SC Administrative Law Court Decisions

1. Is the dock permit improper due to OCRM's failure to require access to the first navigable waterway?

2. Did OCRM give adequate consideration to the dock's impact on the view of the marsh by adjacent property owners?

3. Did OCRM give adequate consideration to the dock's impact on navigation?

4. Is the dock permit improper due to the size of the dock approved?

1. Positions of Parties:

Petitioners assert the dock permit is improper since S.C. Code Regs. 30-12(A)(2)(n) requires that the dock must access the first navigable waterway. OCRM asserts the dock is not required to access the first navigable waterway but rather the regulation applies to prevent a navigable waterway from being "jumped" to reach deeper water or water with a greater utility.

2. Findings of Fact:

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

1. Davidson and Smiley seek access to Kushiwah Creek by means of a joint use private dock at 896 and 898 Kushiwah Creek Court, Stiles Point Plantation, James Island, Charleston County, South Carolina.

2. On October 8, 1996, OCRM granted the requested permit with special conditions.

3. Davidson and Smiley are adjoining property owners.

4. Option 3 on Exhibit 3 reaches a waterway at slightly more than 200 feet.

5. The dock permitted by OCRM requires approximately 430 feet to reach a waterway.

6. The first waterway from the joint dock owners property is option 3 on Exhibit 3.

7. The route to the first waterway identified as option 3 on Exhibit 3 does not cross an extended property line outside of the joint properties owned by Davidson and Smiley.

8. The creek identified as option 3 on Exhibit 3 is used for pleasure boating.

9. The creek is filled with water at least three hours on either side of high tide.

10. The creek identified as option 3 on Exhibit 3 is navigable.

11. The creek identified as option 3 on Exhibit 3 empties and fills with the ebb and flow of the tide.

12. The creek identified as option 3 on Exhibit 3 demonstrates a channel accompanied by a significant change in grade.

13. The creek identified as option 3 on Exhibit 3 is the first waterway from the joint property owners of Davidson and Smiley and that waterway demonstrates a channel accompanied by a significant change in grade.

3. Discussion

a. Introduction

While OCRM evaluates permit applications based upon statutory criteria, it must also apply its formalized regulations. S.C. Code Ann. § 48-39-130(B) (Supp. 1996); Captain's Quarters v. S.C. Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1991). Where a mandatory duty is imposed by a regulation, OCRM, as a division of a state agency, may not ignore its duties since an agency cannot disregard its own regulations. Triska v. Dep't of Health and Envtl. Control, 292 S.C. 190, 355 S.E.2d 531 (1987). If OCRM fails to apply a mandatory regulation, any resulting permit is subject to being declared invalid. See Concerned Citizens v. Coastal Council, 310 S.C. 267, 423 S.E.2d 134 (1992) ("[w]ithout this requisite showing [of the S.C. Code Regs. 30-12 requirement of a demand for a marina, OCRM] has no legal ability to grant the permit.").

b. Mandatory Regulation

The regulation here in dispute states a dock "must extend to the first navigable creek with a defined channel as evidenced by a significant change in grade with the surrounding marsh." S.C. Code Regs. 30-12(A)(2)(n). The use of the word "must" establishes a mandatory duty. See 64 C.J.S. Must (1950) (holding "must" has the ordinary meaning of mandatory unless such a meaning is improper from a reading of the whole instrument in which the word is used.) Other provisions of S. C. Code Regs. 30-12(A)(2) rely upon discretionary language such as "may" and "should" to differentiate between required and permissive duties. See S. C. Code Regs. 30-12(A)(2)(b) (stating docks "should" use the least environmentally damaging alignment) and S.C. Code Regs. 30-12(A)(2)(e) (stating OCRM "may" consider alternative alignments.) Accordingly, "must" as used in S.C. Code Regs. 30-12(A)(2)(n) means mandatory.

OCRM argues the regulation does not require all docks to be constructed to the first navigable waterway. Rather, OCRM argues the regulation is intended to prevent a navigable waterway from being "jumped" to reach a deeper waterway or water with a greater utility. I am unable to agree with OCRM's view for two primary reasons.

First, the language is certain. One must give effect to the intent as expressed in the language under review. Green v. Thornton, 265 S.C. 436, 219 S.E.2d 827 (1975); 82 C.J.S. Statutes § 322 (b), at 571 (1953). When the language is plain, its ordinary meaning must be employed. Hughes v. Edwards, 265 S.C. 529, 220 S.E.2d 231 (1975). In fact, to depart from the plainly expressed meaning causes the tribunal to legislate rather than interpret since "the wisdom of legislation rests with the Legislature, and it is the province of the Courts to construe, not to make, the laws...." Creech v. South Carolina Pub. Serv. Auth., 200 S.C. 127, 146, 20 S.E.2d 645, 652 (1942). Accordingly, while with sufficient analysis and investigation, I might be able to "improve" the regulation, I simply do not have such authority. In this matter, the plain language is clear. The dock "must extend to the first navigable creek." Any alteration to this plain statement must be done by the Legislature approving an amendment to or the repealing of the existing requirement.

Second, OCRM's reading is improper since it creates a redundancy in the regulation. OCRM reads the "must" language of the regulation as an attempt to prevent a navigable waterway from being "jumped" in order to reach a deeper waterway. Such a view makes the second sentence redundant. The second sentence states "[s]uch creeks cannot be bridged in order to obtain access to deeper water." If OCRM is correct in asserting the first sentence prevents jumping a creek, then the second sentence becomes redundant since it also essentially prohibits the same act in that bridging the creek is merely a way of jumping a smaller creek to reach deeper or wider water. Enactments should not be read in a manner that create redundant language. See Gregory v. South Carolina Democratic Executive Comm. 71 S.C. 364, 247 S.E.2d 439 (1978) (explaining the Legislature would not have used the term "properly signed" if "properly" did not refer to "witnessing" since any other reading would be "redundant."). Accordingly, OCRM's interpretation is not a proper reading of the regulation in that a redundancy is created.

c. First Navigable Waterway

1. First

The facts demonstrate the regulation has been violated by OCRM's granting of the permit here under review since the permitted creek is not the "first" creek. "First" is commonly defined as before all others and as the initial unit in order of arrangement as to place. 36A C.J.S. First (1961). A waterway is "first" if it is reached in the shortest distance from the proposed dock owner's property where distance is measured consistent with existing regulations. In establishing distances, generally, the regulations seek to limit the crossing of extended property lines. However, for a joint dock permit, such as the one here under review, no such prohibition is imposed. Rather, the regulations exempt from the "no-crossing rule" the property lines of "common docks shared by two adjoining property owners." S.C. Code Regs. 30-12(A)(2)(p). Further, even if the crossing of one of the joint property owner's extended property lines were not exempt, the regulations allow crossing extended property lines "where there is no material harm to the policies of the Act." S.C. Code Regs. 30-12(A)(2)(p). Here, rather than harm, the crossing of extended property lines of joint owners actually furthers the public policy of the Act by encouraging the development of joint docks. S.C. Code Regs. 30-12(A)(2)(h).

In this matter Smiley and Davidson are adjoining property owners seeking a joint dock. Further, based upon the line identified as "option'' on Exhibit 3 of the evidence, the first waterway can be reached at slightly more than 200 feet. On the other hand, the dock permitted by OCRM requires approximately 430 feet to reach a waterway. Therefore, so long as the first waterway is navigable, the permit improperly allows the requested dock to access water beyond the first waterway. See S.C. Code Regs. 30-12(A)(2)(n).

2. Navigable

A waterway is navigable if it has the capacity for "valuable floatage." Even if the sole use of a creek is for pleasure boating, such a use is sufficient to constitute valuable floatage. State ex rel. Medlock v. S.C. Coastal Council, 289 S.C. 445, 346 S.E.2d 716 (1986). Additionally, the fact the waterway cannot sustain traffic at all times is not controlling since a waterway is navigable so long as it is accessible at the "ordinary stage" of the water. Hughes v. Nelson, 303 S.C. 102, 399 S.E.2d 24 (Ct. App. 1990).

Here, the evidence demonstrates the creek identified at option 3 is navigable. Several witnesses testified they have used the creek for pleasure boating. Pleasure boating can occur since the creek is filled with water at least three hours on either side of high tide. In fact, there is no persuasive testimony from which to conclude the creek is not navigable. Accordingly, considering all the testimony, I find the waterway is navigable. Further, there is no persuasive testimony indicating that the waterway does not empty and fill with the ebb and flow of the tide. Thus, the waterway demonstrates a change in grade. The waterway demonstrates a channel accompanied by a significant change in grade sufficient to meet the requirements of S.C. Code Regs. 30-12(A)(2)(n).

4. Conclusions of Law

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

1. In addition to statutory considerations, OCRM evaluates permit applications based upon formalized regulations. S.C. Code Ann. § 48-39-130(B) (Supp. 1996); Captain's Quarters v. S.C. Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1991).

2. Mandatory criteria of valid regulations must be applied since a state agency cannot disregard its own regulations. See Triska v. Dep't of Health and Envtl. Control, 292 S.C. 190, 355 S.E.2d 531 (1987).

3. If OCRM fails to apply a mandatory regulation, any resulting permit is subject to being declared invalid. See Concerned Citizens v. Coastal Council, 310 S.C. 267, 423 S.E.2d 134 (1992) ("[w]ithout this requisite showing [of the S.C. Code Regs. 30-12 requirement of a demand for a marina, OCRM] has no legal ability to grant the permit.").

4. A dock "must extend to the first navigable creek with a defined channel as evidenced by a significant change in grade with the surrounding marsh." S.C. Code Regs. 30- 12(A)(2)(n)(Supp. 1996).

5. "First" is commonly defined as before all others and as the initial unit in order of arrangement as to place. 36A C.J.S. First (1961).

6. A waterway is "first" if it is the shortest distance from the applicant's property with the distance measured consistent with existing regulations. S.C. Code Regs. 30-12(A)(2)(n) and (p).

7. While generally the regulations seek to limit the crossing of extended property lines, no such prohibition is imposed for a joint dock permit; rather, the regulations exempt from the "no- crossing rule" the property lines of "common docks shared by two adjoining property owners." S.C. Code Regs. 30-12(A)(2)(p).

8. Even in the absence of an exemption for joint docks, however, the regulations allow crossing extended property lines "where there is no material harm to the policies of the Act." S.C. Code. Regs 30-12(A)(2)(p).

9. Here, rather than harm, the crossing of extended property lines of joint owners actually furthers the public policy of the Act by encouraging the development of joint docks. S.C. Code Regs. 30-12(A)(2)(h).

10. Crossing extended property lines in this matter is not detrimental to the Act.

11. The location marked as route 3 on Exhibit 3 is the closest waterway and is thus first within the meaning of S.C. Code Regs. 30-12(A)(2)(n).

12. A waterway is navigable if it has the capacity for "valuable floatage" with this requirement satisfied where the only use is by pleasure boats. State ex rel. Medlock v. S.C. Coastal Council, 289 S.C. 445, 346 S.E.2d 716 (1986).

13. The fact the waterway cannot sustain traffic at all times is not controlling since a waterway is navigable so long as it is accessible at the "ordinary stage" of the water. Hughes v. Nelson, 303 S.C. 102, 399 S.E.2d 24, (Ct. App. 1990).

14. The waterway identified as option 3 on Exhibit 3 is navigable.

15. The waterway identified as option 3 on Exhibit 3 has a channel accompanied by a significant change in grade with such a configuration sufficient to meet the requirements of S.C. Code Regs. 30-12(A)(2)(n).

1. Positions of Parties:

The Petitioners argue OCRM failed to give adequate consideration to the impact of the dock on the view of the marsh. OCRM asserts it gave due consideration to the marsh view but found no significant reason to deny the permit based upon the impact on marsh view.

2. Findings of Fact:

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

1. Neighbors have differing positions on the impact of the dock on the view of the marsh.

2. Brian Dantzler, a neighbor of W.A. Wise, does not object to the dock and does not believe the dock will obstruct Dantzler's view of the marsh.

3. Gregg Hollingsworth, a neighbor of Robert Smiley, does not object to the dock and also does not believe the dock will obstruct Hollingsworth's view of the marsh.

4. Jack Schwelding, a neighbor of Eric Davison, does not object to the dock and also does not believe the dock will obstruct Schwelding's view of the marsh.

5. John J. Mikell and W.A. Wise both face the marsh which the joint dock will cross and both believe the dock and walkway will adversely impact their view and the public's view of the marsh.

6. Other residents of the area believe the dock will adversely impact their view and the public's view of the marsh.

7. OCRM considered the impact the dock will have upon the view of the marsh.

8. OCRM considered the view issue by prohibiting elevated structures in the marsh.

9. OCRM considered the view issue by prohibiting Davidson and Smiley from building any structure elevated above deck level.

10. OCRM denied Davidson and Smiley the right to construct the benches identified in their application.

11. While OCRM did not view the marsh from any neighbors' property, OCRM did determine the view of the marsh from the applicant's property.

12. Docks already occupy the marsh.

13. Several of the existing docks have been in existence for years.

14. The joint dock will not adversely impact the view of the marsh.

3. Discussion

For a dock permit, OCRM must "base its determination on the individual merits of each application, the policies specified in S.C. Code Ann. §§ 48-39-20 and 48-39-30 and be guided by the ... general considerations [listed in S.C. Code Ann. § 48-39-150]." S.C. Code Ann. § 48-39-150 (Supp. 1996). Further, additional considerations are set by regulations under S.C. Code Regs. 30-11 and 30-12. OCRM has a mandatory duty to consider the guidelines.⁽²⁾

a. Scope of Enjoyment Includes Consideration of View

The guideline listed in § 48-39-150(A)(10) and Regs. 30-11(B)(10) requires OCRM to consider "[t]he extent to which the proposed use could affect the value and enjoyment of adjacent owners." The language does not define the object of the value and enjoyment and yields at least three interpretations: the adjacent owners' value and enjoyment of their own private property; the adjacent owners' value and enjoyment of the marsh as public trust property (property below the high water mark is state owned and is part of the public trust, State v. Hardee, 259 S.C. 535, 193 S.E.2d 497 (1972)); and the value and enjoyment of the private property as well as considering the value and enjoyment of the public property.

Since the object of the value and enjoyment is uncertain and yields varying interpretations, the language "value and enjoyment of adjacent owners" is ambiguous. Chapman v. Metropolitan Life Ins. Co., 172 S.C. 250, 173 S.E. 801, 803 (1934). An ambiguous statute requires statutory construction. Southeastern Fire Ins. Co. v. S.C. Tax Comm'n, 253 S.C. 407, 171 S.E.2d 355 (1969). The proper interpretation is that which carries out the purpose of the Act. Green v. Thornton, 265 S.C. 436, 219 S.E.2d 827 (1975). Here, the purpose of the Coastal Zone Management Act "is to protect the quality of the coastal environment and to promote the economic and social improvement of the coastal zone and all of the people of the State." S.C. Code Ann. § 48-39-30 (Supp. 1996). The purpose of promoting the social improvement of the area for "all of the people of the State" is best furthered by at least considering the enjoyment of the public lands. Thus, a proper interpretation should not limit the consideration to the value and enjoyment of the adjacent owners' private property since to do so improperly focuses the statute exclusively on individual rights contrary to the intent of the Act to focus on the public lands of the State.

Accordingly, S.C. Code Ann. § 48-39-150 (A)(10) requires OCRM to consider not only the impact a dock will have on the adjacent owner's value and enjoyment of their private property but also consider the impact the project will have on the view of the marsh and water from a public lands position. Such an interpretation furthers the goal of S.C. Code Ann. § 48-39-30 (Supp. 1996) by focusing on public trust property and also considers the extent to which the private use of public land may or may not impair the remaining trust property and water. 73B C.J.S. Public Lands § 178 (1983).

b. OCRM's Consideration of View

In considering the view issue, OCRM exercises significant discretion. See 1 Am. Jur. 2d Administrative Law § 118 (1962) (where a statute provides controlling principles, an administrative agency may exercise a large measure of discretion within those principles.) In exercising such discretion, however, the agency must apply the statutory principles in a reasoned judgment supported by a rational basis; to do otherwise produces an arbitrary decision. Deese v. State Bd. of Dentistry, 286 S.C. 182, 332 S.E.2d 539 (Ct. App. 1985).

Here, OCRM complied with the view guideline. First, consideration of the view was made by OCRM. OCRM's witness, Chinnis, testified view was considered by OCRM's decision to prohibit any elevated structure in the marsh. In particular, OCRM prohibited Davidson and Smiley from having any structure elevated above deck level and thus denied Davidson and Smiley the right to construct the benches identified in their application. Second, OCRM reached its decision in a reasoned manner. While Chinnis did not physically stand on the neighbors' property to ascertain their view, he did determine view from the applicant's property. Further, the determination on view reached by OCRM is supported by other neighbors in the area. Several neighbors also concluded the structure would not create a limitation upon the view of the marsh. Finally, OCRM's view consideration is consistent with the existence of docks already occupying the marsh. This case does not involve a marsh area untouched by docks and walkways. Rather, several docks are in existence and have been for years. Thus, OCRM gave adequate consideration to the view issue.

4. Conclusions of Law

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

1. OCRM must "base its determination on the individual merits of each application, the policies specified in S.C. Code Ann. §§ 48-39-20 and 48-39-30 and be guided by the ... general considerations [listed in S.C. Code Ann. § 48-39-150]." S.C. Code Ann. § 48-39-150 (Supp. 1995).

2. Additional regulations govern OCRM's considerations of dock permits. S.C. Code Regs. 30- 11 and 30-12.

3. OCRM "will be guided by" these various considerations. S.C. Code Regs. 30-11(B)(10).

4. "Will" in its common understanding conveys certainty and carries the mandatory sense of "must." 94 C.J.S. Will (1956).

5. OCRM has a mandatory duty to consider "[t]he extent to which the proposed use could affect the value and enjoyment of adjacent owners." § 48-39-150(A)(10) and S. C. Code Regs. 30- 11(B)(10).

6. Property below the high water mark is state owned and is part of the public trust, State v. Hardee, 259 S.C. 535, 193 S.E.2d 497 (1972).

7. The language of "value and enjoyment of adjacent owners" is ambiguous since the object of the value and enjoyment is uncertain and the language yields varying interpretations. Chapman v. Metropolitan Life Ins. Co., 172 S.C. 250, 173 S.E. 801, 803 (1934).

8. An ambiguous statute requires statutory construction. Southeastern Fire Ins. Co. v. S.C. Tax Comm'n, 253 S.C. 407, 171 S.E.2d 355 (1969).

9. A proper interpretation carries out the purpose of an Act. Green v. Thornton, 265 S.C. 436, 219 S.E.2d 827 (1975).

10. The purpose of the Coastal Zone Management Act "is to protect the quality of the coastal environment and to promote the economic and social improvement of the coastal zone and all of the people of the State." S.C. Code Ann. § 48-39-30 (Supp. 1996).

11. OCRM must consider not only the impact a dock will have on the adjacent owner's value and enjoyment of their private property but also the impact the project will have on the view of the marsh and water from a public lands position. S.C. Code Ann. § 48-39-150 (A)(10).

12. An interpretation which considers the view of the marsh and water from a public lands position furthers the goal of focusing on public trust property. S.C. Code Ann. § 48-39-30 (Supp. 1996).

13. An interpretation which considers the view of the marsh and water from a public lands position also properly considers the extent to which the private use of public land will impair the remaining trust property and water. 73B C.J.S. Public Lands § 178 (1983).

14. OCRM exercises significant discretion in reaching conclusions on the view issue since an administrative agency may exercise a large measure of discretion when a statute provides controlling principles. See 1 Am. Jur. 2d Administrative Law § 118 (1962).

15. In exercising discretion, an agency must apply the statutory principles in a reasoned judgment supported by a rational basis since to do otherwise produces an arbitrary decision. Deese v. State Board of Dentistry, 286 S.C. 182, 332 S.E.2d 539 (Ct. App. 1985).

16. OCRM gave adequate consideration to the view issue.

1. Positions of Parties:

The Petitioners assert the size of the creek is less than twenty (20) feet wide and therefore does not warrant a dock size of 240 square feet for two floating docks. Davidson, Smiley and OCRM assert the creek is at least twenty (20) feet wide and that the floating docks will not impede navigation.

2. Findings of Fact:

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

1. An experienced dock contractor measured the creek in dispute at a width of approximately twenty-five (25) feet at the time the application was filed.

2. The same contractor subsequently measured the creek several years later finding the creek was only six (6) inches narrower at some places but on average still approximately twenty-five (25) feet wide.

3. OCRM's inspection identifies the creek as having a width of twenty-five (25) feet.

4. The creek in dispute is twenty-five (25) feet wide.

5. At least one resident of the area maneuvered a nineteen (19) foot boat so as to turn around at the approximate location of the proposed dock.

6. The dock will extend into the water six (6) feet.

7. A boat passing the dock will not consume the remaining nineteen (19) foot width of the creek. 8. Floating docks further up the creek appear to interfere with navigation.

9. The floating docks further up the creek are larger than the six (6) foot wide joint dock here under review.

10. The OCRM permit assures a lack of impediments to navigation in the creek since under condition four (4) of the permit, if a boat is moored at the dock, the boat may not block navigation.

11. The dock structure will not impede navigation.

3. Discussion

A dock may not impede navigation. S. C. Code Regs. 30-12(A)(2)(a) and (q)(4) (Supp. 1996). "Impede" means to obstruct, hinder, check or delay. Black's Law Dictionary 753 (6th ed. 1990). To minimize the impact upon navigation, specific dock sizes are imposed based upon the width of the creek in which the dock will rest. S. C. Code Regs. 30-12(A)(2)(q) (Supp. 1996). Thus, the width of the creek is necessary to determine if the dock size is correct and whether navigability is threatened. Here, the width of the creek is a disputed issue. While opposing evidence was presented, the most persuasive evidence establishes that the creek is approximately twenty-five (25) feet wide and that boats will be able to navigate the creek unimpeded when the dock is constructed.

a. Creek Width

The width of the creek is an important element in deciding the extent to which navigation will be impeded. While photographs and the testimony of several witnesses suggest the creek is less than twenty feet wide, other witnesses and photographs depict a creek at least twenty (20) feet wide. While the evidence is conflicting, I find the creek is twenty-five (25) feet wide.

The measurement of the creek must be from "marsh vegetation on both sides" of the creek. See

S. C. Code Regs. 30-12(A)(2)(q)(i) (Supp. 1996). Under this criteria the likelihood of some variance is possible from those not accustomed to performing such measurements. Lawton Cox, however, has constructed docks for twenty-two (22) years and is experienced in the measurements needed to satisfy the navigational and regulatory needs of creeks upon which he constructs docks. Cox measured the creek at a width of approximately twenty-five (25) feet at the time the application was filed and a subsequent measurement several years later demonstrated the creek is only six (6) inches narrower at some places but on average is still approximately twenty-five (25) feet wide. Further, the Cox measurement is not unsupported since OCRM's inspection demonstrates a creek of twenty-five (25) feet as well.

b. Impede Navigation

Again, while the evidence is conflicting, I find the joint dock structure will not impede navigation. At least one resident of the area has maneuvered a nineteen (19) foot boat so as to turn around at the approximate location of the proposed dock. Even with a six (6) foot dock in the water, a boat passing the dock will not consume the remaining width of the creek. Further, Chinnis agreed that floating docks further up the creek do appear to interfere with navigation but those docks, however, are larger than the six (6) foot wide joint dock. Finally, the OCRM permit further assures a lack of impediments to navigation in the creek since, if a boat is moored at the dock, the boat may not block navigation. See condition four (4) of the permit.

4. Conclusions of Law

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

1. A dock may not impede navigation. S. C. Code Regs. 30-12(A)(2)(a) and (q)(4) (Supp. 1996).

2. "Impede" means to obstruct, hinder, check or delay. Black's Law Dictionary 753 (6th ed. 1990).

3. To minimize the impact upon navigation, specific dock sizes are imposed based upon the width of the creek in which the dock will rest. S. C. Code Regs. 30-12(A)(2)(q) (Supp. 1996).

. 4. For dock size purposes, the width of a creek is measured from "marsh vegetation on both sides" of the creek. See S. C. Code Regs. 30-12(A)(2)(q)(I) (Supp. 1996).

5. The creek is approximately twenty-five (25) feet wide and boats will be able to navigate the creek unimpeded when the dock is constructed.

1. Positions of Parties:

The Petitioners argue the total dock size of 240 square feet is too large for the creek. OCRM, Davidson and Smiley contend that a joint dock is entitled to the 240 square feet and such a size is consistent with existing regulations.

2. Findings of Fact:

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

1. The creek involved here is twenty-five (25) feet wide.

2. In such creeks, OCRM generally allows a single dock owner to construct 120 square feet of combined fixed pierhead and floating docks.

3. Davidson and Smiley seek a joint dock.

4. A joint dock is a special land use.

5. OCRM allowed Davidson and Smiley a total combined square footage of 240 square feet for the combined fixed pierhead and floating docks.

6. A dock structure of 240 square feet is proper.

3. Discussion

For a creek twenty (20) to fifty (50) feet wide, a pierhead and floating dock will normally be restricted to 120 square feet "unless special geographic circumstances and land use warrant a larger structure." Regs. 30-12(A)(2)(q)(ii) (Supp. 1996). The creek involved here is twenty-five (25) feet wide. OCRM exceeded the normal 120 feet by allowing "a total combined square footage not to exceed 240 square feet" for the combined fixed pierhead and floating docks. OCRM asserts the larger size is proper since the dock is a joint use dock warranting a larger structure.

OCRM's granting of a larger dock size is proper since the joint use dock is a special land use. Since a single dock owner would have been granted a 120 square foot size, in the absence of countervailing factors, the granting of a dock with 240 square feet for two joint owners is proper. Such is particularly so since construction of joint use docks is encouraged. S.C. Code Regs. 30-12(A)(2)(h) (Supp. 1996). Allowing a larger size is a valid means of encouraging the use of joint docks.

4. Conclusions of Law

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

1. A creek twenty (20) to fifty (50) feet wide normally allows a pierhead and floating dock of 120 square feet "unless special geographic circumstances and land use warrant a larger structure." S. C. Code Regs. 30-12(A)(2)(q)(ii) (Supp. 1996).

2. Construction of joint use docks is encouraged. S.C. Code Regs. 30-12(A)(2)(h) (Supp. 1996).

3. Allowing a larger dock size than the normal 120 square feet is a valid means of encouraging the use of joint docks.

4. A joint use dock is a special land use warranting a larger structure. S. C. Code Regs. 30- 12(A)(2)(q)(ii) (Supp. 1996).

5. A dock size of 240 square feet for two joint owners is proper.

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

OCRM is ordered to deny the request for a dock permit sought by Davidson and Smiley to construct access to Kushiwah Creek by means of a joint use private dock at 896 and 898 Kushiwah Creek Court, Stiles Point Plantation, James Island, Charleston County, South Carolina.

AND IT IS SO ORDERED.

__________________________________

RAY N. STEVENS

Administrative Law Judge

This 4th day of April, 1997

Columbia, South Carolina

1. Four issues are fully discussed in this Order. Other issues raised include whether the dock will use the least damaging alignment, will adversely impact a GAPC (Geographic Area of Particular Concern), and will decrease property values. These issues are summarily addressed since I find no persuasive evidence establishing an improper alignment, an impact on any GAPC, or an adverse impact on property values. Accordingly, no basis exists for denying the permit on these grounds.

2. S.C. Code Regs. 30-11(B)(10) states OCRM "will be guided by" several considerations. While other meanings can be applied, "will" in its common understanding is used to convey certainty and carries the mandatory sense of "must." 94 C.J.S. Will (1956).