ORDERS:
FINAL DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to the South Carolina Department of Health and
Environmental Control, Office of Ocean and Coastal Resource Management's (OCRM), denial of
a permit for a private dock at 641 Palisades Drive in the Hobcaw Creek Subdivision in the town of
Mt. Pleasant in Charleston County. A hearing into this matter was held on November 19, 1997, at
the Charleston County Courthouse.
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, I make the following Findings
of Fact by a preponderance of evidence:
1. The Petitioner is the owner of Lot 1, Block N in Hobcaw Creek Plantation in Charleston
County, South Carolina.
2. On June 10, 1997, the Petitioner applied to OCRM for a permit for the construction of a
private dock. The Petitioner requested that OCRM authorize the construction of a 4' by 130'
walkway leading to a 5' by 10' pierhead. The purpose of the proposed dock was for the Petitioner's
private, recreational use.
3. On August 5, 1997, OCRM denied the Petitioner's request to construct the requested dock.
4. The Petitioner contends that OCRM improperly denied his permit application upon the
following grounds:
a. Petitioner was not aware that a Dock Master Plan affected his ability to
construct a dock at 641 Palisades Drive, Hobcaw Creek Plantation subdivision.
b. No objections were raised by adjacent property owners, other government
agencies, or the subdivision Architectural Review Board.
c. Petitioner's property is similar to other properties in the area in which OCRM
has granted permits.
5. A Dock Master Plan ("DMP") was developed in 1988, for Hobcaw Creek Plantation by the
developer, The Beach Company.
6. Petitioner's lot, TMS# 537-14-00-035, was not included in the DMP as eligible for a dock.
7. Petitioner purchased the property on June 29, 1995. While he was unaware of the Hobcaw
Creek Plantation DMP at the time of purchase, Petitioner testified that prior to closing he was aware
that there may be difficulty in obtaining a dock permit. No further inquiry was made by Petitioner
as to the nature of the problem.
8. Petitioner has alternative means of water access. Hobcaw Creek Plantation has an existing
community-use dock and boat ramp providing water access for members of the subdivision.
9. OCRM has adhered to the Hobcaw Creek Plantation DMP for the last ten years. During this
time more than forty-five dock permits have been processed by the agency utilizing the Hobcaw
Creek DMP as a framework for permitting decisions. No evidence was offered to show that
Respondent has issued permits inconsistent with the Hobcaw Creek Plantation dock master plan.
10. Even though no objections to the permit application were received, the agency is required
to approve or deny a permit application based upon the agency's rules and regulations.
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) and (2) (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) (Supp. 1996) 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 (Supp. 1996) 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 (Supp. 1996) set
forth the General Guidelines to be used in assessing critical area permit applications. S.C. Code
Regs. 30-11(C) (Supp. 1996) 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.
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) (Supp. 1996), and Regs. 30-10(A) (Supp. 1996).
8. S.C. Code Regs. 30-12(A) (Supp. 1996) sets forth the specific project standards for
construction of docks and piers for tidelands and coastal waters. Regulation 30-12(A)(3) specifically
provides in part that:
General permits may be issued for docks covered by a master plan, as outlined in
Ch.III.C.3.VI.D of the Coastal Zone Management Plan. This master plan must be
placed on public notice and processed as a major application. If a master plan is
approved by the Department, but no general permit is applied for or issued, the
approved master plan will be used as a framework for permitting decisions, subject
to comments received during the public review process.
"The dock master plan shall be presumed to take precedence over applications inconsistent
with such plan unless new information is revealed in the application to address and overcome
concerns identified in the Dock Master Plan." Ch. III.C.3.VI.D(4), Coastal Zone Management Plan
(August 2, 1993). Petitioner has failed to reveal any such information in his application.
9. While an administrative agency is generally not bound by its prior decisions, it cannot act
arbitrarily. Petitioner asserts that properties similar to his in the area have been granted permits by
OCRM. "The sine qua non of an equal protection claim is a showing that similarly situated persons
received disparate treatment." Grant v. S.C. Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995).
In this case Petitioner has failed to show that he was treated differently from other permit applicants
in OCRM's implementation of the Hobcaw Creek Plantation dock master plan.
ORDER
Based upon the Findings of Fact and Conclusions of Law, It is hereby:
ORDERED that the application to construct a private dock by the Petitioner be denied.
________________________________
Ralph King Anderson, III
Administrative Law Judge
Columbia, South Carolina
January 14, 1998 |
