ORDERS:
ORDER AND DECISION
This matter comes before me upon petition for a contested case hearing de novo pursuant to S.C.
Code Ann. § 48-39-150 and § 1-23-310, et seq. (Rev. 1986 & Supp. 1993) regarding Petitioner's
application for repair and addition to a pier on and adjacent to Wee Creek at 6918 Bears Bluff
Road, Wadmalaw Island, South Carolina, in Charleston County. The South Carolina Department
of Health and Environmental Control, Office of Ocean and Coastal Resource Management
(hereinafter referred to as "DHEC" and "OCRM") preliminarily approved the permit application
with restrictions which, among other provisions, prohibited Petitioner from adding a floating dock
to the existing pier. Petitioner sought a hearing in this matter for consideration of that portion of
his permit application involving the request to construct and add a floating dock to his pier. A
hearing was conducted on February 16, 1995.
DISCUSSION
Petitioner seeks to repair an existing pierhead and add a floating dock and connecting walkway to
his pier on a tidal creek. OCRM opposes the construction of the floating dock on the basis that
the floating dock would sit on the creek bottom at normal low tide and that the addition of the
floating dock would increase Petitioner's dock to a size that is not normally allowed for the
creek's width. OCRM relies upon 23A S.C. Code Ann. Regs. 30-12(A)(2)(n) and (q) (Supp.
1993). The burden is on Petitioner to show that special geographic circumstances and land use
warrant a permit for construction of the floating dock. Petitioner cites the difficulty of boat
boarding for elderly or handicapped family members from the current dock; the distance of the
nearest public boat ramp; the existence of floating docks at each of his adjacent neighbors' lots;
and the willingness to construct the floating dock in a manner in which the dock would not rest on
the creek bottom at low tide as compelling reasons to approve the permit for the construction of
the floating dock.
Upon a deliberate review of the evidence and the applicable law, it is my conclusion that
but for the fact that the existing pierhead already exceeds the normally allowable square footage
for a dock on a creek the width of Wee Creek, a floating dock with a bumper or support system
which would prevent the dock from ever sitting directly on the creek bottom should be approved.
The existing pierhead, however, was apparently constructed over twenty years ago, prior to the
adoption of dock size standards. Accordingly, Petitioner has the right to repair the existing pier
without decreasing its size, but the total square footage should not be increased absent some
extraordinary circumstances. It may seem arbitrary and harsh to deny Petitioner's request to
construct a floating dock in light of the reasons stated for the request and the fact that his next
door neighbors each have floating docks, but convenience and ease of access to a boat are not
overriding considerations. Furthermore, the neighboring floating docks were constructed prior to
adoption of the regulations restricting floating docks from resting on a creek bottom.
For the foregoing reasons and the Findings of Fact and Conclusions of Law enunciated below,
Petitioner's request to amend the special condition contained in permit OCRM-94-218, deleting
the provision for construction of a floating dock, is denied.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
(1) Petitioner is the owner of 6918 Bears Bluff Road, Wadmalaw, South Carolina, Tax Map
#133-00-00-025 in Charleston County, a parcel bounded by Wee Creek.
(2) Wee Creek is a tidal creek in the coastal zone area of Wadmalaw Island and Wadmalaw
River.
(3) There is an existing pier on Petitioner's property which is located on Wee Creek.
The pier is over twenty years old and in need of repair.
(4) By application dated May 16, 1994 (P/N# OCRM-94-218), Petitioner sought authorization
from OCRM to:
(a) Construct and add a 6" (six-inch) handrail to the existing pier;
(b) Construct a shed measuring 10' 10" x 12' 2" (ten feet ten inches by twelve feet two
inches) over the end of the existing pier; and
(c) Construct and add a gangway measuring 3' x 12' (three feet by twelve feet) and
connecting floating dock measuring 8' x 12' (eight feet by twelve feet) to the downstream
side of the existing pier.
(5) The purpose of the proposed activity for which authorization is sought is for the private and
recreational use of Petitioner.
(6) Notification of Public Notice of Petitioner's application was issued by OCRM on August 4,
1994, to allow public comment on the application.
(7) OCRM issued a Critical Area Permit, Permit OCRM-94-218, to Petitioner on August 30,
1994, with general and special conditions. The special conditions are as follows:
(a) Provided the proposed roof is deleted;
(b) Provided the handrails are what are minimally required for safety as outlined in the
Southern Building Code; and
(c) Provided the floating dock is deleted.
(8) Petitioner submitted an amendment request to OCRM on September 12, 1994, stating that
the proposed floating dock would rest on some type of support system.
(9) On or before September 23, 1994, OCRM informed Petitioner that his amendment request
could not be accepted.
(10) Petitioner filed with OCRM a Notice of Intent to Appeal the denial of his
September 12, 1994, amendment request. On October 5, 1994, OCRM filed an Agency
Transmittal Form with this Division for a contested case hearing.
(11) Petitioner desires the floating extension to make boat boarding easier for himself, his wife,
and Petitioner's elderly parents. Without the floating extension, boat boarding access from the
pier can only be accomplished by using a vertical ladder at the end of the pier.
(12) The proposed floating dock would rest on the bottom of Wee Creek at normal low tide,
unless some type of support or "bumper" system is utilized.
(13) Both landowners bounding Wee Creek on either side of Petitioner's property,
Archie E. Benton and Sandra H. Sexauer, have floating docks which rest on the creek bottom at
normal low tide. The Benton floating dock permit was issued in 1982. It is unclear, but probable,
that the Sexauer floating dock was constructed prior to 1977, the year the permitting process was
instituted.
(14) That portion of Wee Creek on which Petitioner's pier and proposed floating dock are
located is approximately 18' to 40' wide. The creek is navigable by small boat except during low
tide.
(15) The existing pierhead exceeds 120 square feet in size.
(16) The proposed floating dock, gangway not included, would add approximately
96 square feet to the total dock size.
(17) Testifying in support of the permit application were Petitioner, Clayton C. Mood, and his
wife, Hermine Mood.
(18) Testifying in opposition to the permit application was Richard Chinnis, OCRM Permit
Coordinator.
(19) Photographs and slides of the creek, property, existing dock, and surrounding area were
submitted as exhibits by the parties.
(20) OCRM opposes the construction of the floating dock on the basis that a floating dock at the
proposed location will have a potential negative impact upon the estuarine organisms in the area.
(21) OCRM opposes the construction of the floating dock on the basis that a floating dock at the
proposed location will have a potential negative impact upon the marsh vegetation in the area.
(22) OCRM opposes the construction of the floating dock on the basis that a floating dock at the
proposed location will have a potential negative impact upon the ability of boaters to navigate on
the creek.
(23) OCRM opposes the construction of the floating dock on the basis that the existing pierhead
already exceeds the normally allowable square footage for a dock located on a creek the size of
Wee Creek and that the addition of the floating dock would further exceed the normally allowable
dock size.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law the following:
(1) The Administrative Law Judge Division has subject matter jurisdiction in this action pursuant
to S.C. Code Ann. §§ 1-23-600 and 1-23-310, et seq. (Rev. 1986 & Supp. 1993).
(2) S.C. Code Ann. § 48-39-150 (Supp. 1993) authorizes the Administrative Law Judge Division
to hear contested cases arising under Chapter 39 of Title 48 of the 1976 Code.
(3) OCRM is the subdivision within DHEC charged with implementing the state's coastal zone
policies and issuing permits for docks and piers in coastal zone areas.
(4) S.C. Code Ann. § 48-39-50 (Supp. 1993) provides the authority for DHEC to promulgate
regulations relating to carrying out the provisions of Chapter 39 of Title 48 of the 1976 Code.
(5) 23A S.C. Code Ann. Regs. 30-1 through 30-20 (Rev. 1987 & Supp. 1993) were promulgated
by the Coastal Council and OCRM, as the applicable regulations governing the management,
development, and protection of the coastal zone areas of the state.
(6) S.C. Code Ann. § 48-39-150(A) (Supp. 1993) and 23A S.C. Code Ann. Regs. 30-11 (Supp.
1993) set forth the guidelines to be used in assessing the impact of a project in a critical area.
(7) The project in question is located in a critical area under S.C. Code Ann. § 48-39-10 (Supp.
1993); 23A S.C. Code Ann. Regs. 30-1(C)(4) and (12) (Supp. 1993), and Regs. 30-10(A)
(1976).
(8) 23A S.C. Code Ann. Regs. 30-12(A) (1976 & Supp. 1993) sets forth the specific project
standards for construction of docks and piers for tidelands and coastal waters.
(9) 23A S.C. Code Ann. Regs. 30-12 (1976 & Supp. 1993) sets forth the permit application
process and requirements for permits issued by OCRM.
(10) Normal maintenance and repair of an existing structure generally intact and functional in its
present condition which has been previously permitted, grandfathered, or exempted does not
require permit approval by OCRM. Regs. 30-5(D) (Supp. 1993). The addition of a floating
dock to an existing pier, however, does require a permit.
(11) 23A S.C. Code Ann. Regs. 30-12(A)(2)(n) (Supp. 1993) provides: "Docks must extend to
the first navigable creek with a defined channel as evidenced by a significant change in grade with
surrounding marsh. Such creeks cannot be bridged in order to obtain access to deeper water.
However, pierheads must rest over water and floating docks which rest upon the bottom at
normal low tide will not normally be permitted." (emphasis added)
(12) 23A S.C. Code Ann. Regs. 30-12(A)(2)(q) (Supp. 1993) provides for the maximum
allowable square footage size of pierheads and floating docks, dependent upon the width of the
creek. 23A S.C. Code Ann. Regs. 30-12(A)(2)(q)(ii) (Supp. 1993) provides that: "Creeks
between 20 and 50 feet shall be restricted to docks up to 120 square feet unless special
geographic circumstances and land use warrant larger structures." Since the existing pierhead
currently exceeds 120 square feet and the proposed floating dock would add another 96 square
feet to the total dock size, Wee Creek is insufficient width to allow the floating dock addition.
(13) The addition of a floating dock at the proposed location could potentially have a negative
impact upon the vegetation and estuarine life in the immediate area.
(14) Petitioner failed to establish special geographic circumstances and land use to warrant
construction of a floating dock.
(15) Petitioner is not precluded from removing the existing pierhead and replacing it with a
smaller floating dock with a support system to accomplish the same purpose as the proposed
floating addition.
ORDER
IT IS THEREFORE ORDERED that the Petitioner's proposed amendment to the permit
conditions of permit OCRM-94-218 is hereby denied. Permit OCRM-94-218 is effective as
issued by OCRM on August 30, 1994.
___________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
March ____, 1995
Columbia, South Carolina |
