SC Administrative Law Court Decisions

STATEMENT OF THE CASE

Respondent, Jonathan Horvath, applied for and was granted a permit to construct a 7' by 130' vehicular bridge at 30 Bradley Circle, Hilton Head Island, Beaufort County, South Carolina. The permit allowed the construction of this bridge across a marsh for Mr. Horvath to access his highground property for private home construction [Plat of .92 acres, TMS # 5100-9-269]. The permit was granted with the following special conditions: (1) the bridge must be constructed with a minimum clearance of 5' above mean high water; (2) no fill should be placed in the critical area; (3) any critical area disturbed must be restored to original contours and conditions; (4) all utility lines must be attached to the bridge; and, (5) the bridge must serve as the sole access to the highground and no construction access would be permitted across the tidelands critical area. The issuance of the permit resulted in a contested case request by Petitioners.

The original permit was subsequently amended on June 23, 1995 to allow Respondent, Jonathan Horvath, to construct a 10' wide bridge instead of a 7' wide bridge. Also, the permit was amended allowing Mr. Horvath to change the bridge decking material from metal grating to wood. The amendment of the permit resulted in a separate appeal by Petitioners.

By Order of this tribunal dated July 21, 1995, all parties were notified of this tribunal's intention to consolidate the appeal of the issuance of the permit in the first instance and the appeal of the amendment of the permit. By Order dated August 23, 1995, these two cases were consolidated. At the hearing of this matter, the proceeding was bifurcated to address the two respective issues.

Prior to the hearing, the Town of Hilton Head Island notified this tribunal by letter dated July 20, 1995 that it did not wish to participate in the hearing of this matter.

FINDINGS OF FACT

1. Jonathan Horvath is the owner of 30 Bradley Circle, Hilton Head Island, Beaufort County, South Carolina (TMS # 5100-9-269). Mr. Horvath currently has a two story stucco residence on a portion of this property, but wishes to access .44 acres of this property which is inaccessible because of a .24 acre marsh.

2. Mr. Horvath filed an application with OCRM on January 5, 1995 seeking a permit (P/N OCRM-95-041-E) to construct a 7' by 130' vehicular bridge across the marsh to access the highground portion of his property for home construction.

3. On April 24, 1995, OCRM issued a permit with special conditions (OCRM-95-041-E) to Mr. Horvath for the construction of the vehicular bridge at 30 Bradley Circle, Hilton Head Island, South Carolina.

4. The special conditions on the permit are: (1) the bridge must be constructed with a minimum clearance of 5' above mean high water; (2) no fill should be placed in the critical area; (3) any critical area disturbed must be restored to original contours and conditions; (4) all utility lines must be attached to the bridge; and, (5) the bridge must serve as the sole access to the highground and no construction access would be permitted across the tidelands critical area.

5. In issuing the permit to Horvath, OCRM considered Chapter 39 of Title 48, Coastal Tidelands and Wetlands, with particular emphasis on S.C. Code Ann. §§ 48-39-30 and 48-39-290 (Supp. 1994).

6. OCRM also considered regulatory standards which are applicable to structures of this kind.

7. The South Carolina Department of Archives and History concluded that Mr. Horvath's permit would not intrude upon the boundaries of any listed National Register Historic District Property or Special Area Management Plan.

8. The South Carolina State Ports Authority did not have any objections to Mr. Horvath's permit.

9. The South Carolina Department of Natural Resources did not object to Mr. Horvath's permit as long as certain conditions were imposed (as previously mentioned).

10. The Town of Hilton Head Island, Respondent, Will Cox, and one other resident of the area currently have walkways which extend across the marsh.

11. Petitioner Dr. Wil Grant's property borders Mr. Horvath's property. Petitioner Will Cox's property is located one lot away from Mr. Horvath's property.

12. OCRM Division of DHEC is charged with jurisdiction over development in the critical areas.

13. OCRM determined that Mr. Horvath's permit will have little if any impact upon the environment.

14. On May 2, 1995, the Town of Hilton Head Island issued a construction permit (5R-5-95) to Mr. Horvath for construction on the highground portion of his property (.44 acre).

15. Mr. Horvath applied for and was issued an amendment to his original permit on June 24, 1995. This amendment permitted an increase in the width of the bridge to be constructed from 7' to 10' and also permitted wood decking to be utilized instead of an open metal grating.

16. The public notice on the amendment request indicated "Comments will be received on this amendment request until June 23, 1995."

17. The amended permit was issued prior to the expiration of the comment period, and it is unclear whether Petitioner Will Cox's comments were considered prior to the issuance of the amended permit.

CONCLUSIONS OF LAW AND DISCUSSION

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. (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 the construction of docks, piers, and other structures in coastal zone areas.

4. S.C. Code Ann. § 48-39-10, et seq. (Supp. 1994) grants OCRM jurisdiction over activities such as those encompassed by the Horvath permit.

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

6. 23A S.C. Code Regs. 30-1 through 30-20 (Supp. 1994) were promulgated by Coastal Council (as predecessor to OCRM), as the applicable regulations governing the management, development, and protection of the coastal zone area of the state. These regulations became effective July, 1993.

7. With respect to tidelands, 23A S.C. Code Regs. 30-1(A) provides in pertinent part:

. . . These same unique natural resource areas face increasing land development pressure and negative impacts from man's activities in and around them. The marshes constitute a fragile ecosystem; consequently, indiscriminate dredging and filling, degradation of water quality or unsound building and development practices can have long-term detrimental effects. All developments need not be prohibited; rather, the range of favorable and unfavorable results needs to be realized, and analysis made to determine priorities, evaluate alternatives, anticipate impacts, and suggest the best methods and designs to carry out wise development of these resources. . . . (emphasis added).

Thus, it is clear that development is not necessarily precluded in a critical area.

8. To determine when development is allowed in a critical area, the Department's regulatory authority must be reviewed. In reading 23A S.C. Code Regs. 30-12 (F)(2)(6) and 23A S.C. Code Regs. 30-15(F) (Supp. 1994) together, a permit for construction in a tidelands critical area may be issued where private transportation is required because without such a permit, the property owner would have no reasonable use of his property and the critical area can not be avoided.

9. 23A S.C. Code Regs. 30-11 provides the General Guidelines for All Critical Areas.

10. No concrete evidence was presented that Mr. Horvath's permit would impair marine life, water quality or public access to the area in question. See Sierra Club, et al. vs. Kiawah Resort Assocs., et al., ___ S.C. ___, 456 S.E.2d 397 (1995).

11. The prescriptive right to an unobstructed view of the marsh does not exist under South Carolina Law. Hill vs. The Beach Co., et al., 279 S.C. 313, 306 S.E.2d 604 (1983).

12. The burden of proof in the strict sense "denotes the duty of establishing the truth of a given proposition or issue by the quantum of evidence the law demands in the case in which the issue arises. . . ." Alex Sanders, Deborah Neese, and John S. Nichols, Trial Handbook for South Carolina Lawyers, Burden of Proof § 9:1 at 9-1 (1994). The burden of proof generally rests with the party who asserts the affirmative on an issue. Id. at 9-2. "Generally, the party seeking the aid of the judicial process to advance its position has the affirmative and, therefore, carries the burden of proof." Id. In this matter, Petitioners are seeking the aid of the judicial process to advance their position, and, therefore, carry the burden of proof.

13. This tribunal recognizes the sensitive nature of this matter. When neighbors have disputes concerning the use of their lands and those disputes rise to the level of adjudication before a tribunal, there are usually no winners, regardless of the legal outcome, as these neighbors must still coexist with the reality of the legal decision. Nonetheless, in making a decision in this matter, this tribunal is constrained by the record before it and the applicable statutory and case law.

Petitioners, while eloquent in their presentation, did not carry their burden of proof in this case. They presented suppositions, but did not offer any substantive evidence to support their assertions regarding the alleged improper issuance of the permit to Mr. Horvath by OCRM. OCRM, through witnesses, Stephen Moore and Steve Brooks indicated that all pertinent laws and regulations were considered in the issuance of the permit to Mr. Horvath and the issuance of the permit comported with such laws. Petitioners did not offer any concrete evidence to establish a contrary conclusion.

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 initial permit (PN-OCRM-95-041-E) to Mr. Horvath to construct the vehicular bridge. Further, OCRM, through its agents, indicated that there would be little if any environmental impact as a result of the issuance of the permit. The evidence indicates that the vehicular bridge is necessary for Mr. Horvath to access highground portion of his property which is inaccessible because of the marsh.

As it relates to the amended permit, this tribunal found procedural error because OCRM issued the amended permit prior to the expiration of the comment period and may not have considered Petitioner Will E. Cox's written comments. This tribunal, on the record, remanded the amended permit to OCRM for reconsideration in light of Will E. Cox's comments and any other comments received prior to the expiration of the comment period on June, 13, 1995. The findings made on the record in this regard are hereby incorporated into this written Order by reference.

IT IS THEREFORE ORDERED that OCRM shall grant Jonathan Horvath the initial vehicular bridge permit (PN-OCRM-95-0141-E).

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

Edgar A. Brown Building

1205 Pendleton Street

Columbia, South Carolina 29201