ORDERS:
DECISION AND ORDER
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 an appeal by
Thomas Bessinger ("Petitioner") of the South Carolina Department of Health and Environmental
Control, Office of Ocean and Coastal Resource Management's ("OCRM") denial of his
application to add an additional 6' x 10' deck to the pierhead and to extend the roof over the area.
A hearing was held on October 20, 1994 at the hearing room of OCRM at Charleston, South
Carolina. Notice of the date, time, place and nature of the hearing was timely given to the parties.
Subsequent to conducting the hearing, accompanied by attorneys for both parties I visited the
dock site, it having been entered into evidence by agreement of the parties.
The request for the additional sixty (60) square feet of pier space is granted.
EXHIBITS
Without objection, photographs and portions of the OCRM file as set forth hereafter were made a
part of the record:
1. Photographs A-E
2. Application
3. Affidavit of Ownership
4. Affidavit of Publication
5. Public Notice
6. DHEC Water Quality Certification
7. SCWMRD Letter
8. State Ports Letter
9. Archaeology and Anthropology Letter
10. Permit
11. Letter dated June 2, 1994, from Bob Tobin
12. Letter dated June 7, 1994, to Mr. Bessinger
13. Letter dated June 30, 1994, to Richard Chinnis
14. Letter date July 6, 1994, to Mr. Bessinger
Also, the Petitioner introduced the following exhibits which were made a part of the record
without objection:
1. Sketch of boathouse and pierhead and proposed enlargements
2. Photographs A-H
FINDINGS OF FACT
By a preponderance of the evidence I make the following findings:
1. This Division has personal and subject matter jurisdiction.
2. Thomas Bessinger is the owner of approximately 2.8 acres of highground adjacent to Wappoo
Creek located at 1364 North Edgewater Drive, Edgewater Park Subdivision, West Ashley,
Charleston County, South Carolina.
3. Mr. Bessinger applied to OCRM for a permit to remove an existing dock on his property and
construct a new private dock.
4. The application was placed on public notice, no objections were received, and a permit was
issued by OCRM to Thomas Bessinger on May 10, 1994, allowing for the construction of a
walkway, pierhead, floating dock and a boat lift. (Respondent's Exhibit 10). Mr. Bessinger
accepted the permit on May 23, 1994.
5. By letter dated June 2, 1994, Mr. Bessinger's agent, Bob Tobin, requested a permit amendment
to allow the dock alignment to be reconfigured. By letter dated June 7, 1994, OCRM approved
the amendment request. As amended, the permitted structure consisted of an 8' by 15' floating
dock on the upstream side of a 10' by 12' roofed fixed pierhead, and an open 12' by 22' boat lift on
the downstream side of the pierhead (Respondent's Exhibit 12).
6. On June 30, 1994, Mr. Tobin again requested to amend the permit. The proposed amendment
consisted of adding a roof over the boat lift and adding an additional sixty (60) square feet of
roofed space to the pierhead. The request to add the boat lift was granted. The request to add an
additional 6' by 10' deck to the pierhead and extend the roof over the walkway was denied
(Respondent's Exhibit 14).
7. Mr. Bessinger appealed OCRM's decision to deny the pierhead extension. His petition was
transmitted to the Administrative Law Judge Division for determination pursuant to S.C. Code
Ann. § 1-23-650 (1976) (as amended). The grounds for appeal are: 1) that the 6' by 10' pierhead
addition is necessary for Petitioner's activities and use of his waterfront property, 2) that by
granting such amendment the same will not interfere or restrict growth of vegetation nor any
animal life and, 3) that the extension of his recreational dock will not impede or impair the use of
the adjacent waterway or the adjacent marshes.
8. Respondent OCRM's position is that the reasons given for the pierhead addition are not
reasonable for what a dock is intended to be used for and the proposed activity does not require a
waterfront location. Respondent asserts that entertainment is not a water dependent use nor does
it require water access and is therefore not a justifiable reason for permitting the dock extension.
9. As concerns the allegation that the dock extension will not impede navigation, no evidence was
presented to show that the addition would hinder or impair navigation in the area around the
dock, and OCRM agrees that this was not the basis for the denial of the amendment request.
10. As concerns the allegation that the addition will not interfere or restrict growth of vegetation
or animal life, OCRM's witness Richard Chinnis, testified that wetlands vegetation would not be
affected by the proposed addition and that OCRM's denial was not based on adverse
environmental impacts (Transcript p. 36).
11. Petitioner's remaining ground of appeal is that the pierhead addition is necessary for his and
his family's activities and use of the waterfront property. Petitioner testified that those activities
included water skiing, boat riding, swimming and entertaining family and friends (Transcript p.
17).
12. Petitioner further testified that "I just feel like I need a little bit more room on the pierhead.
It's kind of crowded right now. It's got a swing set out there and a couple of chairs. Not really
too much room to turn around on it" (Transcript p. 11).
13. Mr. Chinnis and Mr. Bessinger testified that the creek adjacent to Petitioner's dock is
approximately 75' in width.
14. OCRM staff testified that special geographic circumstances allowed them to issue a permit to
Mr. Bessinger to construct a dock larger than what would normally be allowed. These
circumstances included Mr. Bessinger's agreement to limit his parcel of land to one dock, his large
lot, the expansive water frontage, and similar structures in the area (Transcript p. 26).
DISCUSSION
Petitioner argues that expanding his dock for entertainment purposes is not an unreasonable
request and will enhance the recreational use of the dock. His theory is that, if the regulations do
not prohibit the request, it should be permitted. Respondent's position is that docks are permitted
to be constructed over the public resource to allow for access to the water. OCRM submits that
Petitioner's dock, as constructed is completely reasonable for that purpose.
Regulations pertaining to the construction of docks and piers provide that, "the size and extension
of a dock or pier must be limited to that which is reasonable for the intended use."
R.30-12(A)(2)(c). Pierheads are permitted in this state, on tidal marshlands, as a method to gain
access to the water. The intended use of a pierhead and floating dock 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 the mooring of boats, fishing,
crabbing, swimming, water skiing and boat riding are forms of entertainment which are dependent
on the proximity. To enjoy these activities necessarily requires the construction of a structure
from which to embark on and return from the water dependent activities. Such a structure is
beneficial to enjoy the marshlands in a peaceful and relaxing manner. Although the Petitioner can
entertain friends and family somewhere other than on the pierhead in the marsh, it seems unfair to
require a respite to his home when all the activity is at the dock area. OCRM argues that the term
"for the intended use" under R.30-12(2)(c) refers to the term "water-dependent" defined under
R.30(1)(c)(13) as a facility which can demonstrate that dependence on, use of, or access to
coastal waters is vital to the functioning of its primary activity. However, OCRM has already
permitted to Petitioner a pierhead area which allows for entertainment and the addition requested
is on the side toward the Petitioner's home (opposite side from the creek) which would square up
the pier structure. The argument of the Respondent is without merit.
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 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. Pursuant to S.C. Code Ann. § 1-23-630 (Supp. 1993) an administrative law judge has the
power to issue those remedial writs necessary to give effect to his jurisdiction.
4. S.C. Code Ann. § 48-39-140(A) and Regs.30-2 detail the requirements to apply for a permit
with OCRM.
5. Regs.30-12 details the project standards applicable for the construction of docks and piers for
tidelands and coastal waters.
6. Respondent OCRM 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.
7. Regulations 30-1 through 30-20 were promulgated to implement the policy described above
and to provide a management framework from which the competing interests of development and
environmental protection can be balanced.
8. The application of Petitioner for an extension or enlargement to the fixed pierhead and putting
a roof overhead does not violate the provisions nor the spirit of Regs.30-12(A)(2)(c) which
requires only that it be reasonable. There has been no showing by OCRM that the enlargement is
unreasonable; its sole argument is that the enlargement would be for entertainment, a purpose
which is unauthorized by their regulations. I conclude that the pierhead as presently permitted
allows for entertainment and the enlargement of same would be for the same purpose. Such is not
unreasonable, since the intended use is to gain access to the water and assist in the full and
complete enjoyment of water activities by Petitioner.
9. I further conclude that the enlargement of the pierhead and roofing thereof will not impede
navigation, restrict the reasonable public use of state lands and waters nor create any harm to
vegetation, fish or marine life.
10. I further conclude that the special geographic circumstances, i.e. Petitioner's large lot,
expansive water frontage and a structure in the area allow for this enlargement in excess of that
recommended in Regs.30-12(A)(2)(q)(iii).
ORDER
Based upon the above Findings of Fact, Discussion and Conclusions of Law, it is hereby:
ORDERED that the permit application of Thomas Bessinger to add an additional sixty (60)
square feet (6' by 10') of roofed space to the pierhead 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 forthwith.
AND IT IS SO ORDERED.
______________________________________
Marvin F. Kittrell
Chief Administrative Law Judge
Columbia, South Carolina |
