SC Administrative Law Court Decisions

Neal Brothers transferred title of 111 Hibben Street to Tompkins and Company on September 15, 1997. Respondent Neal is a controlling member and agent of Tompkins and Company. Tompkins and Company is currently the record owner of 111 Hibben Street.

5. On September 10, 1999, Amy C. Willis, the owner of 123 Hibben Street, filed an action in Charleston County Circuit Court claiming ownership of the 5' x 119' strip of land extending from the rectangular body of 111 Hibben Street to the waterfront of Charleston Harbor. The action was heard by the Honorable Roger M. Young who issued his final Amended Order of Judgment on January 16, 2001. After reviewing the chains of title of Respondent Neal's property and Amy C. Willis' property, Judge Young determined Neal to be the owner of the disputed strip in fee simple absolute. Judge Young further determined that "the record is clear that the strip of land in question has been considered part of the Neal tract in surveys going back at least as far as 1947."

After the filing of Amy C. Willis' action, an additional issue arose as to the location of a property line. The disputed property line is not either of the two property lines bordering the disputed 5' x 119' strip. The parties to the action voluntarily agreed to split the disputed property and Judge Young amended his original order to include this settlement and to direct the parties to place a pin "equally dividing the disputed property and a survey prepared, which shall be recorded to permanently resolve the dispute." On January 2, 2001, Neal had 111 Hibben Street surveyed to reflect that the northeast property line had been moved nine inches. As Neal was not subdividing his property, he was not required to follow the subdivision process required by the Town of Mt. Pleasant or Charleston County's zoning ordinances.

6. After receiving Judge Young's Amended Order of Judgment, Respondent Neal reapplied for a dock permit on June 19, 2001. In processing the 2001 application, OCRM had the benefit of Judge Young's orders. Consequently, based on Judge Young's ruling that 111 Hibben Street has existed in its current form at least as far back as 1947, OCRM determined that Regulation 30-12(A)(2)(o) does not apply to that property because there has been no subdivision or division of the property after May 23, 1993. The permit allows for the construction of a private recreational dock, which consists of a 4' x 300' walkway leading to a 5' x 10' fixed pierhead.

7. Respondent Neal's proposed dock would be between two larger docks that extend 400 feet channelward of Neal's dock. Therefore, permitting Neal's dock would not detrimentally affect navigation or the public's access to tidal lands and recreational coastal resources. Furthermore, there was no evidence the proposed dock would affect the property values of adjacent owners' property.

1. S.C. Code Ann. § 48-39-150 (1987 & 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 (1986 & Supp. 2001).

2. 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). Furthermore, the burden of proof in a contested case hearing is upon the moving party. S.C. Code Ann. § 44-7-210(E) (Supp. 2001); See also 2 Am. Jur. 2d Administrative Law § 360 (1994); Alex Sanders, et al., South Carolina Trial Handbook § 9:3 Party With Burden, Civil Cases (1999).

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. (1987 & Supp. 2001) and the regulations promulgated pursuant to those provisions found at 23A S.C. Code Ann. Regs. 30-1 et seq. (Supp. 2001). Furthermore, 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 (1987 & Supp. 2001).

4. The property in question is located in a critical area as defined in S.C. Code Ann. § 48-39-10 (1987 & Supp. 2001) and 23A S.C. Code Ann. Regs. 30-1(C)(4) and (12) (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. The Petitioner argues that 111 Hibben Street was not platted and recorded in its current form until 1997 and, therefore, it must comply with the minimum frontage requirements of 23A S.C. Code Ann. Regs. 30-12(A)(2)(o) (Supp. 2001) Regulation 30-12(A)(2)(o) provides:

For lots platted and recorded after May 23, 1993, before a dock will be permitted a lot must meet the minimum, local requirements to construct a habitable structure. In addition, 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.

The Petitioner contends that Regulation 30-12(A)(2)(o) applies to all lots that have been platted and recorded after May 23, 1993, no matter what the reason for the platting and recording. OCRM, on the other hand, interprets Regulation 30-12(A)(2)(o) as applying to only those lots that are platted and recorded after May 23, 1993 as the result of a subdivision of a piece of property. ⁽⁴⁾ In other words, new lots which are created after May 23, 1993, and then platted and recorded.

The cardinal rule of statutory interpretation and construction is that courts must ascertain and give effect to the intent of the legislature. Mid-State Auto Auction of Lexington, Inc. v. Altman, 324 S.C. 65, 476 S.E.2d 690 (1996). The intention of the legislature should be ascertained primarily from the plain language of the statute and the words of the statute must be given their plain and ordinary meaning without resorting to forced construction which expands or limits the statute's operation. State v. Hendriks, 318 S.C. 562, 459 S.E.2d 520 (S.C. App. 1995); Rowe v. Hyatt, 321 S.C. 366, 468 S.E.2d 469 (S.C. 1996). However plain the ordinary meaning of the words in a statute may be, a court will reject the meaning when that interpretation would lead to a result so absurd that it could not have been intended. State ex rel. McLeod v. Montgomery, 224 S.C. 308, 136 S.E.2d 778 (1964). Furthermore, "while the ALJD is an independent entity, it still functions as an arm of the agency for purposes of according the agency deference in interpretation. '[T]he construction of a statute by the agency charged with its administration will be accorded the most respectful consideration and will not be overruled absent compelling reasons.'" Dorman v. Department of Health and Environmental Control, 350 S.C. 159, 167, 565 S.E. 2d 119, 124 (Ct. App. 2002) (quoting, in part, Brown v. S.C. Dep't of Health & Envtl. Control, 348 S.C. 507, 560 S.E.2d 410, 413 (2002)).

Regulation 30-12(A)(2)(o) applies to those "lots platted and recorded after May 23, 1993."(emphasis added). "Ordinarily, when the conjunctive 'and' connects words, phrases or clauses of a statutory sentence, they are to be considered jointly." Lithium Corp. of America, Inc. v. Town of Bessemer City, 261 N.C. 532, 135 S.E.2d 574, 577 (1964); See also 73 Am. Jur. 2d Statutes § 156 (2001). Therefore, even if a lot was not platted prior to May 24, 1993, if it was recorded before that date, it was not required to meet the requisites of Regulation 30-12(A)(2)(o). Here, 111 Hibben Street clearly has existed in it current state and has been recorded by deed in its current metes and bounds (excepting the moving of the northeast property line nine inches) for more than 50 years. As 111 Hibben Street was recorded prior to May 23, 1993, I find that Regulation 30-12(A)(2)(o) does not apply to the property.

Moreover, I find that OCRM's interpretation of the regulation as applying only to those lots that are platted and recorded as the result of a subdivision is consistent with the intent of the legislature and consistent with the policies of the Coastal Zone Management Act, which promote and encourage water access. The term "platted and recorded" assumes that the platting and recording involved a change in the configuration of the property. To assume otherwise would lead to an absurd result. In other words, if "platted and recorded" simply applies to any instance in which a plat is recorded for a piece of property, an individual who recorded a plat for property he had owned in the same configuration for many years prior to May 23, 1993, but which had less than 50' of water frontage, would be excluded from receiving a dock permit merely because the existing configuration had been formally recorded. Furthermore, as Richard Chinnis, the Respondent's expert, explained: lots are commonly re-surveyed and platted at the time of purchase in order to satisfy the requirements of title insurance companies. Under the Petitioner's interpretation of Regulation 30-12(A)(2)(o), anyone purchasing a lot with less than 75' of water frontage after May 23, 1993 would not be eligible for a dock unless the purchaser could forego purchasing title insurance. Therefore, I find that Regulation 30-12(A)(2)(o) is not intended to apply to every lot platted and recorded after May 23, 1993, but only to those lots that are platted and recorded after May 23, 1993 as the result of a subdivision of a piece of property.

Consequently, the application of Regulation 30-12(A)(2)(o) to property that is platted and recorded after May 23, 1993 as the result of a subdivision of the property involves a two-part analysis: 1) Has a plat for the property been recorded after May 23, 1993; and 2) Does that plat reflect a change in the configuration of the property after May 23, 1993. In this case, Neal was required to have 111 Hibben Street surveyed in 1997, the time of his purchase, before his title insurance company would provide him with title insurance. The plat of the property was then recorded on September 10, 1997. However, though the property was acquired by Petrona McIver through the purchase or conveyance of three separate parcels, those separate parcels were conveyed as one piece of land over a span of 18 years and thus the 5' x 119' strip of land at issue in this case has been considered part of the subject property in surveys going back as far as 1947. The plat that was recorded on September 10, 1997 does not seek to subdivide the property, but rather simply records the configuration of the property as it has existed for many years prior to May 23, 1993. Moreover, a plat for the qualifying property for which Neal seeks the permit (the five foot strip of land) was recorded on September 29, 1947. The dimensions of that platting have not changed since it was originally conveyed to Petrona McIver. It has simply been conjoined to other property making it part of a larger tract of land that was also reflected in the September 29, 1947 plat.

6. The Petitioner argues that even if the platting and recording requirements of Regulation 30-12(A)(2)(o) do not apply to the subject property, Neal is still not entitled to a dock because the subject property lacks the required minimum frontage between the extended waterfront property lines. The Petitioner contends that Regulation 30-12(A)(2)(o) requires that 111 Hibben Street must have 75' of water frontage between extended property lines and must be 50' wide at the marsh or waterfront to be eligible for a dock permit.

The purpose of the water frontage footage requirements are to insure that there is not a proliferation of docks extending into the waterways by limiting the size of property that is entitled to receive a permit. However, in Dorman v. Department of Health and Environmental Control, 350 S.C. 159, 565 S.E. 2d 119 (Ct. App. 2002), the South Carolina Court of Appeals found that the 50' requirement of Regulation 30-12(A)(2)(o) does not apply to lots platted and recorded prior to May 23, 1993.

Therefore, pursuant to the logic of Dorman, if waterfront property was platted and recorded prior to May 23, 1993, it is exempt not only from the 50' water frontage requirement of Regulation 30-12(A)(2)(o), but all the footage requirements of that Regulation. Here, the property at issue has only five feet of frontage between extended waterfront property lines and would not normally receive a permit under the requisites of Regulation 30-12(A)(2)(o). However, under the reasoning of Dorman, it is nevertheless exempt from all the minimum frontage requirements of that Regulation since it was not platted and recorded in order to subdivide the property after May 23, 1993. See Dorman at 167.

7. On January 16, 2001, Judge Young issued an Amended Order of Judgment requiring that the property line of 111 Hibben Street be moved nine inches. The Petitioner contends that since Judge Young's Order changed the boundary line, the property was not "one piece" of property until the date of that Order. However, Judge Young examined the chains of title of David Neal and Amy Willis and determined that Neal acquired a fee simple title to the 5' x 119' strip of land. Therefore, Neal acquired fee simple ownership of 111 Hibben Street in its present condition, excepting the nine inch shift of the northeast property line, on April 2, 1997, when Julia McIver executed a deed of said property to Neal Brothers. Furthermore, as set forth above, neither the Town of Mount Pleasant nor Charleston County recognized this shift as a "subdivision" of property so as to warrant compliance with any local and county zoning ordinances.

8. The Petitioner argues that since Neal did not own 111 Hibben Street until 1997, he cannot be excepted or "grandfathered" from the provisions of Regulation 30-12(A)(2)(o). However, as stated above, the 75' requirement of Regulation 30-12(A)(2)(o) does not apply to 111 Hibben Street. As such, there is no "grandfathering" issue to address. Furthermore, even if this issue did exist, Regulation 30-12(A(2)(o) does not require ownership of a property prior to any specific date. Rather, the Regulation excepts or "grandfathers" those lots that are platted or recorded on or before May 23, 1993.

9. The Petitioner argues he is not bound by Judge Young's holding that the 5' x 119' strip of land is owned in fee simple absolute by Neal. Rather, the Petitioner contends that the strip of land in question is actually an easement. "Under the doctrine of collateral estoppel, once a final judgment on the merits has been reached in a prior claim, the relitigation of those issues actually and necessarily litigated and determined in the first suit are precluded as to the parties and their privies in any subsequent action based upon a different claim." Richburg v. Baughman, 290 S.C. 431, 351 S.E.2d 164, 166 (1986). See also Carman v. South Carolina Alcoholic Beverage Control Comm'n, 317 S.C. 1, 451 S.E.2d 383, 386 (1994) (applying collateral estoppel in administrative proceedings). The party asserting collateral estoppel must also show that "the matter or fact directly in issue was necessary to support the first judgment." Beall v. Doe, 281 S.C. 363, 315 S.E.2d 186, 191 (Ct. App.1984). "Only a party to a prior action or one in privity with a party to a prior action can be precluded from relitigating an issue on the basis of offensive collateral estoppel." Carrigg v. Cannon, 347 S.C. 75, 552 S. E. 2d 767, 770 (Ct. App. 2001). "[T]he term 'privity,' when applied to a judgment or decree, means one so identified in interest with another that he represents the same legal right." Roberts v. Recovery Bureau, Inc., 316 S.C. 492, 450 S.E.2d 616, 619 (Ct. App.1994). In Carrigg, the Court held that:

Privity deals with a person's relationship to the subject matter of the previous litigation, not to the relationships between entities. To be in privity, a party's legal interests must have been litigated in the prior proceeding. Having an interest in the same question or in proving or disproving the same set of facts does not establish privity. Nor is privity found when the litigated question might affect a person's liability as a judicial precedent in a subsequent action.

552 S. E. 2d at 770 (quoting Wade v. Berkeley County, 330 S.C. 311, 498 S.E.2d 684, 687 (Ct. App.1998)).

Here, the 5' x 119' strip of land lay between the property of Neal and Amy Willis. The issue of the ownership of that strip of land was specifically addressed in litigation between Neal and Willis before Judge Young. To resolve the issue, Judge Young appointed Steven A. Spitz, an Associate Professor at the University of South Carolina School of Law, as an expert witness for the Court. Professor Spitz met with both parties' experts, reviewed all deeds, closing documents and other relevant materials, and submitted a detailed and thorough report to the Court. Judge Young then reviewed this report and held a full day hearing wherein both parties presented evidence and expert testimony. After reviewing the report to the Court, all deeds and other relevant documents, and the testimony presented at the hearing, Judge Young issued a Final Order of Judgment and then an Amended Order of Judgment. Since Amy Willis actually owned the property abutting the Neil's property and was the only other party who could claim ownership of the 5' x 119' strip of land, I find that the Petitioner was in privity with Willis. Furthermore, the Petitioner had every opportunity to intervene in the circuit court action but apparently never sought intervention.

10. The Petitioner asserts OCRM's denial of the Neal's 1998 permit application has the effect of collateral estoppel and bars OCRM from granting Neal's current permit application. "Under the doctrine of collateral estoppel, when an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim."(emphasis added). Carman v. South Carolina Alcoholic Beverage Control Comm'n, 317 S.C. 1, 6, 451 S.E.2d 383, 386 (1994).

As set forth in the above findings of fact, Neal appealed OCRM's 1998 denial of his permit application for a crabbing dock to the Administrative Law Judge Division. However, the appeal was subsequently dismissed pursuant to a Consent Order of Dismissal. Therefore, since the action was dismissed prior to trial, no issue of fact or law was ever "actually litigated and determined by a valid and final judgment." Id. Furthermore, the Consent Order of Dismissal states: "Nothing in this consent order shall be construed as prohibiting David Neal from making a future application for the construction of a private dock at 111 Hibben Street, Mount Pleasant, South Carolina." See David Neal v. South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management, 98-ALJ-07-0633-CC (December 14, 1998).

11. The Petitioner argues that Neal's dock will detrimentally affect his property value in violation of Regulation 30-11(B)(10). OCRM must consider the extent to which the adjacent property owners' value and enjoyment of their property is affected by a proposed structure. However, OCRM must balance the interests of adjacent property owners against the interests of the applicant.

Here, the Petitioner testified regarding his opinion as to whether Respondent Neal's dock would affect his property value. He stated he believed the dock would devalue his property because it will be close to his property. Apparently, the Petitioner is concerned the dock will disrupt his view. However, the Petitioner's view is already disrupted by existing docks. Moreover, a neighboring property owner's objections to view is not a reason in and of itself to deny an application. A private landowner does not acquire an easement providing an unobstructed view over adjoining property. Hill v. The Beach Co. et al., 279 S.C. 313, 306 S.E.2d 604 (1983). Furthermore, Neal presented a certified appraisal which assessed the impact of Neal's dock upon the Petitioner's property values. The appraisal found that Neal's proposed crabbing dock would not detrimentally affect the Petitioner's property value. The Petitioner offered no evidence to the contrary. Based upon these findings, the Petitioner has not met his burden of proof on this issue.

12. The Petitioner argues Neal's dock is within 20 feet of the Petitioner's extended property line in violation of Regulation 30-12(A)(2)(p). Regulation 30-12(A)(2)(p) is not an absolute bar to constructing a dock within 20 feet of an extended property line. Rather, the regulation provides no dock "should normally be allowed to be built closer than 20 feet from extended property lines" but that OCRM may allow docks to be constructed "closer than 20 feet or over extended property lines where there is no material harm to the policies of the Act." 23A S.C. Code Ann. Regs. 30-12(A)(2)(p) (Suppl 2001).

OCRM considered the policies of the Act and found that allowing Neal's dock to come within 20 feet of the Petitioner's extended property line would not cause material harm to the Act. Neal's dock would be located between two longer and larger docks. Accordingly, it would not affect existing public access to tidal lands, navigable waters or beaches; would not affect the value and enjoyment of adjacent owners; would not impede navigation; and would not cause cumulative impacts. Furthermore, the Petitioner offered no evidence which established that Respondent Neal's dock would materially harm the policies and purposes of the Act. Therefore, I find that Respondent Neal's proposed dock does not violate Regulation 30-12(A)(2)(p).

13. I find that permit number 2001-1E-326-P complies with the controlling statutes and regulations and that OCRM properly issued permit number 2001-1E-326-P to Respondent David Neal.

IT IS THEREFORE ORDERED that OCRM's issuance of permit number 2001-1E-326-P is upheld.

AND IT IS SO ORDERED.

Ralph King Anderson, III

Administrative Law Judge

September 19, 2002

Columbia, South Carolina

1. A "plat" is defined as a "map of a specific land area such as a town, section, or subdivision showing the location and boundaries of individual parcels of land subdivided into lots, with streets, alleys, easements, etc., usually drawn to scale." Black's Law Dictionary 797 (6th ed. 1990).

2. Regulation 30-12(A)(2)(o) was subsequently amended in 1999 to add the language "platted and recorded after May 23, 1993."

3.

⁰ A survey is "the process by which a parcel of land is measured and its boundaries and contents ascertained; also a map, plat, or statement of the result of such survey, with courses and distances and the quantity of land" and "to survey" land is "to ascertain corners, boundaries, and divisions, with distances and directions, and not necessarily to compute areas included within defined boundaries. To appraise as to value or condition." Black's Law Dictionary 1008 (6th ed. 1990).

4. A "subdivision" is "a division into smaller parts of the same thing or subject-matter. The division of a lot, tract or parcel of land into two or more lots, tracts or parcels or other divisions of land for sale or development." Black's Law Dictionary 993 (6th ed. 1990).