ORDERS:
ORDER AND DECISION
This matter comes before me upon petition for contested case hearing de novo pursuant to S.C.
Code Ann. § 48-39-150 (Supp. 1994) and §§ 1-23-310, et seq. (1986 & Supp. 1994) regarding
Petitioner's application for a permit to make additions to a restaurant known as Pier 14
Restaurant, located on the fishing pier known as Pier 14 in Myrtle Beach, Horry County, 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") denied the
permit application. Petitioner sought a hearing for consideration of the permit request, asserting
that either a critical area permit or a special permit should be issued. A hearing was conducted on
May 26, 1995, at the Horry County Courthouse, Conway, South Carolina. The permit, and
special permit sought in the alternative, are denied.
DISCUSSION
Pursuant to S.C. Code Ann. § 48-39-290(D) (Supp. 1994), which allows applications for
activities seaward of the baseline, Petitioner applied for an addition to an existing restaurant which
would consist of enclosing a 16' by 36' area. The area sought to be enclosed is currently part of
the fishing pier known as Pier 14.
OCRM denied the application, citing several regulatory and statutory bases discussed below for
the denial. In addition, the parties stipulated that the permit application was denied because of the
nonwater-dependent nature of the construction. The parties further stipulated that the permit was
not denied because of public safety concerns. The expansion does not increase the square footage
of the fishing pier, but increases the heated square footage of the restaurant. Petitioner desires to
enclose this existing space on the pier to add to the restaurant and expand the bar and lounge area
in order to have a more comfortable environment for patrons to wait for tables.
At the May 26, 1995 hearing, the partners of Pier 14, Bryan Devereaux and Walter Picco,
testified on behalf of Petitioner. Testifying for Respondent was Regional Permit Coordinator for
OCRM in Myrtle Beach, Mark Caldwell, and the staff Oceanographer, Bill Eiser. Plats of the pier
and the proposed construction, numerous photographs of the pier, pictures and slides of other
fishing piers in the coastal zone and the OCRM file were all submitted as exhibits by the parties.
Pier 14 is a structure that has been in Myrtle Beach since 1924. Traditional uses of this pier have
included dancing, dining, recreation, and fishing. From 1983, until Hurricane Hugo destroyed the
structure in 1989, there was no fishing from the pier. The pier was used exclusively for dining,
drinking, and entertainment. Following Hurricane Hugo, the present owners rebuilt that portion
of the pier that extends into the ocean that allows for fishing.
The present configuration of the pier includes a large restaurant surrounded by a walkway used
for ingress and egress. Adjacent to the restaurant is a tackle shop which is enclosed, heated and
air conditioned. Access to the restaurant and to the tackle shop are through separate entrances on
the landward side of the pier. The remainder of the pier consists of a wide walkway extending
approximately two hundred fifty feet (250') out into the ocean.
South Carolina Code Ann. § 48-39-290(A) (Supp. 1994) provides as follows:
(A) No new construction or reconstruction is allowed seaward of the baseline except: ...
(3) Fishing piers which are open to the public, Those fishing piers with associated structures
including, but not limited to, bait shop, rest rooms, restaurants, and arcades which existed
September 21, 1989, may be rebuilt if they are constructed to the same dimensions and
utilized for the same purposes and remain open to the public. In addition, those fishing
piers with their associated structures which existed on September 21, 1989, that were
privately owned, privately maintained, and not open to the public on this date also may be
rebuilt and used for the same purposes if they are constructed to the same dimensions;
23A S.C. Code Ann. Regs. 30-15(C) (Supp. 1994) repeats the language contained in
§ 48-39-290. In addition, 23A S.C. Code Ann. Regs. 30-12(M) (Supp. 1994) provides:
Nonwater-dependent structures, including buildings, houses, or offices that float shall be
prohibited from being constructed, moored, or otherwise placed in or over tidelands and
coastal water critical areas unless there is no significant environmental impact, an overriding
public need can be demonstrated, and no feasible alternative exists.
The following regulatory definition is provided for nonwater-dependent structures:
Nonwater-dependent structures, including but not limited to residences, restaurants,
motel/hotel facilities, other commercial activities and parking facilities have been
constructed in the past within the beach/dune system. The siting of now
nonwater-dependent structures seaward of the baseline is prohibited unless a special permit
is obtained pursuant to Section 48-39-290(D) and R.30-15(F) herein.
[23A S.C. Code Ann. Regs. 30-13(P) (Supp. 1994)]
Also of note, is 23A S.C. Code Ann. Regs. 30-13(R) (Supp. 1994) New Fishing Piers:
(1) New fishing piers are allowed seaward of the baseline in order to provide public access
to our coastal resources.
(2) Specific standards which shall apply are as follows:
(b) No restaurant, arcade, or other nonwater-dependent structure shall be placed on the pier
seaward of the baseline.
Extensive testimony and arguments were offered at the hearing as to the character and uses made
of Pier 14. Pursuant to Respondent's Exhibit #1, the application made in this matter, the legal
description of the property is "That certain fishing pier located over the Atlantic Ocean, and lying
due east of the Yachtsman Resort Hotel...." Pier 14 argued at the hearing that this pier was
unique in nature, and traditional uses of this pier were for "sightseeing, dining, dancing, and a
variety of other social functions, not for fishing." (TR. p.12, I. 14-15) While Pier 14 is not
identical to any other oceanfront pier in South Carolina, it is not so unique in character or use as
to be classified differently than the other oceanfront piers. Although Pier 14 provides a means for
socializing, dining, sightseeing, and other entertainment, it is a "fishing pier" for purposes of the
South Carolina Coastal Zone Management Act, S.C. Code Ann. §§ 48-39-10, et seq. (Supp.
1994). The restaurant located on the pier is a nonwater-dependent structure on the fishing pier.
As a fishing pier constructed and permitted prior to Hurricane Hugo (September 21, 1989), the
pier was rebuilt in 1991-1992 to include the present restaurant, pursuant to S.C. Code Ann. §
48-39-290(A)(3) and 23A S.C. Code Ann. Regs. 30-15(C). These grandfather provisions allowed
the restaurant to be located on the pier. New piers (not existing prior to Hugo) are specifically
prohibited from including restaurants.
State policy for coastal zone management is set forth in §§ 48-39-10, et seq. OCRM is charged
with the duty of establishing and administering a comprehensive and uniform program to assure
protection, preservation, and improvement of the coastal zone. Ecological, public use and access,
and economic considerations must be weighed. The absence of an adverse environmental impact
notwithstanding, the proposed structure and use are contrary to the general State policy regarding
activities allowed seaward of the baseline. "Critical areas shall be used to provide the combination
of uses which will insure the maximum benefit to the people, but not necessarily a combination of
uses which will generate maximum dollar benefits. As such, the use of a critical area for one or a
combination of like uses to the exclusion of some or all uses shall be consistent with the purposes
of this chapter." S.C. Code Ann. § 48-39-30(D).
Petitioner's primary incentive for the restaurant addition is to increase the monetary profit of the
business. The proposed addition would neither provide the public with greater access to the pier
or ocean, nor add a new benefit. The addition is sought to increase the efficiency of the restaurant
and to facilitate serving a greater number of patrons. The restaurant realizes an annual income of
approximately One Million Dollars ($1,000,000) and enjoys a brisk business. While the proposed
additions would likely result in more overall business, the current configuration and operation of
the restaurant obviously do not prevent the restaurant from being a successful business.
As Petitioner is prohibited from constructing a restaurant addition under § 48-39-290(A)(3);
Regs. 30-12(M); Regs. 30-13(P); or Regs. 30-15(C), Petitioner's only recourse is to seek issuance
of a special permit to construct the addition, pursuant to § 48-39-290(D) and Regs. 30-15(F).
The proposed activity does not warrant issuance of a special permit, as the present case does not
provide extraordinary circumstances for an exception to that policy. Regs. 30-15(F) provides in
pertinent part: "Special permits are to be issued only in situations where without such a permit,
the property owner would have no reasonable use of his property, or when an overriding public
benefit can be demonstrated." The current use of the restaurant and the outside area which is the
site of the proposed construction is reasonable and has afforded the property owner a lucrative
business. Increased profits and greater indoor restaurant space for waiting and seating is not an
overriding public benefit.
Based upon my review of the testimony and evidence and upon application of the statutes and
regulations set forth above, it is my conclusion that the application for expansion of the restaurant
should be denied. It is clear that the application seeks to construct a nonwater-dependent
structure over coastal water critical areas as set forth in 23A S.C. Code Ann. Regs. 30-12(M).
That construction would increase the dimensions and configuration of the fishing pier's associated
structures existing prior to Hurricane Hugo. Petitioner has not demonstrated an overriding public
need and has not established a lack of reasonable use of the existing space.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
(1) Petitioner is a partnership of individuals Bryan Devereaux and Walter Picco.
(2) An asset of the partnership is the Pier 14 fishing pier located on the Atlantic Ocean and lying
due east of the Yachtsman Resort Hotel in Myrtle Beach, South Carolina, at 1304 North Ocean
Boulevard.
(3) The fishing pier is partially located over the beach/dune system partially over open water, and
entirely seaward of the South Carolina Coastal Council baseline. As such, it is in the jurisdiction
of the South Carolina Department of Health and Environmental Control, Office of Ocean and
Coastal Resource Management.
(4) By application received November 16, 1994, (P/N# OCRM-94-323) Petitioner sought
authorization from OCRM to expand an existing restaurant at Pier 14, by enclosing an area 16' by
36' located on the south side of the pier.
(5) The purpose for which authorization is sought is for expansion of a commercial use by the
Petitioner.
(6) Notification of Public Notice of Petitioner's application was issued by OCRM on November
17, 1994, to allow public comment on the application.
(7) OCRM issued a letter to Ken Corbett as agent and attorney for the Petitioner on February 14,
1995, denying the application.
(8) The parties have stipulated that the basis for denial of the permit application was that the
proposed construction was nonwater-dependent.
(9) On February 22, 1995, Mr. Corbett notified OCRM of his intent to appeal this decision.
(10) On February 24, 1995, OCRM transmitted Mr. Corbett's request for an appeal to the
Administrative Law Judge Division.
(11) The current commercial uses made of Pier 14 include dining, dancing, and alcohol service in
the restaurant, commercial sales of food, drink, and snack items along with tackle, bait, and
fishing gear in the tackle shop, and fishing and sightseeing from the seaward end of the pier.
Additional uses of the tackle shop include the availability of several video gaming machines.
(12) The tackle shop has a different entrance from the restaurant. The tackle shop and restaurant
share a wall at the landward north side of the restaurant.
(13) The partners' desire to increase the size of the restaurant is based on the fact that the
restaurant is popular and those seeking to dine at the restaurant have to wait for a table. The
expansion is necessary "because of the number of people that were coming to our restaurant and
the types of line-ups that we were having and the uncomfortable level that was being created by
the congestion within the bar area as it exists today." (TR. p. 61, I. 19-23)
(14) The expansion is not contemplated for the purposes of increasing the number of tables or
limiting the wait for a table, rather it is designed to enlarge the alcohol service area of the
restaurant and provide a lounge where customers can wait for a table.
(15) The income of the tackle shop is $100,000.00 per year.
(16) The approximate income of the restaurant was $1 million per year.
(17) Currently, there are fourteen oceanfront piers in the South Carolina coastal zone, which
include:
(a) Folly Beach Pier, a new pier which is presently under construction and close to
completion which contains no nonwater-dependent structures on the pier.
(b) Pawleys Island pier, a pier rebuilt following Hurricane Hugo which contains no
nonwater-dependent commercial structures.
(c) The Kingfisher Pier (also known as the Garden City Pier), rebuilt following Hurricane
Hugo. It contains a bait and tackle shop which provides food and drink service, numerous
arcade games, and a covered but open-air bar at the seaward end of the pier. This bar was
built to replace a bar on the landward end of the pier that was not rebuilt.
(d) The Surfside Beach Pier, rebuilt following Hurricane Hugo to the same configuration
as prior to Hugo and includes a restaurant.
(e) The Myrtle Beach State Park Pier, having no nonwater-dependent structures on the pier.
(f) The Springmaid Pier, existing before Hugo and rebuilt in essentially the same
configuration and having a nonwater-dependent structure at the landward end.
(g) The Lighthouse Pier, rebuilt following Hugo in the same configuration and having a
restaurant at the landward end.
(h) The Apache Pier, a new pier not permitted to include any nonwater-dependent
structures. According to evidence, it appears the pier has not been built in conformance
with the permit.
(i) The Cherry Grove pier, rebuilt following Hugo to its pre-Hugo configuration.
(18) The above-referenced piers became an issue in this case when Petitioner alleged
inconsistency in permitting with regard to these piers as compared to Pier 14. None of these
piers, either the ones rebuilt following Hugo or new construction since Hugo, have made
applications to OCRM to increase or add nonwater-dependent structures.
(19) Each of the above-referenced piers is a fishing pier.
(20) The proposed construction would have no significant environmental impact.
(21) While there is no environmental impact to the immediate area of Pier 14, there is the
potential for a cumulative, negative environmental impact if numerous similar structures were
constructed in the coastal zone.
(22) There is substantial financial incentive to locate nonwater-dependent structures, particularly
restaurants, on a pier.
(23) The area sought to be enclosed to expand bar service in the restaurant is approximately 600
square feet. The existing tackle shop is in excess of 1200 square feet.
(24) The tackle shop is devoted to numerous and various commercial uses. Income produced by
the tackle shop represents 10% of the restaurant income. Income produced by that portion of the
tackle shop devoted to fishing represents 2% of the income of the restaurant.
(25) There is no evidence to show that the Partnership ever considered modifying the tackle shop
to accommodate expansion of the bar and lounge in the existing restaurant.
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 dock 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 (1976 & Supp. 1994) werepromulgated 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) Pier 14 is a fishing pier for purposes of the South Carolina Coastal Zone Management Act,
S.C. Code Ann. §§ 43-39-10, et seq.
(7) OCRM regulates nonwater-dependent uses of the critical area by prohibiting
nonwater-dependent structures.
(8) S.C. Code Ann. Regs. 30-12(M) prohibits the construction of nonwater-dependent structures
in and over coastal waters.
(9) The proposed expansion is a nonwater-dependent structure as defined in 23A S.C. Code Ann.
Regs.30-13(P).
(10) Regs. 30-13(P) includes restaurants within the definition of nonwater-dependent structures.
(11) Regs. 30-13(R), prohibiting new construction of restaurants on new fishing piers, is
evidence of the general State policy to not allow any new construction on fishing piers.
(12) Regs. 30-13(C) allows fishing piers which existed September 21, 1989, to rebuild, but only
to the same dimensions as they had on September 21, 1989.
(13) Pursuant to S.C. Code Ann. § 48-39-290(D), and S.C. Code Ann. Regs. 30-15(F), a special
permit may be granted for construction of a structure seaward of the baseline, but only if the
property owner has no other reasonable use of his property or an overriding public benefit is
demonstrated. Criteria to be considered in such a determination include the general legislative
findings and policies set forth in S.C. Code Ann. §§ 48-39-30, 48-39-250, and 48-39-260 (Supp.
1994) and the several specific factors.
(14) The proposed addition would neither provide the public with greater access to the pier or
ocean, nor add a new benefit. The existing restaurant facility and extended pier already provide
that access and benefit.
(15) Regs. 30-15(F) provides in pertinent part: "Special permits are to be issued only in
situations where without such a permit, the property owner would have no reasonable use of his
property, or when an overriding public benefit can be demonstrated."
(16) The property in question does not suffer a singular disadvantage through the operation of
the Act, and the Act does not render the property unusable for any reasonable use. S.C. Code
Ann. Regs. 30-15(F)(1).
(17) The current use of the restaurant and the outside area which is the site of the proposed
construction is a reasonable and lucrative use of the property in question. The current
configuration and operation of the restaurant and pier do not prevent the restaurant from being a
successful business. S.C. Code Ann. Regs. 30-15(F).
(18) Increased profits and greater indoor restaurant space for waiting and seating is not an
overriding public benefit. S.C. Code Ann. Regs. 30-15(F); See also 330 Concord Street, v.
Campsen, ___ S.C. ___, 424 S.E.2d 538 (1992), and S.C. Wildlife Federation v. S.C. Coastal
Council, 296 S.C. 187, 371 S.E.2d 521 (1988).
(19) "The decision to grant a special permit shall not be based purely on economic
considerations." S.C. Code Ann. Regs. 30-15(F)(3). Petitioner's incentive for the restaurant
addition is to increase the monetary profit of the business. The addition is sought to increase the
efficiency of the restaurant and to facilitate serving a greater number of patrons
(20) While there is no environmental impact to the immediate area of Pier 14, there is the
potential for a cumulative, negative environmental impact if numerous similar structures were
constructed in the coastal zone. S.C. Code Ann. Regs. 30-15(F)(6)(d).
(21) Special permits are to be granted only under extraordinary circumstances, pursuant to S.C.
Code Ann. Regs. 30-15(F)(8), although special permits are considered more appropriate for
habitable structures, pools, or parking lots and drainage devices. Expansion of restaurant facilities
is not in that favored class and does not provide extraordinary circumstances for an exception to
that policy.
(22) The proposed structure and use are contrary to the general State findings and policies
regarding activities allowed seaward of the baseline set forth in S.C. Code Ann. §§ 48-39-30,
48-39-250, and 48-39-260.
(23) "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 regulations operations." Byerly v. Connor,
307 S.C. 441, S.E.2d 796 (1992).
(24) Giving the words of the aforementioned regulations their plain and ordinary meaning,
expansion of the nonwater-dependent structure on this pier is not allowed.
(25) 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 Petitioner's permit application is denied.
__________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
July ____, 1995
Columbia, South Carolina |
