ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before the Administrative Law Judge Division pursuant to S.C. Code Ann. §
48-39-150 (1987 and Supp. 1993) and S.C. Code Ann. § 1-23-310, et seq. (1986 and Supp.
1993) for a hearing de novo pursuant to a request for review by Oscar C. and Anna F.
Funderburg and William G. Rusher, Jr., ("Petitioners") of the South Carolina Department of
Health and Environmental Control-Ocean and Coastal Resource Management's
("DHEC-OCRM") decision to issue a permit to the Respondent, Heber J. Evans, ("permittee") to
construct a private dock, the walkway being five feet (5') wide by sixty feet (60') long leading to a
ten foot (10') wide by twenty foot (20') long pierhead, with handrails.
The issues presented were as follows: 1) whether all parties were listed on the application and
given proper notice of the permit request 2) whether the permit as issued for a single-family
dock will essentially be a community dock and the requirements for a community dock should
have been complied with 3) whether permittee's property is within sight of Magnolia Gardens
and the issuance of the permit is in violation of the Ashley River Special Area Management Plan
("SAMP"). 4) whether the permit as issued was an after-the-fact permit which DHEC-OCRM
lacked authority to consider 5) whether the usage of the proposed dock would affect the value
and quiet enjoyment of adjacent owners and their residences.
A hearing was held on December 13, 1994 at the Charleston County Courthouse, Charleston,
South Carolina. Notice of the date, time, place and nature of the hearing was timely given to all
parties.
The decision of the DHEC-OCRM staff is affirmed.
EXHIBITS
Without objection, DHEC-OCRM introduced the following exhibits which were made a part of
the record:
1A-1E - Five photographs
2. Permit grant to permittee by DHEC-OCRM dated July 13, 1994.
3. Letter by DHEC-OCRM to permittee dated July 13, 1994.
4. Letter by permittee to DHEC-OCRM dated May 9, 1994.
5. Letter by DHEC-OCRM to permittee dated April 7, 1994.
6. Tax map sheet showing the real property of permittee and petitioners on the Ashley River.
7. Application by permittee to DHEC-OCRM dated March 21, 1994 for a permit.
8. Letter by South Carolina Department of Archives and History to DHEC-OCRM dated April
11, 1994.
9. Letter by permittee to DHEC-OCRM dated April 8, 1994.
Petitioners placed into the record as evidence the following exhibits:
1-12. Twelve photographs
13. Application by permittee to DHEC-OCRM dated March 21, 1994 for a permit.
14. Various comment letters.
15. Protest letter by Dorothy W. Blewer dated August 2, 1994 (marked P-13, December 5,
1994).
FINDINGS OF FACT
By a preponderance of the evidence, I make the following findings:
1. This Division has personal and subject matter jurisdiction.
2. The permittee, Heber J. Evans, is the owner of Evanston Mobile Home Park, located off
Dorchester Road in Charleston County, South Carolina. Circling through it is a street called
Brossy Circle which provides access to mobile home spaces and adjoining landowners. Mr.
Evans does not live within the mobile home park.
3. Mr. and Mrs. Funderburg, adjoining property owners to the southeast of permittees lot and
Lester and Glenda Lee Hamilton, adjoining property owners to the north of permittees lot, are the
only adjoining property owners. Neither William G. Rusher's property nor Dorothy W. Blewer's
property directly adjoin permittees lot on which the proposed dock has a terminus.
DHEC-OCRM Exhibit #6. The adjoining property owners had notice of the application.
Transcript p. 69.
4. By application dated March 21, 1994 and filed with DHEC-OCRM on March 25, 1994,
permittee requested a seventy foot (70') long private dock consisting of a twenty foot by ten foot
(20' x 10') pierhead and a five foot by sixty foot (5' x 60') walkway, with a railing around it.
5. On July 13, 1994, DHEC-OCRM issued a permit to permittee to construct a private dock on
his lot fronting on the Ashley River, the structure to have a five foot by sixty foot (5' x 60')
walkway with handrails leading to a twenty foot by ten foot (20' x 10') fixed pierhead with
handrails. A special condition provided that the dock was for "private family recreational use
only. Any use as a community dock will require a new permit from this agency." DHEC-OCRM
Exhibit #2.
6. The National Trust for Historic Preservation of Drayton Hall ("Trust"), by letter dated April 1,
1994 addressed to DHEC-OCRM, objected to the issuance of the permit in that it violated
various policies of the Ashley River Special Area Management Plan ("SAMP"), both as to size
dimension, handrail limitation and preservation of a view corridor at both Drayton Hall and
Magnolia Plantation and Gardens. George M. Neil, Assistant Director of the Trust, testified as to
these objections and the permit's inconsistencies with the SAMP.
7. The South Carolina Department of Archives and History, the agency which developed the
Ashley River SAMP with DHEC-OCRM, by letter dated April 11, 1994, addressed to
DHEC-OCRM, commented that no properties included in or eligible for inclusion in the National
Register of Historic Places would be affected by this dock construction.
8. The adjoining landowners' concerns are that permittee has not nor has any plans to construct a
family residence or live on his lot where the proposed dock is located (Transcript p. 122), and that
the mobile home residents, including their children and guests will use the dock. Additionally,
they are concerned about the danger to unsupervised children on the dock, boisterous and loud
parties at night on the dock, alcoholic consumption, littering and trespassing on their properties.
9. The permittee testified and stated in a written letter of his desire to use the dock for fishing
purposes and "to relax and enjoy life a little." DHEC-OCRM Exhibit #4. Further, he was
agreeable and stipulated at the hearing to construct a fence and a gate with a lock at the entrance
to the dock and post private property signs. DHEC-OCRM Exhibit #9 and Transcript p. 122.
10. Presently there is a semblance of a walkway/dock at permittee's property which is in poor
condition and appears to have been constructed a number of years ago. Permittee agreed to
remove it prior to construction of the proposed dock. Transcript p. 121 and Petitioners Exhibits
#8 and #9.
11. Richard Chinnis, permit coordinator with DHEC-OCRM testified that S.C. Regs. 30-4.I.
defines after-the-fact permits. He stated this was not an after-the-fact permit because the dock
requested by the permittee had not yet been constructed.
12. The Ashley River SAMP is not a regulation but is only a planning guideline for usage by
DHEC-OCRM in evaluating the issuance or denial of a permit.
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, through its Ocean and Coastal
Resource Management division, 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)(Supp. 1993) sets out these
specific policies. Also, DHEC-OCRM has permitting authority over the critical areas of the
coastal waters and tidelands. S. C. Code Regs. 30-10(A)(1)(1976) and S.C. Code Ann. §
48-39-130(Supp. 1993).
4. S. C. Code Regs. 30-1 through 30-20(1976 & Supp. 1993) 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)(Supp. 1993) and Regs. 30-2 detail the requirements to apply
for a permit with DHEC-OCRM to alter a tidelands critical area. Regs. 30-2 B.(5) state that "a
list of all adjoining landowners and their addresses...." must be provided to DHEC-OCRM which
was done in this instance. There is no requirement that notification be provided to all landowners
who live in the general vicinity. Even so, they were given Public Notice in a newspaper and could
have objected as interested persons under S.C. Code Ann. § 48-39-140(C).
6. S.C. Code Ann. § 48-39-150(A)(1987) 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(Supp. 1993) and the ten general considerations as set forth therein. 7.
Regs. 30-11 sets forth General Guidelines for all critical areas. The Trust's objection that activity
at the dock location would create erosion is without merit. The pierhead at the end of the dock is
not permitted to accommodate boating activities, although boats could conceivably be tied up
there. As to Petitioner's objections to the dock's affect on the value and enjoyment of adjacent
owners, no credible evidence was put in the record to support this position.
8. "Critical Area" is defined in S.C. Code Ann. § 48-39-10(J) and Regs. 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 Regs. 30-10(A).
10. Regs. 30-12 details the project standards applicable for the construction of docks and piers for
tidelands and coastal waters. Although Petitioners object to the issuance of the single-family dock
permit to applicant, arguing it will effectively be a community dock for tenants in applicant's
mobile home park, applicant has assured the court of its intended personal use and of his intent to
build a fence and gate at its entrance, prohibiting unauthorized use.
11. The Ashley River Special Area Management Plan is a planning guide for development along
South Carolina's historic Ashley River; prepared by the South Carolina Coastal Council (now the
Ocean and Coastal Resource Management Division of the Department of Health and
Environmental Control) and the South Carolina Department of Archives and History, with
financial assistance from the National Oceanic and Atmospheric Administration, and the U.S.
Department of the Interior, National Park Service. It is not a regulation.
Respondent/DHEC-OCRM complied with its provisions in notifying numerous parties/individuals
of this permit application. The South Carolina Department of Archives and History responded,
raising no objections to the permit grant. The grant by DHEC-OCRM is not in violation of
SAMP.
12. As a matter of statute, a regulatory body is possessed of only those powers expressly
conferred or necessarily implied for it to effectively fulfill duties with which it is charged. The
Legislature has expressly mandated Coastal Council (DHEC-OCRM) promulgate regulations to
govern evaluation of permit application. Captain's Quarters Motor Inn, Inc. and Tropical Winds,
Inc. v. South Carolina Coastal Council and the City of Myrtle Beach, (Sup. Ct. 1992) 306 S.C.
488.
13. Reg. 30-4.I describes an "after-the-fact" permit as a request by an applicant to legalize or
legitimize activity already begun prior to the application filing.
14. It's concluded that the DHEC-OCRM determination to issue the dock permit to Heber J.
Evans should be affirmed, the process having complied with applicable statutes and regulations.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the decision by DHEC-OCRM to issue a permit to Heber J. Evans to construct a
private dock is affirmed.
AND IT IS SO ORDERED.
____________________________________________
Marvin F. Kittrell
Chief Administrative Law Judge
Columbia, South Carolina
March _____, 1995 |
