ORDERS:
DECISION AND ORDER
STATEMENT OF THE CASE
This matter comes before me pursuant to S.C. Code Ann. § 48-39-150 and S.C. Code Ann. §
1-23-310, et. seq. (Rev. 1986 and Supp. 1993) for a hearing de Novo pursuant to a request for
review by the Oak Lea Homeowners Association ("Association") of the South Carolina
Department of Health and Environmental Control-Office of Ocean and Coastal Resource
Management's ("DHEC-OCRM") decision to deny its application for a permit o construct a five
hundred and sixty foot (560') long community walkway, four foot (4') wide, to an eight foot (8')
by eight foot (8') floating dock in an unnamed creek that connects with Pawley's Island Creek.
A hearing was held on December 6, 1994, at the office of DHEC-OCRM in Charleston, South
Carolina. Notice of the date, time, place and nature of the hearing was timely given to all the
parties.
The request for the walkway with a fixed pierhead adjacent at its terminus adjacent to the creek is
granted.
EXHIBITS
Petitioner introduced the following numbered exhibits which were made a part of the record
without objection:
1. Drawing of the proposed community floating dock and walkway dated March 1, 1994.
2. General Warranty Deed from Oak Lea Community Association, Inc., dated April 16, 1993.
3. Boundary line survey of Oak Lea subdivision tract (9.52 acres) and adjoining
highland/marshland area (5.12 acres) dated October 20, 1987.
4. Plat of Oak Lea subdivision showing individual lots, streets and common areas dated March 24,
1988.
6. Photograph
8-11. Photographs
13-21. Photographs
24-29. Photographs
30. Fact Sheet of Oak Lea Subdivision
31-32. Drawings of the pier.
Respondent introduced the following exhibits which were made a part of the record:
1A-1G. Slides
6. Denial letter by DHEC-OCRM dated May 17, 1994
7. Public Notice with attachments.
10. Application for permit filed with the Department of the Army
FINDINGS OF FACT
By a preponderance of the evidence, I make the following findings:
1. This Division has personal and subject matter jurisdiction.
2. John Curtis Smith, Vice-President of the Oak Lea Homeowners Association, appeared at the
hearing and testified on behalf of granting the permit for a community walkway/pier.
3. The Association is comprised of lot owners in the Oak Lea Subdivision, a privately-owned
community of twenty-nine (29) lots with common areas and marshland on its eastern boundary,
immediately across form the north end of Pawley's Island in Georgetown County, South Carolina.
4. On April 16, 1993 the Association was deeded a 5.12 acre marsh tract located to the east of the
Oak Lea Subdivision property line. It has applied for a permit to construct thereon a
fingerpier/walkway 560 feet long, the pier to extend from a point on high ground at its northeast
corner approximately 15 to 20 feet to the east of lot 22's eastern boundary and thence run in a
straight line inside its northern boundary line to a point where its adjoins a creek. The exact
terminus is as indicated in "green marking" on Petitioner's Exhibit 15 (photograph) and
Petitioner's Exhibit #1 (sketch).
5. At the hearing the Association stipulated to and withdrew that part of its permit request for the
8' x 8' floating dock in the creek adjacent to the terminus of the proposed walkway/pier.
6. The proposed pier will be utilized as a community walkway and dock, accessed by the
homeowners from the 0.654 acre "common area" tract as shown on Petitioner's Exhibit 4 and the
high ground area which is 15-25 feet wide located between the subdivision's eastern boundary and
a canal. This high ground area is spoil area in the from of a berm or hill. Petitioner's Exhibit 9, a
photograph of this area, did not reveal a predominance of salt-water tolerant vegetation capable
of reproduction and growth.
7. The width of the creek located at the terminus of the proposed pier is approximately 27 inches
in the middle at low tide. Petitioner's Exhibits 13, 14, and 15. its size and depth would allow
deep water access.
8. At the hearing the Association stipulated and agreed if the permit for this community pier is
granted, no permit requests by individual lot owners will be filed or sought.
9. The only other witness at the hearing, Richard Chinnis, permit coordinator for DHEC-OCRM,
testified about the reasons for the denial of this application. He has been employed by
DHEC-OCRM since July 1986,
10. This is the third application filed by the Association requesting a permit to construct a dock.
The first application was for a dock on the southern end of the subdivision's eastern boundary
with the marsh, was objected to and later withdrawn because of filing requirements. The second
application seeking a permit to construct a 600 to 700 foot long pier was denied by
DHEC-OCRM. This is the third application for a dock permit.
11. By letter dated May 17, 1994, addressed to the Association, DHEC-OCRM denied this third
application request to build a community pier and floating dock. The reasons for denial were
generally as follows:
a) the pier and dock structure is extremely limited
b) the creek is accessible by boat only at high tides and its size prohibits mooring of boats
c) a smaller dock adjacent to the highland extending to the man-made canal would
essentially provide the same amount of access
d) the Association does not own the property where the proposed pier is to be located or
have the owner's permission to undertake the work based upon a dispute as to the supposed
community access easement and an objection by the adjoining property owner
References were made in the denial letter to various statutory and regulatory provisions.
12. As a part of the rationale for the denial of the permit request and in construing the
applicability of DHEC-OCRM R.30-12(a)(2)(d), respondent determined that the "least
environmentally damaging alignment "which would provide deep water access would be the
construction of docks in the canal adjacent to the high ground." Transcript p.76.
13. The Association owns the 5.12 acre tract of land upon which the proposed pier is to be
constructed, having obtained ownership in the general warranty deed dated April 16, 1993, as
recorded in the Clerk of Court's Office, Georgetown County, South Carolina in Deed Book 520,
page 89.
13. The canal parallels high ground on property owned by the Association. Pawley's Creek is not
accessible by boat from the canal. Transcript pp.93-94.
DISCUSSION
The Association argues that the construction of a walkway across marsh vegetation to a fixed
pierhead adjoining a creek which would provide access by boat to deep water is reasonable. This
is its third request for a community pier and dock which would be utilized for recreational
purposes by all the lot owners, accessed across property owned by the Association. The first
request was withdrawn and the second was denied. Respondent denied this third request
primarily because the floating dock would, if constructed in the creek, restrict navigation, because
the creek is accessible by boat only at high tide, because a dock constructed on the highland
extending into the canal would provide essentially the same access and because an adjoining
landowner disputed ownership of the property upon which the proposed dock is to be
constructed.
During the course of the hearing, the Association stipulated to and withdrew its request to
construct the 8' x 8' floating dock in the creek. The floating dock could well have impeded
navigation. Although this was a change in the permit request, since it did not increase its size or
scope, it is allowed under R.30-4H. Accordingly this reason for denial of the permit is now moot.
Mr. Chinnis testified that the canal had an obstruction in it. Thus, no access to deep water would
be available to lot owners whose property fronts on the canal if they were permitted to construct
docks to and in it. Although the denial letter stated and Mr. Chinnis testified that docks at the
canal would provide essentially the same amount of access as this proposed pier, no assurance
was given by DHEC-OCRM at the hearing that permits for such docks could be obtained. This
reason for denial of the proposed permit, as amended, is without merit.
Docks and pierheads are permitted in this state on tidal marshlands as a method to gain access to
deep water. The intended use of a dock and pierhead is to facilitate water dependent activities by
the owner of the dock and his guests. Although entertainment per se does not depend upon
proximity to water, specific activities such as mooring of boats, fishing, crabbing, swimming,
water skiing and boat riding are forms of entertainment which are dependent upon the proximity.
To enjoy these activities requires the construction of a structure from which to embark and return
to. All of these activities can be enjoyed from a fixed pierhead adjacent to a creek which, in this
instance, has sufficient width and depth.
An additional argument in support of the denial of the permit by the respondent would be the
construction of a dock or docks to the canal by individual lot owners which would have a lesser
environmentally damaging alignment than this proposed pierhead. R.30-12A(2)(d) states that
docks and piers should use the least environmentally damaging alignment. Respondent argues
alignment is equated to distance or length of a dock. However, Black's Law Dictionary defines
alignment as "the act or laying out or adjusting a line" or "the state of being so laid out or
adjusted." Black's Law Dictionary 73 (6th ed. 1990). Thus, the plain meaning of the term
alignment is a movement or changing of the angle of a pier. Least environmentally damaging
alignment would then refer to whether one alignment of a dock versus another would affect and
damage the environment more than another, not whether one dock is longer than another.
R.30-12(2)(e) addresses the length of docks, limiting them to 1000 feet. Here the walkway runs
in a straight line across property of the petitioners inside its northern boundary. Its alignment is
straight, without any curves or bends and satisfies the distance limitation. This argument for
denial by the respondent is without merit.
To deny this permit and imply that the door is open for consideration of individual permit requests
by each property owner fronting on the marshland is in direct conflict with the written policy of
DHEC-OCRM which favors community docks and piers. R.30-12A(2) (h). The Association,
through its officer, agreed that no individual permit requests would be filed if this community
dock request is granted. To suggest to developers of subdivisions to incorporate community
docks as part of the subdivision plans in the development state and subsequently deny a
community dock permit request after the developer has adhered to that policy, as in this instance,
(Petitioner's Exhibit 20) will discourage further adherence and open the door for numerous
individual dock requests.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law, the following:
1. S.C. Code Ann. § 1-23-600 (Supp. 1993) grants jurisdiction to the Administrative Law Judge
Division to hear contested cases arising under the Administrative Procedures Act.
2. S.C. Code Ann. § 48-39-150 (Supp. 1993) grants jurisdiction to the Administrative Law Judge
Division to hear contested cases arising under Chapter 39 of Title 48 of the 1976 Code, as
amended.
3. The Department of Health and Environmental Control-Ocean and Coastal Resource
Management, is the state agency charged with implementing the State of South Carolina's coastal
zone policies. S.C. Code Ann. § 48-39-30(B)(1) sets out these specific policies. Also,
DHEC-OCRM has permitting authority over coastal waters and tidelands critical areas.
R.30-10A(1) and S.C. Code Ann. § 48-39-130.
4. R.30-1 through 30-20 were promulgated to implement the policy described above and to
provide a management framework from which competing interests of development and
environmental protection are balanced.
5. S.C. Code Ann. § 48-39-140(A) and R.30-2 detail the requirements to apply for a permit with
DHEC-OCRM to alter a tidelands critical area.
6. S.C. Code Ann. § 48-39-150(A) states that in determining whether an application for a permit
to alter a tidelands critical area is approved or denied, DHEC-OCRM shall base its determination
on the individual merits of the application, the policies specified in S.C. Code Ann. §§ 48-39-20
and 48-39-30 and be guided by ten general considerations as set forth therein.
7. R.30-11 sets forth General Guidelines for all critical areas.
8. "Critical Area" is defined in S.C. Code Ann. § 48-39-10(J) and R.30-1.C.4. as any one of the
following:
(1) coastal waters;
(2) tidelands;
(3) beaches;
(4) beach/dune system which is the area from the mean high water mark to the setback line
as determined in S.C. Code Ann. § 48-39-280.
9. "Coastal Waters" and "Tidelands" are defined in R.30-10A.
10. R.30-4.H. states that an amendment to a permit can be made without the requirements of a
new permit if the proposed change does not increase the scope of or change the use of the
proposed project.
11. R.30-12 details the project standards applicable for the construction of docks and piers for
tidelands and coastal waters.
12. Based upon a review of the facts, and an analysis of the respondent's arguments and positions
in the Discussion, it is concluded that the denial of the permit request, as amended at the hearing,
is totally without merit and contrary to the written policy of DHEC-OCRM and applicable
statutes and regulations. Community docks are favored, the property over which the walkway
will be constructed is owned by the Association, access to deep water would not be available from
docks located at the canal, mooring of boats can be accommodated at the terminus of the pier, the
design of the pier provides for no angle in its length which will be less than 1000 feet, there will be
no restriction of waterflow, the pier will extend to the first navigable creek and the pier will not
impede navigation.
For these reasons, I conclude that the permit should be granted upon submission of plans by the
Association to DHEC-OCRM in conformity with its stipulations as to the length and terminus as
contained herein.
ORDER
Based upon the above Findings of Fact, Discussion and Conclusions of Law, it is hereby:
ORDERED that the permit application of Oak Lea Home Owners Association to construct a 560
foot long community walkway is granted; and
IT IS FURTHER ORDERED that the Respondent, South Carolina Department of Health and
Environmental Control-Ocean and Coastal Resource Management is directed to issue the permit
to the applicant upon submission of plans at outlined herein.
AND IT IS SO ORDERED.
_____________________________________
Marvin F. Kittrell
Chief Administrative Law Judge
Columbia, South Carolina
January , 1995 |
