SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This is a consolidated action involving two separate permitting decisions of Respondent Department of Health and Environmental Control - Office of Ocean and Coastal Resources Management (hereinafter referred to as "OCRM"). A contested case hearing was sought by Petitioners Shealy, de Montfort, Hosey-Elliot and Ward jointly (hereinafter referred to as "Shealy") and William Smith individually (hereinafter referred to as "Smith") challenging a determination of OCRM granting a permit (P/N 93-3G-018-P) to Respondent Mitchell Bohannon (hereinafter referred to as "Bohannon") allowing construction of a private dock from Bohannon's property in Long Point subdivision to Boone Hall Creek. Shealy alleged the proposed dock would negatively impact the use, value, view and enjoyment of adjacent properties; would adversely affect wildlife utilizing the marsh ecosystem across which the dock would span; that Bohannon had failed to comply with the ownership requirements necessary to obtain a dock permit; the decision was violative of OCRM regulations regarding extended property lines and construction of docks; and that the decision was arbitrary and capricious. Smith sought a contested case hearing for similar reasons and on the additional ground that the decision was violative of his equal protection rights since a similar permit request by Smith had earlier been denied by OCRM and there was no basis justifying a different treatment of the Bohannon application. See Docket No. 94-ALJ-07-0333-CC.

The second case was brought by Shealy alone challenging a subsequent decision of OCRM to grant a dock permit (P/N CC-94-043) to Smith, alleging the same general grounds raised in the Bohannon case. See Docket No. 94-ALJ-07-0309-CC.

The Bohannon decision pre-dated government restructuring and the vesting of jurisdiction in the Administrative Law Judge Division (hereinafter referred to as "Division") to conduct contested case hearings involving certain executive agency decisions. By agreement and stipulation of the parties, the Bohannon case was referred to the Division by Order of Douglas E. Bryant of the South Carolina Department of Health and Environmental Control (hereinafter referred to as "DHEC") dated October 19, 1994. Subsequently, both the Bohannon case and the Smith case were consolidated in a Consent Order dated November 10, 1994. While the issues and parties in the two cases make consolidation proper, this tribunal is hearing the Bohannon matter as a Special Hearing Officer appointed by DHEC-OCRM under the policies and regulations governing such cases prior to July 1, 1994, and the Smith case pursuant to jurisdiction vested in the Division by the General Assembly for cases arising subsequent to July 1, 1994.

The Bohannon permit was amended on March 14, 1995. Petitioners sought a contested case hearing regarding the amendment on March 27, 1995. See Docket No. 95-ALJ-07-0181-CC. An Order of Consolidation was issued on June 19, 1995 to consolidate the amendment matter with the existing case. See Docket No. 94-ALJ-07-0309-CC. An evidentiary hearing was not held on the amendment. By agreement, the arguments regarding the amendment were heard through the submission of deposition testimony, affidavits, and briefs.

The initial hearing commenced on December 15, 1994 at the Charleston County Judicial Complex, Charleston County, South Carolina, and was concluded, following a recess, on March 7, 1995, at the Administrative Law Judge Division offices, in Columbia. Notices of the dates, times, places and nature of the hearings were timely given to all parties. Further, all parties were notified of the procedures which were agreed upon by the parties for addressing a hearing of the amendment to the Bohannon permit.

For the reasons that follow, the permit applications of Bohannon and Smith are granted. Any issues raised in the proceedings or hearing of this case but not addressed in this Order are deemed denied. ALJD Rule 29(B). Further, the filing of a motion for reconsideration is not a prerequisite to any party filing a notice of appeal of this Order. ALJD Rule 29(C).

SUMMARY OF THE EVIDENCE

A. Background Facts

In order to adequately understand the issues raised in this case, a description of the area where the permitted activities are proposed must first be presented. A semi-enclosed, almost circular area of marsh opens onto Boone Hall Creek in Charleston County, South Carolina. The permit application and the permit itself, fails to show the entire area, as a comparison of the permit applications, Shealy Exhibits 11 and 15, and permits, Shealy Exhibits 8 and 17, involved demonstrates. However, Shealy Exhibit 15, the Smith application documents, show the general configuration of the land surrounding the marsh area. Additionally, aerial photographs, Shealy Exhibits 1 and 2, and a videotape, Shealy Exhibit 3, illustrate the marsh critical area involved in this consolidated appeal. A drawing in Shealy Exhibit 15 notes the marsh area as being "Lot No. 5" and containing 114 acres. Lots for residential development and existing homes surround the marsh. The Long Point subdivision has developed in phases such that the lots of Petitioners [Lots Nos. 308 (de Montfort), 310 (Ward), 311 (Hosey-Elliott), and 312 (Shealy)], as shown on Shealy Exhibit 8, were created and developed prior to Lots No. 454 and 455 (to which the Bohannon dock would attach) being subdivided and marketed for sale. At the time of both Bohannon's and Smith's permit applications, Petitioners' lots were developed with the homes occupied by Petitioners.

The Smith lot, lot No. 4, is not in Long Point subdivision, having been developed prior to its creation. This lot consists of approximately 2.5 acres with a proposed subdivision of approximately .88 acres. It is from the newly-proposed subdivision of approximately .88 acres that the Smith dock permit is proposed. The remainder of the Smith property has a dock adjacent to the Smith residence which extends directly into Boone Hall Creek without crossing the marsh area. Of the Petitioners, only Shealy has a dock. It extends directly into Boone Hall Creek without crossing the marsh area. Lots of the other Petitioners front on the marsh area, but do not have docks.

Prior to the permit applications of Bohannon and Smith, another application for a dock in this area was applied for and denied by OCRM. Alexander Julian, the then owner of Lot No. 310 (now owned by Ward) as shown in Shealy Exhibit 7, had applied for a dock approximately 250 feet shorter in length than the proposed Bohannon dock. Upon a review of Shealy Exhibit 7, the denial of the Julian dock was based on the fact that the dock would cross extended property lines, that the applicant's extended property lines did not reach the creek, and that the property was not waterfront property, among other things. Also, prior to the Bohannon and Smith applications, Smith had applied for a dock permit for approximately the same location as the one under appeal. OCRM denied that application in 1991. Additionally, Smith's current application was denied on August 16, 1994.

B. The Permits at Issue

The Bohannon permit application, as amended, seeks the construction of a dock for use by three (3) families.⁽¹⁾ The dock would extend 250 feet to an island separating the two original lots to be served by the dock, lots 454 and 455, from Boone Hall Creek. The third lot to be allowed to use the dock is not yet known, but would be adjacent to the marsh and in close proximity to the known lots.⁽²⁾ A path would cross the island to the second part of the dock which would extend from the island 442 feet to the creek. Attached to this four (4') foot wide walkway, which must be elevated three (3') feet above mean high water, would be a ten (10') feet by twenty (20') feet fixed pierhead to which two (2) floating docks ten (10') feet by sixteen (16') feet would be connected by ramps. The use of this community dock is restricted to private, recreational use by the owners and guests of the owners of the three lots.

The Smith permit application seeks construction of a single family dock consisting of a four (4') foot wide walkway 575 feet in length and elevated three (3') feet above mean high water, a fixed pierhead ten (10') feet by sixteen (16') feet, and a floating dock ten (10') by twenty (20') feet. The dock would be attached to a Lot to be subdivided from the existing Smith Lot, which is not within, but is adjacent to, Long Point subdivision.

C. Summary of the Testimony

Lynn Shealy testified that she owns a house and lot in the vicinity of the Smith and Bohannon properties, adjacent to Boone Hall Creek, and that she acquired this property in 1989. She has a dock on her property which was permitted and built prior to her purchase. The dock extends 37' into Boone Hall Creek. Additionally, at least two other docks exist on the right hand side of her lot (away from the Bohannon and Smith sites) which were permitted and built at the same time as her dock. At the time Shealy purchased her property, the Bohannon lot was located in an unsubdivided tract of land. When she received notice of the Bohannon permit application, she filed an objection, Shealy Exhibit 12, on the basis of the proximity of the proposed dock to her property - approximately 60' - and because two other docks in the "exact same area had been denied" by OCRM. (R. p. 24). Shealy was referring to an application by Alexander Julian and an earlier application by Smith. Shealy had objected to those docks as well. Shealy understood from the action taken on those applications that the lots in question would not be considered waterfront by OCRM and that docks would not be permitted there by OCRM because they would cross adjoining property owners extended lot lines.

Shealy purchased her property for $232,000 and estimated the value of her home and lot to be $800,000 at the time of the hearing. She believes her use and enjoyment of this property would be adversely affected if the Smith and Bohannon docks are built. Shealy designed and built her house to have undisturbed water and marsh views and to block out existing structures. In addition, Shealy feels the "quietness" of the marsh would be disturbed by people using a dock. She has observed deer, woodpeckers, egrets, herons and gulls in the area, and she is concerned the docks will cause this wildlife to "go away."

In an affidavit submitted subsequent to the amendment of the Bohannon permit application, Shealy maintained her objections as stated at the evidentiary hearing and expressed further objections to the amendment seeking to enlarge the use of the proposed dock. In short, Shealy stated that by increasing the use of the Bohannon dock the value of her property and her enjoyment of the marsh will be greatly diminished. Additionally, Shealy objects to the amendment being sought and accepted by OCRM during the administrative "appeals" process. Further, Shealy makes clear that the sentiments in the affidavit (aside from those matters that pertained only to the design of her own home) are subscribed to by the other Petitioners.

With regard to the Smith permit application, Shealy testified the impact on her property "would be greater with the Bohannon dock" because it is closer to her and the Smith dock would be further away. Shealy agreed the Bohannon permit showed that dock to be 80' from her property line and that neither the Bohannon nor Smith docks would affect her access to Boone Hall Creek. Other than enjoying the view, Shealy makes no recreational use of the marsh in question. Shealy agreed that if Bohannon builds his dock, the Smith dock would have no additional impact on her property value or the use and enjoyment of her property. With respect to her wildlife concerns, Shealy acknowledged that the wildlife she had observed were using a small marsh island the Bohannon dock would traverse and that the Smith dock would have no impact on this area or the wildlife. Shealy also was aware that the Smith property was not in Long Point subdivision and not subject to the restrictions and covenants she had cited. Finally, Shealy agreed that docks enhance the value of property and that her property was worth more because it has a dock.

J.W. Ward testified that he filed objections to the Bohannon and Smith permit applications on the basis that they will "cross right across my backyard" and adversely affect his view of the marsh. (R. p. 87). At present, Ward can see the existing Smith dock from his sunroom. Ward agreed with Shealy's testimony regarding the wildlife in the area and its use of the marsh island. Ward stated he had not seen wildlife using the area that will be utilized for Smith's proposed dock. Like Shealy, Ward makes no use of the marsh other than to enjoy the view. He stated that if the Bohannon dock is built, the building of the Smith dock will not significantly increase the interference with his current view of the marsh.

Kathleen Hosey-Elliott testified she objected to the issuance of the permits because of their potential impact on her marsh view, although she was not sure the Smith dock would be in her line of sight. She also felt the docks would impact the wildlife she currently observes in the area, but she could not say the value of her property would decrease because of the docks. She stated the Smith dock would have very minimal impact on the wildlife issues with which she is concerned. She also stated she would only be able to see the Bohannon dock when she went out onto her deck and that it would not be visible from her house.

Steve Brooks testified that he is a staff biologist for OCRM and has been so employed for four years. As a part of his duties, Brooks reviews permit applications by making site visits and assessing potential impacts. Following voir doir, and without objection, Brooks was qualified and admitted as an expert capable of testifying in regards to marine biology and the evaluation of impacts caused by man-made structures on critical area habitats. (R. pp. 121, 128).

Brooks testified he was responsible for reviewing the Bohannon application. In that review, he considered impacts the proposed dock would have on marsh vegetation and marine organisms. Based on his knowledge and experience in dealing with dock structures, he concluded that any negative impacts would be minimal and temporary. Temporary impacts from dock construction consist primarily of the "mashing down of the vegetation," and in his experience, marshes rebound fairly rapidly from these effects. (R. p. 131). Permanent impacts would result from the existence of the structure and any shading effect it might have on plant growth. These impacts are addressed by requirements that walkways be constructed 3' above the mean high water line, be no more than 4' in width, and that fixed piers be located over open water.

While Brooks did not conduct the staff review of the Smith permit, he was familiar with what the application proposed and the area in which the dock would be built. This familiarity was established by visits to the site for other projects. Brooks' expert opinion regarding the impact from the Smith dock on critical area habitats was the same as his opinion on the impact of the Bohannon permit. In short, he concluded that no significant or long term adverse effect would result.

Richard Chinnis testified that he has been Permit Coordinator of OCRM since July of 1986. He reviews approximately 500 permits per year, seventy per cent of which are for docks. He is familiar with Long Point subdivision both from his current position, and from his employment from 1980 - 1986 as Park Manager of Palmetto Islands Park, a park immediately adjacent to Long Point. Chinnis characterized Long Point as "intensively developed." Of the several hundred dock permits OCRM reviews annually, only about 4 or 5 are denied, and the primary reason cited for denial is the lack of waterfront property by the property owner.

Chinnis was familiar with Smith's current application and his earlier permit request which had been denied. This application was initially denied because Smith failed to demonstrate that the lot he intended to subdivide from his property contained 75' of water frontage, the minimum amount of frontage OCRM requires a certain tract of property to possess in order to be eligible for a dock permit. After a denial letter was sent, Smith submitted to OCRM a surveyed plat demonstrating compliance with OCRM regulations. Although additional reasons were expressed by OCRM, lack of a surveyed plat was the "crux" of the initial denial of the Smith permit.

OCRM Exhibit 13 is a drawing illustrating the alignment of the existing and permitted docks along the stretch of Boone Hall Creek relevant to this proceeding. This drawing indicates there will be 120' separating Smith's existing dock and the one (the Smith permit) for which a permit is being sought; 100' between Smith's proposed dock and the proposed Bohannon dock; and 80' from Bohannon's proposed dock and Shealy's property line. Chinnis stated many docks are permitted much closer than the 80' which separates Shealy from the proposed Bohannon dock, and that the docks on the other side of Shealy's residence are closer than 80' to Shealy.

Chinnis interprets the objections of the Petitioners as being merely complaints about obstructions to their views of the marsh. He does not believe OCRM regulations allow a permit to be denied solely because it affects the view of nearby property owners. According to Chinnis, OCRM has never denied a permit on that basis. Chinnis stated no evidence had been presented, either in this case or any other, that the presence of docks diminished the value of adjacent properties. According to Chinnis, the only basis for denying a dock permit to someone who has waterfront property is if the structure would block another property owner's access to water. Neither the Bohannon nor the Smith dock blocks any property owner's access to Boone Hall Creek. Moreover, both docks fully comply with all applicable OCRM regulations.

Chinnis reviewed sheet 6 of 8 to the Bohannon permit to determine which subdivision lots shown thereon would be considered by OCRM to be waterfront lots. According to Chinnis, lots 312, 313, 314 and 315 all have docks that are permitted by OCRM. Lots 308, 310 and 311 are not considered waterfront lots. Lot 310 has had a permit application denied because it is not considered waterfront property. Lots 454 and 455 are waterfront lots, and have been provided dock access by the Bohannon permit. Lots 451, 452, 453 and 456 would be considered waterfront and entitled to permits but have been deed restricted as a condition of the Bohannon permit. According to Chinnis, the concern of OCRM was the number of lots potentially eligible for docks along this section of the creek and the limited amount of water frontage available along the creek. The agreement to deed restrict the other lots in the tract in which Bohannon's lot is located solved this problem by identifying those lots which could have docks and those which could not. The deed restrictions meet OCRM dock master planning standards and allow the developer to establish up-front where docks will be allowed.

According to Chinnis, Bohannon's proposed dock would not cross Shealy's extended property lines as OCRM only extends such lines in the direction of the water and does not consider side lot line extensions. Otherwise, virtually no docks could be permitted.

Chinnis reviewed the Smith application for compliance with the regulations relating to docks and determined that, with the plat which was provided, the application met all OCRM criteria. An application by Smith had been denied in 1990 because the property had not been subdivided, it appeared the dock walkway would cross extended property lines of adjacent properties, and there did not appear to be room on the creek to accommodate all the lots which could be considered to have water frontage. After the denial, Chinnis suggested to Smith that he should get together with the owner of the undeveloped lots and see if an agreement could be reached on limiting the number of docks that could be constructed on this portion of Boone Hall Creek. If such an agreement could be reached, OCRM would review the plans to see if Smith could fit a dock in. Subsequently, the developer of the tract where Bohannon's lot is located devised such a plan for lots 451 - 456, but failed to include Smith's property in the plan. After Bohannon's dock was approved, Chinnis met with Smith and agreed to reconsider his application if Smith subdivided his lot and obtained an agreement from the owners of lots 451 - 456 that they would not oppose the permit. A new application was filed by Smith, the agreement was received (Smith Exhibit 4) and Smith made plans to have his lot surveyed for subdivision. When a survey was not received in a timely fashion, a letter was sent denying the permit. Chinnis agreed that the reason for the lateness of the plat was partly an error by OCRM since Smith was waiting for the OCRM staff to "flag" the critical area on the property before surveying, and OCRM was late in providing the necessary information. Once the plat was received by OCRM, it was determined all permit regulations were met.

Pertaining to the amendment to the Bohannon permit, Chinnis offered deposition testimony that the alteration of the permit from a "joint use" to a "community" dock was "a paperwork technicality change" (Chinnis Deposition p. 19) in that the increase in the use of the dock from two families to three "doesn't change the size or significantly change the scope of the permit." (Chinnis Deposition p. 19). Chinnis stated that the permit was amended during the "appeal" because "[i]t's not a significant material change in the permit that's going to affect significantly the environment or any other matters in this permit." (Chinnis Deposition p. 20).

Mitchell Bohannon testified that he purchased the lot in Long Point specifically with the intention of having a lot he could place a dock upon. As part of the transaction, he agreed to allow his dock to be a "joint use" facility to be shared with an adjacent lot owner. His purchase included the marsh island across which his dock would traverse. He does not intend to conduct any clearing of the vegetation on the island, and it will remain a habitat for wildlife.

Arthur Smith testified that he bought 2.5 acres near Long Point subdivision in 1980 for the purpose of building a home. His house was completed in 1982, and at that time there were no other residences in the vicinity. He also obtained a permit and built a dock. In 1984, he heard rumors of high density development plans for undeveloped tracts near his home and, as a result, purchased an additional .88 acres adjacent to his home site both as a buffer and an investment. The deed for this property, Smith Exhibit 1, provided that it could be subdivided as a residential lot in the event a public sewer system became available. In 1990, Smith applied for a dock permit for this additional parcel and that permit was denied. Smith consulted with his attorney and Chinnis about appealing the denial and elected not to pursue that course. When Bohannon applied for a permit, Smith objected because he felt his property and Bohannon's were equally situated with regard to OCRM dock regulations and Bohannon should not be allowed what had been denied Smith. In the alternative, Smith requested a reconsideration of his application.

DISCUSSION

Regarding the initial permit applications, Petitioners are seeking to prevent Smith and Bohannon from constructing docks on Boone Hall Creek essentially because the piers that will connect the docks to their property will: 1) obstruct Petitioners view of the marsh adjacent to their property, 2) allegedly drive away the wildlife that utilizes the marsh and the marsh island and, 3) decrease the value of their property. OCRM issued dock permits to Bohannon and Smith after determining that they had met all of the requirements necessary for the construction of docks in this particular situation. OCRM relied on the expertise of Steve Brooks and Richard Chinnis, individuals who have overseen the issuance of hundreds of dock permits, in making their determinations regarding the permits. Petitioners failed to put forth any credible evidence to substantiate their arguments regarding the alleged decreasing of their property values or their claims that wildlife would be driven away from the area by the construction of the docks. Absent any evidence to support these claims, Petitioners are left with the argument that the docks will obstruct their view of the presently pristine marsh. In opposition to this argument, Chinnis testified that he believes OCRM has never denied a dock permit on the grounds that it will adversely impact on the view of nearby property owners. In addition, South Carolina case law firmly establishes that the right to a view does not exist in this state. Hill vs. The Beach Co. et al., 279 S.C. 313, 306 S.E.2d 604 (1983).

In addition to their initial objections, Petitioners also oppose the amendment of the Bohannon permit to allow three families, instead of the original two, to use the proposed dock. To support their objections, Petitioners reassert their original complaints about the detrimental effect they believe the dock will have on their view, their property values, and the wildlife that frequent the marsh. Petitioners also argue that the granting of the amendment during the period in which a decision was being made on the original applications was an abuse of process. Among others things, they contend the granting of the amendment violates S.C. Code Regs. 30-4(I)(4)(Supp. 1994), a provision that prohibits an application for an after-the-fact permit until the conclusion of an administrative appeal. As is the case with their other procedural arguments, this one fails. No after-the-fact permit was sought in this case. Such a permit would be sought when a party has constructed a dock without first being issued a permit from OCRM.

Upon a deliberate review of the evidence on the individual merits of this case and the applicable law, it is my conclusion that there appears to be no substantive or procedural reasons to deny the granting of the Bohannon and Smith dock permits. OCRM appears to have made every effort to limit the number of docks that can be constructed in the applicable portion of Boone Hall Creek. Bohannon has met all the requirements for the construction of a dock and, his permit application to build a "community dock" that will service Lots 454, 455, and Lot "X" is granted. As Smith has met all the necessary requirements to build a dock, his permit application is also granted.

FINDINGS OF FACT

By a preponderance of the evidence, I make the following findings of fact:

1. This Division has personal and subject matter jurisdiction over the parties and issues presented.

2. Notice of the date, time, place, and nature of the hearing was timely given to all parties.

3. All of the parties to this proceeding, with the exception of OCRM, own residences and/or property in or near Long Point subdivision and abutting a marsh embayment adjacent to Boone Hall Creek in Charleston County, South Carolina.

4. Long Point subdivision is an intensively developed residential community with many homesites fronting on Boone Hall Creek.

5. Due to the physical configuration of the high ground and the marsh embayment, it would be practically impossible to allow all lots which might be considered to have water frontage to build docks without creating extreme congestion in this portion of Boone Hall Creek. Furthermore, the building of individual docks for all the lots would involve the crossing of extended property lines of several properties.

6. Property is considered to have water frontage (is "waterfront property") if its boundaries, when artificially extended in straight lines, reach the navigable water.

7. If the Bohannon and Smith docks are constructed as proposed, there would be over 300' of open water space between existing docks at this stretch of Boone Hall Creek. (120' from Smith's existing dock to his proposed dock; 100' from Smith's proposed dock to Bohannon's proposed dock; and 80' from Bohannon's proposed dock to the Shealy's property line).

8. The construction of a dock, in and of itself, causes no significant or long term adverse effect to the marsh ecosystem, with the primary impact being temporary and associated with the actual construction process from which the marsh quickly rebounds.

9. As a condition of the Bohannon permit, six (6) lots which could be considered waterfront property and could be eligible for individual dock permits have been deed restricted so that only one (1) dock may be constructed, thereby eliminating the possibility of at least five (5) other structures being built across the marsh abutting Boone Hall Creek.

10. Smith's permit application was initially denied because of the lack of a surveyed plat showing an accurate alignment of the proposed dock in relation to extended property lines and demonstrating adequate water frontage on his subdivided lot (a minimum of 75') in order to meet OCRM regulations.

11. OCRM Exhibit 15 is a surveyed plat submitted to OCRM by Smith which demonstrates the proposed dock lies entirely within Smith's extended property lines and the subdivided lot has over 250' of water frontage.

12. Both the Smith and Bohannon proposed docks meet OCRM regulations for length, width, and elevation, and are reasonably limited in size and extension to accomplish the intended purpose of gaining access to the water.

13. The thrust of Petitioners' objections to the original permits is the contention that the structures will intrude upon their existing views of the marsh.

14. OCRM permitting regulations do not provide for denial of a dock permit based solely upon its potential impact on the view of adjacent property owners, and OCRM has never denied a permit on those grounds alone.

15. While Petitioners raised some concerns about the impact of the Bohannon dock on wildlife which uses the small marsh island, there is no evidence that the Bohannon or Smith docks will significantly interfere with existing utilization of this area by wildlife.

16. There is no reliable evidence in the record that the construction of these docks will adversely impact the property value of adjacent owners.

17. Subsequent to the initial hearing on this matter, Bohannon sought an amendment to his dock permit whereby three lots [Lot 455 (Bohannon's lot), Lot 454, and Lot "X"(any other lot in tracts 4 and 5 in Long Point subdivision)], instead of two, would be able to use the Bohannon dock. This amendment was sought in order to effectuate a Joint Dock Use Agreement between Bohannon and the developer, Longpoint Limited Partnership, entered into July 6, 1994.

18. The Bohannon permit was amended on March 14, 1995. The effect of this amendment was to change the characterization of the dock from that of a "joint use dock" to a "community dock."

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 et seq. and 1-23-310 et seq. (1986 and Supp. 1994).

2. S.C. Code Ann. § 48-39-150 (Supp. 1994) authorizes the Administrative Law Judge Division to hear contested cases arising under Chapter 39 of Title 48 of the 1976 Code.

3. By consent, the parties have agreed for the Administrative Law Judge Division to conduct a contested case hearing and render a decision on the Bohannon permit.

4. 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.

5. S.C. Code Ann. § 48-39-10 et seq. (Supp. 1994) grants OCRM jurisdiction over activities such as those encompassed by the Bohannon and Smith permits.

6. S.C. Code Ann. § 48-39-50 (Supp. 1994) provides the authority for DHEC to promulgate regulations carrying out the provisions of Chapter 39 of Title 48 of the 1976 Code.

7. S.C. Code Regs. 30-1 through 30-20 (1987 & Supp. 1994) were promulgated by the Coastal Council (as predecessor to OCRM), as the applicable regulations governing the management, development, and protection of the coastal zone areas of the state, and became effective July, 1993.

8. According to S.C. Code Regs. 30-12(A)(2)(o) (Supp. 1994), 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. Lots with less than the required frontage, but with 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. Lots with than 50 feet wide are not eligible for a dock.

9. Property is considered to have water frontage (is "waterfront property") if its boundaries, when artificially extended in straight lines, reach the navigable water.

10. All lots encompassed by the Bohannon permit, and those potentially encompassed, possess "waterfront property" under the above definition.

11. Smith's lot possesses "waterfront property" under the above definition.

12. The amended permit application of Bohannon meets all regulatory standards adopted by OCRM and applicable to structures of this kind.

13. The Smith permit application meets all regulatory standards adopted by OCRM and applicable to structures of this kind.

14. Neither the Bohannon nor Smith piers or docks will impair marine life, water quality or public access to the area in question; the permits were appropriately issued by OCRM. See Sierra Club, et al. v. Kiawah Resort Associates, et al., Op. No. 24121 (S.C. Sup. Ct. filed March 27, 1995).

15. Petitioners' property values will not be adversely affected by the granting of the dock permits to Bohannon and Smith.

16. The wildlife frequenting the marsh area will not be unduly disturbed by the granting of the dock permits to Bohannon and Smith.

17. In essence, Petitioners' claims amount to a request for recognition of a prescriptive right to an unobstructed view of the marsh; such a right does not exist under South Carolina law. Hill vs. The Beach Co. et al., 279 S.C. 313, 306 S.E.2d 604 (1983).

18. The consideration of the amendment to the Bohannon permit, during these proceedings, did not violate S.C. Code Regs. 30-4(I)(4)(Supp. 1994), a provision that prohibits an application for an after-the-fact permit until the conclusion of an administrative appeal.

THEREFORE IT IS ORDERED that the Bohannon and Smith dock permits are granted without condition.

AND IT IS SO ORDERED.

_______________________________________

Marvin F. Kittrell

Chief Judge

Columbia, South Carolina

September 19, 1995

_______________________

Fn1. At the continuation of the hearing on March 7, 1995, it was stated that an amendment to the Bohannon permit application, which originally allowed two (2) lots or families to use the dock, was filed which would allow three (3) lots or families to use the dock. The amendment was allowed by OCRM and has been cited by Petitioners as providing additional reasons to deny the application.

Fn2. The "Joint Dock Use Agreement and Covenants and Easements", Chinnis Deposition, Exhibit 3, identifies the third lot as "Lot X", and restricts the location of the lot to tracts 4 and 5 in Long Point subdivision.