South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Robert Thomson et al. vs. SCDHEC et al.

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Robert and Debra Thomson

Respondent:
South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management, Lowcountry Open Land Trust, and National Trust for Historic Preservation Respondents
 
DOCKET NUMBER:
95-ALJ-07-0221-CC

APPEARANCES:
Pro Se for Petitioner, Robert and Debra Thomson

Mary D. Shahid and John P. Kassebaum for Respondent, OCRM

Elizabeth Warner for Respondent, Lowcountry Open Land Trust
and National Trust for Historic Preservation
 

ORDERS:

ORDER

I. Statement of the Case

Robert and Debra Thomson (Thomson) filed an application with the Office of Ocean and Coastal Resource Management (OCRM) seeking a permit to construct access to the Ashley River by means of a private floating dock, fixed pier and walkway at 5040 Lambs Road, North Charleston, Charleston County. OCRM denied the request for a permit. On April 18, 1995 the Administrative Law Judge Division received notice that Thomson sought a contested case hearing challenging OCRM's denial of the permit pursuant to SC Code Ann. § 48-39-150 and § 1-23-310, et. seq. (Rev. 1987 & Supp. 1994).

The Lowcountry Open Land Trust (Trust) moved without opposition to intervene as a Respondent. On May 31, 1995, an Order Granting Intervention was issued. On June 12, 1995, a hearing on the merits was held in Charleston at the Charleston County Courthouse. At that hearing a motion was made by the National Trust for Historic Preservation to intervene as a party respondent. The motion was granted.

Any issues raised in the proceedings or hearing of this case but not addressed in this Order are deemed denied. Further, the filing of a motion for reconsideration is not a prerequisite to any party filing a notice of appeal of this Order.

II. Issues

1. Under the statutes, regulations and policies governing the issuance of permits, is Thomson entitled to a permit to construct a dock on the Ashley River at 5040 Lambs Road, North Charleston, South Carolina?

2. Does OCRM's actions in relation to permit applications by neighbors of Thomson entitle Thomson to a permit?

III. Analysis

A. OCRM's Denial Of A Permit For 5040 Lambs Road

1. Positions of the Parties

OCRM asserts the permit should be denied for the following reasons.

1. The dock violates the policies of S. C. Code Ann. §48-39-30(B)(1) and (2)(Rev. 1987 and Supp. 1994) in that such policies provide that OCRM should grant permits that "protect the sensitive and fragile areas from inappropriate development" and "protect the states's coastal zone for this and succeeding generations."

2. The permit violates the state policy established by S. C. Code Ann. §48-39-30(B)(5)(Rev. 1987 and Supp. 1994) that seeks to develop comprehensive programs that "give full consideration to ecological, cultural and historic values."

3. Under S. C. Code Ann. §48-39-150(A)(6)(Rev. 1987 and Supp. 1994) and S. C. Code Reg. 30.11(B)(6)(1976) a permit should not be issued since the dock is a "development [that] could affect ... irreplaceable historic and archeological sites of South Carolina's coastal zone."

4. S. C. Code Ann. § 48-39-150(A)(7)(Rev. 1987 and Supp. 1994) and S. C. Code Reg. 30.11(B)(7)(1976) deny the granting of the permit since the "benefits from preservation of an area in its unaltered state "is greater than the economic benefits derived from granting the permit.

5. S. C. Code Ann. § 48-39-150(A)(10)(Rev. 1987 and Supp. 1994) and S.C. Code Reg. 30-11(B)(10)(1976) deny the permit since the dock will affect the value and enjoyment of adjacent owners.

6. S. C. Code Reg. 30-11(C)(1)(1976) denies the permit since granting the permit will have a long range cumulative effect that will lead to "other possible development [that may impact] the general character of the area."

7. The permit violates S. C. Code Reg. 30-11(C)(2)(1976) in that granting the permit encourages piecemeal evaluation rather than comprehensive evaluations.

8. Under S. C. Code Reg. 30-11(C)(3)(1976) the permit violates the duty to avoid negative impacts upon a Geographic Area of Particular Concern (GAPC).

OCRM also asserts the Thomson dock is not in compliance with the Ashley River Special Area Management Plan (Ashley River SAMP) since lots created by subdivision after the adoption of the Ashley River SAMP in February of 1992, are eligible for only a community dock. Further, even a community dock will be denied a permit if a negative impact upon historic properties would result.

There is no material difference in the position of OCRM and that of Lowcountry Open Land Trust and the National Trust for Historic Preservation. Both of these organizations assert the permit request should be denied due to the negative impact that will result to the historic properties near the proposed dock site.

Thomson asserts the dock permit should be granted since Magnolia Gardens has an observation tower on the river and a man-made dike directly across from the property upon which the dock will be built. Thomson asserts Magnolia Gardens' changes to the location are such that his dock does not present a major alteration to the area and thus has no negative impact upon the area.

2. Findings of Fact

I find, by a preponderance of the evidence, the following facts:

1. Thomson is the owner of property located at 5040 Lambs Road, North Charleston, South Carolina.

2. Thomson filed an application with OCRM seeking a permit to construct a private floating dock, fixed pierhead, and walkway at 5040 Lambs Road.

3. On April 11, 1995, OCRM denied the permit and on April 18, 1995, Thomson asked for a contested case hearing before the Administrative Law Judge Division.

a. Protection of sensitive and fragile areas of the Ashley River

4. The portion of the Ashley River upon which the proposed dock is to be built is a sensitive and fragile area.

5. The National Trust for Historic Preservation designated this portion of the Ashley River as one of the eleven most endangered places in the United States in terms of preservation of the historical qualities of the area.

b. Protection of coastal zone for current and succeeding generations

6. Approximately 150,000 people visit Magnolia Plantation and Gardens each year with approximately 85% of those people being from outside the Charleston area.

7. Approximately 65,000 visitors visit Drayton Hall each year with approximately 70% of these visitors from outside of the Charleston area.

8. Approximately 100,000 people visit Middleton Place each year with approximately 85% of these visitors from outside of the Charleston area.

9. A primary attraction for the visitors to Magnolia Plantation and Gardens, Drayton Hall, and Middleton Place is the historic setting of these properties in their natural environment along the Ashley River.

10. The presence of docks in the same proximity as historical properties along the Ashley River diminishes rather than preserves the Ashley River natural environment for the current as well as succeeding generations.

c. Protection of irreplaceable historic and archeological sites

11. Historic plantation sites and archaeological sites are found along the Ashley River.

12. Drayton Hall, a National Historic Landmark since October 15, 1966, was built between 1738-1742.

13. Drayton Hall utilizes Georgian architecture with the front of the structure facing the Ashley River.

14. The Drayton Hall property contains an archeological site dating from 1747 known as the "orangerie" which was a solar heated greenhouse.

15. Development along the Ashley River at the proposed location of the Thomson dock lessens the historic integrity of the area.

16. The presence of a dock suitable for the mooring of boats encourages the use of boats in the area of Drayton Hall and increases the concern for erosion from boat wakes.

17. Bank erosion from boat wakes and other natural causes threatens the loss of the 1747 orangerie.

18. Magnolia Plantation and Gardens is listed in the National Register of Historic Places and was placed on the list on December 11, 1972.

19. The present house at Magnolia Plantation is a pre-revolutionary house which was disassembled, placed on a barge and taken to Magnolia where it was reconstructed in 1873.

20. The gardens at Magnolia began in the 1680's.

21. Archaeological sites are located at Drayton Hall and at Magnolia Gardens.

22. View corridors provide a tool for managing the protection of historic properties.

23. View corridors have been established for Drayton Hall and Magnolia Plantation and Gardens.

24. A view corridor includes the land and water within the line of sight directly in front, to the left, and to the right from ground level as one stands at the center point of the properties' riverfront shorelines.

25. Approximately 17% of the shoreline within the scenic view corridors of historic properties along the Ashley River is developed.

26. Construction of docks presents a significant alteration to the view corridor of a historic property.

27. The construction of the proposed walkway, fixed pierhead, and floating dock endangers irreplaceable historic and archeological sites along the Ashley River.

d. Comparison of benefits from preservation with economic benefits

28. Thomson purchased the two lots at 5040 Lambs Road for $140,000.

29. The lots which Thomson purchased were advertised for sale with a designation that a dock permit had been applied for.

30. A dock permit for the two lots had been applied for by Elsa League as a part of her application for seven dock permits on seven lots along the Ashley River on Lambs Road.

31. Thomson did not determine the status of the Elsa League application for the dock permit prior to purchasing the two lots at 5040 Lambs Road.

32. Prior to Thomson's purchase of the two lots, OCRM made no representation to Thomson as to the status or likelihood that a permit would be granted to construct a dock at 5040 Lambs Road.

33. The value of the property to Thomson is greater if a dock can be built on the property than if a dock cannot be built on the property.

34. The value to be derived from leaving the property in its unaltered state greatly exceeds the economic reduction to Thomson in that the unaltered state helps maintain the historic integrity of the area.

35. The assurance of the historic integrity of the area is critical to maintaining the flow of tourist that visit the Ashley River plantations each year.

36. The economic impact of the continuing annual flow of tourist outweighs the loss of value to Thomson.

37. The benefits from preservation of the area in its unaltered state outweigh the economic loss to Thomson resulting from the inability to construct a dock on the property.

e. Adverse affect on the value and enjoyment of adjacent owners

38. Magnolia Plantation and Gardens is an adjacent landowner in that its properties are approximately 125 yards across the Ashley River from the Thomson property.

39. The presence of a walkway, fixed pierhead and floating dock on the Thomson property detracts from the historic view from Magnolia Gardens.

40. Magnolia Gardens depends upon the historical setting to attract tourist to the plantation and gardens.

41. The proposed dock will diminish the value and enjoyment of Magnolia Plantation and Gardens since the dock will detract from the historical setting and have a negative impact upon tourism in the area.

f. Comprehensive evaluations and long range cumulative effects

42. The granting of a dock permit to Thomson grants a permit to a single property owner in the view corridor of Magnolia Plantation and Gardens.

43. Granting the permit encourages the piecemeal evaluation of permits.

44. Other lots in the same view corridor have sought permits for docks in that Elsa League sought docks for five lots adjacent to Thomson's two lots.

45. OCRM denied those dock permits due to the negative impact such docks would have on the historic nature of the area.

46. The granting of the Thomson dock permit will lead to other development in that future purchasers of the five lots now owned by Elsa League may seek dock permits and if such were to be granted would change the general character of the area from historic preservation to recreational.

47. Denying the Thomson permit limits the long range cumulative effect that will lead to other possible development that may impact the general character of the area.

g. Comprehensive programs considering cultural and historic values

48. OCRM, pursuant to the South Carolina Coastal Management Act, developed and implemented a comprehensive management program to manage the use of coastal resources.

49. The comprehensive management program is known as the State of South Carolina Management Program and was adopted by the Governor and the General Assembly on February 14, 1979.

50. The Management Program was used by OCRM in determining that the Thomson permit should be denied.

51. The denial of the permit is consistent with the Management Program in that the denial gives full consideration to the cultural and historic values of the area.

h. Avoiding negative impacts upon GAPC's

52. The Management Program identifies several categories of Geographic Areas of Particular Concern (GAPC's).

53. Two categories of GAPC's are areas of unique natural resource value and areas of special historical, archaeological or cultural significance.

54. The Management Program's goals seek to preserve and develop GAPC's by giving the highest priority to the primary value of a GAPC.

55. The highest priority for GAPC's of special historic or cultural significance is the use which preserves the historical or cultural values for which a site was placed on the National Register.

56. Magnolia Plantation and Gardens and Drayton Hall are designated GAPC's and are on the National Register of Historic Places.

57. Drayton Hall is on the same side of the river as Magnolia Plantation and Gardens.

58. The proposed pierhead and dock is across the Ashley River from Magnolia Plantation and Gardens.

59. The proposed pierhead and dock will be within the view corridor of Magnolia Plantation and Gardens.

60. The proposed construction at 5040 Lambs Road by Thomson will have a negative impact upon the GAPC's of Magnolia Plantation and Gardens and Drayton Hall.

3. Discussion

The granting of a permit is based upon the policies established by statute, regulations and management programs for coverage of the Coastal Zone. Under S. C. Code Ann. §48-39-50(G)(Rev. 1987 and Supp. 1994), DHEC, through OCRM, is charged with the duty of approving or denying permits for activities within the Coastal Zone covered by Chapter 39 of Title 48 of S. C. Code Ann. (Rev. 1987 and Supp. 1994). S.C. Code Ann. § 48-39-30 (Rev. 1987 and Supp. 1994) sets out the policies the state seeks to apply in governing the coastal zone. These policies are carried out in part by statutes that establish factors to be considered when OCRM is asked to grant a permit. S. C. Code Ann. §48-39-150 (Rev. 1987 and Supp. 1994) identifies ten "general considerations" to be applied. S. C. Code Reg. 30-11 (1976) gives general guidelines for issuing permits in critical areas and S. C. Code Reg. 30-12(A) (1976) sets out standards specifically applicable to docks. In addition S. C. Code Ann. §48-39-50(C) and §48-39-80 (Rev. 1987 and Supp. 1994) authorize OCRM to develop and implement a comprehensive coastal management program for managing the area. Such authority has produced the State of South Carolina Coastal Management Program (Management Program). All of these statutes, regulations and management programs are considered in my reaching a decision in this matter.

4. Conclusions of Law

Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of law:

1. Granting the permit violates the policies of seeking to protect the sensitive and fragile areas of the Ashley River from inappropriate development. S. C. Code Ann. §48-39-30(B)(1)(Rev. 1987 and Supp. 1994)

2. Granting the permit violates the policy seeking to protect the states's coastal zone for the current as well as succeeding generations. S. C. Code Ann. §48-39-30(B)(2)(Rev. 1987 and Supp. 1994)

3. Granting the permit violates the state policy that seeks to develop comprehensive programs that "give full consideration to ecological, cultural and historic values." S. C. Code Ann. §48-39-30(B)(5)(Rev. 1987 and Supp. 1994)

4. Granting the permit violates the policy that seeks to protect irreplaceable historic and archeological sites of South Carolina's coastal zone. S. C. Code Ann. §48-39-150(A)(6)(Rev. 1987 and Supp. 1994) and S. C. Code Reg. 30.11(B)(6)(1976)

5. Granting the permit violates the policy that compares the benefits from preservation of an area in its unaltered state with the economic benefits derived from granting the permit. S. C. Code Ann. §48-39-150(A)(7)(Rev. 1987 and Supp. 1994) and S. C. Code Reg. 30.11(B)(7)(1976)

6. Granting the permit violates the policy that seeks to issue permits that will not adversely affect the value and enjoyment of adjacent owners. S. C. Code Ann. §48-39-150(A)(10)(Rev. 1987 and Supp. 1994) and S. C. Code Reg. 30-11(B)(10)(1976)

7. Granting the permit violates the policy that seeks to limit the long range cumulative effect that will lead to "other possible development [that may impact] the general character of the area." S. C. Code Reg. 30-11(C)(1)(1976)

8. Granting the permit violates the policy that encourages comprehensive evaluations rather than piecemeal evaluations. S. C. Code Reg. 30-11(C)(2)(1976)

9. Granting the permit violates the duty to avoid negative impacts upon a GAPC. S. C. Code Reg. 30-11(C)(3)(1976)

B. OCRM's Actions On Applications By Neighbors

1. Positions of Parties

OCRM asserts its actions on applications by neighbors of Thomson have been consistent. It argues that on February 2, 1995, it denied an application for seven dock permits by Elsa League for seven lots on Lambs Road. OCRM asserts that two of the seven lots were sold to Thomson and that Thomson now seeks a permit for the same two lots which OCRM originally denied permits. Further OCRM agrees it granted a dock permit to property located at 5030 Lambs Road, North Charleston, South Carolina. OCRM asserts that property was entitled to a dock permit since the SC Department of Archives and History found that " it does not appear that the proposed construction will have an adverse visual effect on National Register properties."

Thomson asserts the property at 5030 Lambs Road is visible from Magnolia Gardens. Thomson argues that if the 5030 Lambs Road is entitled to a permit then 5040 Lambs Road is also.

2. Findings of Fact

I find, by a preponderance of the evidence, the following facts:

1. The Thomson property is bordered by the Ashley River, by property owned by John Postek, by property owned by Elsa League, and by Lambs Road.

2. Elsa League subdivided her property into seven lots in February of 1993.

3. On January 6, 1995 Thomson acquired two of the seven lots owned by Elsa League.

4. Immediately across the river from Thomson's property is Magnolia Gardens.

5. The distance from Thomson's property to the nearest point of Magnolia Gardens is approximately 125 yards.

6. The Thomson property can be seen from Magnolia Gardens.

7. Postek's property is not visible from Magnolia Gardens.

8. On August 10, 1994, John Postek received a permit to construct a walkway, fixed pierhead and floating dock at 5030 Lambs Road in order to gain access to the Ashley River.

9. OCRM issued the permit on August 10, 1994 with special conditions limiting the maximum square footage of the combined area of the pierhead and the floating dock to 228 square feet.

10. The SC Department of Archives and History notified OCRM that the proposed construction on the Postek property would not have an adverse visual effect on any National Register properties.

11. On February 2, 1995, Elsa P. League, a neighbor abutting Thomson's property was denied a permit to construct seven docks on seven lots located on the Ashley River.

12. On the League property, the South Carolina Department of Archives and History notified OCRM that the proposed undertaking would have a negative effect on historic properties.

3. Discussion

After a review of all the evidence and law governing this matter, I find the Thomson application was decided consistent with that of Thomson's neighbors. While an administrative agency is generally not bound under the rule of stare decisis by its prior decisions, it cannot act arbitrarily. 330 Concord Street Neighborhood Association v. Campsen, 309 SC 514, 424 S.E. 2d 538 (S.C. App. 1992). Where the circumstances surrounding the application for a permit by one party is similar to that of the party's neighbors and where the existence of the party's dock will not create an effect distinguishable from that caused by a neighbor's existing dock, the denial of a permit to the party violates equal protection and due process of the state and federal constitutions. Weaver v. Coastal Council, 309 SC 368, 423 S.E. 2d 340 (S.C. 1992).

The argument that the granting of a permit to Postek and the denial of a permit to Thomson is arbitrary treatment of Thomson fails here. Thomson is not treated in an arbitrary manner since Thomson was treated in the same manner as his neighbors.

The existence of Thomson's dock will create an effect distinguishable from that of Postek's. While there was some conflict in the testimony, the evidence shows that the dock on Thomson's property will be visible from a historic property while the dock on Postek's property will not be visible from a historic property. Further, Thomson is not treated in an arbitrary manner in that he is treated the same as Elsa League. Elsa League sought permits for seven lots with two of those lots being the identical ones for which Thomson now seeks a permit. OCRM's February 2, 1995 denial notice to Elsa League contains essentially the same grounds as that set out in the Thomson denial.

4. Conclusions of Law

Based on the foregoing Findings of Fact and Discussion, I conclude, as a matter of law, that:

1. OCRM's actions on applications by neighbors of Thomson are consistent with OCRM's denial of Thomson's application.

2. There is no violation of due process or equal protection by the denial of a permit to Thomson.

3. Thomson is not entitled to a permit on the basis that a permit was given to Postek.

IV. ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, the following ORDER is issued:

OCRM is ordered to deny the Thomson application for a permit to construct a walkway, fixed pierhead and floating dock at 5040 Lambs Road.

IT IS SO ORDERED



_______________________________

RAY N. STEVENS

Administrative Law Judge



This 21st day of June, 1995

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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