SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before me upon the request of Robert Schulz and Connie Schulz ("Petitioners") for a contested case hearing pursuant to S.C. Code Ann. § 48-39-150 (Supp. 2000) and S.C. Code Ann. §§ 1-23-310 to -660 (1986 & Supp. 2000). Petitioners challenge conditions placed upon the dock-construction permit (#OCRM-01-046-R) issued by the South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management ("OCRM").

Petitioners own Lot 42, 1074 North Shadow Drive, Hickory Shadows Subdivision, Mount Pleasant, Charleston County, South Carolina and have an option to purchase a small area of marsh property to its rear which backs up to Shem Creek. On January 10, 2001, they filed their application with OCRM asking for authority to construct a walkway four feet wide by one hundred ten feet long (4' x 110'), a fixed pierhead six feet wide by eight feet long (6' x 8')and a floating dock seven feet wide by sixteen feet long (7' x 16').

OCRM issued a permit to Petitioners on March 14, 2001. The permit contained special conditions which limited the total combined square footage for the fixed pierhead and floating dock to one hundred twenty (120) square feet. OCRM contended that its regulations mandated the size limitations as placed in the permit, given the width of the creek at the general location where the pierhead and floating dock were to be built. Petitioners claim, however, that the Shem Creek has sufficient width at the location to allow the construction of a fixed pierhead and floating dock in a combined size of one hundred sixty (160) square feet.

A hearing was conducted at the offices of the Administrative Law Judge Division ("Division") in Columbia, South Carolina on August 1, 2001. Upon review of the relevant facts and applicable law, OCRM is ordered to grant the permit with conditions as proposed.

FINDINGS OF FACT

Having carefully considered the credibility of the testimony and accuracy of the evidence presented at the hearing and taking into consideration the burden of persuasion by the parties, I make the following findings of fact by a preponderance of the evidence:

General

• Notice of the date, time, place, and nature of the hearing was timely given to the parties.
• Robert Schulz and Connie R. Schulz are the owners of Lot 42, Tax Map # 535-16-00-179, Hickory Shadows Subdivision, Town of Mount Pleasant, Charleston County, South Carolina.
• They acquired Lot 42 from Tom Kingston and Christi Kingston on January 4, 2001. At the present time Petitioners rent the subject property (Lot 42) and live in a house across the street. However, they intend to move into the house and make it their home within the next few years.
• Lots 41 and 43, which are properties adjacent to and located on each side of Lot 42, are owned respectively by Rich and Holly Giersch and Dennis and Laura Bradfield.
• There is no dock master plan for the subdivision in which Petitioner's property is located. However, docks have been approved and permitted by OCRM and have been constructed in the general area of the location.
• On January 15, 2001, Robert Schulz entered into an agreement, entitled "Intent to Sell," with Robert S. Hardman. The parties agreed that Mr. Hardman would sell to Mr. Schulz a parcel of marsh land "behind the SC OCRM critical line" at the location which would extend the boundary lines of Petitioner's property at its rear so it would reach the waters of Shem Creek. See Respondent's Exhibit 1.
• The real property subject to that agreement consists of 0.19 acres of marsh and is shown on a Boundary Survey showing a portion of salt marsh being added to Lot 42, Hickory Shadows, surveyed at the request of Robert Schulz, dated February 10, 2001. It was prepared by Joseph O. Eelman, SCRLS. See Petitioners's Exhibit 14. The plat was approved by the Town of Mount Pleasant on May 4, 2001.
• The sale of the 0.18-acre parcel of marsh land from Mr. Hardman to Mr. Schulz is contingent on Petitioners obtaining a dock permit at the location.
• Lot 42 and the 0.18-acre parcel of marsh land ("location") adjoins Shem Creek on a rear property boundary.
• On January 1, 2001, Robert Schulz signed a permit application on OCRM's standard form. He listed himself and his wife, Connie Schulz as the applicants for:

A dock to provide access for single family residential use. Walkways to be 4' wide a total of 110' long, with a 6' x 8' pierhead, and a 7' x 16' floater. Min 8" Timber piles, 2 x 8 girders bolted, 2 x 10 Joist clipped and 2 x 6 decking, all Treated lumber aprox. spans between sides 12.

See Respondent's Exhibit 1.

• Petitioners paid to OCRM the application filing fee of $50.00 on January 31, 2001.
• On February 8, 2001, Mr. Schulz signed an Affidavit of Ownership (OCRM standard form), attaching a copy of the deed of conveyance to Lot 42 and a copy of the agreement ("Intent to Sell") applicable to the marsh land portion. See Respondent's Exhibit 1.
• Ms. Mary Tesh Rogers has been an employee of OCRM for five years. For the last two years she has been the project manager for the critical area permitting section. She makes permitting recommendations to Chris Joyner who is her supervisor and the manager of Critical Area Permitting for OCRM.
• A field assessment at the location was conducted by Ms. Rogers in February 2001. She took several photographs while at the location. See Respondent's Exhibits 3-8. However, she did not conduct any field measurements during her site visit nor have any measurements been conducted at the location by her or any employee of OCRM.
• In processing the application request, Ms. Rogers reviewed the information she had obtained at the location and the aerial photographs of the area which are a part of the Geographic Information System ("GIS"). ⁽¹⁾ Also, she reviewed other dock permitting files (including Lot 41) for the general area at the location. She did not consider the ebb and flow of the tide at the location and has no knowledge of such.
• Ms. Roger's opined that Shem Creek was "certainly less than 59' wide" just upward from the proposed dock and just downward from the proposed dock. From the GIS review, Ms. Rogers determined that Shem Creek was 25' wide at a point upward from the location and was 35' wide at a point downward from the location. See Respondent's Exhibit 11.
• In determining the width of Shem Creek for the dock, OCRM not only considered the width of the creek at the location of the dock but also considered an average of the creek's width, taking into consideration widths of the creek upward and downward of the proposed dock. It did not use the 59' width as measured by Petitioners at the location. Further, OCRM did not consider the mud flat at the location as a part of a creek for determining its width.
• Ms. Rogers prepared a report based upon Petitioner's application on February 28, 2001. It was reviewed by Mr. Joyner and the staff biologist on March 13, 2001.
• On March 14, 2001, Mr. Joyner sent a letter to Petitioners, attaching a CRITICAL AREA PERMIT. The permit approved the requested permit, with the following special conditions:

(1) limiting the length of the walkway to ninety (90') feet;

(2) reducing the size of the floating dock to seven feet by ten feet (7' x 10').

• Petitioners wrote Mr. Joyner and Ms. Rodgers on March 20, 2001 appealing the special conditions placed upon their dock permit. They noted that they had obtained permission of Rich and Holly Giersch, owners of Lot 41, to cross their extended property line and had thus reduced the length of the walkway from 155 feet to 90 feet.
• Mr. and Mrs. Schulz further argued in the letter that:

(1) the reduction in size of the floating dock as determined by OCRM raised safety concerns for their guests as well as their family; that it would result in an unstable platform and prohibit their parents from enjoying local pastimes such as crabbing, shrimping and fishing with the family.

(2) the width of Shem Creek at the location of the proposed dock was fifty-nine (59') feet which is in excess of that required for a combined total square footage of one hundred sixty (160') feet for a fixed pierhead and a floating dock.

Several photographs showing smaller floating docks which are located in the general area of the location were submitted into the record. Petitioners argue that they are less stable. See Petitioner's Exhibits 1 and 2.

• Petitioners argued that the configuration of the pierhead and floating dock is laid out to utilize as much of the tide as possible without obstructing navigation and that the location of the proposed structures were "at least 2' from the low water mark leaving at least 20' clear to marsh grass remaining for tidal navigation." Further, they stated that they were attaching statements from three ebb side property owners who also had docks and every floodside property owner who currently have a dock on Shem Creek confirming their approval for the proposed alignment. See Petitioner's Exhibit 15.
• Mr. Joyner wrote Petitioners on March 29, 2001, acknowledging their request that OCRM reconsider the total square footage allowed by OCRM for the dock. He stated that OCRM could not reconsider the request for several resource management reasons:

(1) the average width of Shem Creek upstream and downstream of the dock site is about 30', which falls into the 120 square foot category. The creek does not increase into the average 50' range until the location of the Village Creek Condominiums, which is downstream and on the opposite shore from you.

(2) in the past five years OCRM has issued 4 dock permits consisting of 120 square feet per dock in the vicinity of Petitioner's proposed dock and that if it issued a permit allowing 160 square feet of dock such would be inconsistent with its actions in this section of Shem Creek.

In the letter, Mr. Joyner authorized Petitioners to reconfigure their pierhead and floating dock; however, the total square footage could not exceed 120.

• Thereafter, OCRM authorized a pierhead 4' x 12' and a floating dock 7' x 16'. Attached to the permit was: (1) a drawing of Petitioner's property which outlined their property lines and the location of the proposed walkway, fixed pierhead, and floating dock; and (2) a drawing of the side view of the walkway, pierhead, ramp, and floater. See Respondent's Exhibit 9.
• Ultimately, OCRM approved a 4' walkway, a 6' x 8' fixed pierhead, a 3' x 15' walkway from the fixed pierhead to the floating dock, as well as a floating dock 7' x 10' in size. As of the date of the hearing, the walkway and the 3' x 15' walkway ramp had been constructed as well as a 2' x 6' pierhead and a 7' x 16' floating dock. However, Petitioners want to enlarge the size of the pierhead to 6' x 8' for a total combined square footage for the pierhead and the floating dock of one hundred sixty (160) square feet.

Shem Creek

• Shem Creek meanders down toward Charleston harbor, ranging in width from very narrow at it headwaters to an average size creek. At the location, it is quite wide, measuring fifty-nine (59) feet. A part of the total width at the location consists of a mud flat. The width was measured from marsh grass to marsh grass. The floating dock sits on the mud flat as does Petitioners's motor boat. See Petitioner's Exhibits 3 and 26.
• OCRM does not consider the mud flat at the location to be a part of Shem Creek.
• Petitioners testified that the fixed pierhead and floating dock as presently constructed will not impede navigation in Shem Creek. Further, they argue that if the size of the pierhead is increased to 6' x 8', there will be no further impact in Shem Creek than the present configuration. The pillars or pilings are already driven into the creek bed and the area above would have boards nailed to the floor area. In reality, it would make the area safer for individuals to walk. See Petitioner's Exhibits 3 and 4.
• Petitioner's Exhibit 4 shows navigable water in front of the fixed pierhead. The boat lift, as approved by OCRM, will be located on the opposite side of th fixed pierhead from the floating dock.
• On May 4, 2001, Mary D. Shahid, Chief Counsel with OCRM, wrote Petitioners and told them that they were authorized to construct during the pendency of the appeal to the Division the walkway as indicated on the permit, a 4' x 12' pierhead and a 7' x 16' float. Subsequent to a telephone conversation with Mr. Schulz on May 14, 2001, Ms. Shahid wrote him, stating that the authorization by OCRM was to construct during the pendency of the appeal the walkway as approved, a 2' x 6' pierhead with 2 additional piles for a boatlift and a 7' x 16' floating dock. See Petitioner's Exhibits 12 and 13.
• Petitioners have constructed a walkway (4' wide), the walkway between the pierhead and the floating dock (3' x 15'), and a floating dock (7' x 16'). He has constructed a 2' x 6' pierhead and wants it to be 6' x 8'. See red outlined area on Petitioner's Exhibit 10. The piles where the additional area would be floored will remain for the boat lift and without the additional flooring it will be dangerous to get to the boat.

CONCLUSIONS OF LAW

Based upon the foregoing findings of fact, I conclude, as a matter of law, the following:

• The Administrative Law Judge Division has subject matter jurisdiction in this matter pursuant to S.C. Code Ann. § 48-39-150 (Supp. 2000) and the Administrative Procedures Act, S.C. Code Ann. §§ 1-23-310 to -660 (1986 & Supp. 2000), specifically § 1-23-600(B) (Supp. 2000).
• Under S.C. Code Ann. § 48-39-50(G) and (V) (Supp. 2000), the office of OCRM is charged with denying or approving permits for proposed activities within the coastal zone. Further, § 48-39-50(E) authorizes OCRM to promulgate regulations to carry out the provisions of Chapter 39 of Title 48 of the South Carolina Code. OCRM promulgated 23A S.C. Code Ann. Regs. 30-1 through 30-21 (1976 & Supp. 2000), which are currently administered by OCRM in governing the management, development, and protection of the coastal zone.
• S.C. Code Ann. § 48-39-150(A) (Supp. 2000) and 23A S.C. Code Ann. Regs. 30-11 (1976 & Supp. 2000) set forth the guidelines and general considerations to be used in assessing the impact of a project in a critical area.
• The project in question is located in a critical area under S.C. Code Ann. § 48-39-10(J) (Supp. 2000).
• Petitioners carry the burden of proving by a preponderance of the evidence that they are entitled to a permit to build a pierhead and floating dock larger than 120 square feet. The burden of proof generally rests with the party who asserts the affirmative of an issue. Alex Sanders and John S. Nichols, Trial Handbook for South Carolina Lawyers, 2^nd Ed., Burden of Proof § 9:1 at 9-2 (2001). The burden of proof "denotes the duty of establishing the truth of a given proposition or issue by the quantum of evidence the law demands in the case in which the issue arises." Id. at 9-1.
• 23A S.C. Code Ann. Regs. 30-12(A)(2)(q) addresses sizes and standards for the construction of pierheads and floating docks in tidelands and coastal waters and provides in pertinent part:

The Department sets forth the following standards for size and use of pierheads and floating docks, these figures do not include the square footage of the walkways or ramps:

. . . .

(ii) Creeks between 20 and 50 feet, as measured from marsh vegetation on both sides, shall be restricted to fixed pierhead and floating dock combinations up to 120 square feet unless special geographic circumstances and land uses warrant a larger structure;

(iii) Creeks between 51 and 150 feet, as measured from marsh vegetation on both sides, shall be restricted to docks up to 160 square feet unless special geographic circumstances and land uses warrant a larger structure;

. . . .

This regulation clearly restricts the size of pierheads and floating docks based upon the width of the creeks on which they are to be constructed. The regulation states that the width is determined by measuring from the marsh grass or vegetation on one side to the marsh grass or vegetation on the other side. However, OCRM argues that when the width of a creek is narrower in other locations, then an average must be taken of several locations along the creek and the width of the creek at the location is no longer the controlling factor.

OCRM approved a combination of square footage for both the fixed pierhead and the floating dock up to 120 square feet. Petitioners constructed a floating dock which is 7' x 16' and a fixed pierhead that is 2' x 6'. Petitioners now wish to increase the size of the fixed pierhead to 6' x 8'.

No field measurements were taken by OCRM at the proposed location. They completely relied on the aerial photographs obtained by using the GIS. In using the GIS, they took two measurements of Shem Creek which were some distance from the proposed location of the fixed pierhead and the floating dock. See Respondent Exhibit 11.

OCRM acknowledged that they looked at other permits for docks that had been issued in the general vicinity. These docks had a maximum size allocated to the pierhead and floating dock of 120 square footage. To maintain the integrity of the system, they felt that only a dock permit of 120 square footage should be granted to Petitioners. OCRM further argued that mud flats should not be considered in measuring the width of the creek. However, they acknowledge that there is no definition of a mud flat in their regulations.

• It is well established that in interpreting a regulation, the sole function of this tribunal is to determine and give effect to the intention on the drafter, with reference to the meaning of the language used and the subject matter and purpose of the regulation. See State v. Ramsey, 311 S.C. 555, 430 S.E.2d 511 (1993). Words must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand the regulation's operation. See State v. Blackmon,

304 S.C. 270, 403 S.E.2d 660 (1991); Higgins v. State, 307 S.C. 446, 415 S.E.2d 799 (1992).

Regs. 30-12(A)(2)(q)(iii) is clear and unambiguous. This tribunal interprets this provision to read that if, at the location a pierhead and floating dock are to be constructed, the distance of the creek is between 51 and 150, as measured from marsh vegetation on both sides, then the limitation on size is 160 square footage. Accordingly, since the width at the location is fifty-nine feet, Petitioners can construct a pierhead and floating dock with a combination of up to 160 square feet.

ORDER

Based on the foregoing findings of fact and conclusions of law,

IT IS HEREBY ORDERED that OCRM shall forthwith amend critical area permit OCRM-01-046-R as issued to Petitioners to authorize the presently constructed 7' x 16' (112 square feet) floating dock and the 6' x 8' (48 square feet) fixed pierhead, for a combined square footage of 160 square feet.

AND IT IS SO ORDERED.

__________________________________

MARVIN F. KITTRELL

Chief Administrative Law Judge

November 1, 2001

Columbia, South Carolina

1. GIS is a computer software program which has many data layers, including aerial photographs which reference a spot on earth. It provides a mechanism to point and click, perform measurements. OCRM uses it to determine the width of creeks for determining the size of docks which can be permitted and distances to determine the length of proposed walkways to docks. Mr. Joyner opined that the GIS system was pretty accurate. It was his testimony at the hearing that OCRM staff has in some prior cases verified GIS measurements on the ground. Further, he stated that it is a requirement of OCRM that the critical area permitting project manager put a GIS measurement in the file before it is reviewed by the supervisor.