SC Administrative Law Court Decisions

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 Respondent Victoria M. Gordon a permit for construction of a private dock on and adjacent to the Beaufort River at Pleasant Point Plantation on Lady's Island in Beaufort County, South Carolina. The proposed structure will have a 4' x 400' walkway leading to a 16' x 16' covered fixed pierhead. Attached to the pierhead will be a 3' x 24' ramp to a 12' x 24' floating dock. The proposed construction will also include a 13' x 13' 4-pile boat lift to the right of the pierhead. Petitioners, adjacent property owners, maintain that construction of this project would obstruct their view and decrease the value of their property. Petitioners also maintain that the proposed construction would negatively impact the surrounding environment.

After notice to the parties, a hearing on the merits was conducted on April 14, 1998. For the following reasons, Victoria Gordon's permit application for a private dock 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).

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.

2. Respondents James and Victoria Gordon own the property located at 2 Country Club Drive in Pleasant Point Plantation on Lady's Island in Beaufort County, South Carolina. The property borders on the Beaufort River.

3. Petitioners John T. and Frances A. Olsen own property located at 1 Country Club Drive in Pleasant Point Plantation on Lady's Island in Beaufort County, South Carolina, adjacent to the Gordons' property on the Beaufort River.

4. On May 30, 1997, Victoria Gordon applied to OCRM for a permit authorizing the construction of a private dock on and adjacent to the Beaufort River, extending from her property at 2 Country Club Drive on Lady's Island. The proposed structure had the following configuration: a 4' x 300' walkway with handrails, leading to a 16' x 16' covered fixed pierhead, to which would be attached a 4' x 157' walkway with handrails, with a 3' x 24' ramp to a 12' x 24' floating dock. The proposed construction would also include a 13' x 13' 4-pile boat lift channelward of the pierhead and adjacent to the 4' x 157' walkway. OCRM granted the permit, but modified it to exclude the 4' x 157' walkway, ramp, float and boat lift beyond the pierhead. Ms. Gordon did not accept the permit as issued.

5. On August 4, 1997, Victoria Gordon submitted to OCRM a revised configuration proposing the following construction: a 4' x 400' walkway with handrails, leading to a 16' x 16' covered fixed pierhead. Attached to the pierhead would be a 3' x 24' ramp to a 12' x 24' floating dock. The proposed construction would also include a 13' x 13' 4-pile boat lift to the right of the pierhead.

6. The purpose of the proposed activity is for Gordon's private and recreational use.

7. Notice of the application was provided to the adjacent landowners, including Petitioners. Notice of the application was also published in The Beaufort Gazette in Beaufort, South Carolina on June 10, 1997.

8. The Olsens submitted to OCRM a protest letter objecting to the application, asserting that the proposed construction would obstruct their view of the Beaufort River and the Albergotti Creek, decrease the value of their property, and adversely affect the surrounding environment.

9. No evidence was presented, other than the Olsens' opinion, to support the Olsens' claim that the proposed construction would decrease their property value.

10. OCRM staff visited the site of the proposed dock to check the measurements and to determine whether the proposed dock would meet the regulatory guidelines.

11. OCRM staff determined that there would be no adverse impact on the marine life as a result of the project.

12. OCRM issued Permit Number OCRM-97-892 as applied for, with special conditions, on September 9, 1997. The special conditions include the following restrictions: (1) the covered pierhead is neither enclosed nor screened; (2) the peak of the roof is no higher than 15' above the mean high water mark; and (3) a minimum clearance of 125' is maintained between the face of the dock and the centerline of the Intracoastal Waterway.

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 a "critical area," as defined in S.C. Code Ann. § 48-39-10(J) (Supp. 1997).

3. Any person wishing to alter a critical area must obtain a permit from OCRM. S.C. Code Ann. § 48-39-130(C) (Supp. 1997); 23A S.C. Code Ann. Regs. 30-2(B) (Supp. 1997).

4. 23A S.C. Code Ann. Regs. 30-12(A) (Supp. 1997) sets forth the specific standards for construction of docks and piers for tidelands and coastal waters and also sets forth the procedural requirements for the permit application process.

5. The proposed construction complies with all requirements of 23A S.C. Code Ann. Regs. 30-12(A) (Supp. 1997).

6. 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). OCRM considered all applicable criteria and determined that the dock could be constructed with appropriate conditions and restrictions to minimize any impacts the project may have on the critical areas and adjacent landowners.

7. The dock will not impair marine life, water quality or public access to the area in question. See Sierra Club, et al. v. Kiawah Resort Associates, et al., 318 S.C. 119, 456 S.E.2d 397 (1995).

8. Permit OCRM-97-892 contains special conditions in accordance with the applicable statutes and regulations for critical area permits.

9. The proposed activity conforms with coastal zone policies regarding dock location, size, and configuration.

10. Although the Gordon dock will be visible from the Olsens' lot, it will not be so intrusive as to block the aesthetic view of the Beaufort River or Albergotti Creek.

11. To the extent that Petitioners claim a right to a completely unobstructed view of the Beaufort River and the Albergotti Creek, 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 possible adverse impact on the market value of adjacent properties. Based on the evidence in the record, the proposed dock will not adversely affect the value of adjacent properties.

13. When the relevant testimony of those opposing the permit consists of opinions, generalities, and conclusions unsupported by fact, the denial of a permit on the ground of decrease in value of adjacent properties is unfounded. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). Such unsupported allegations form an insufficient basis for denial. Id.

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

ORDERED that Permit OCRM-97-892 for the construction of a private dock on and adjacent to the Beaufort River, at 2 Country Club Drive on Lady's Island, Beaufort County, South Carolina is granted as written by OCRM.

AND IT IS SO ORDERED.

_______________________________

ALISON RENEE LEE

Administrative Law Judge

May 6, 1998

Columbia, South Carolina