ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before me pursuant to the Petitioner's request for a contested case hearing regarding the decision of the
Respondent South Carolina Department of Health and Environmental Control ("DHEC"), Office of Ocean and Resource
Management ("OCRM"), to issue a permit for a community dock to the Respondent Lowndes Pointe Partners ("Lowndes
Pointe"). Petitioner contends that the permit should not have been issued because the lot for which it is sought is allegedly
not in compliance with 23A S.C. Code Ann. Regs. 30-12(A)(2)(o) (Supp. 2001), which requires that a lot meet minimum
local requirements to construct a "habitable structure" and have 75 feet of water frontage along the marsh edge and at least
75 feet of frontage between extended waterfront property lines before a dock permit may be issued. Respondents OCRM
and Lowndes Pointe contend that 23A S.C. Code Ann. Regs. 30-12(A)(2)(o) applies only to permits for single family and
joint use docks, not to permits for community docks. Accordingly, Respondents claim that the regulation does not apply to
this matter and that the permit was properly issued.
A hearing was held at the offices of the South Carolina Administrative Law Judge Division ("ALJD") on October 28, 2002.
For the reasons that follow, I conclude that OCRM's issuance of the permit should be affirmed.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, considering
the burden of persuasion by the parties, I make the following findings of fact by a preponderance of evidence:
1. Petitioner is a neighborhood association in Charleston, South Carolina.
2. Lowndes Pointe is a residential community located in Charleston, South Carolina. In October 2001, Lowndes Pointe
submitted a permit application to OCRM seeking to construct a private community dock for the use of its homeowners, to
be located on the Ashley River at 2334 Sunnyside Avenue. At that time, Lowndes Pointe sought permission to construct a
dock large enough to accommodate twenty-nine vessels at any given time, including thirteen wet slips and sixteen jet slips.
3. OCRM received letters of concern from the public regarding Lowndes Pointe's community dock permit application and
held a public hearing to address those concerns.
4. On June 6, 2002, OCRM issued permit #2001-1E-509-P to Lowndes Pointe to construct a community dock, with special
conditions. One of the special conditions requires that no more than nine boats be moored at any given time, thus reducing
the number of vessels the community dock can accommodate at any given time from the proposed twenty-nine vessels to
the authorized nine vessels. Thus, the community dock will have docking space of less than 200 linear feet.
5. The parties stipulate that the proposed location for the community dock at Lowndes
Pointe is not a "buildable lot."
6. Testimony from Charlie McCrary, a principal of Lowndes Pointe, whom I find to be a credible witness, establishes that
the proposed location for the community dock has 75 feet of water frontage along the marsh edge and 75 feet of frontage
between extended waterfront property lines. Mr. McCrary's testimony also establishes that the proposed community dock
will be built 20 feet from extended property lines.
7. Testimony from Curtis Joyner, Manager of Permitting for OCRM, whom I find to be a credible witness, establishes that
in applying its regulations to applications for permits for the construction of docks in critical areas, OCRM applies subpart
(A) of 23A S.C. Code Ann. Regs. 30-12 (Supp. 2001) to applications for permits to build single family and joint-use docks.
OCRM does not apply subpart (A) of 23A S.C. Code Ann. Regs. 30-12 to applications to build community docks or
marinas. In considering applications for permits to construct community docks or marinas, OCRM does apply subpart (E)
of 23A S.C. Code Ann. Regs. 30-12.
CONCLUSIONS OF LAW
Based upon the above findings of fact, I conclude as a matter of law the following:
1. The ALJD has subject matter jurisdiction over this matter pursuant to S.C. Code Ann. § 1-23-600 (Supp. 2001).
2. OCRM is the division within DHEC charged with carrying out the State's coastal zone policies and issuing permits for
the construction of docks, piers, and other structures in critical areas, defined as the State's coastal waters, tidelands,
beaches, and beach dune systems. S.C. Code Ann. §§ 1-30-45(B), 48-39-10(J), 48-39-35, 48-39-50, and 48-39-130 (Supp.
2001).
3. OCRM is authorized pursuant to S.C. Code Ann. §48-39-50 (Supp. 2001) to promulgate regulations relating to carrying
out the provisions of Chapter 39, Title 48 of the Code of Laws of South Carolina 1976. Pursuant to that authority, the
Coastal Council, predecessor to OCRM, and OCRM promulgated 23A S.C. Code Ann. Regs. 30-1 to 30-21 (Supp. 2001).
Those regulations govern the management, development, and protection of the coastal zone areas of the state.
4. The project in question is located in a "critical area" as that term is defined in S.C. Code Ann. § 48-39-10 (J) (Supp.
2001). Accordingly, the regulatory provisions within OCRM's jurisdiction are applicable.
5. The sole issue raised by Petitioner in challenging OCRM's permit decision is whether 23A S.C. Code Ann. Regs. 30-12(A)(2)(o) applies to Lowndes Pointe's application for a community dock permit, and, if so, whether the lot in question
meets the requirements of that regulation. (1)
6. 23A S.C. Code Ann. Regs. 30-12 (A) (Supp. 2001) sets forth the specific project standards for construction of docks and
piers on tidelands and coastal waters. Among those standards is a requirement in 23A S.C. Code Ann. Regs.
30-12(A)(2)(o) (Supp. 2001) that before a dock will be permitted a lot must meet the minimum local requirements to
construct a "habitable structure." Further, for a lot to be granted a dock permit, the lot must have 75 feet of water frontage
along the marsh edge and at least 75 feet of frontage between extended waterfront property lines. Id. Lots which are
buildable and which have less than the required frontage, but have 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. Id. Lots that are less than 50 feet wide are not eligible for a dock. Id.
7. 23A S.C. Code Ann. Regs. 30-12(E) (Supp. 2001) sets forth the standards for location and design of marinas and
community docks on tidelands and coastal waters. Specifically, 23A S.C. Code Ann. Regs. 30-12(E)(7) sets forth the
specific standards applicable for the construction of community docks:
- Community docks shall not impede navigation or restrict public use of State lands and waters;
- Community docks shall be constructed in a manner that does not restrict water flow;
- The size and extension of a community dock must be limited to that which is reasonable for the intended use;
- Community docks should use the least environmentally damaging alignment;
- All applications for community docks should accurately illustrate the alignment of property boundaries with adjacent
owners; and
- No leasing of space or other commercial uses are allowed at community docks.
8. A dock or pier is defined by 23A S.C. Code Ann. Regs. 30-12(A)(1) as "a structure built over and/or floating on water
and is generally used for the mooring of boats." A community dock is defined by OCRM's regulations as "any docking
facility which provides access for more than four families, has docking space of less than 200 linear feet and is not a
marina." 23 S.C. Code Ann. Regs. 30-1(D)(12) (Supp. 2001). A marina is defined by OCRM's regulations as any of the
following: (a) locked harbor facility; (b) any facility which provides fueling, pump-out, maintenance or repair services
(regardless of length); (c) any facility which has permanent docking space of 200 linear feet or greater; (d) any water area
with a structure which is used for docking or otherwise mooring vessels and constructed to provide temporary or permanent
docking space for more than ten boats; or (e) a dry stack facility. 23A S.C. Code Ann. Regs. 30-1(D)(29) (Supp. 2001).
9. The structure Lowndes Pointe seeks permission to construct will be built over water and will be used for the mooring of
boats. It therefore falls under the general definition of a dock or pier. 23A S.C. Code Ann. Regs. 30-12(A)(1) (Supp.
2001). The dock will provide access for more than four families, will have docking space of less than 200 linear feet, and
will moor less than ten boats. It therefore falls under the more specific definition of a community dock pursuant to
OCRM's regulations. 23A S.C. Code Ann. Regs. 30-1(D)(12) and (29) (Supp. 2001).
10. In deciding whether or not 23A S.C. Code Ann. Regs. 30-12(A)(2)(o) applies to the community dock Lowndes Pointe
seeks to construct, this tribunal will first look to the plain and ordinary meaning of the words of the regulation. Byerly v.
Connor, 307 S.C. 441, 444, 415 S.E.2d 796, 799 (1992) (Ordinarily, when interpreting a regulation of an agency, the court
must look for the plain and ordinary meaning of the words of the regulation, without resort to subtle or forced construction
to limit or expand the regulation's operation. ); see also Whitner v. State, 328 S.C. 1, 6, 492 S.E.2d 777, 779 (1997) (Where
a statute is complete, plain, and unambiguous, legislative intent must be determined from the language of the statute itself.).
By its own language, the standards listed in 23A S.C. Code Ann. Regs. 30-12(A)(2) are applicable to the construction of
docks and piers. Thus, from reading only the language of 30-12(A)(2), it seems 30-12(A)(2)(o) does apply to the permit at
issue, since it is a permit for the construction of a dock. However, 30-12(A)(2) should not be read in a vacuum; rather, it
should be read in the context of the other provisions of 30-12. Whitner at 6, 492 S.E.2d at 779 (In interpreting a statute, the
court should consider "not merely the language of the particular clause being construed, but the word and its meaning in
conjunction with the purpose of the whole statute and the policy of the law."). 30-12(A)(1) states, "[f]or more detailed
standards pertaining to community docks, refer to 30-12(E)(5), (6) and (7) herein." Construing 30-12(A)(1) together with
30-12(A)(2) and 30-12(E), this language has two implications. It could mean that the detailed standards pertaining to
community docks set forth in 30-12(E) apply to community docks in addition to the standards set forth for docks and piers
in 30-12(A)(2). Or, it could mean that the detailed standards set forth for community docks in 30-12(E) are the only
standards that apply to community docks, and that the standards set forth in 30-12(A)(2) apply only to docks and piers that
do not qualify as community docks.
In the face of an ambiguity such as this one, the construction by the agency charged with executing the regulation is entitled
to the most respectful consideration and should not be overruled absent compelling reasons. Jasper County Tax Assessor v.
Westvaco Corp., 305 S.C. 346, 348, 409 S.E.2d 333, 334 (1991); Converse Power Corp. v. S. C. Dep't of Health and Env't
Control, 350 S.C. 39, 48, 564 S.E.2d 341, 346 (Ct. App. 2002). According to statute, it is appropriate to give due
consideration to OCRM's staff's utilization of its specialized knowledge and expertise in the application of its regulations.
See S.C. Code Ann. § 1-23-330(4) (1986 & Supp. 2001). According to OCRM's construction of 23A S.C. Code Ann.
Regs. 30-12(A) and 30-12(B), the standards set forth in 30-12(A)(2) apply only to single family and joint use docks and
piers. A dock which falls under the definition of a community dock is subject only to the standards of 30-12(E). This
construction seems reasonable, especially since the specific standards applicable to community docks are listed in an
entirely separate section of 30-12 than the section which applies to other docks. 30-12(A)(1) directly states that for the
standards applicable to construction of a community dock, one should refer to 30-12(E)(5), (6), and (7); it does not direct
one also to 30-12(A)(2). Further, there is no mention in 30-12(E)(7) of any requirement that a community dock comply
with the standards listed in 30-12(A)(2). There is no compelling reason to overrule OCRM's construction of this
regulation. I therefore conclude that 30-12(A)(2)(o) does not apply to Lowndes Pointe's application for a community dock
permit. (2)
ORDER
Based upon the foregoing findings of fact and conclusions of law,
IT IS HEREBY ORDERED that OCRM's decision to issue permit #2001-1E-509-P for a community dock to Lowndes
Pointe is affirmed;
AND IT IS SO ORDERED.
___________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
November 14, 2002
Columbia, South Carolina
1. At the outset of the hearing, Petitioner additionally requested that if the permit is upheld,
the following conditions be placed on the permit: (1) that no more than nine boats be moored at any time and no boat be
moored in excess of three days; and (2) that any change of use or substantial modifications to this facility will not be
allowed in any instance. However, Petitioner abandoned these two requests during the hearing and conceded that the only
issue before this tribunal is whether or not 23A S.C. Code Ann. Regs. 30-12(A)(2)(o) applies to Lowndes Pointe's
application for a community dock permit and, if so, whether or not the permit was properly issued in light of Reg. 30-12(A)(2)(o)'s requirements.
2. Because of this decision, we do not reach respondents' motion to dismiss on the ground that petitioner lacks standing. |
