ORDERS:
ORDER AND DECISION
This matter is before the Administrative Law Judge Division pursuant to S.C. Code Ann. §
48-39-150(D) (Supp. 1995) and § 1-23-310 et seq. (Rev. 1986 and Supp. 1995) for a contested
case hearing pursuant to two requests for review. One is a request for review by Robert W. and
Francis J. White ("the Whites") of the decision by the Department of Health and Environmental
Control, Office of Ocean and Coastal Resource Management ("OCRM") to issue a permit to the
Respondent, Joyce R. Felts ("Felts"), to construct a private dock. The proposed structure will
have a 4' by 475' walkway leading to a 10' by 16' floating dock on and adjacent to Parrot Point
Creek. The second is a request for review by Henry G. Hoffmeyer ("Hoffmeyer") and the Whites
of OCRM's decision to issue a permit to Felts to place a mooring piling adjacent to an existing
dock on Parrott Point Creek.
On October 18, 1993, Felts applied to OCRM for a permit authorizing the placement of a
mooring piling approximately 30 feet upstream of an existing fixed dock. Permit CC-93-283 was
issued on May 17, 1994, and timely appealed by Robert W. White and Henry G. Hoffmeyer, the
adjacent property owner and Intervenor in the present action. See Docket No.
94-ALJ-07-0159-CC. Prior to a hearing on the merits of Docket No. 94-ALJ-07-0159-CC, a
settlement was agreed to by Felts and Hoffmeyer wherein Felts would waive any ownership rights
in the Hoffmeyer dock and apply for her own private walkway and pierhead. Felts has stipulated
that a permit for her private walkway and pierhead negates the necessity of a mooring piling as set
forth in Permit CC-93-283.
On February 15, 1995, Felts applied to OCRM for a permit authorizing the construction of a 4' by
475' walkway from her lot and terminating in Parrot Point Creek. By an Order dated April 25,
1995, this Court held the appeal of the mooring piling in abeyance until a decision was made by
OCRM on the Felts dock application. On July 10, 1995, permit OCRM-95-076-F was issued to
Felts with conditions authorizing the construction of a private dock.
The Whites appealed the issuance of the dock permit alleging that: (1) the proposed dock crossed
the their extended property lines; (2) Felts had water access through the use of an existing dock;
(3) Felts did not provide accurate information to OCRM in her permit application; (4) the dock
would block access to the creek from the Whites' property; (5) the dock would interfere with the
use and enjoyment of their property; and (6) the dock would diminish their property value. The
Whites supplemented the above with the additional allegation that the proposed dock would cross
a navigable creek in violation of OCRM regulations. Prior to a hearing on this matter, Hoffmeyer
timely made a motion to intervene and was made a party to the present action.
After notice to the parties, a hearing on the merits was conducted on December 19, 1995, at the
Charleston County Judicial Complex, Charleston County, South Carolina. Prior to the hearing,
on December 18, 1996, the undersigned Administrative Law Judge, accompanied by counsel for
the parties, visited the Hoffmeyer, Felts and White properties and viewed the existing dock and
the site of the proposed dock.
While the mooring permit and the dock permit cases were not consolidated prior to the hearing,
after reviewing the evidence this court has concluded that both appeals involve common questions
of law and fact and may be consolidated for a determination at this time. For the reasons that
follow, the permit application by Felts for a private single family dock is granted, and the appeal
of the mooring piling permit is dismissed.
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.
FINDINGS OF FACT
I make the following findings of fact, taking into consideration the burden on the parties to
establish their respective positions by a preponderance of the evidence, and taking into account
the credibility of the witnesses:
1. The Whites own three tracts of land located at 940 Joe Rivers Road, Charleston, S.C. Two
tracts are significant with regard to these matters. Tract 47 consists of approximately 4.8
acres and is contiguous to the Felts property. Tract 48 is approximately 3.3 acres, borders on
Parrot Point Creek and contains the Whites' residence. The Whites have owned and lived on the
property for over forty years. Tract 49, which is not involved in this matter, is adjacent to Tract
48 and is also located on Parrot Point Creek.
2. Felts is the owner of 680 Marsh Point Drive, Charleston, South Carolina. Hoffmeyer is the
owner of 678 Marsh Point Drive, Charleston, South Carolina, which he purchased in 1985.
3. Tract 48 and the Felts and Hoffmeyer properties described above are located adjacent to Parrot
Point Creek, a tidal creek feeding into Charleston Harbor and which is approximately 60 feet in
width at the proposed location.
4. Prior to 1977, a walkway and dock were constructed from 678 Marsh Point Drive to a small
tributary that lead to Parrot Point Creek. The tributary has basically dried up and no longer
provides navigable access to the creek.
5. In 1977, the walkway and dock were extended from 678 Marsh Point Drive to the creek. This
permit required removal of the dock over the tributary, extension of the walkway to the creek,
and the construction of the dock at the creek. This permit was later amended in 1981 to authorize
the expansion of the pierhead and the addition of a floating dock.
6. Between 1979 and 1982, a 180' walkway was constructed from the Felts property connecting
the existing walkway. This addition created a "Y" shaped walkway connecting the Hoffmeyer and
Felts properties and terminates at the dock at the creek. Neither the 1977 permit nor the 1981
amendment authorized the 180' extension from the Felts property to the walkway or referenced an
intent for the dock to be jointly used by Felts and Hoffmeyer's predecessors in title.
7. A dispute arose in 1989 between Felts and Hoffmeyer concerning ownership of the existing
dock. This dispute continues presently.
8. Between 1991 and 1993, Felts submitted documents to OCRM relating to her use or ownership
of the dock. These documents included an after-the-fact application to permit the completed
connector walkway, a deed purporting to demonstrate joint use access and an attempt to have the
1977-1981 permits for the construction of the docks assigned to her.
9. The existing dock was not permitted as a joint-use dock and there is no documentation in the
agency's files referencing a joint use dock. Issuance of a permit for joint use requires both
property owners to consent by signing the application and requires specific language in the permit
stating its joint use.
10. OCRM did not permit the connector walkway nor assign the construction permits to Felts.
Because the dock and floating pierhead had already been constructed, the permits were not
assigned, OCRM only assigns active permits.
11. OCRM was aware of the dock ownership dispute between Felts and Hoffmeyer and indicated
to the parties that it could not determine ownership issues.
12. On October 18, 1993, Felts applied to OCRM for a mooring piling to be fixed 30 feet
upstream from the existing fixed dock. Both Hoffmeyer and White objected to the application.
Hoffmeyer objected because Felts did not have joint use or ownership of the walkway and dock to
access the mooring piling. White objected because he felt that any boat tied to the piling would
impede navigation.
13. After a request for a contested case hearing, Felts and Hoffmeyer reached a settlement on the
issue of joint use and ownership in which Felts would relinquish any interest she may have and
would apply for a permit to construct a dock extending from her dock corridor, which she did in
February 1995.
14. During the public notice period, the Whites objected to Felts dock application on the basis
that construction of the dock would interfere with their use and enjoyment of their property by
restricting their view, prohibiting the construction of any dock on Tract 47 and impeding
navigation on the creek. Further, the Whites allege that Felts already had access to the water
through the joint use of the existing dock.
15. OCRM is not authorized to make a determination of the ownership of the existing dock.
Permitting decisions on the applications for the mooring piling and the dock were made by
OCRM without having to decide ownership. Ownership of a dock is not a prerequisite to
construction and use of a mooring piling, therefore the agency was not required to address the
issue of ownership. The application for a dock permit submitted by Felts provided that the
walkway connector between the Felts property and the existing dock would be removed before
construction of a dock extending from the Felts property. The dock permit was issued with a
special condition requiring that the connector be removed upon construction of the proposed
Felts dock.
16. OCRM determined that Felts' property had water frontage. Based upon the settlement
between Felts and Hoffmeyer, OCRM determined that Felts did not have access to the water at
the time of her dock application.
17. The purpose of the proposed activities is the private and recreational use of Felts and future
owners.
18. The extended property lines of all the parties (except OCRM) in this case, intersect and cross
each other. In instances, where property is determined to have water access and the extended
property lines converge, OCRM establishes dock corridors for the lots to ensure there is adequate
room for dock construction. Dock corridors are a planning tool used by the U.S. Corps of
Engineers and OCRM in situations where the existence of waterfront property and conflicting
property lines are in question.
19. The subdivision in which the Felts lot is located was platted prior to 1993.
20. The Whites alleged that Tract 47 (adjacent to Felts) has waterfront property and contend that
if Felts dock is built as proposed, Tract 47 will be cut off from constructing any dock.
21. Based upon the survey prepared for Mr. White and presented as evidence, Tract 47 does not
have 50 or 75 feet of water frontage and would not qualify as waterfront property for permitting a
dock. However, OCRM has not made any determination on whether Tract 47 qualifies for a
dock and will not do so until an application is submitted.
22. OCRM conducted field measurements in which it determined that there is at least 81 feet
between the White's dock and Hoffmeyer's dock, which is enough to construct two docks.
23. Mr. Steve Attaway, who was qualified and testified as an expert appraiser, conducted an
on-site inspection of the Whites property, considered comparable property, and otherwise
evaluated whether the property would diminish in value if Felts built a dock. He did not appraise
the White's properties to render an opinion of overall value. He could only speculate as to
diminished value to the Whites property as a result of the construction of the Felts dock.
24. The value of the property is derived from its water frontage. To maintain its value, the
property should maintain its access to the water. There was no evidence to conclude that the
proposed dock would preclude any future development of the Whites' property or that the dock
would cause any diminution of the Whites' property value. Any potential for diminished value is
contingent upon the plan to develop Tract 47.
25. Mr. White had a dock on Tract 48 which was destroyed by Hurricane Hugo. Remnants of
that dock could be reconstructed to give them water access. Mr. White has no concrete plans for
development of the remainder of his property and it is his intention to live on Tract 48 until he
dies.
26. The Whites enjoyment of their property comes form the aesthetic beauty of the open spaces
and distance from neighbors, the proximity of the creek, and the financial security the property
provides for their retirement years.
27. OCRM does not deny permits on the basis of a dock's close proximity to adjoining property
or because it affects the view. A property owners right to access the water is the primary concern
in the OCRM permitting process.
28. The construction of Felts' dock on the creek would not obstruct navigation of the creek. The
creek is between 51 and 150 feet wide. Restrictions on the size of the dock and its placement in
the water would resolve any concerns about navigating the bend in the creek.
29. There would not be an impact upon aquatic or marsh organisms or vegetation by the
construction of the dock.
30. Construction of the dock would not cause stagnant water flow.
31. Public access would not be restricted by the presence of the dock.
32. Although there are no known historic or archeological sites in this area, the permit conditions
require notification of the appropriate authorities if any sites are discovered.
33. Other conditions and restrictions attached to the permit provide safeguards to avoid any
environmental impacts from construction of the dock.
34. The location of the proposed dock is the least environmentally damaging alignment available
which provides Felts with access to the creek and preserves a dock corridor for the Whites on
Tract 47, if OCRM determines that Tract 47 has the requisite water frontage and access.
35. The proposed Felts walkway would not obstruct the Whites' view.
36. The proposed dock will not restrict the reasonable use and enjoyment of Parrot Point Creek
by the Whites or the public.
DISCUSSION
The Whites raise four main issues with respect to the issuance of the dock permit. The first is that
the proposed dock crosses their extended property line encroaching on and blocking access to the
creek from Tract 47. As to the allegation that the dock would block access, OCRM has
positioned Felts' dock so that there was sufficient room for another dock to reach the creek from
Tract 47, if the Whites are successful in obtaining a dock permit. A dock corridor has been
preserved for Tract 47 in its current condition. Reg. 30-12(A)(2)(o) provides that for any lots
platted an recorded after 1993, the lot must have 75 feet of water frontage along the marsh edge
and at least 75 feet of frontage between extended property lines. If any development of Tract 47
occurs, the lots must meet these requirements in order to be eligible for a dock. It is unlikely that
any development of Tract 47 would yield lots eligible for a dock.
Dock corridors are used by the Corps of Engineers and OCRM for lots platted prior to 1993.
OCRM regulations allow docks to be constructed over extended property lines where there is no
material harm to the polices of the act and site specific characteristics warrant. In a situation
where converging property lines would put several docks at the same point in the creek, OCRM
devises a dock corridor plan for waterfront property owners in an effort to eliminate access
problems for lot owners who qualify for a dock. OCRM used this method to eliminate any impact
the Felts dock would have on access by the Whites.
The second issue raised by the Whites is that Felts already has water access by way of the existing
dock which she shares with the adjoining land owner Hoffmeyer. The Whites contend that Felts
has an ownership interest and therefore a right to use the existing dock. The record is clear that a
dispute between Felts and Hoffmeyer over the ownership of the existing dock has existed for
several years. Neither OCRM nor this Court can make a determination of legal title to the
property in dispute. OCRM can make a determination of joint use by searching its permit files.
The agency's files concerning this dock show no evidence of joint use or any intention that the
dock would be used jointly when it was permitted. OCRM indicated a preference for joint-use
docks especially in a congested area such as this; however, OCRM could not conclude the
existing dock was a joint use dock in light of the opposition of Hoffmeyer and without any
supporting documentation. Felts would not have access to two docks because the special
condition of the permit requires that the connector walkway be eliminated.
The third issue raised by the Whites is that Felts supplied inaccurate information to OCRM
because the extended property lines and permit drawings were not drawn to scale; therefore the
application did not accurately represent the dock alignment or the extent it would cross the
Whites extended property lines. There is no requirement that the application must contain a
scaled drawing of the property lines or that the drawing of the location of the dock and creek be
prepared by an engineer or surveyor. What is required is that the measurements showing
distances between property lines and to the creek be correct. OCRM staff also performed an
informal field survey to measure distances and determine the location of the permitted and
possible future construction in the critical area. When added to the information submitted by
Felts, OCRM concluded that the proposed structure was consistent with regulatory requirements
and permit OCRM 95-076-F was issued.
The fourth issue raised by the Whites concern an allegation that the proposed construction would
interfere with future development of the Whites property, Tract 47, resulting in loss of value. No
witnesses provided any evidence of future interference with development of the Whites property.
Although the Whites testified that they had no definite plans for development of the property, they
did present a rough development plan to the parties which was introduced at trial. The plan did
not include lot size or waterfront footage. Mr. Moore, OCRM permitting administrator, testified
that of the eight lots shown on the plan, only lots five, six, seven, and eight as proposed would
pass as waterfront property. Mr. Attaway, a real estate appraiser, testified that any loss of value
was contingent upon the development plan. If the lots had water frontage, then there is no
diminished value. Based upon Mr. Moore's assessment of the plan there would be no loss of
value to the Whites caused by the construction of the Felts dock.
The Whites raised an additional issue concerning whether or not Felts' dock extended beyond the
first navigable creek. The only evidence presented was that the dock would not cross any
navigable creek and therefore construction would be consistent with regulations which prohibit
docks from extending past the first navigable 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. §§ 1-23-500 et seq. (Supp. 1995) and 1-23-310 et seq. (Rev. 1986 and Supp.
1995).
2. S.C. Code Ann. § 48-39-150 (Supp. 1995) 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 docks and piers in coastal zone areas.
4. S.C. Code Ann. § 48-39-10 et seq. (Supp. 1995) grants OCRM jurisdiction over activities such
as those encompassed by the Felts permit applications.
5. S.C. Code Ann. § 48-39-50 (Supp. 1995) provides the authority for 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 (1987 & 1995) were promulgated by the Coastal
Council (as predecessor to OCRM), as the applicable regulations governing the management,
development, and protection of the critical areas of the coastal zone of the state.
7. The project in question is located in a critical area as defined in S.C. Code Ann. § 48-39-10
(Supp. 1995); 23A S.C. Code Regs. 30-1(C)(4) and (12) (Supp. 1995). Any person wishing to
alter a critical area must obtain a permit from OCRM. 23A S.C. Code Regs. 30-2(B).
8. S.C. Code Ann. § 48-39-150(A)(Supp. 1995) and 23A S.C. Code Regs. 30-ll (Supp. 1995) set
forth the guidelines to be used in assessing the impact of a project in a critical area. Included in
these considerations is the extent to which the proposed use could affect the value and enjoyment
of adjacent owners. 23A S.C. Code Regs. 30-ll (B)(10). OCRM considered all of these criteria
and determined that the dock could be constructed with appropriate conditions and restrictions to
minimize any impacts the project may have on the cultural areas.
9. The Whites property values will not be adversely affected by the granting of the dock permit to
Felts.
10. The Felts dock will not impair marine life, water quality or public access to the area in
question. See Sierra Club, et al. v. Kiawah Resort Associates, et al., ___S.C.___, 456 S.E.2d
397 (1995).
11. Permit OCRM-95-076-F, contains special conditions 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.
12. 23A S.C. Code Regs. 30-12(A)(Supp. 1995) sets forth the specific project standards for
construction of docks and piers for tidelands in coastal waters.
13. OCRM properly applied Reg. 30-12(A)(2)(e) in establishing dock corridors due to the fact
that site specific conditions warranted an alternative alignment and the property was platted
before 1993.
14. Reg. 30-12(A)(2)(p) requires that no dock or pierhead or other associated structure should
normally be allowed to be built closer than 20 feet from extended property lines with the
exception of common docks shared by two adjoining owners. However, the Department may
allow construction over extended property lines where there is no material harm to the policies of
the Act. This is not a normal situation in that the extended property lines converge and cross each
other. The policies of the Coastal Zone Management Act will not be harmed by the granting of
the dock permit to Felts.
15. Reg. 30-12(A)(2)(o) states, "For lots platted and recorded after the effective date of these
regulations, before a dock will be permitted, a lot must have 75 feet of water frontage along the
marsh edge and at least 75 feet of frontage between extended waterfront property lines. Lots
with less than the required frontage, but with at least 50 feet of frontage, both on the marsh edge
and along the water between the waterfront extended property lines may be eligible for a common
dock with the adjacent property. Lots less than 50 feet wide are not eligible for a dock." Because
the property was platted before this regulation became effective, it is not applicable to this
situation. However, any subdivision and platting of Tract 47 would be subject to this provision.
Tract 47 may not have 50 or 75 feet of water frontage to be eligible for any permits for docks.
ORDER
Based upon the Findings of Fact, Conclusions of Law, and Discussion contained above, it is
hereby
ORDERED that permit OCRM-95-076-F for the construction of a 4" by 475' walkway and a 10'
by 16' floating dock on Parrot Point Creek in Charleston County by Joyce Felts is granted. Permit
CC-93-283 for a boat mooring piling is no longer necessary and is therefore moot. The contested
case relating to the mooring piling bearing Docket No. 94-ALJ-07-0159-CC is therefore
dismissed.
AND IT IS SO ORDERED.
__________________________
ALISON RENEE LEE
Administrative Law Judge
June _____, 1996
Columbia, South Carolina. |
