan. The restrictive covenants he received did not mention a Dock Master Plan, although the document did contain information about docks. No one ever disclosed the existence of a Dock Master Plan to him prior to the letter he received from the Homeowners' Association two months after he finalized the purchase.

5. Dock Master Plans are part of the Coastal Zone Management Program Refinements

of 1993. The purpose of a dock master plan is to allow access to waterways by the public or by future property owners while minimizing impact to critical areas. Preparation of a dock master plan involves identifying lots at the beginning of a development, which should qualify for either single or joint-use docks. Dock corridors indicate potential dock placements on the lots identified in the dock master plan. Designation of any lot as a "dock lot" does not guarantee the issuance of a permit to construct a single or joint-use dock. Furthermore, docks proposed under a permit application must meet the requirements set forth in the Permitting Rules and Regulations. The Department's intention is that the information contained in the dock master plan is passed on to prospective buyers by the developer so they can make an informed decision on whether to purchase the waterfront property.

  • On July 24, 1996, the Department sent a letter to the preparer of the Dock Master

Plan approving the plan for Phase 4B of Bayview Farms - the phase within which Petitioner's lot is contained. The letter stated, "This plan will be used as an advisory opinion in permitting, but designation of any lot as a "dock lot" does not guarantee the issuance of any permits." Also, it stated, "Reference must be given to this dock master plan in all contracts for sale of affected lots." (Emphasis added). This was not done. Fred Mallett, project manager at OCRM, testified Dock Master Plans are a planning tool and that they are not binding.

  • The property across the creek from Petitioner was sold before the Dock Master Plan

was done and therefore is not restricted by that plan. Mr. Mallett testified dock permits in that area would be routinely granted.

8. OCRM contends that regardless of what the Dock Master Plan for this area provides, a single-use dock permit would not be proper because Petitioner's lot does not have the requisite 75 feet of water frontage along the marsh edge as required by the Coastal Zone Management Act and OCRM's Regulations [R.30-12 (A)(2)(o)]. Petitioner contends he has 75 feet of water frontage. Petitioner's measurement of the water frontage is 76 feet, 6 inches. OCRM's measurement is 69 feet.

9. Fred Mallett measured the waterfront on the behalf of OCRM. He established the

critical area line by placing five (5) flags along the line and measuring from flag to flag. He did this at low tide. The Petitioner measured the property by following the contours of the water. I find there is credible evidence that there is at least 75 feet of water frontage along the marsh edge.

10. In the permit denial letter, OCRM also stated that the granting of a dock permit

would decrease the value and enjoyment of adjacent property by the owners of those properties. Petitioner's neighbors have no objection to the proposed dock. Petitioner placed affidavits in evidence from both adjacent landowners stating their value and enjoyment would not be decreased by Petitioner's having a dock.

CONCLUSIONS OF LAW

1. S.C. Code Ann. § 48-39-150 (Supp. 2001) authorizes the Administrative Law Judge Division to hear contested cases arising under Chapter 39 of Title 48 of the 1976 Code. Therefore, the Division has jurisdiction over this matter pursuant to S.C. Code Ann. § 1-23-600 (Supp. 2001).

2. The standard of proof in weighing the evidence and making a decision on the merits of a contested case hearing is by 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).

3. Permits for 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. 2001) and the regulations are promulgated pursuant to those provisions, 23A S.C. Code Ann. Regs. 30-1 et. seq. (Supp. 2001). Therefore, the Office of Ocean and Coastal Resource Management 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. 2001; S.C. Code Ann. § 48-39-130 (Supp. 2001).

4. The properties in question are located in a critical area as defined in S.C. Code Ann. § 48-39-10 (Supp. 2001) and 23A S.C. Code Ann. Regs. 30-1(D)(Supp. 2001). 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 a certified copy of the instrument under which the applicant claims ownership or permission from the owner to carry out the proposal. 23A S.C. Code Ann. Regs. 30-2 (B) (Supp. 2001).

5. S.C. Code Ann. Regs. 30-12 (A) (Supp. 2001) sets forth the specific project standards for construction of docks and piers for tidelands and coastal waters.

6. S.C. Code Ann. Regs. 30-11 (B)(8) provides that OCRM should consider any adverse

environmental impact. However, since Mr. Mallett testified that docks for the property across the creek from the Petitioner would likely be routinely granted it is difficult to give environmental impact much weight as a reason for denial.

7. Dock Master Plans are discussed in regulation. S.C. Code Ann. Regs. § 30-12(A)(3) provides that:

General permits may be issued for docks covered by a master plan, as outlined in CH.III.C.3.VI.D of the Coastal Zone Management Plan. This master plan must be placed on public notice and processed as a major application. If a master plan is approved by the Department, but no general permit is applied for or issued, the approved master plan will be used as a framework for permitting decisions, subject to comments received during the public review process.

Dock Master Plans are not binding on OCRM and are used as guidance in deciding whether to permit a dock. Based on the extenuating circumstances in this case, OCRM should not use the Dock Master Plan to deny the Petitioner a permit.

8. OCRM contends that regardless of the Dock Master Plan, Petitioner should not be granted a permit because his property lacks the required minimum frontage between the extended waterfront property lines. Regulation 30-12(A)(2) provides, in relevant part, that:

(o) For lots platted and recorded after the effective date of these regulations, before a dock will be permitted, a lot must have 75 feet of water frontage along the marsh edge and at least 75 feet of frontage between extended waterfront property lines. Lots with less than the required footage, but with at least 50 feet of frontage, both on the marsh edge and along the water between the waterfront extended property lines may be eligible for a common dock with the adjacent property. Lots less than 50 feet wide are not eligible for a dock;



(p) 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 over extended property lines where there is no material harm to the policies of the Act.

(Emphasis added).

There is nothing in state statute or regulation which prescribes the manner in which the measurement is to be taken. There is credible evidence that the Petitioner has 75 feet of water frontage along the marsh edge and that should not be used as a reason to deny his permit.

ORDER

Petitioner Highfield should be granted a permit for the construction of a private or single-

use dock on Lot 127 of Phase IV-B of Bayview Farms subdivision.

IT IS THEREFORE ORDERED that OCRM is to prepare and issue to Petitioner Highfield a permit for a single-use dock.

AND IT IS SO ORDERED.



_____________________________

CAROLYN C. MATTHEWS

Administrative Law Judge





June 20, 2002

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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