SC Administrative Law Court Decisions

The South Carolina Department of Health and Environmental Control, Bureau of Ocean and Coastal Resource Management (OCRM) seeks a fine of $1,000 against Timothy Frye (Frye) who is alleged to be in violation of the terms of an OCRM permit authorizing a joint-use dock. Joseph Janosky & Peggy Janosky (Janosky), the neighboring property owners who believe they are being denied the joint use of the dock, intervened to assert the fine is proper.

The challenge places contested case jurisdiction in the Administrative Law Judge Division under S.C. Code Ann. §§ 48-39-150 (Supp. 2000) and §§ 1-23-310 et seq. (Rev. 1987 & Supp. 2000). After conducting a hearing on January 8, 2002 and considering the evidence and applicable law, I conclude the penalty is improper under the facts of this case.

• Has Frye's issuance of a deed to Janosky which excludes from the transfer "any right, title, or ownership interest in the dock" and which also places in Frye "an easement for purposes of access to the dock . . ., across that portion of the property described herein upon which the sidewalk (walkway) and dock of Lot Six (6) encroach" converted the dock located on the common property line of lot 6 and lot 7 from a joint-use dock to a single-use dock in violation of the permit?



• If an improper conversion arises, what penalty is proper? ⁽¹⁾

1. Positions of Parties

OCRM argues that Frye holds a permit for a joint-use dock, not a single-use dock. Based on such, OCRM argues that Frye's deeding of Lot 7 to Janosky improperly converted the dock into a single-use dock since the deed retained in Frye a 100% ownership interest in the dock and thereby prohibited any use of the dock by Janosky unless Janosky first obtains permission from Frye to use the dock. Janosky agrees with OCRM's position.

Frye argues that the deed merely retains ownership in Frye of the dock structure, but the deed does not deny use to Janosky. Rather, Frye argues that ownership and use are different and distinct.

2. Findings of Fact

Based on the preponderance of the evidence, the following findings of fact are entered:

On February 27, 1995, Richard Smith obtained permit 94-1E-200-P from OCRM. The permit allowed a dock on and adjacent to the Atlantic Intracoastal Waterway (AIWW), at Eastport Golf Course Subdivision, Little River, Horry County, SC. The permit's project description explains that the dock must be a "joint private, recreational use of two future lot owners." The map attached to the permit shows that permit 94-1E-200-P is for a dock located on the common property line of lots 6 & 7.

Frye purchased lots 6 & 7 on July 26, 1996. After an assignment of the dock permit by Smith to Frye on May 21, 1998, OCRM agreed to the permit transfer on June 29, 1998. During 1998, Frye constructed a walkway, fixed pier head, float, and boat lift along the waterway with the origin of the walkway beginning on the common joint property line of lots 6 & 7. The completed structure occupies the extended property line of both lots and the physical construction of the dock was made in compliance with the terms of the permit.

Sometime after the completion of the dock structure, Janosky expressed an interest in purchasing Lot 7 from Frye but no agreement on a sales price was reached immediately. Rather, after a period of negotiations over several weeks, Janosky and Frye arrived at an agreed sales price but only after specifically addressing the dock. In the negotiations Janosky explained that he had no interest in the dock on the common property line of Lots 6 & 7. Frye then agreed to lower the price of the property if the dock would not be conveyed in the sale. Janosky agreed to the lower price and as a result, on April 29, 1999, Frye sold lot 7 to Janosky with no transfer of the dock occurring.

Consistent with the parties' agreement, the contract of sale explains that the transfer from Frye to Janosky does "not transfer any ownership in the dock adjacent to the subject premises" and that Frye reserves "an easement for purposes of access to the dock across the subject premises, with the location of the easement approved by Buyer and Seller." Likewise, the deed carries out the intent of the contract in the following language:

There is specifically excluded from this conveyance any right, title, or ownership interest in the dock which is adjacent to and located partially on the real estate described herein and Seller retains sole ownership of such dock. Moreover Seller reserves an easement for purposes of access to the dock unto themselves, their heirs and assigns, across that portion of the property described herein upon which the sidewalk (walkway) and dock of Lot Six (6) encroach as shown upon a survey prepared for Joseph T. Janosky and Peggy Ann D. Janosky, dated April 11, 1996 and revised April ____, 1999.

Since concluding the purchase, Janosky has expressed an interest in acquiring a separate dock on his lot and has filed an application with OCRM requesting such a dock. However, lot 7 (just like lot 6) has at least 50 feet of water frontage but it does not have 75 feet of water frontage along the marsh edge. Thus, according to a written response from one OCRM official, "OCRM probably will not be able to entertain an application."

Having no ability to obtain a separate dock, Janosky has used the existing dock for limited means such as walking on it but has not stored or moored a boat there. Frye has not denied Janosky any access or use of the dock nor has he prevented Janosky from docking or mooring a boat.

After learning of the deed granted to Lot 7, OCRM issued an Enforcement Order on July 13, 2001 holding that Frye had made an "unauthorized alteration of the tidelands critical area" with that alteration being "the changing of use of a joint-use dock." In essence, Frye is alleged to have converted a permitted joint-use dock into an unpermitted single use dock. Frye disagrees with OCRM's conclusion and this contested case resulted.

3. Conclusions of Law

Based on the foregoing Findings of Fact, I conclude the following as a matter of law:

The deed of Lot 7 from Frye to Janosky excludes from the transfer "any right, title, or ownership interest in the dock" and also places in Frye "an easement for purposes of access to the dock . . ., across that portion of the property described herein upon which the sidewalk (walkway) and dock of Lot Six (6) encroach." The ultimate issue is whether such language violates the terms of the permit by converting a joint-use dock into a single-use dock.

a. Right To Use Public Trust Property In General

Before reaching the ultimate issue, a brief background on the law of public trust property is helpful. No doubt exists that the marsh and waterway here under review form a part of the public lands owned by the State and held in trust for the people of the State. Hobonny Club, Inc. v. McEachern, 272 S.C. 392, 252 S.E.2d 133 (1979); State v. Hardee, 259 S.C. 535, 193 S.E.2d 497 (1972). Indeed, given the authority of OCRM over public trust lands, were it not for permission from OCRM, neither Frye nor Janosky would be allowed to access the marsh and water by walkway, fixed pier head float, and boat lift. Sierra Club v. Kiawah Resort Associates, 318 S.C. 119, 456 S.E.2d 397 (1995) ("Clearly, under the South Carolina Coastal Management Act, the State through the Coastal Council maintains control over the public trust lands." (emphasis in original)).

In exercising control over the public trust, OCRM's regulations address alterations to the critical area by dock construction. See Regs. 30-12. The regulations specifically address lots (such as the ones here under review) having less than 75 feet of water frontage but more than 50 feet. Regs. 30-12(A)(2)(o).

[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 frontage and which are buildable, 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.

b. Janosky's Right to Use the Common Dock

Here, neither lot 6 nor 7 individually has 75 feet of water frontage. Thus, neither lot is eligible for a separate dock. Regs. 30-12(A)(2)(o). However, together lots 6 and 7 (adjacent properties) are "eligible for a common dock." "Common" means "belonging to or shared by two or more individuals or things or by all members of a group." Merriam-Webster Online, http://www.m-w.com/cgi-bin/dictionary, February 20, 2002.

Consistent with the meaning of "common dock," OCRM issued a permit allowing construction of a dock across the public trust lands that would be "for the joint private, recreational use of two future lot owners." Thus, in the instant case, OCRM, in exercising its control over the public trust lands, chose to grant permission for a dock on lots 6 and 7 only if the dock provided for a recreational use and only if the dock provided for the joint use of two future lot owners.

Knowing that such a limitation existed, Frye constructed the dock. Indeed, Frye has never argued that his ownership of the dock structure vested in him the right to the exclusive use of the structure. In fact, he agrees that OCRM never granted a right of exclusive use to just one of the lot owners. Rather, Frye admits that the right of use was given to both "future lot owners," Frye and Janosky. Moreover, Frye's testimony is consistent with that admission since he has never denied Janosky the use of the dock. Accordingly, the evidence, taken as a whole, establishes that Janosky has never been denied use of the dock and that use of the dock is available to Janosky since he is the owner of Lot 7, the adjacent lot for which the common dock was permitted.

c. Deed's Impact on Janosky's Right to Use the Common Dock

Having found a use bestowed upon Janosky by the permit, the issue is whether the deed to Janosky removed Janosky's permitted use. The answer is "no."

i. Deed Language

The contract of sale explains that the transfer from Frye to Janosky does "not transfer any ownership in the dock adjacent to the subject premises" and that Frye reserves "an easement for purposes of access to the dock across the subject premises, with the location of the easement approved by Buyer and Seller." Likewise, the deed carries out the intent of the contract by excluding from the sale Frye's ownership of the dock structure:

There is specifically excluded from this conveyance any right, title, or ownership interest in the dock which is adjacent to and located partially on the real estate described herein and Seller retains sole ownership of such dock. Moreover Seller reserves an easement for purposes of access to the dock unto themselves, their heirs and assigns, across that portion of the property described herein upon which the sidewalk (walkway) and dock of Lot Six (6) encroach as shown upon a survey prepared for Joseph T. Janosky and Peggy Ann D. Janosky, dated April 11, 1996 and revised April ____, 1999.

However, nothing in the language excluding Frye's ownership of the dock denies Janosky's use of the dock. In short, Frye cannot "exclude" what he does not have. Janosky's right to use the dock arises solely from OCRM's permit granting such right to "two future lot owners."

Specifically, the right of use in Janosky does not arise from any relationship with Frye. For example, Frye's 1996 acquisition of both lots did not place in Frye the exclusive right to use the common dock. Rather, even then, the permit plainly restricted permission to construct a dock to the joint use of "two future lot owners,"not to construct a single use dock for one owner of two lots. ⁽²⁾

Finally, even if some doubt existed on whether the deed language deprived Janosky of use of the dock, a deed will not "operate so as to convey an interest which the grantor does not have in the land described in the deed or so as to convey a greater estate or interest than grantor has, even though by its terms it may propose to do so." Griggs v. Griggs, 199 S.C. 295, 301, 19 S.E.2d 477, 479, (1942); see also Belue v. Fetner, 251 S.C. 600, 164 S.E.2d 753 (1968). Thus, the deed cannot be read to address an interest which Frye had no right to convey.

ii. Lack of Interest Running With The Land

Also, nothing in this case demonstrates that OCRM's granting of permission to use a common dock by two adjacent lot owners runs with the land so as to create a right that can be sold or bargained away. Rather, OCRM's permits are mere licenses addressing a person, not a property. See S.C. Code Ann. Regs. 30-4(2)(E) ("No permit shall convey, nor be interpreted to convey, a property right in the land or water in which the permitted activity is located."); S.C. Code Ann. Regs. 30-8(A) ("All permits issued by the Department are revocable licenses."). In essence, a license applicable to real property merely grants permission to engage in an act or series of acts without possessing any interest in the land itself and does not constitute an interest in land. 25 Am. Jur. 2d Easements and Licenses § 137 (1996). Indeed, a license for use issued by a governmental body conveys no property rights and does not attach to land.

[A] license to be on the premises for an agreed purpose is a contractual right personal to the licensee. A license does not vest in the licensee any estate or interest in the land. It conveys only the temporary privilege of being on the land for some agreed purpose.

Hilton Head Air Service, Inc. v. Beaufort County, 308 S.C. 450, 418 S.E.2d 849, 853 (Ct. App. 1992).

d. Conclusion

Accordingly, under the facts of this case, OCRM permitted the building of a common dock. The common dock was built for the future owners of lots 6 and 7. Janosky owns lot 7. Therefore, Janosky has the right to use the common dock.

The fact that Frye has chosen to retain 100% ownership of the dock structure does not convert a joint use dock into a single use dock. Rather, for reasons satisfactory to Frye and Janosky at the time of the sale of lot 7, both parties were satisfied with Frye retaining 100% ownership of a structure imprinted with a right of use by the neighboring owner of lot 7. Since the right of use remains in Janosky, no conversion of the common dock into single use dock has been shown.

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

Frye has not converted a joint use dock into a single use dock, and, therefore, OCRM is directed to withdraw its imposition of a $1,000 fine against Frye. ⁽³⁾

AND IT IS SO ORDERED.

_________________________________

RAY N. STEVENS

Administrative Law Judge

Dated: February 27, 2002

Columbia, South Carolina

1. Since I find no conversion from joint use to single use has occurred, no issue is addressed on the appropriateness of the penalty.

2. Certainly if the two lots were converted to one lot, Frye could have requested a new permit for a single use dock based on his newly acquired water frontage. However, such was not done. Thus, at all times, a joint use permit existed.

3. In concluding that a fine may not be imposed, the only issue decided is that the deed from Frye to Janosky of lot 7 does not convert a joint use dock into a single use dock. To the extent that other disputes exist on how that joint use is to be equitably accomplished, forums other than the Administrative Law Judge Division are available for resolution.