ORDERS:
CONSENT ORDER
This matter is before the Court pursuant to a Petition for Review timely served by Anthony C.
Ross ("Petitioner") seeking review of a final agency decision of the S. C. Department of Health
and Environmental Control - Office of Ocean and Coastal Resource Management ("Respondent"
or "OCRM") on a permit application submitted by Petitioner to Respondent. Following docketing
of this case in the Administrative Law Judge Division, a notice of appeal was published by OCRM
affording interested parties an opportunity to intervene in the proceedings. No response to the
notice of appeal was made, and the parties hereto thereafter filed their Pre-hearing Statements. A
pre-trial conference took place on August 23, 1995, by way of conference call with the Court and
counsel for the parties. Following the pre-trial conference, a contested case hearing was set for
October 9, 1995. Prior to the date set for trial of the issues, the parties notified the Court that an
agreement had been reached resolving the dispute which had given rise to the appeal and allowing
a permit to be issued to Petitioner. This Consent Order has been provided to the Court by the
parties and represents their agreement as to the facts in issue and the proper resolution of the
appeal. Accordingly, this Court finds as follows:
FINDINGS OF FACT
1. The Petitioner is the applicant for a permit to construct a private dock from property located at
1974 Minott Street, Charleston County, South Carolina, for the purpose of gaining access
to Wappoo Creek.
2. Petitioner's property meets the definition adopted by Respondent for "waterfront property" in
that it is adjacent to a navigable water and has sufficient frontage thereon.
3. In the course of reviewing Petitioner's application, Respondent had concern that a small
tributary entering the marsh adjacent to Wappoo Creek and Petitioner's property might constitute
a separate "navigable creek", and because Petitioner's proposed dock alignment would cross this
water body, Respondent suggested Petitioner re-align his walkway so as to avoid crossing this
small tributary.
4. Petitioner amended his application as requested and OCRM re-advertised the application in a
public notice.
5. A property owner adjacent to Petitioner advised OCRM of opposition to the realigned
walkway and dock based upon a contention that the dock as now proposed would cross this
neighbor's extended property line and interfere with the construction and placement of a dock the
neighbor had recently received a permit from Respondent to construct as well as the view of
marsh and creek.
6. Based upon the adjacent property owner's objection and because the originally proposed
alignment of Petitioner's dock would cross the tributary to Wappoo Creek, Respondent issued a
permit to Petitioner allowing only a small "crabbing" pier with no Hoating dock to be built in this
tributary.
7. A dock such as that permitted by Respondent would provide limited utility to Petitioner in that
it would only be accessible at periods of high tide.
8. Docks are permitted over tideland critical area to provide deep water access and boat
moorage. However, due to site specific characteristics some docks provide neither, and only
afford limited water access.
9. Respondent has the authority to allow construction over extended property lines when there is
no material harm to the policies of the Coastal Zone Management Act.
10. In this case the Petitioner has waterfront property and by simply changing the dock alignment
may reach deep water in Wappoo Creek; therefore, the Petitioner's intended purposes -access to
deep water and boat moorage - and the policies of the Act are consistent.
11. The proposed re-alignment of the dock as submitted by Petitioner would not cross any
property to which the adjacent neighbor has a superior right, and no evidence that title to the
tidelands has been granted to the neighbor appears in the record.
12. Review of a plat prepared for the adjacent neighbor subsequent to the filing of this appeal
demonstrates sufficient room between the neighbor's permitted dock and Petitioner's dock as
re-aligned.
13. Petitioner has agreed to further revise his dock alignment by placing the floating dock in front
of, rather than to the side of, the fixed pier in accordance with the drawing attached hereto as
"Exhibit A."
14. OCRM has agreed to issue a permit to Petitioner which allows the dock shown in "Exhibit A"
to be built along the alignment shown in "Exhibit B.".
Based upon the foregoing factual findings, this Court enters the following:
CONCLUSIONS OF LAW
1. This Court has jurisdiction over the parties and issues pursuant to S.C. Code Ann. § 1-23-600
(Supp. 1993).
2. S.C. Code Ann. §48-39-10 et seq. (Supp... 1993) grants OCRM jurisdiction over activities
such as that sought to be permitted by Petitioner.
3. The dock as re-aligned by result of this Consent Order provides the least environmentally
damaging alignment (see, S.C. Code Ann. Regs. 30-12(A)(2)(c) and (d)) and, while it crosses
extended property lines, there is no material harm to the policies of the Act resulting therefrom.
4. To the extent the adjacent property owner's objection contends an impact to his view, the
South Carolina Supreme Court has held no such right exists in this state. See, Hill vs. The Beach
Co. et al. 306 SE2d 604 (1983).
5. To the extent the adjacent property owner's objection contends a superior right or title to the
marsh at the location of the dock proposed by Petitioner and now agreed to by Respondent,
the South Carolina Supreme Court has held title to the tidelands in Wappoo Creek is in the State
of South Carolina. Coburg Dairy, Inc. v. Lesser, et al., S.C. , S.E.2d , (Opinion No. 24263, filed
June 19,1995).
6. Allowing a dock as shown in Exhibit A to be built in the alignment shown in Exhibit B will not
impair maim life, water quality or public access to the area in question and may properly be issued
by OCRM. See, Sierra Club. et al. v. Kiawah Resort Associates. et al. Op. No. 24121 (March 27,
1995).
THEREFORE, IT IS ORDERED, upon joint motion and consent of the parties hereto, that the
Respondent OCRM issue to Petitioner Ross a permit to construct the dock depicted in Exhibit A
along the alignment shown on Exhibit B as attached hereto.
AND IT IS SO ORDERED.
_________________________
ALISON RENEE LEE
Administrative Law Judge
October 24, 1995 |
