ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before me pursuant to S.C. Code Ann. § 48-39-150 (Supp. 1997) and S.C.
Code Ann. § 1-23-310 et seq. (1986 and Supp. 1997). Petitioners requested a contested case hearing
to review the decision of the South Carolina Department of Health and Environmental Control,
Bureau of Ocean and Coastal Resource Management ("OCRM") to issue to Seabrook Island Property
Owners Association ("Seabrook Association") a general permit for construction of a 12' by 12' non-attached deck adjacent to an existing beach access walkway, located at the North Edisto Inlet,
Seabrook Island, Charleston, South Carolina. Petitioners George and Susan Newton ("the
Newtons"), adjacent property owners, maintain that construction of this project would obstruct their
view and decrease the rental value of their property. The Newtons also challenge the authority of
Seabrook Association under its Bylaws to construct the deck at the proposed location.
After notice to the parties, a hearing on the merits was conducted on April 6, 1998. Petitioner
Gene Miller was added as a party on the date of the hearing, with the consent of all other parties.
For
the following reasons, Seabrook Association's permit application for a non-attached deck is granted
as permitted by OCRM. Any issues raised in the proceedings or hearing of this case but not
addressed in this Order are deemed denied pursuant to ALJD Rule 29(B).
FINDINGS OF FACT
Based upon the evidence presented, I make the following findings of fact, taking into
consideration the burden on the parties to establish their respective cases, and taking into account
the credibility of the witnesses:
1. Notice of the date, time and place of the hearing was given to all parties of record.
2. On August 6, 1997, Seabrook Association applied to OCRM for a general permit
authorizing the construction of a 12' by 12' non-attached deck adjacent to an existing beach access
walkway leading to the North Edisto Inlet, Seabrook Island, Charleston, South Carolina.
3. A non-attached deck is a deck that is not attached to a habitable structure.
4. The existing walkway is between Pelican Watch Villas and Beach Club Villas located
off Seabrook Island Road on the southern side of the island.
5. The purpose of the proposed activity is to establish an observation deck, with benches
on two sides, adequate for use by individuals who are handicapped.
6. The Newtons own property located at 341 Beach Club Villas, Seabrook Island Road,
Seabrook Island, South Carolina. The Newtons' property is next to the walkway leading to the inlet.
7. Gene Miller owns property located at 1302 Pelican Watch Villas, Seabrook Island
Road, Seabrook Island, South Carolina. Mr. Miller's villa is located on the other side of the beach
access walkway.
8. Notice of the application was provided to the adjacent landowners, including
Petitioners. Respondent Seabrook Association sent written notice of the application to Beach Club
Villa Owners Association and the Pelican Watch Villas owners association by certified U.S. mail
on or about August 6, 1997. Notice of the application was also published in The Post and Courier
in Charleston, South Carolina on August 9, 1997. Additionally, the Newtons received actual notice
of the application on or about September 15, 1997, through a neighboring property owner.
9. Gene Miller submitted to OCRM a protest letter objecting to the application, asserting
that the proposed deck and the accompanying traffic would disturb nearby sand dunes.
10. Following OCRM's issuance of the permit, the Newtons filed a request for a
contested case hearing, asserting that the proposed deck would obstruct their view and decrease the
rental value of their property. The Newtons also asserted that Seabrook Association does not have
authority under its Bylaws to construct the deck at the proposed location.
11. The Newtons currently have an unobstructed view of the ocean from the deck
attached to their residence, which is one reason they purchased this property.
12. The existing beach access walkway is included in the Newtons' view from a window
of their villa. The Newtons have not complained about this view or the traffic on the walkway.
13. OCRM issues general permits for certain structures, including non-attached decks,
upon the applicant's satisfaction of pre-determined conditions set forth in OCRM regulations.
OCRM does not modify general permits, but either issues or denies them.
14. OCRM staff visited the site of the proposed deck and met with a representative of
Seabrook Association to discuss the best location for the deck.
15. The proposed deck will be built on top of a flat, low-lying area to the same elevation
as the existing beach access walkway.
16. The proposed project would be constructed seaward of the OCRM setback line.
17. The existing beach access walkway is approximately six feet wide with handrails.
18. The existing beach access walkway is not adequate for persons who are handicapped
and require use of a wheelchair, which would block part of the walkway and impede pedestrian
traffic.
19. The beach access walkway between Pelican Watch Villas and Beach Club Villas is
the only public boardwalk on the southern side of the island that allows access for persons with
physical disabilities.
20. OCRM issued General Permit Number GP-90-E-027(97), with all general conditions
associated with non-attached decks, on September 4, 1997. Those conditions include the prohibition
of encroachment on the primary sand dune, allowing the deck to be built no further seaward than the
primary sand dune's landward edge, and the requirement that extreme care be used to prevent any
adverse effects on the property of others.
21. The proposed deck as permitted will not disturb nearby sand dunes.
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 pursuant to
S.C. Code Ann. § 48-39-150 (Supp. 1997) and S.C. Code Ann. § 1-23-310 et seq. (1986 and Supp.
1997).
2. The location of the proposed construction is in the beach/dune system, seaward of the
setback line, which is in a "critical area," as defined in S.C. Code Ann. § 48-39-10(J) (Supp. 1997).
3. OCRM may issue general permits for construction between the baseline and the
setback line where issuance of general permits would advance the implementation and
accomplishment of the goals and purposes of Sections 48-39-250 through 48-39-360. S.C. Code
Ann. § 48-39-290(B)(4) (Supp. 1997).
4. S.C. Code Ann. § 48-39-250 (Supp. 1997) sets forth legislative findings regarding
the coastal beach/dune system. Subsection (8) of the statute provides that it is in the state's best
interest to protect and promote increased public access to South Carolina beaches for out-of-state
tourists and South Carolina residents alike.
5. S.C. Code Ann. § 48-39-260 (Supp. 1997) sets forth South Carolina's policy
regarding the beach/dune system. Subsection (6) of the statute provides for the preservation of
existing public access and promotion of the enhancement of public access to assure full enjoyment
of the beach by all South Carolina citizens, including the handicapped.
6. The proposed construction conforms with the policies and findings in S.C. Code Ann.
§§ 48-39-250 and -260 (Supp. 1997).
7. S.C. Code Ann. § 48-39-290(A) (Supp. 1997) and 23A S.C. Code Ann. Regs. 30-13(H)(2) (Supp. 1997) allow small wooden decks no larger than 144 square feet to be constructed
seaward of the setback line. The structures may not be constructed on the active beach or over
primary oceanfront sand dunes, and if they ever become situated on the active beach they must be
removed. 23A S.C. Code Ann. Regs. 30-13(H)(2) (Supp. 1997).
8. The proposed construction complies with all requirements of 23A S.C. Code Ann.
Regs. 30-13(H)(2) (Supp. 1997).
9. S.C. Code Ann. § 48-39-150(A) (Supp. 1997) and 23A S.C. Code Regs. 30-11(B)
(Supp. 1997) set forth the ten general considerations to be used in assessing the impact of a project
in a critical area. Included in these considerations is the extent to which the proposed use could
affect the value and enjoyment of adjacent property owners. S.C. Code Ann. § 48-39-150(A)(10)
(Supp. 1997); 23A S.C. Code Ann. Regs. 30-11(B)(10) (Supp. 1997).
10. The proposed deck will have minimal impact on the existing view of adjacent
property owners.
11. To the extent that Petitioners claim a right to a completely unobstructed view of the
ocean, the South Carolina Supreme Court has held that no such right exists in this state. See Hill v.
The Beach Co., et. al., 279 S.C. 313, 306 S.E.2d 604 (1983).
12. No expert testimony was presented on the proposed construction's impact on the
market value or rental value of adjacent properties. Based on the evidence in the record, the
proposed deck will not adversely affect the value of adjacent properties.
13. 23A S.C. Code Ann. Regs. 30-17 (Supp. 1997) sets forth the procedural requirements
for the permit application process. Seabrook Association has met all of the procedural requirements
for the permit application, including a prima facie showing of legal ownership of the property on
which the proposed deck will be built.
14. Any restrictions imposed upon Seabrook Association by its Bylaws or Protective
Covenants are not within the jurisdiction of OCRM or the Administrative Law Judge Division. The
remedy for any violation of the Bylaws or Protective Covenants of Seabrook Association is in
another forum, not before this Division.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
ORDERED that Permit GP-90-E-027(97) for the construction of a non-attached deck
adjacent to the existing beach access walkway at North Edisto Inlet, Seabrook Island, South Carolina
is granted as written by OCRM.
AND IT IS SO ORDERED.
_______________________________
ALISON RENEE LEE
Administrative Law Judge
May ____, 1998
Columbia, South Carolina |
