ORDERS:
FINAL DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to the South Carolina Department of Health and
Environmental Control's, Office of Ocean and Coastal Resource Management (OCRM), denial of
an amendment to a single-use dock permit for Lot 9, Bakers Landing Subdivision, Dorchester
County. A hearing was held on September 19, 1996 at the Administrative Law Judge Division.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon their
credibility, considering the burden of persuasion by the Parties or Protestants, I make the
following Findings of Fact by a preponderance of evidence:
1. The Petitioner is the owner of Lot 9 in Bakers Landing Subdivision, Dorchester County, South
Carolina. Pursuant to permit 91-3D-185-P the Petitioner currently has a four-foot wide walkway
connecting his property to a sixteen-by-twelve foot (16' x 12') fixed pierhead and a ten-by-sixteen
foot (10' x 16') floating dock. The Petitioner's property is located on the Ashley River and
regulated by the Ashley River Special Area Management Plan (SAMP). However, the property
does not lie in a view corridor.
2. On May 15, 1996, the Petitioner applied for an amendment to his permit. He requested that
OCRM authorize him to add a jet ski lift upon an existing piling and to widen his walkway to an
eight-foot width for a distance of ten feet (40 square feet).
3. On June 13, 1996, OCRM granted the Petitioner's request to amend his permit to add a jet ski
lift upon an existing piling. However, OCRM denied the Petitioner's request to widen his walkway
by an additional 40 square feet. The Respondent extended his permit for the above construction to
August 2, 1996, and set forth that no other permit extensions would be granted.
4. The Petitioner contends that OCRM improperly denied his walkway addition upon the
following grounds:
a. There are no OCRM regulations or statutes that prohibit widening of walkways or even
govern the allowable width of a walkway.
b. The SAMP does not prohibit the widening of walkways or govern the allowable width of
walkways.
c. OCRM's actions in allowing property owners to put handrails upon walkways and in
granting the amendment authorizing a 10-foot extension to his neighbor's (Kasten) dock
beyond that allowed in the SAMP mandates the granting of the Petitioner's addition because
of equal protection grounds.
5. The Petitioner seeks to expand his walkway to allow storage of a rowing shell and a kayak on
the side of his walkway. He proposes this addition so that he will not have to seek assistance in
carrying his rowing shell from his garage to the dock area. I find that the lawful intended use of a
walkway is not for storage space. Therefore, the Petitioner seeks to implement an unwarranted
use of his walkway.
6. On February 14, 1992, Coastal Council approved the Ashley River SAMP. On July 29, 1993,
OCRM granted Kasten the authority to extend his fixed pierhead 10 feet toward the channel and
relocate his floating dock. The allowance of the 10-foot extension resulted in a 200 square foot
addition and Kasten owning a 440 square foot dock. Kasten owned a 240 square foot dock
before the Ashley River SAMP was enacted. However, the SAMP only allows a 100 square foot
dock. The Department contends this amendment was authorized because three families currently
used this dock. However, I find that the Kasten dock was improperly permitted.
7. Pursuant to the Ashley River SAMP, OCRM originally did not allow hand rails upon walkways
in the SAMP area. However, after a contested case appealed to Coastal Council, Council decided
that though the SAMP specifically prohibited handrails, the SAMP's handrail prohibition was
legally unsupportable. Therefore, Coastal Council authorized all dock walkways in the Ashley
River SAMP area to have handrails.
8. Since the Petitioner obviously has been allowed to construct handrails upon his walkway, only
the Kasten dock extension could support his equal protection argument. However, the Kasten
dock addition did not address the issue of this case. The Kasten dock extension involved the
expansion of a pierhead and not the expansion of a walkway for storage space.
9. Furthermore, the Petitioner failed to establish that there are not other reasonable alternatives
for storing his rowing shell upon his walkway. The Petitioner could reasonably store his rowing
shell either upon his floating dock or develop a more efficient means of transporting the rowing
shell to his fixed pierhead.
10. Finally, even if the Petitioner sought to modify his walkway within the intended use of
walkways and there were no other reasonable alternatives other than the walkway storage of the
rowing shell, I find that the potential cumulative effect of allowing the Petitioner to widen his
walkway within the Ashley River SAMP would require the denial of his amendment application.
In other words, denying the Petitioner's amendment limits the long range cumulative effect that
will lead to other possible development that may impact the general character of the area.
CONCLUSIONS OF LAW
Based upon the above 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 (Supp. 1996).
2. S.C. Code Ann. §48-39-150 (Supp. 1996) authorizes the Administrative Law Judge Division to
hear contested cases arising under Chapter 39 of Title 48 of the 1976 Code.
3. OCRM is charged with carrying out the State's coastal zone policies and issuing permits for
docks and piers in coastal zone areas. S.C. Code Ann. § 48-39-30 (B) (1) (Supp. 1996) sets out
these specific policies. Also, OCRM has permitting authority over the critical areas of the coastal
waters and tidelands. S. C. Code Regs. 30-10 (A) (1) (1976) and S.C. Code Ann. § 48-39-130
(Supp. 1996).
4. S.C. Code Ann. §48-39-50 (Supp. 1996) provides the authority for OCRM to promulgate
regulations relating to carrying out the provisions of Chapter 39, Title 48 of the 1976 Code.
5. S.C. Code Regs. 30-1 through 30-20 (1976) were promulgated by the Coastal Council and
OCRM, as the applicable regulations governing the management, development, and protection of
the coastal zone areas of the state.
6. S.C. Code Ann. §48-39-150 (A) (Supp. 1996) and S.C. Code Regs. 30-11 (1976) set forth the
General Guidelines to be used in assessing the impact of a project in a critical area. S.C. Code
Regs. 30-11© (1976) provides in part that:
In the fulfilling of its responsibility under Section 15(A) of the Act, the Department must in
part base its decisions regarding permit applications on the policies specified in Sections 1
and 2 of the Act, and thus, be guided by the following:
(1) The extent to which long-range, cumulative effects of the project may result within the
context of other possible development and the general character of the area.
(2) Where applicable, the extent to which the overall plans and designs of a project can be
submitted together and evaluated as a whole, rather than submitted piecemeal and in a
fragmented fashion which limits comprehensive evaluation.
(3) The extent and significance of negative impacts on Geographic Areas of Particular
Concern (GAPC). The determination of negative impacts will be made by the Department in
each case with reference to the priorities of use for the particular GAPC. The priorities of
use are found in Chapter IV of the Coastal Management Program.
7. The project in question is located in a critical area pursuant to S.C. Code Ann. §48-39-10
(Supp. 1996); S.C. Code Regs. 30-1(C)(4) and (12) (1976), and Regs. 30-10 (A) (1976).
8. S.C. Code Regs. 30-12 (A) (1976) sets forth the specific project standards for construction of
docks and piers for tidelands and coastal waters. Regulation 30-12 (A) (2) specifically provides in
part that:
The following standards are applicable for construction of docks and piers:
© The size and extension of a dock or pier must be limited to that which is reasonable for
the intended use;
(f) To preclude the adverse effects of shading marsh vegetation, walkways which are built
over vegetated marsh and lead to the dock or pier shall not exceed four feet in width (unless
the applicant can justify a need for a wider structure) and should be elevated at least three
feet above mean high water;
(k) Storage on docks will be limited to a bench-like locker 3 feet high, by 3 feet deep, by 8
feet long. Docks cannot be enclosed by walls or screens; and
(m) Handrails shall be limited to what is minimally needed for safety as outlined in the
Southern Building Code.
9. S.C. Code Regs. 30-4 (H) (1976) provides that "An amendment to a permit can be made
without the requirements of a new permit only if the proposed change on amendment does not
increase the scope of the permitted project or change the use of the permitted project."
10. The Ashley River Special Area Management Plan is a planning guide for development along
South Carolina's historic Ashley River. It is prepared by the South Carolina Coastal Council (now
OCRM) and the South Carolina Department of Archives and History, with financial assistance
from the National Oceanic and Atmospheric Administration and the U.S. Department of the
Interior, National Park Service. It is not a regulation.
11. As a matter of statute, a regulatory body is possessed of only those powers expressly
conferred or necessarily implied for it to effectively fulfill duties with which it is charged. The
Legislature has expressly mandated that Coastal Council (OCRM) promulgate regulations to
govern evaluation of permit application. Captain's Quarters Motor Inn, Inc. v. South Carolina
Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1991).
12. 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 S.C. 514, 424 S.E. 2d 538 (Ct. App. 1992). In Weaver v. South Carolina Coastal
Council, 309 S.C. 368, 423 S.E.2d 340 (1992), the South Carolina Supreme Court addressed a
case in which three individuals were previously granted dock permits under similar circumstances
by Coastal Council that was indistinguishable from that of the respondent's dock. The Court held
that "Council violated the equal protection and due process provisions of the state and federal
constitutions in treating the respondent in a manner different" than the three other individuals
similarly situated. In this case, however, the Petitioner has failed to show that the circumstances
surrounding his application were similar to the Kasten application or that the existence of his
amended dock will not create an effect distinguishable from that caused by his neighbor's existing
dock.
ORDER
Based upon the Findings of Fact and Conclusions of Law, It is hereby:
ORDERED that the application to amend the Petitioner's dock permit by widening his walkway
to an eight-foot width for approximately ten feet be denied.
__________________________________
Ralph King Anderson, III
Administrative Law Judge
Columbia, South Carolina
January 29, 1997 |
