SC Administrative Law Court Decisions

Linda Coke filed an application on February 3, 1997 with the Office of Ocean and Coastal Resource Management (OCRM) for a permit for the construction of a joint use dock to access Seaside Creek at 1249 and 1253 Caperton Way, in Seaside Plantation subdivision, James Island, Charleston County, South Carolina. Pursuant to an assignment of interest, Douglas R. James (James), became the real party in interest to the permit. OCRM granted the dock permit and William S. McLean and John E. Howard gave notice of their opposition to the permit. In addition, Dylan B. Jones intervened opposing the permit. Jurisdiction vests in the Administrative Law Judge Division (ALJD) under S.C. Code Ann. § 48-39-150 (Supp. 1996) and § 1-23-310 et seq. (Rev. 1987 & Supp. 1996). I find the permit must be granted.

Is a permit allowed for a joint dock when one of two lots to be served by the joint dock has less than fifty feet of waterfront and less than fifty feet of marsh frontage while the other lot has more than fifty feet of waterfront and more than fifty feet of marsh?

1. Positions of Parties:

William S. McLean, John E. Howard, and Dylan B. Jones (opponents) seek to have a joint dock permit denied since, in their view, a permit cannot be granted to a property having less that 50 feet of marsh frontage and less than 50 feet of water frontage. The opponents assert this rule is violated since lot 29 has neither the required marsh nor required water frontage. OCRM asserts that the lack of frontage is not an impediment here. First, the property has the requisite frontage if "dock corridors" are used as set in the master dock plan submitted by the developer. Second, the property can obtain the needed water frontage by the developer replatting the subdivision and increasing the size of Lot 29.

2. Findings of Fact:

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

1. On February 8, 1995, a developer, Carolina Development Corporation, submitted to OCRM a platted and recorded drawing of a subdivision to be known as Seaside Plantation to be located on James Island in Charleston County, South Carolina.

2. The plat demonstrates that the development will establish eight joint use docks for sixteen lots, numbered 17 through 32, to access Seaside Creek.

3. OCRM gave an advisory opinion that the lots met the requirements for the issuance of joint use docks.

4. On February 3, 1997, an application was filed with OCRM for a permit for the construction of a joint use dock to access Seaside Creek from lots 29 and 30 (also known as 1249 and 1253 Caperton Way) in Seaside Plantation.

5. On May 2, 1997, OCRM issued the requested permit with conditions for a joint use dock for lots 29 and 30.

6. By means of extending the high ground property lines of the lot, Lot 29 has 47.91 feet of frontage on the marsh adjoining Seaside Creek.

7. By means of extending the high ground property lines of the lot, Lot 29 has approximately 10 feet of frontage on Seaside Creek.

8. By means of extending the high ground property lines of the lot, Lot 30 has 65 feet of frontage on the marsh adjoining Seaside Creek

9. By means of extending the high ground property lines of the lot, Lot 30 has at least 60 feet of water frontage when measured in width between the property lines and as much as 225 feet when measured as linear shore frontage on Seaside Creek.

10. Lot 29 is essentially a rectangle with approximately 74 feet of width on its street side property line and approximately 48 feet in width on its marsh side.

11. Under any conceivable mathematic computation, Lot 29 has substantially more than 50% of its area encompassed in a boundary line 50 feet in width.

12. The combined frontage of Lot 29 and Lot 30 is 113.64 feet of frontage on the marsh adjoining Seaside Creek.

13. By means of extending the high ground property lines of the lots, the combined frontage of Lot 29 and Lot 30 is more than 100 feet of frontage on Seaside Creek.

3. Discussion

a. Introduction

Here, the dispute centers on a single provision of the OCRM regulations.⁽¹⁾

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. (Emphasis added)

Regs. 30-12(A)(2)(o)

b. Analysis

OCRM must 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). As a division of a state agency, if an applicable regulation imposes a mandatory duty, OCRM may not ignore that duty. Triska v. Dep't of Health and Envtl. Control, 292 S.C. 190, 355 S.E.2d 531 (1987). A failure to apply a mandatory regulation places a permit in jeopardy of being held 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.").

Here, the plain language of Regs. 30-12(A)(2)(o) establishes the frontage needed to obtain a dock. The property must have 75 feet of marsh frontage and 75 feet of water frontage with both measurements using the property's extended property lines. The frontage restriction, however, has one exception. If a lot has less than 75 feet of marsh frontage and less than 75 feet of water frontage but has at least 50 feet of marsh frontage and 50 feet of water frontage, the property "may be eligible for a common dock with the adjacent property." Thus, the rule is 75 feet for a single dock while the exception of 50 feet may permit a common dock.

Here, the evidence shows that the use of the extended property lines for Lot 29 presents less than 50 feet of marsh frontage and an approximate distance of only 10 feet of water frontage. Thus, Lot 29 does not meet the requirement of 50 feet of frontage. However, the insufficiency of Lot 29 does not end the inquiry. A review of Lot 29 only concludes that Lot 29, by itself, cannot justify a common dock.

Instead of ending with Lot 29, Lot 30, an adjacent lot to lot 29, is a part of this application and must be reviewed. Lot 30 also does not satisfy the 75 foot requirement and must be examined to determine if that lot qualifies for a joint use dock. Lot 30 has at least 65 feet of marsh frontage. Lot 30 has at least 60 feet of water frontage when measured by the width between the property lines and as much as 225 feet when measured as linear shore frontage. Thus, lot 30 meets the requirements of the 50 foot exception and therefore Lot 30 "may be eligible for a common dock with the adjacent property," i.e., Lot 29. Accordingly, lot 30 warrants a common dock with Lot 29 unless another feature disqualifies the common dock.

The only other potential disqualification is whether Lot 29 withstands the regulation's position that "[l]ots less than 50 feet wide are not eligible for a dock." Regs. 30-12(A)(2)(o). The width requirement is a separate test from the frontage requirement. Under the width requirement, a lot is disqualified from any dock (including a joint dock) if the property is less than 50 feet in width. Under the filed application, the failure of Lot 29 to meet the width requirement of the regulation would leave Lot 30 with no adjacent lot and would result in a denial of the permit request. Thus, the next inquiry is whether Lot 29 is 50 feet wide.

The regulation does not explain at what point on the property the width is measured nor does the regulation explain whether the entire lot must exceed a 50 foot width or whether a certain portion (e.g., 50% or more) of the property must exceed 50 feet in width. Given the uncertainty of the meaning, the use of the word "width" is ambiguous (ambiguity means doubtful or doubleness of meaning, Chapman v. Metropolitan Life Ins. Co., 172 S.C. 250, 173 S.E. 801, 803 (1934); language is ambiguous when it is capable of being understood by reasonably well-informed persons in either of two or more senses, Southeastern Fire Ins. Co. v. S.C. Tax Comm'n, 253 S.C. 407, 171 S.E.2d 355 (1969), State ex rel. Neelen v. Lucas, 24 Wis. 2d 262, 128 N.W.2d 425 (1964)). In interpreting ambiguous language, the primary rule of construction is to ascertain and give effect to the intent or purpose behind the language. Green v. Thornton, 265 S.C. 436, 219 S.E.2d 827 (1975). Further, the intent should be ascertained primarily by adopting the plain usage of the words employed in the provision being interpreted. 82 C.J.S. Statutes § 322(b) (1953).

One view is that the property must be 50 feet in width at the marsh front. Such a view is not reasonable since the regulation already identifies the frontage requirements for dock property. 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.").

A more reasonable view is that the property must have a general overall size of 50 feet in width. An overall size of 50 feet in width is satisfied if at least 50% of the property's area is encompassed within a 50 foot wide boundary. Such a reading is reasonable in that it attempts to ensure a "true" 50 foot width for a lot. This reading prevents the creation of lots with 50 feet of frontage but with no substantial width beyond the frontage, i.e., long narrow lots which expand to a 50 foot width along the marsh but have only a few feet of depth behind the marsh frontage. Further the 50% test maintains a proper balance between the rigors of a 50 foot width demand and the favored regulatory treatment encouraging the construction of community and joint use docks. Regs. 30-12(A)(2)(h).

In the instant case, while the property lacks parallel boundaries, nonetheless, the property is generally in the shape of a rectangle. The width on its street side property line is approximately 74 feet and on its marsh side is approximately 48 feet. Given these dimensions, under any conceivable mathematic computation, Lot 29 has substantially more than 50% of its area encompassed in a boundary of 50 feet in width. Accordingly, Lot 29 does not disqualify Lot 30's right to a joint dock. Therefore, OCRM must grant 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. Besides 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. To obtain a dock, a property must have 75 feet of marsh frontage and 75 feet of water frontage with both measurements using the property's extended property lines. Regs. 30-12(A)(2)(o)

5. The 75 foot frontage restriction, however, has one exception that requires that if a lot has less than 75 feet of marsh frontage and less than 75 feet of water frontage but has at least 50 feet of marsh frontage and 50 feet of water frontage, the property "may be eligible for a common dock with the adjacent property." Regs. 30-12(A)(2)(o)

6. Lot 29, not having 50 feet of frontage, does not meet the regulatory requirement of marsh and water frontage. Regs. 30-12(A)(2)(o)

7. Lot 30 meets the requirements of the 50 foot exception and "may be eligible for a common dock with the adjacent property." Regs. 30-12(A)(2)(o).

8. Lots less than 50 feet wide are not eligible for a dock. Regs. 30-12(A)(2)(o).

9. The width requirement of 50 feet is a separate test from the frontage requirement. Regs. 30-12(A)(2)(o).

10. Ambiguity means doubtful or doubleness of meaning, Chapman v. Metropolitan Life Ins. Co., 172 S.C. 250, 173 S.E. 801, 803 (1934)

11. Language is ambiguous when it is capable of being understood by reasonably well-informed persons in either of two or more senses, Southeastern Fire Ins. Co. v. S.C. Tax Comm'n, 253 S.C. 407, 171 S.E.2d 355 (1969), State ex rel. Neelen v. Lucas, 24 Wis. 2d 262, 128 N.W.2d 425 (1964)).

12. In interpreting ambiguous language, the primary rule of construction is to ascertain and give effect to the intent or purpose behind the language. Green v. Thornton, 265 S.C. 436, 219 S.E.2d 827 (1975).

13. The intent should be ascertained primarily by adopting the plain usage of the words employed in the provision being interpreted. 82 C.J.S. Statutes § 322(b) (1953).

14. 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).

15. A property is 50 feet or more in width if at least 50% of the property's area is encompassed within a 50 foot wide boundary. Regs. 30-12(A)(2)(o).

16. The 50% test maintains a proper balance between the rigors of a 50 foot width demand and the favored regulatory treatment encouraging the construction of community and joint use docks. Regs. 30-12(A)(2)(h).

17. Lot 29 does not disqualify Lot 30's right to a joint dock. Regs. 30-12(A)(2)(o).

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

OCRM is ordered to grant the request for a joint dock permit sought by Douglas R. James to construct access to Seaside Creek at 1249 and 1253 Caperton Way, in Seaside Plantation subdivision, James Island, Charleston County, South Carolina.

AND IT IS SO ORDERED.

__________________________________

RAY N. STEVENS

Administrative Law Judge

This 23rd day of September, 1997

Columbia, South Carolina

1. While an issue was presented that the dock permit is improper due to crossing the extended property line of Lot 31, I do not find such a position to have merit in this case. The crossing of an extended property line is not prohibited "where there is no material harm to the policies of the Act." S.C. Code Regs. 30-12(A)(2)(p). Crossing of an extended property line does not create material harm to the policies of the Act where the crossing allows for a shorter dock consistent with the regulation's requirement that the size of the dock must be limited to that which is reasonable. S.C. Code Regs. 30-12-(A)(2)(c). A shorter dock is less intrusive in the marsh and thus is consistent with utilizing a dock that is more reasonable in size than a longer dock. S.C. Code Regs. 30-12-(A)(2)(c). Hence, the crossing of the property line of Lot 31 does not warrant denying the permit.