SC Administrative Law Court Decisions

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. (1986 & Supp. 1994), regarding Petitioner's application for a permit to construct a private dock on Wagner Creek at 3186 Pignattelli Crescent, Mount Pleasant, South Carolina. 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 special conditions restricting the total square footage of the dock and the amount of the dock's extension into the creek. Petitioner sought a hearing for consideration of removal of the square footage restriction to allow construction of a fixed pierhead and a floating dock as proposed. A hearing was conducted on March 31, 1995. The dock permit is approved with modification of the two special conditions.

DISCUSSION

Petitioner seeks a permit to construct a walkway, fixed pierhead, floating dock, and four pile boat lift on a tidal creek. The proposed fixed pierhead and floating dock total 400 square feet. OCRM opposes construction of the structures as proposed, and approved the dock permit subject to special conditions, including a condition restricting the total square footage of the fixed pierhead and floating dock to a combined 160 square feet. OCRM relies upon 23A S.C. Code Ann. Regs. 30-12(A)(2)(q)(iii) (Supp. 1994), which provides dock square footage requirements dependent upon creek width as the basis for the condition. Because of the creek's undisputed width at the proposed dock location, Petitioner has the burden of establishing that special geographic circumstances and land uses warrant a fixed pierhead and floating dock greater than 160 square feet. OCRM insists that no special geographic circumstances or land uses exist to warrant an exception to the square footage limitation.

Petitioner cites the amount of creek frontage of his lot, lot size, amount of intrusion of the proposed dock into the creek, and the reasonable and intended uses of the pierhead and dock in support of his petition. Petitioner also argues the "special geographic circumstances and land uses" exception language in Regs. 30-12(A)(2)(q)(iii) is arbitrary and capricious as written and applied and, as such, such be voided. Finally, Petitioner claims that the effective date of the OCRM regulations regarding lot and dock sizes renders the regulations inapplicable to his application based upon the date of subdivision and platting of his lot by the developer, Dunes West.

The plain and ordinary meaning of the language of promulgated regulations must be used in determining evaluative criteria. Regulatory criteria for permitting is not required to be so specific as to be all inclusive in setting forth factors to be considered, but general factors must not be arbitrarily limited by internal agency policy. Any and all reasonable factors which might indicate that special geographic circumstances and land uses exist must be considered. Petitioner's interpretation of Regs. 30-12(A)(o) is out of context as it relates only to lot water frontage minimums to construct a dock.

Testifying in support of removing the first special condition was Petitioner, Jim Van Hooser. Testifying in opposition to removal of the first special condition were Richard Chinnis, OCRM Permit Coordinator, and Curtis M. Joyner, OCRM Permitting Planner. Maps of Petitioner's lot, the Dunes West development, and the surrounding area, as well as other documents from OCRM were submitted as exhibits by the parties.

Upon a deliberate review of the evidence on the individual merits of this case and the applicable law, it is my conclusion that the specific geographic characteristics of Petitioner's lot warrant an exception to the 160 square foot maximum; however, design and alignment specifications other than those proposed by Petitioner will adequately and reasonably meet Petitioner's intended use needs while minimally restricting public use of the creek. Accordingly, the special conditions should be modified and Petitioner granted a permit to construct a fixed pierhead and a floating dock totalling 250 square feet in size, to extend no further than one-fifth the width of the creek, measured marsh grass to marsh grass.

FINDINGS OF FACT

By a preponderance of the evidence, I find:

(1) Petitioner is the owner of 3186 Pignatelli Crescent, Mt. Pleasant, South Carolina, Tax Map #594-06-00-061 in Charleston County, a parcel on and adjacent to Wagner Creek.

(2) Wagner Creek is a tidal creek feeding into the Wando River in the coastal zone area.

(3) By application received September 30, 1994 (P/N# OCRM-94-273), Petitioner sought authorization from OCRM to construct a 4' by 145' walkway leading to a 10' by 20' fixed pierhead. On the downstream side of the pierhead Petitioner proposed to place a gangway leading to a 10' by 20' floating dock. On the downstream side of the pierhead Petitioner proposes to place a 4 pile boat lift. Not including the walkway and boat lift, the proposed project would total 400 square feet of dock.

(4) The purpose of the proposed activity for which authorization is sought is for the private and recreational use of the Petitioner.

(5) Notification of Public Notice of Petitioner's application was issued by OCRM on October 6, 1994, to allow public comment on the application.

(6) OCRM issued a Critical Area Permit, Permit OCRM-94-273, to Petitioner on October 27, 1994, with general and special conditions. The special conditions read as follows:

1. Provided the fixed pierhead and floating dock combined are reduced to a total square footage not to exceed 160 square feet as outlined in the Dunes West DMP [dock master plan]. The permittee must notify OCRM staff as to final configuration prior to construction.

2. Provided that no part of the structure extends more than 1/4 of the creek's width measured from marsh grass to marsh grass.

(7) Petitioner submitted a request to OCRM on November 1, 1994, asking for reconsideration of the first special condition placed on the permit.

(8) On or before November 9, 1994, OCRM informed Petitioner that the first special condition would not be removed.

(9) On November 9, 1994, Petitioner filed with OCRM a Notice of Intent to Appeal the placement of the first special condition on his critical area permit. On November 17, 1994, OCRM filed an Agency Transmittal Form with this Division for a contested case hearing.

(10) Dunes West, the developer of the residential area in which Petitioner's lot is located indicated by letter dated November 17, 1994, that it had no objection to Petitioner building a dock at the proposed site, if the structure totalled no more than 320 square feet (10' x 16' fixed pierhead attached to a 10' x 16' floating docking).

(11) Petitioner desires the removal of the first special condition in its entirety to allow construction of a fixed pierhead and a floating dock totaling 400 square feet.

(12) Petitioner seeks to construct a structure large enough to accommodate his thirty foot boat and to use the dock for general enjoyment of, access to, and use of Wagner Creek.

(13) Petitioner's dock, as proposed, would extend approximately ten feet into Wagner Creek.

(14) Under the OCRM special conditions placed upon Permit OCRM-94-273 on October 27, 1994, Petitioner could design and construct a dock which actually extends further into Wagner Creek than the proposed dock.

(15) Wagner Creek varies in width from 20 to 200 feet.

(16) Wagner Creek is 90 feet wide, marsh grass to marsh grass, at the location of the proposed pierhead and dock.

(17) Wagner Creek is 150 feet wide, marsh grass to marsh grass, at the upstream lot adjacent to the location of the proposed pierhead and dock.

(18) Wagner Creek is 143 feet wide, marsh grass to marsh grass, at the downstream lot adjacent to the location of the proposed pierhead and dock.

(19) Petitioner's lot has 330.92 feet of frontage of land along the marsh grass of the creek bank.

(20) Petitioner's lot has approximately 300 feet of actual water frontage along the marsh grass edge.

(21) Petitioner's lot has greater creek frontage than each of the adjacent lots and most neighboring lots.

(22) There are currently no docks in close proximity to Petitioner's property.

(23) As designed and located, Petitioner's proposed dock would not impede navigation on Wagner Creek any more than would a similarly designed structure totalling 160 square feet.

(24) No environmental problems would be caused by construction of Petitioner's structures as proposed.

(25) No waterflow problems would be caused by construction of Petitioner's structures as proposed.

(26) A dock master plan ("DMP") was developed in 1989, for Phase II of Dunes West, a large, undeveloped tract on Wagner Creek containing Petitioner's then undivided lot.

(27) The Wagner Creek DMP was created prior to subdivision or development of the Dunes West, Phase II tract; therefore, size and creek frontage of individual lots were not considerations in the formulation of the Wagner Creek DMP.

(28) OCRM cites the Wagner Creek DMP in support of its determination regarding the allowable size of the docks on Wagner Creek.

(29) To determine what "special geographic circumstances and land uses" warrant an exception to Regs. 30-12(A)(2)(q)(iii), OCRM used the ten general considerations for critical area activity contained in S.C. Code Ann. Regs. 30-11(B)(1-10), and the following unpublished criteria: tidal range; the potential for "docks across the creek,"; and, the amount of water frontage possessed by a landowner.

(30) The tidal range of Wagner Creek is not extraordinary, ranging approximately 5 feet from mean high to mean low tide.

(31) On the opposite side of Wagner Creek of Petitioner's lot is a large undeveloped tract of land owned by Dunes West, being a portion of Charleston County TMS# 540-00-00-009, containing approximately 2,839.61 acres. Any docks constructed on that property must be approved and permitted by OCRM.

( 32) Construction of the proposed dock would not cause an unreasonable hinderance to the public use of the creek;

(33) Special geographic circumstances and land uses exist to allow Petitioner to construct a dock larger than 160 square feet; however, a structure smaller in total square footage than the 400 square foot proposal or the 360 square foot proposal submitted by Petitioner can be designed and constructed to reasonably satisfy the dock's intended use without unreasonably restricting public use of Wagner Creek.

(34) The public and environmental interests OCRM seeks to protect through imposition of a square footage cap and extension limitation on the proposed structure, can reasonably be accomplished by alternative design specifications.

CONCLUSIONS OF LAW

Based on 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 & 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) 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. 1994) provides the authority for DHEC to promulgate regulations 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 (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.

(6) S.C. Code Ann. Regs. 30-12(A)(o), referring to the inapplicability of regulations to lots platted and recorded prior to the effective date of the regulations, relates to water frontage requirements of a lot to be eligible for dock construction only and is not a general grandfather clause for all regulations. It is undisputed that Petitioner's lot has adequate water frontage to allow construction of a dock. For all relevant issues in the present case, the provisions of S.C. Code Ann. Regs. 30-1, et seq. are effective and applicable.

(7) S.C. Code Ann. Regs. 30-12(A)(o) is applicable in the present case only to the extent that it establishes that the minimum water frontage for a lot to be eligible for dock construction. A lot must have at least 75 feet frontage.

(8) S.C. Code Ann. § 48-39-150(A) (Supp. 1994) and 23A S.C. Code Ann. Regs. 30-11 (Supp. 1994) set forth the guidelines to be used in assessing the impact of a project in a critical area.

(9) The project in question is located in a critical area under S.C. Code Ann. § 48-39-10 (Supp. 1994); 23A S.C. Code Ann Regs. 30-1(C)(4) and (12) (Supp. 1994), and Regs. 30-10(A) (1976).

(10) 23A S.C. Code Ann. Regs. 30-12 (1976 & Supp. 1994) sets forth the specific project standards for construction of docks and piers for tidelands and coastal waters and the permit application process and requirements for permits issued by OCRM.

(11) 23A S.C. Code Ann. Regs. 30-12(A)(2)(q)(iii) (Supp. 1994) provides that: "Creeks between 51 and 150 feet shall be restricted to docks up to 160 square feet [not including square footage of walkways] unless special geographic circumstances and land uses warrant a larger structure." Petitioner has the burden of establishing justification of an exception.

(12) The Dunes West, Phase II DMP is a non-binding planning and development guide entitled to be used as a framework for permitting decisions. S.C. Code Ann. § 48-39-270 (1976); S.C. Code Ann. Regs. 30-1(C)(16) and 30-12(A)(3).

(13) Besides the ten general considerations enunciated in S.C. Code Ann. Regs. 30-11(B), OCRM's three criteria for evaluating the "special geographic circumstances and land uses" exception to Regs. 30-12(A)(2)(q)(iii) are not promulgated as regulations.

(14) No stated criteria or definition exists in statute or regulation setting forth the factors to be considered in determining whether special geographic circumstances and land uses exist to warrant a larger structure under 23A S.C. Code Ann. Regs. 30-12(A)(2)(q)(iii) (Supp. 1994).

(15) "The words of a regulation must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand the regulation's operation." Byerly v. Conner, 307 S.C. 441, 415 S.E.2d 796 (1992).

(16) Where a statute provides controlling principles, an administrative agency may exercise a large measure of discretion within those principles. An agency's discretion is not unbridled, however. 1 Am. Jur. 2d Administrative Law § 118 (1962). Regulations promulgated to effect the legislative mandate must contain articulable standards which can be known in advance, conformed with, and applied rationally. See Mattison v. Dallas Carrier Corp., 947 F.2d 95 (4th Cir. 1991), modified on other grounds Johnson v. Hugo's Skateway, 974 F.2d 1408 (4th Cir. 1992).

(17) An administrative decision must be reached utilizing reasoned judgment, be based upon adequate determining principles and a rational basis, and governed by fixed rules or standards to avoid being arbitrary. Deese v. State Board of Dentistry, 286 S.C. 182, 332 S.E.2d 539 (Ct. App. 1985).

(18) Regulatory criteria for permitting is not required to be so specific as to be all inclusive in setting forth factors to be considered; however, factors must not be arbitrarily limited by unwritten internal agency policy. See Home Health Services v. S.C. Tax Com'n, S.C. , 440 S.E.2d 375 (1994); See also Captain's Quarters v. S.C. Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1991).

(19) The determination to approve or deny a permit application must be based upon the individual merits of each application pursuant to policies and considerations set forth in S.C. Code Ann. §§ 48-39-20, 48-39-30, and 48-39-150(A) (Supp. 1994). All reasonable factors not inconsistent with those policies and guidelines should be considered as evaluative criteria in determination of whether special geographic circumstances and land uses exist to warrant an exception to the 160 square foot dock size limitation under 23A S.C. Code Ann. Regs. 30-12(A)(2)(q)(iii) (Supp. 1994).

(20) It is reasonable to consider evidence of the following factors to assess whether adequate grounds or reasons exist to grant an exception to 23A S.C. Code Ann. Regs. 30-12(A)(2)(q)(iii) (Supp. 1994):

a) creek width;

b) tidal range;

c) potential for future docks across the creek or in close proximity;

d) amount of water frontage possessed by a landowner;

e) amount of water frontage possessed by neighboring lots

f) width of creek at the location of the proposed dock and in close proximity to the proposed dock location both upstream and downstream;

g) overall size of lot and neighboring lots on the creek;

h) potential dock density upon further development;

i) reasonableness of the proposed dock in relation to the intended use of the dock;

j) impact of the proposed dock upon navigation and reasonable public use of the creek;

k) amount of extension or intrusion of proposed dock into the creek;

l) specific design and alignment of the proposed dock;

m) environmental impact of the proposed dock;

n) reasonable alternatives to proposed design;

o) applicable dock master plans.

(21) Considering the totality of the evidence submitted relevant to evaluate circumstances and land uses of Petitioner's lot and proposed dock, adequate grounds exist to grant an exception to the 160 square feet dock limit in 23A S.C. Code Ann. Regs.

30-12(A)(2)(q)(iii) (Supp. 1994) and to modify the special restrictions placed upon Petitioner's permit; however, a structure smaller in total square footage than the 400 square foot proposal or the 360 square foot proposal submitted by Petitioner can be designed and constructed to reasonably satisfy the dock's intended use without unreasonably restricting public use of Wagner Creek.

(22) The permit may be conditioned upon amendment of the proposal to take whatever measures are necessary to protect the public interest. S.C. Code Ann. § 48-39-150(B). The public and environmental interests OCRM seeks to protect through imposition of a square footage cap and extension limitation on the proposed structure can reasonably be accomplished by alternative design specifications taking into account site specific characteristics. S.C. Code Ann. Regs. 30-12(A)(2)(e).

ORDER

IT IS THEREFORE ORDERED that the special conditions to Petitioner's critical area permit, Permit OCRM-94-273, are struck in their entirety and amended to read:

SPECIAL CONDITIONS

1. Provided the fixed pierhead and floating dock combined are reduced to a total square footage not to exceed 250 square feet. The permittee must notify OCRM as to final configuration prior to construction.

2. Provided that no part of the structure extends into the creek no more than one-fifth the width of the creek, measured marsh grass to marsh grass.

ADMINISTRATIVE LAW JUDGE

April _____, 1995

Columbia, South Carolina