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 (Supp. 1994) and §§ 1-23-310, et seq. (Rev. 1986 & Supp. 1994)
regarding Respondent Jimmie Nunnery's application for construction of a private residential dock
on and adjacent to Rock Springs Creek at Ladys Island, Beaufort, South Carolina, in Beaufort
County. The South Carolina Department of Health and Environmental Control (hereinafter
referred to as "DHEC"), Office of Ocean and Coastal Resource Management (hereinafter referred
to as "OCRM") preliminarily approved the permit application with restrictions. Petitioner, an
adjacent landowner, opposes the granting of the permit and requested a hearing in this matter,
which was conducted on June 8, 1995. The permit, as proposed by OCRM with restrictions, is
granted.
DISCUSSION
Respondent Jimmie Nunnery is the owner of a recently subdivided tract of land on Rock Springs
Creek in Beaufort County. The original tract, measuring approximately 2.26 acres in size, was
divided by Nunnery into Lots: "A" (.78 ac.), "B" (.82 ac.), and "C" (.66 ac.). Nunnery has applied
for OCRM permits for residential docks for each of the parcels. OCRM has issued a permit for a
dock for Lot "A." The permit request for Lot "B" is pending, with a contested case hearing to be
held by this Court at a later date. The issuance of a dock permit for Lot "C" is the contested issue
in the present case.
The adjacent landowner to the west of Nunnery's Lot "C" is James J. Hill. Hill opposes the
issuance of the dock permit on the bases that the proposed dock would impede navigation on
Rock Springs Creek, interfere with the natural "flushing" process of the marsh and creek,
decrease his property value, and decrease the public use and enjoyment of Rock Springs Creek.
Nunnery and OCRM argue that any navigational problems on Rock Springs Creek at and near the
proposed dock location are a result of sandbars in the area, not the proposed dock.
The proposed dock location is upstream from a loop in Rock Springs Creek. Upon travelling the
loop, Rock Springs Creek converges with Lucy Creek. Between the proposed dock location and
the downstream loop of Rock Springs Creek is a series of slews and sandbars which separates
Rock Springs Creek from Lucy Creek. The slews are generally navigable, but not during all tidal
stages. The lower loop, however, is accessible and navigable at all times. While the configuration
of the proposed dock may limit boating access to the slews during lower tidal stages because of
sandbars in front of the proposed dock, navigation through the deeper lower loop will not be
hindered.
In the application and review process, OCRM considered numerous factors, including the impact
of the proposed structure on the public use and enjoyment of the surrounding area and the
navigational impact on the creek of the structure. The width, depth, and alternate courses of the
creek, the existence and location of marsh grass, as well as the physical characteristics of
Nunnery's lot, including the amount of marsh and water frontage, were assessed. Special
conditions were attached to the permit accordingly.
Additionally, Hill claims the permit for Lot "C" should be denied because the original tract has
never been officially subdivided and a permit has already been issued for the undivided tract. At
the hearing, Nunnery offered evidence to prove that while a subdivision plat may not have been
filed with the Beaufort County RMC office, the plat had been prepared. Nunnery has paid
engineering fees, and water lines have been installed for the three lots.
Testifying in opposition to the permit application at the hearing was Petitioner James J. Hill.
Testifying in support of the permit application were OCRM Regional Permit Administrator Rocky
Browder and Respondent Jimmie Nunnery. Photographs, slides, plats, and drawings of the creek,
property, existing docks, the proposed dock, and surrounding area were submitted as exhibits by
the parties.
Upon balancing the interests of the public, the affected parties, and the coastal zone environment
in this matter pursuant to applicable statutes and regulations, I find that Petitioner failed to carry
his burden in establishing that the proposed permit should be denied. For the foregoing reasons
and the Findings of Fact and Conclusions of Law set forth below, the dock permit, with the
amended special conditions included, is granted.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
(1) Respondent is the owner of three recently subdivided lots at the end of Hewlett Road on
Ladys Island, Beaufort, South Carolina, the three parcels being bounded by Rock Springs Creek
and/or Lucy Creek.
(2) Rock Springs Creek is a tidal creek in the coastal zone area of Beaufort County near Lucy
Creek and the Coosaw River.
(3) Rock Springs Creek is used for fishing, shrimping, and recreational boating.
(4) By application dated April 11, 1994, Application OCRM-94-965, Nunnery sought
authorization from OCRM to construct on one of the three parcels, designated as parcel "C",
Beaufort County Tax Map # R200-006-000-078B-C, a private recreational dock with the
following dimensions: From the shore, a 4' x 310' walkway leading to a 14' x 16' pierhead; and
channelward (extending to the left) from the pierhead, a 4' x 24' ramp leading to a 10' x 20' float.
(5) The purpose of the proposed activity is the private and recreational use of Respondent and
future owners.
(6) Notification of Public Notice of Respondent's application was issued by OCRM to allow
public comment on the application.
(7) Petitioner, James J. Hill, the adjacent landowner residing at 60 Hewlett Road, Ladys Island,
Beaufort, South Carolina, by letter to OCRM dated November 11, 1994, expressed concerns
about the issuance of the permit.
(8) OCRM issued a proposed Critical Area Permit, Permit OCRM-94-965, to Nunnery on
February 13, 1995, with general and special conditions. The special conditions are as follows:
1. Provided that no part of this structure blocks the tidal creek to the left.
2. Provided that no part of this structure is placed over any marsh vegetation.
(9) Pursuant to OCRM letter dated April 20, 1995, to Nunnery's attorney (Respondent's Exhibit
#12), Special Condition #2 was amended so that "structure" as used in Special Condition #2
refers only to the pierhead, ramp, and float, but not to the landward walkway.
(10) Petitioner filed with OCRM a Notice of Intent to Appeal the issuance of Nunnery's proposed
permit on February 24, 1995. On February 27, 1995, OCRM filed an Agency Transmittal Form
with the Administrative Law Judge Division for a contested case hearing.
(11) The proposed pierhead and float total four hundred twenty-four (424) square feet in size.
(12) At the location of the proposed dock, Rock Springs Creek is approximately one hundred
eighty (180) feet in width.
(13) The size of the proposed dock is consistent with other docks permitted in the immediate
area.
(14) The proposed floating dock will not rest on the creek bottom at low tide.
(15) Nunnery's lot has two hundred five (205) feet of creek frontage.
(16) Construction of the dock at the proposed location will not have a negative impact upon the
estuarine organisms in the area.
(17) Construction of the dock at the proposed location will not have a negative impact upon the
marsh vegetation in the area.
(18) The construction of the proposed dock will not adversely impact upon the ability of boaters
to navigate Rock Springs Creek
(19) The construction of the proposed dock will not prevent access for boats between Rock
Springs Creek and Lucy Creek.
(20) The lot for which Nunnery seeks the dock permit is a separate and single subdivided lot,
distinct from adjacent lots for which Nunnery seeks or has received a dock permit.
(21) The proposed dock will be in the plain view of Hill's property, with the Hill residence facing
the proposed dock site.
(22) The Hill property has a dock on Rock Springs Creek measuring as follows: a
16' x 20' pierhead, with attached covered boatlift, catwalks, ramp, and floating dock. The Hill
dock was renovated with additions as authorized by OCRM Permit 94-0968, issued December 5,
1994.
(23) The Hill pierhead and floating dock, as permitted under OCRM Permit # 94-0968, totals
five hundred sixty (560) square feet.
(24) The proposed dock will not restrict the reasonable use and enjoyment of Rock Springs
Creek.
(25) The proposed dock will not restrict waterflow and will not impede the natural "flushing"
effect of the creek and marsh.
(26) The alignment of the proposed dock is the least environmentally damaging alignment
available which provides Nunnery with reasonable access to the creek.
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. § 48-39-150 (Supp. 1994), §§ 1-23-600 and 1-23-310, et seq. (Rev. 1986 &
Supp. 1994).
(2) S.C. Code Ann. § 48-39-150 (Supp. 1994) authorizes the Administrative Law Judge Division
with jurisdiction 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 relating to carry out the provisions of Chapter 39 of Title 48 of the 1976 Code.
(5) 26 S.C. Code Ann. Regs. 30-1 through 30-20 (1976 & Supp. 1994) were promulgated by the
Coastal Council, the predecessor to OCRM, as the applicable regulations governing the
management, development, and protection of the coastal zone areas of the state.
(6) Section 48-39-150(A) and Regs. 30-11 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.
1994); 26 S.C. Code Ann. Regs. 30-1(C)(4) and (12) (Supp. 1994), and 26 S.C. Code Ann. Regs.
30-10(A) (1976).
(8) 26 S.C. Code Ann. Regs. 30-12(A) (1976 & Supp. 1994) sets forth the specific project
standards for construction of docks and piers for tidelands and coastal waters.
(9) 26 S.C. Code Ann. Regs. 30-12 (1976 & Supp. 1994) sets forth the permit application
process and requirements for permits issued by OCRM.
(10) 26 S.C. Code Ann. Regs. 30-12(A)(2)(n) (Supp. 1994) 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.
(11) 26 S.C. Code Ann. Regs. 30-12(A)(2)(q) (Supp. 1994) provides for the maximum
allowable square footage size of pierheads and floating docks, dependent upon the width of the
creek. 26 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 unless special
geographic circumstances and land uses warrant a larger structure. Larger creeks will be handled
on a case by case basis ...."
(12) Permit OCRM-94-965, containing special conditions, as amended April 20, 1995, is in
accordance with the applicable statutes and regulations for critical area permits. The proposed
activity conforms with coastal zone policies regarding dock location, size, and configuration.
(13) Pursuant to ALJD Rule 29(B), all issues raised in these proceedings not expressly addressed
in this Order are deemed denied.
ORDER
IT IS THEREFORE ORDERED that Permit OCRM-94-965 is hereby granted, pursuant to the
amended special conditions specified by OCRM.
___________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
July ____, 1995
Columbia, South Carolina |
