SC Administrative Law Court Decisions

This matter comes before me upon petition for a contested case hearing pursuant to S.C. Code Ann. § 48-39-150 (Supp. 1996) and S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1996) regarding Petitioners' opposition to the application of Respondent The Beach Company for a permit to construct a private dock on and adjacent to Hamlin Creek, on Isle of Palms, South Carolina, in Charleston County. The South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management (hereinafter referred to as "OCRM") preliminarily approved the permit application with restrictions. Three area residents oppose issuance of the permit. A hearing was conducted at the Charleston County Courthouse in North Charleston, South Carolina, on July 16, 1997. Upon review of the relevant facts and applicable law, OCRM is ordered to issue the permit as proposed, and an additional condition is imposed.

The proposed permit authorizes the construction of a dock on a narrow strip of property on Isle of Palms owned by The Beach Company. Petitioners oppose the proposed permit because of its proximity to a private marina dock and a public boat ramp, which they believe will hinder navigation to and from the public boat ramp. Petitioners are long-time residents of Isle of Palms and routinely use the public boat ramp adjacent to the site of the proposed dock to launch their boats.

Petitioners also allege that the proposed dock site does not include adequate highland upon which to build a dock. While the highland site of the proposed dock is small and irregularly shaped, The Beach Company is the fee simple owner of the property. The highland in question is adequate to support a dock.

The construction and location of the proposed dock will affect boat navigation at and around the public boat ramp. The extent of that effect can be mitigated, however, by prohibiting boats from mooring on the channelward end of the proposed floating dock and all along the boat ramp side of the proposed structure. This additional condition to the proposed permit is reasonable and not unduly burdensome, and enforcement should not be difficult. If the condition is violated, Petitioners or others can easily photograph the situation and contact OCRM. OCRM may then investigate and initiate enforcement proceedings against the licensee for failure to comply with terms or conditions of the permit pursuant to 23A S.C. Code Ann. Regs. 30-8 (Supp. 1996).

By a preponderance of the evidence, I find:

1. The Beach Company is the owner of a 0.12-acre strip of highland on and adjacent to Hamlin Creek, between the creek and Palm Boulevard, on the northern side of the western tip of Isle of Palms, South Carolina, in Charleston County, immediately adjacent to the public boat ramp on the island.
2. Petitioners Frank M. O'Brien, III, Richard T. Weil, and Clay Cable are each property owners and residents of Isle of Palms.
3. Isle of Palms is in the tidal and coastal zone area of Charleston County.

1. By application dated January 3, 1997, application P/N #OCRM-97-003-I, The Beach Company sought authorization from OCRM to construct for private and recreational use: a 4' x 105' walkway leading to a 12' x 15' fixed pierhead, with a gangway on the channel side of the pierhead leading to a 10' x 15' floating dock.
2. Notification of Public Notice of the application was issued by OCRM on January 16, 1997, to allow public comment on the application.
3. Petitioners notified OCRM of their opposition to the construction of the proposed dock.
4. OCRM issued a Critical Area Permit OCRM-97-003-I to the Beach Company on

February 26, 1997, with general and special conditions.

1. Special Condition #1 of the permit provided for the highland location of the proposed walkway to be relocated so as not to interfere with an existing drain pipe.
2. Petitioners filed with OCRM a Notice of Intent to Appeal the proposed permit by letters dated March 11, 1997, and March 31, 1997.
3. On March 18, 1997, OCRM filed an Agency Transmittal Form with this Division for a contested case hearing, granting jurisdiction in this matter to this tribunal.
4. The contested case hearing was held in Charleston on July 16, 1997, with notice given to all parties.
5. The site of the proposed dock is located between a public boat ramp on the west and an existing dock on the east. Beyond the boat ramp on the west side of the proposed site, is an existing private dock used by Carroll's Marina, which extends north into the creek and then turns eastward at a right angle, parallel to the shore, toward the end of the proposed dock.

13. The proposed dock site is adjacent to the only public boat ramp on Isle of Palms.

14. The public boat ramp is approximately 250 feet west of the landward end of the proposed dock.

15. Boats launched from and/or returning to the public boat ramp by water must navigate between the dock at Carroll's Marina and the proposed dock.

16. Petitioners oppose the proposed permit which authorizes the construction of the dock because they fear the new dock will cause serious navigational problems for boats using the boat ramp.

17. The construction of the proposed dock will further limit the available navigation space for boats using the public boat ramp.

18. The channelward ends of the two existing docks located on either side of the proposed dock are approximately 133.48 feet apart.

19. At their closest points, the channelward ends of the existing marina dock and the proposed dock are approximately 70' apart.

20. Boats are routinely moored on both sides of the end of the marina dock, in a manner limiting the available navigation space for boats using the public boat ramp.

21. With boats moored at either the marina dock or the proposed dock, or both, the distance between the two docks available for navigation will be less than 70 feet but more than 30 feet in width.

22. Although the proposed dock itself, if constructed, may alter the course of navigation for boats using the public boat ramp, the location of the proposed dock will not deny access to most boats to and from the ramp nor impede navigation or restrict the reasonable public use of State lands and waters.

23. The size and extension of the proposed dock is limited to that which is reasonable for its intended private recreational use.

24. Navigation of watercraft of the size which are suitable for launching from the public boat ramp will not be unduly hindered if boats are prohibited from mooring along the proposed dock in the path of navigation to and from the ramp.

25. The highland upon which the proposed dock will be constructed is a remaining undeveloped portion of a larger tract conveyed to the Beach Company in 1945.

26. The highland is an irregularly shaped parcel and is bounded on the north by the northern right-of-way of Palm Boulevard, on the south and east by the marshes of Hamlin Creek, and on the west by lands of Kathryn C. and James E. Carroll.

27. The highland at the proposed dock site is large enough to support the proposed dock.

28. The applicant does not own and does not intend to construct a residence or any other structure on the highland adjacent to or upon which the proposed dock is to be located.

29. The highland adjacent to and upon which the proposed dock is to be located is not large enough to support any other structure other than a dock.

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. § 1-23-600 (Supp. 1996) and S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1996).
2. S.C. Code Ann. § 48-39-150 (Supp. 1994) and 23A S.C. Code Ann. Regs. 30-6 (as amended June, 1995) authorize the Administrative Law Judge Division with jurisdiction to hear contested cases arising under Chapter 39 of Title 48 of the 1976 Code.
3. OCRM is the subdivision within DHEC charged with administering the State's coastal zone policies and issuing permits for docks and piers in coastal zone areas.
4. S.C. Code Ann. § 48-39-50 (Supp. 1996) provides the authority for DHEC to promulgate regulations relating to carry out the provisions of Chapter 39 of Title 48 of the 1976 Code.
5. 23A S.C. Code Ann. Regs. 30-1 through 30-20 (1976 & Supp. 1996) were promulgated by the Coastal Council, the predecessor to OCRM, as the applicable regulations governing the management, development, and protection of the coastal zone areas of the state and subsequently amended by OCRM, June 1995.
6. Section 48-39-150(A) and 23A S.C. Code Ann. Regs. 30-11 (1976 & Supp. 1996) set forth the guidelines to be used in assessing the impact of a project in a critical area.
7. The project in question is located in a critical area under S.C. Code Ann. § 48-39-10 (J) (Supp. 1996); 23A S.C. Code Ann. Regs. 30-1(C)(4) and (12) (Supp. 1994); 23A S.C. Code Ann. Regs. 30-10(A) (Supp. 1996).

1. 23A S.C. Code Ann. Regs. 30-12(A) (Supp. 1996) sets forth the specific project standards for construction of docks and piers for tidelands and coastal waters.
2. There is no requirement that a dock or pier be constructed upon only such lots as may be large enough to support a residence or other structure.
3. Boat ramps provide access to the water for those who do not have water access by other means such as docks, piers, or marinas. 23A S.C. Code Ann. Regs. 30-12(B)(1) (Supp. 1996).
4. The proposed project requires a waterfront location. 23A S.C. Code Ann. Regs. 30-11(B)(1) (Supp. 1996).
5. The proposed project will not harmfully obstruct the natural flow of navigable water nor unreasonably interfere with commercial navigation. 23A S.C. Code Ann. Regs. 30-11(B)(2) (Supp. 1996).
6. The proposed project will have minimal impact upon the production or protection of marine life or wildlife. 23A S.C. Code Ann. Regs. 30-11(B)(3) (Supp. 1996).
7. The proposed project should not cause erosion, shoaling, or creation of stagnant water. 23A S.C. Code Ann. Regs. 30-11(B)(4) (Supp. 1996).
8. The proposed project will have minimal or no impact upon the habitats for rare and endangered species of wildlife or irreplaceable historic and archeological sites. 23A S.C. Code Ann. Regs. 30-11(B)(6) (Supp. 1996).
9. The economic benefits of the proposed project outweigh the benefits of preserving the project area in its unaltered state, since the dock site is in a heavily developed area. 23A S.C. Code Ann. Regs. 30-11(B)(7) (Supp. 1996).
10. The extent of any adverse environmental impact from the proposed project is minimal and can be avoided or minimized by reasonable safeguards. 23A S.C. Code Ann. Regs. 30-11(B)(8) (Supp. 1996).
11. The proposed project includes feasible safeguards to avoid adverse environmental impact resulting from the proposed project. 23A S.C. Code Ann. Regs. 30-11(B)(9) (Supp. 1996).

1. The proposed project, will have minimal or no impact upon the value and enjoyment of adjoining landowners. 23A S.C. Code Ann. Regs. 30-11(B)(10) (Supp. 1996).
2. Pursuant to 23A S.C. Code Ann. Regs. 30-2(I) (Supp. 1996) if there is an objection to a permit application based upon a property ownership dispute, the application must be deemed incomplete; however, the adjoining landowner must also file a court action in the court of common pleas pursuant to S. C. Code Ann. § 48-39-220 (Supp. 1996) to adjudicate the property ownership dispute. If no such circuit court action is commenced, the permit must be processed. Because no legal action is pending in which a claim of ownership of the proposed project area is in issue, the permit was rightfully processed, and this tribunal has no authority to consider or decide issues relating to ownership of the highland upon which the proposed dock is to be constructed.
3. Because the proposed dock will limit the available navigational space for boats utilizing the adjacent public boat ramp, the proposed project will have an impact upon existing public access to tidal and submerged lands, navigable waters and beaches, or other recreational resources. 23A S.C. Code Ann. Regs. 30-11(B)(5) (Supp. 1996).
4. Specific measures necessary to protect the public interest may require the inclusion of additional conditions upon a proposed permit before it is approved. S.C. Code Ann.

§ 48-39-150(B) (Supp. 1996); 23A S.C. Code Ann. Regs. 30-4(A) (Supp. 1996).

1. The following additional condition ordered herein is a specific measure necessary to protect the public interest pursuant to S.C. Code Ann. § 48-39-150(B) (Supp. 1996) and 23A S.C. Code Ann. Regs. 30-4(A) (Supp. 1996):

Provided that no boats shall be moored at any time

along any portion of the western side of the structure

or along any portion of the most channelward end of

the floating dock.

1. Pursuant to ALJD Rule 29(B), any issues raised in the proceedings but not addressed at the hearing or in this Order, are deemed denied.
2. All applicable regulations were followed during the permit application and decision- making process. 23A S.C. Code Ann. Regs. 30-2, 30-4, and 30-6 (Supp. 1996).

1. Using the guidelines set forth in § 48-39-150(A) and R. 30-11, the proposed project, as modified by this Order, meets the applicable criteria for issuance of a critical area permit.

ORDER

IT IS THEREFORE ORDERED that Permit OCRM-97-003-I is approved as proposed with the additional Special Condition incorporated into the permit as Special Condition #3:

Provided that no boats shall be moored at any time along any portion of the western side of the structure or along any portion of the most channelward end of the floating dock.

AND IT IS SO ORDERED.

___________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

September 9, 1997

Columbia, South Carolina