SC Administrative Law Court Decisions

On May 21, 1997 BEC 2, Inc. (BEC 2) requested that the Office of Ocean and Coastal Resource Management (OCRM) change an existing private dock permit to a community dock permit. On July 2, 1997, OCRM granted the change but imposed two conditions prohibiting the mooring of boats and requiring the dock to be moved to 10 feet inside the property line between lots 26 and 27. Martha B. Thomasko (Thomasko) objected to the OCRM action and sought a contested case.

Jurisdiction lies with 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). After reviewing the evidence and considering the arguments, the permit as amended is properly granted.

Can the existing private use dock permit be amended to allow use as a community dock?

1. Positions of Parties:

OCRM and BEC 2 argue that amending the private permit giving access to Midway Creek to a community dock status is proper. Thomasko argues the amendment is improper since the change will decrease her property value, adversely impact wildlife, cause congestion of cars to block a narrow street, and primarily benefits a private developer at the expense of the public interest.

2. Findings of Fact:

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

1. BEC 2, Inc. seeks to amend a dock permit it holds.

2. The amendment will change the use of a previously permitted dock from a private dock to a community use dock.

3 The dock will provide access to Midway Creek at Lot #27, Marsh Point Subdivision, Litchfield Beach, Georgetown County, South Carolina.

4. On July 2, 1997, OCRM approved the amendment sought by BEC 2 and imposed conditions.

5. The conditions require that no boats be allowed to moor at the dock and that the dock be located ten feet inside the property line between lots 26 & 27.

6. BEC 2, Inc. is the developer of Marsh Point Subdivision.

7. The subdivision will consist of 31 single family lots.

8. Access to the community dock will be limited to the residents of the subdivision.

9. Thomasko owns property adjacent to the lot upon which the community dock will be located.

10. BEC 2, Inc, has constructed a fence which borders its property and separates the subdivision from Thomasko's property.

11. Streets within the subdivision provide direct access to the community dock but streets outside the subdivision do not provide direct access to the dock in dispute.

12. The addition of a community dock to quality property, such as the subdivision owned by BEC 2, does not cause a decline in value of adjacent properties.

13. No decrease in property value results to Thomasko due to changing the dock permit from private use to community use.

14. No negative impact results to Thomasko's enjoyment of her property due to the change in status from private use to community use.

15. Changing a dock permit's status from private use to community use will not adversely impact the wildlife in the area of the dock.

16. The community dock status will not create automobile congestion on the street adjacent to the subdivision.

17. The dock does not harm the public's access to Midway Creek and does not impede navigation.

18. The community dock does not provide private economic gain at the expense of the public interest.

3. Discussion

A. Introduction

The amendment in dispute changes the use of a single residence private dock to a community private dock to be used by a 31 lot subdivision. In Thomasko's view, the change will decrease her enjoyment and her property value, adversely impact wildlife in the area, and merely benefit a private developer at the expense of the public interest.

B. Public Interest Versus Private Interest

Extensive public trust lands exist in the coastal areas since land between the usual high water mark and the usual low water mark on a tidal navigable watercourse is held by the State in trust for public purposes. Hobonny Club, Inc. v. McEachern, 272 S.C. 392, 252 S.E.2d 133 (1979); State v. Hardee, 259 S.C. 535, 193 S.E.2d 497 (1972). In deciding when coastal public trust land may be used for private purposes, OCRM is charged with the implicit duty to administer the public trust lands consistent with applicable law. See S.C. Code Ann. § 48-39-10 et. seq. (Supp. 1996); Illinois Central R. Co. v. Illinois, 146 U.S. 387 (1892). The balancing of the public interest against the private interest includes considering the policies specified in S.C. Code Ann. §§ 48-39-20 and 48-39-30, along with the general considerations of § 48-39-150 and S.C. Code Regs. 30-11 (Supp. 1996). If the general considerations strike a proper balance between protecting the public interest and allowing the use of public property by private parties, the permit is granted. See Sierra Club v. Kiawah Resort Associates, ___ S.C. ___, 456 S.E.2d 397 (1995) (issuing permits for 36 docks in connection with a development project did not violate the public trust doctrine since testimony indicated the docks would not substantially impair marine life, water quality, or public access to the area). If, however, no proper balance exists, the permit is denied. See State ex rel. Medlock v. S.C. Coastal Council, 289 S.C. 445, 451, 346 S.E.2d 716, 720 (1986) ("Although we recognize the potential benefit of an aquaculture industry to South Carolina, we cannot find sufficient evidence of an overriding public interest which would justify removing 660 acres from the Santee Estuarine System and destroying fifty acres of marshland."). Thus, the inquiry is whether the impact upon the public interest is so significant as to deny the conversion of a single residence private dock into a community private dock.

1. Detrimental Impact Upon Adjacent Owners

Adjacent owners as members of the public may need protection from the impact that the use of public property may have upon their value and enjoyment. S.C. Code Regs. 30-11(B)(10). Here, the community dock will not adversely impact Thomasko's enjoyment. The community dock, which will only serve a subdivision of 31 lots, is small enough not to interfere with enjoyment by adjacent owners. Such is especially true since the community dock prohibits mooring boats and thus will not present a significant potential for noise. Likewise, no road or highway outside of the subdivision provides direct access to the dock. Accordingly, little likelihood exists that roads outside of the subdivision will become congested as a result of the community dock. Thus, as an adjacent owner, Thomasko's enjoyment will not be unduly impacted by the community dock.

Further, the evidence does not support a conclusion that the community dock will diminish the value of Thomasko's property. Testimony of BEC's expert in valuing real estate demonstrates that the addition of a community dock to quality property, such as that owned by BEC 2, does not cause a decline in value of adjacent properties. Accordingly, the community dock does not reduce the value to Thomasko's property.

2. Adverse Impact Upon Wildlife

A valid consideration for permitting a dock is the extent to which a project will affect the production of fish, shrimp, oysters, crabs, or clams or any other marine life or wildlife in the area. S.C. Code Regs. 30-11(B)(3) (Supp. 1996). While the change in use potentially increases pedestrian traffic near the dock, no evidence supports an adverse impact upon wildlife in the area. Again, the impact on wildlife due to noise is lessened due to the permit's restriction on the mooring of boats at the dock. Thus, the change to a community dock does not present an adverse impact on wildlife.

3. Economic Gain By BEC 2, Inc.

State policy seeks to promote a combination of uses of public property that insures the citizens derive the maximum but balanced benefit from public property. S.C. Code Ann. §48-39-30(D) (Supp. 1996). Dollar benefits from the use of public property are not prohibited since no policy prohibits an economic gain from the authorized use of public trust property. See Concord Street Neighborhood Ass'n v. Campsen, 309 S.C. 514, 424 S.E.2d 538 (Ct. App. 1992) (permit for the proposed restaurant was proper since the restaurant would serve the public need when constructed in conjunction with science museum and tour boat facility). However, a purely economic purpose will rarely be sufficient to allow private use of public property. See S.C. Wildlife Federation v. S.C. Coastal Council, 296 S.C. 187, 371 S.E.2d 521 (1988) (purely economic benefit does not support the purpose of the Coastal Management Program to protect, restore, or enhance the resources of the State's coastal zone for present and succeeding generations since the public interest must counterbalance the goal of economic improvement). Rather, a proper balance between public and private interests is required.

Here, the community dock does not maximize the dollar benefits to the developer at the expense of the public benefit. First, rather than harming the public, the dock furthers public policy by providing the community with access to Midway Creek. In fact, subdivision developers are encouraged to develop joint-use docks and community docks. S.C. Code Regs.30-12(A)(2)(h) (Supp. 1996). Second, the dock does not harm the public's access to Midway Creek since no evidence suggests the dock impedes navigation. Thus, public policy is not violated by BEC 2 deriving an economic gain from a community dock since the maximum benefit to the people from the use of the public property is not impaired. S.C. Code Ann. § 48-39-30(D) (Supp. 1996).

4. Conclusions of Law

Based on the foregoing Findings of Fact and Discussion, I conclude the following:

1. Extensive public trust lands exist in the coastal areas since land between the usual high water mark and the usual low water mark on a tidal navigable watercourse is held by the State in trust for public purposes. Hobonny Club, Inc. v. McEachern, 272 S.C. 392, 252 S.E.2d 133 (1979); State v. Hardee, 259 S.C. 535, 193 S.E.2d 497 (1972).

2. In deciding when coastal public trust land may be used for private purposes, OCRM is charged with the implicit duty to administer the public trust lands consistent with applicable law. See S.C. Code Ann. §48-39-10, et. seq. (Supp. 1996) and Illinois Central R. Co. v. Illinois, 146 U.S. 387 (1892).

3. The principal analysis in deciding whether to allow the private use of public property is to weigh the extent of the public impairment against the benefits of the private use. See Sierra Club v. Kiawah Resort Associates, ___ S.C. ___, 456 S.E.2d 397 (1995); State ex rel. Medlock v. S.C. Coastal Council, 289 S.C. 445, 346 S.E.2d 716 (1986).

4. In weighing public impairment versus private use, no policy prohibits a private party from deriving an economic gain from the authorized use of public trust property. See Concord Street Neighborhood Ass'n v. Campsen, 309 S.C. 514, 424 S.E.2d 538 (Ct. App. 1992).

5. A pure economic purpose, however, will rarely be sufficient to allow private use of public property. See S.C. Wildlife Federation v. S.C. Coastal Council, 296 S.C. 187, 371 S.E.2d 521 (1988).

6. The impact upon the public trust property from the amendment of BEC 2's permit to allow use as a community dock does not place an impermissible infringement on the public interest.

7. A review of the impact upon adjacent owners as members of the public is appropriate to determine if protection is needed from the impact that the use of the public property may have upon the value and enjoyment of the adjacent owners' property. S.C. Code Regs. 30-11(B)(10) (Supp. 1996)..

8. The community dock permit will not adversely impact Thomasko's enjoyment of her property. S.C. Code Regs. 30-11(B)(10) (Supp. 1996).

9. The community dock permit will not diminish the value of Thomasko's property. S.C. Code Regs. 30-11(B)(10).

10. A valid consideration for permitting a dock is the extent to which the project will affect the production of fish, shrimp, oysters, crabs, or clams or any marine life or wildlife in the area. S.C. Code Regs. 30-11(B)(3) (Supp. 1996).

11. The community dock permit will not present an adverse impact on wildlife. S.C. Code Regs. 30-11(B)(3) (Supp. 1996).

12 State policy seeks to promote a combination of uses of public property that insures the citizens derive the maximum but balanced benefit from public property. S.C. Ann. §48-39-30(D) (Supp. 1996).

13. A proper balance is met here since the community dock does not maximize dollar benefits to the developer at the expense of the public benefit.

14. The dock furthers public policy by providing access to the water by means of a community dock. S.C. Code Regs. 30-12(A)(2)(h) (Supp. 1996).

15 Subdivision developers are encouraged to develop joint-use docks and community docks. S.C. Code Regs.30-12(A)(2)(h) (Supp. 1996).

16. No public policy is violated by BEC 2 deriving an economic gain from a community dock since the maximum benefit to the people from the use of the public property is not impaired. S.C. Code Ann. § 48-39-30(D) (Supp. 1996).

17. The public is not impaired in its right to navigate or otherwise enjoy Midway Creek. S.C. Code Regs. 30-12(A)(2)(a) (Supp. 1996).

OCRM is ordered to grant the amendment changing the use of the permit here under review to a community dock permit for use by BEC 2, Inc. to provide access to Midway Creek at Lot #27, Marsh Point Subdivision, Litchfield Beach, Georgetown County, South Carolina.

IT IS SO ORDERED.

RAY N. STEVENS

Administrative Law Judge

This 12th day of December, 1997