ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This contested case proceeding arises from a decision of the South Carolina Department of Health and Environmental
Control, Office of Ocean and Coastal Resource Management ("OCRM") to issue a joint-use dock permit to Respondents
Lee Metz and George B. Smith. Respondents Metz and Smith initially filed separate applications for a dock permit.
Because Metz's lot and Smith's lot originally were not part of the dock master plan for their subdivision, OCRM denied
their applications. The cases were transmitted to the Division, consolidated for hearing, and heard by the Honorable Ralph
King Anderson, III. On July 28, 2000, Judge Anderson issued an order granting Metz's request for a single use dock permit
and remanding Smith's request to OCRM to see if the parties could reach an agreement. Metz and Smith thereafter
proposed to OCRM the construction of a joint-use dock on their property. OCRM granted the joint-use dock permit which
allowed the construction of a private, recreational, joint-use dock on and adjacent to Clarks Creek in Phase IV of the
Wexford Sound Subdivision, Charleston, South Carolina. Mark Teseniar, Richard L. Trenaman, and Christine Cooper
timely filed a request for a contested case hearing. OCRM then transmitted the case to the Division. Prior to the hearing,
Ms. Cooper and Mr. Trenaman withdrew their appeals of the permit. The remaining Petitioner objects to the permitted
structure on several grounds, most significant of which is the Petitioner's assertion that the structure would terminate at a
point, which would block navigation to an adjacent tributary. The undersigned conducted a hearing on the merits on
Monday, December 17, 2001.
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:
- Respondent Lee Metz is the owner of Lot 42 in Phase IV of the Wexford Sound Subdivision, Charleston County, South
Carolina. He purchased the property from Squire Homes in April 1996. Lot 42 is located has approximately 105 feet of
water frontage and is configured in a pie-shape with converging property lines. It has approximately 80 feet of frontage
at the water's edge, but if the lines are extended there is less than 75 feet. It is located on the marsh or tidal creek of
Clark Sound and is adjacent to Respondent Smith's Lot 41. On February 28, 1999, Mr. Metz applied for a permit to
construct a private dock to consist of a 4-foot-by-460-foot walkway leading to a 10-foot-by-10-foot fixed pierhead.
On April 19, 1999, OCRM denied Mr. Metz's request for the above dock permit. In denying the permit, OCRM informed
Mr. Metz that since Lot 42 was not included in the dock master plan for Wexford Sound Subdivision, he was not eligible
for a single or joint-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.
- Respondent George B. Smith is the owner of Lot 41 in Phase IV of the Wexford Sound Subdivision, Charleston
County, South Carolina. In April 1996, Mr. Smith also purchased his property from Squire Homes. Lot 41 is located on
the marsh or tidal creek of Clark Sound. On March 15, 1999, he applied for a permit to construct a private dock to
consist of a 4-foot-by-340-foot walkway leading to a 10-foot-by-10-foot fixed pierhead.
On April 22, 1999, OCRM denied Mr. Smith's request for the above dock permit. In denying the permit, OCRM likewise
stated that since Lot 41 was not included in the dock master plan for Wexford Sound Subdivision he also was not eligible
for a single or joint-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.
- Both Mr. Metz and Mr. Smith requested a contested case hearing before the Division. Mr. Metz and Mr. Smith
contended that OCRM improperly denied their permits because the dock master plan for Phase IV of the Wexford
Sound Subdivision did not exist in April 1996 when Lots 41 and 42 were purchased from Squire Homes.
- 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-use 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-use or joint-use dock. Furthermore, docks proposed under a permit application must meet the
requirements set forth in the Permitting Rules and Regulations. 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.
The dock master plan for Phase IV of the Wexford Sound Subdivision was not prepared until June 21, 1997. Lots 41 and
42 were not included in the dock master plan because they were no longer owned by the developer at the time the plan was
prepared.
- OCRM contended that a joint-use dock permit would be proper in the case of Lots 41 and 42 because a lot must have 75
feet of water frontage along the marsh edge and at least 75 feet of frontage between the extended waterfront property
lines as required by the Coastal Zone Management Act and OCRM's regulations. According to OCRM, a joint-use dock
is consistent with the docks downstream of the Respondents' property. Additionally, Lot 41 met the requirements for
placement of a joint-use dock which requires at least 50 feet of frontage, both on the marsh edge and along the water
between the waterfront extended property lines.
- On July 28, 2000, the Honorable Ralph King Anderson, III issued a Final Order and Decision in Lee Metz v. SCDHEC-OCRM, Docket No. 99-ALJ-07-0254-CC and George B. Smith v. SCDHEC-OCRM, Docket No. 99-ALJ-07-0253-CC.
The two matters were consolidated for hearing. Judge Anderson's Order found that the reason the lots were not
included in the Dock Master Plan was because the developer had sold the lots by the time the Plan was submitted and
approved by OCRM. The Judge ordered that the matter be remanded to OCRM in order to explore other options with
regard to these lots.
- Respondents Metz and Smith again submitted an application to the agency, this time for a joint-use structure. The
application was placed on public notice on February 1, 2001. On April 2, 2001, OCRM issued permit number OCRM-01-059-M. The permit allows for the construction of two walkways, which will connect in a "Y-shape" to a 4' by 480'
walkway, leading to a single 10' by 10' fixed pierhead and two 7' by 10' floating docks. The purpose of the "Y-shaped"
walkways is to protect an existing Live Oak tree. This appeal followed.
- The Petitioner contends that this joint-use structure will obstruct access to an unnamed tributary, which flows into
Clarks Creek. Specifically, he argues that the pierhead will be located adjacent to its mouth and make it impossible to
navigate.
- Mark Caldwell testified on behalf of OCRM. According to his testimony, the dock will not, in fact, be placed in a
manner that will obstruct access to the unnamed tributary. The permit, admitted into evidence, requires that any boats
that are moored at the dock must not hinder or obstruct navigation. I find that the dock, if constructed as permitted, will
not pose a navigational hazard.
- The Petitioner also objects to the structure on the grounds that it will cross extended property lines, as well as crossing a
navigable creek. He also contends that the floating docks will rest on the creek bed at low tide. However, I find no
support for these allegations in the record.
CONCLUSIONS OF LAW
Based upon the foregoing findings of fact, I conclude, as a matter of law, the following:
- The South Carolina Administrative Law Judge Division has subject matter jurisdiction in this action pursuant to S.C.
Code Ann. §1-23-310 et seq. (Supp. 2001), and §1-23-500 et seq. (Supp. 2001). Pursuant to S.C. Code Ann. §48-39-150(D) (Supp. 2001), the Division is authorized to hear contested cases arising under Chapter 39 of the 1976 Code.
- Permits for construction of private docks in the coastal zone of South Carolina are governed by the South Carolina
Coastal Zone Management Act, S.C. Code Ann. § 48-38-10 et seq. (Supp. 2001) and the regulations promulgated
thereunder, 23A S.C. Code Ann. Regs. 30-1 et seq. (Supp. 2001). (1) Respondent 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) (June 1999); S.C. Code Ann. § 48-39-130 (Supp. 2001).
- The rules governing the permitting of docks and piers are found at 23A S.C. Code Ann. Regs. 30-12(A) (Supp. 2001).
- The standard of proof in a contested case hearing is a preponderance of the evidence. National Health Corp. v. South
Carolina Dept. of Health & Env. Control, 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989). The Petitioners, therefore,
have the burden of proof to show, by a preponderance of the evidence, that the proposed structure would violate the
Coastal Zone Management Act and the regulations promulgated thereunder.
- 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(C)(4) and (12) (June 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 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) (June 1999).
- S.C. Code Ann. Regs. 30-12(A) (June 1999) sets forth the specific project standards for construction of docks and piers
for tidelands and coastal waters. Regulation 30-12(A)(2) specifically provides in part that:
The following general standards are applicable for construction of docks and piers:
(a) Docks and piers shall not impede navigation or restrict the reasonable public use of state lands and waters;
. . . .
(e) All applications for docks and piers should accurately illustrate the alignment of property boundaries with adjacent
owners and show the distance of the proposed dock from such extended property boundaries. For the purpose of this
section, the extension of these boundaries will be an extension of the high ground property line. The Department may
consider an alternative alignment if site specific characteristics warrant or in the case of dock master plans, when
appropriate.
- 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).
- OCRM has historically looked favorably on the issuance of joint-use docks. OCRM has made it a policy to encourage
community and joint-use dock structures, as these structures reduce the impacts normally associated with docks, such as
environmental and navigational impacts. In the instant situation, the Respondents' lots have a total of approximately
185 feet of frontage along the water. I conclude that it is more prudent to permit a joint-use dock in this situation than to
explore the possibility of allowing for a private dock for each Respondent.
- I conclude that this issuance of this joint-use dock is not in violation of any regulatory or statutory provision. However,
in order to ensure that the dock will be built in its proper location, a survey should be conducted of the structure prior to
receiving a construction placard from OCRM. This survey should show that the location of the pierhead and floating
docks near the mouth of the unnamed tributary will not hinder or block its use.
ORDER
Based on the foregoing findings of fact and conclusions of law,
IT IS HEREBY ORDERED that the decision of OCRM to issue permit number OCRM-01-059-M is hereby affirmed.
IT IS FURTHER ORDERED that Respondents Smith and Metz shall have a survey conducted of the dock and provide it
to OCRM prior to receiving a construction placard in order that the structure, as built, will not pose a navigational hazard
and confirm to the provisions of this order.
AND IT IS SO ORDERED.
__________________________________
MARVIN F. KITTRELL
Chief Administrative Law Judge
February 12, 2002
Columbia, South Carolina
1. Regulations 30-1 et seq. were amended effective June 25, 1999. However, the law prior to June 25, 1999 is applicable to this
Order as the Petitioners' permit applications were submitted before the amendment. |
