ORDERS:
ORDER
I. Statement of the Case
This matter is a contested case brought by Allen C. Pate (Pate) against the South Carolina
Department of Health and Environmental Control, Bureau of Ocean and Coastal Resource
Management (OCRM). OCRM denied Pate a permit for the addition of a 4' x 20' floating dock. The
floating dock was to be an addition to Pate's existing permitted dock at Fishing Creek, 8891
Palmetto Road, The Neck Subdivision, Edisto Island, Colleton County, South Carolina. OCRM
argues the denial is proper since three provisions of the regulations would be negatively impacted
by granting the permit. Pate counters by asserting that OCRM has misapplied the regulations and
that existing law requires granting the permit.
Jurisdiction to decide this matter vests in the Administrative Law Judge Division (ALJD) under S.C.
Code Ann. § 48-39-150 (Supp. 1997) and § 1-23-310 et seq. (Rev. 1987 & Supp. 1997). After
reviewing the evidence and considering the arguments, the permit is properly denied.
II. Issue
Should a permit be granted to Pate for the addition of a 4' x 20' floating dock to an existing permitted
dock at Fishing Creek, 8891 Palmetto Road, The Neck Subdivision, Edisto Island, Colleton County,
South Carolina?
III. Analysis
Permit for Floating Dock
In this case, OCRM's denial relies upon three general considerations: the improper long range effect
of the project (S.C. Code Regs. 30-11(C)(1)); the improper submission of a piecemeal or fragmented
plan as opposed to a plan allowing evaluation of the entire project (S.C. Code Regs. 30-11(C)(2));
and the addition of an unreasonable amount of water access given the intended use (S.C. Code Regs.
30-12(A)(2)(c)). Since Pate argues none of these three regulations are violated, after identifying the
facts, each of the regulations is addressed in this decision.
A. Findings of Fact
The history behind Pate's application for this addition of a 4' x 20' dock is noteworthy. Initially, a
4' x 20' floating dock was in place as a part of Pate's existing dock structure. However, while the
majority of the dock structure was permitted by OCRM, the 4' x 20' dock was not a part of the
approved plan. Thus, the 4' x 20' dock was in place without a permit. OCRM learned of the
unpermitted dock and, as part of an enforcement action, required Pate to remove it. After the
removal, Pate began the permitting process to add the dock.
The permit request for the addition of the 4' x 20' dock was filed by Pate as application #OCRM-97-291-G. The request was denied on August 22, 1997. Had the dock been allowed, the addition of
the 4' x 20' floating dock would have been located on the left side of an existing walkway and on the
landward side of an existing 10' x 30' floating dock. When in place, the additional dock would
provide a "U" shaped docking facility.
The purpose of the additional dock is two fold. It would further augment Pate's existing access and
recreational use of Fishing Creek and surrounding waters. Second, the "U" shape would provide
easier access to both sides of a larger boat used by Pate to enjoy the coastal waters. Even without
adding the new dock, however, the existing facilities contain a mooring pile capable of being used
to secure a boat with the moored boat then being accessible from the existing floating docks.
Based on this factual background and the law applicable to Pate's request (which law is more fully
developed below), I find as a fact that allowing Pate to have a larger dock will impact the future
development in the area in that others will be encouraged to seek larger docks which will eventually
lead to an excessive number of large docks in the area. Further, I find as a fact that allowing Pate to
have a larger dock presents a piecemeal evaluation contrary to the dictates of applicable regulations.
Finally, I find as a fact that Pate's existing dock structure currently provides adequate water access
and is more than reasonable in size for Pate's intended use. Accordingly, the facts of this case
demonstrate the permit is properly denied.
B. Conclusions of Law
The law applicable to Pate supports a denial of his permit request. In any decision to grant or deny
a dock permit, 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 its discretion, OCRM must apply
its 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). In this case, OCRM has applied its statutory principles properly.
1. Long Range Effect
In reaching a rational basis, OCRM must be guided in its decision making by considering what
long-range, cumulative effects may result from the project under review. S.C. Code Regs. 30-11(C)(1). In deciding the cumulative effects, OCRM must specifically consider the impact the
project will have on other possible development and the impact on the general character of the area.
S.C. Code Regs. 30-11(C)(1).
Here, OCRM correctly argues the use of a larger dock by Pate will make it difficult to control
denying larger docks to others in similar circumstances. In other words, allowing the larger dock
for Pate will impact the future development in that others will seek larger docks and eventually lead
to an excessive number of large docks in the area. Denying Pate's application is a proper application
of S.C. Code Regs. 30-11(C)(1).
2. Piecemeal Plan
In fulfilling its responsibilities, OCRM must consider the extent to which a project can be submitted
so as to allow evaluation of the project as a whole rather than a piecemeal and fragmented
evaluation. S.C. Code Regs. 30-11(C)(2). OCRM properly considered the piecemeal evaluation as
a factor is denying the permit.
In this case, Pate initially installed a dock facility consisting of a walkway and a floating dock.
Subsequently, he asked for the addition of another floating dock. Pate's approach runs counter to
the admonition against piecemeal reviews of dock permits. Thus, OCRM properly applied its
regulations in this case.
3. Unreasonable Use
OCRM approves docks having a size reasonable for the intended use. S.C. Code Regs. 30-12(A)(2)(c). In deciding what size is reasonable for the intended use, one must be mindful that
OCRM administers public trust land. 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 public trust
land may be used for private purposes, OCRM must act consistent with applicable law. See S.C.
Code Ann. Sec. 48-39-10 et. seq. (Supp. 1997) and Illinois Central R. Co. v. Illinois, 146 U.S. 387
(1892).
Here, OCRM has acted consistently with applicable law as established by Regs. 30-12(A)(2)(c),
which requires approval of docks of reasonable size. Pate has an approved 10' x 30' floating dock
and a walkway which provide him with a dock facility of a reasonable size. In addition, the
reasonableness of his dock facility is enhanced by a mooring pole which provides Pate with the
ability to access a moored boat from his existing floating dock. Considering all factors, OCRM
properly concludes the existing dock facility is reasonable for Pate's intended use such that the
addition of a 4' x 20' floating dock is denied.
IV. ORDER
OCRM is ordered to deny Pate's application for the addition of a 4' x 20' floating dock at Fishing
Creek, 8891 Palmetto Road, The Neck Subdivision, Edisto Island, Colleton County, South Carolina.
IT IS SO ORDERED.
RAY N. STEVENS
Administrative Law Judge
May 13, 1998
Columbia, South Carolina |