ORDERS:
FINAL ORDER AND DECISION
FINDINGS OF FACT
This matter comes before me pursuant to the request by Petitioners William and Mary Van Hook
for a contested case hearing to challenge conditions placed upon their dock-construction permit.
Petitioners applied to build a walkway, pierhead, and floating dock on Wagner Creek at 3190 Pignatelli
Crescent, Dunes West Subdivision, Mount Pleasant, Charleston County, South Carolina. On October
14, 1997, the Bureau of Ocean and Coastal Resource Management (OCRM) issued the permit, P/N#
OCRM-97-357-I, restricting the total combined area of the pierhead and floating dock to 160 square feet.
This tribunal finds that Petitioners' challenge of the permit must fail.
OCRM contends that State regulations mandate the size restriction, given the width of the creek
upon which the dock is to be built. The agency further notes that the Master Plan of Dunes West
Subdivision does not authorize the construction of a pierhead and floating dock any larger than 160
square feet.
Petitioners claim that the creek is wide enough that State regulations would allow the
construction of a pierhead and floating dock larger than 160 square feet. Petitioners also argue that the
Master Plan does not prevent OCRM from increasing the size of the pierhead and floating dock, and that
the Master Plan does not restrict the use of their property because they were unaware of its existence
when they purchased the property.
The parties stipulated that Wagner Creek is at least 150 feet at some point. However, I find that
the width of the creek does not exceed 150 feet at any point within Petitioners' extended property or
dock corridor lines. W.L. Shaffer, III prepared and submitted the permit application to OCRM on behalf
of the Petitioners. See Respondent's Exhibit #1. In the application, Shaffer estimated the width of the
creek to be 130 feet; however, after OCRM issued a decision regarding Petitioners' original application,
he revised his measurement of the creek to reflect a width of 155 feet. Notably, Shaffer is the contractor
chosen by Petitioners to build their dock, and he is not a professional surveyor. The Master Plan, as
interpreted by OCRM witness Richard Chinnis, includes survey results indicating that the largest width
of the creek at any point is 150 feet.
The pierhead and floating dock were designed for Petitioners' own private, recreational use.
Although Petitioners presented evidence concerning the desirability of constructing a larger dock, they
did not present evidence to establish that special geographic circumstances or land uses warranted a
structure larger than 160 square feet.
Because Petitioners' dock size exceeded that allowed by the Master Plan, they sought a variance
to increase the area of the pierhead and floating dock to 320 square feet. On October 30, 1997, the
Dunes West Architectural Review Board approved Petitioners' request for a variance.
On April 10, 1998, Dunes West Subdivision advised all waterfront property owners that it had
submitted a revised dock Master Plan to OCRM. See Petitioner's Exhibit #6. This revision increases
the size of pierheads and floating docks on certain other lots in the subdivision from 120 square feet to
160 square feet. The lots for which an increase was requested are on parts of Wagner Creek narrower
than the part of the creek adjoining Petitioners' property. OCRM has not acted on the Dunes West
Subdivision revision request by either denying or approving it.
CONCLUSIONS OF LAW AND DISCUSSION
The Administrative Law Judge Division has subject matter jurisdiction in this matter pursuant
to S.C. Code Ann. section 48-39-150 (Supp. 1997) and the Administrative Procedures Act, S.C. Code
Ann. sections 1-23-310, et seq. (Rev. 1986 & Supp. 1997), specifically, section 1-23-600(B) (Supp.
1997).
Under S.C. Code Ann. section 48-39-50(G) and (V) (Supp. 1997), the Department of Health and
Environmental Control (DHEC), through OCRM, is charged with denying or approving permits for
proposed activities within the coastal zone. Further, section 48-39-50(E) authorizes DHEC to
promulgate regulations to carry out the provisions of Chapter 39 of Title 48 of the 1976 Code. In this
regard, the Coastal Council (the predecessor agency to OCRM) promulgated 23A S.C. Code Ann. Regs.
30-1 through 30-20 (1976 & Supp. 1997), which are currently administered by OCRM in governing the
management, development, and protection of the coastal zone.
Petitioners carry the burden of proving by a preponderance of the evidence that they are entitled
to a permit to build a pierhead and floating dock larger than 160 square feet. The burden of proof
generally rests with the party who asserts the affirmative of an issue. Alex Sanders, et al., Trial
Handbook for South Carolina Lawyers, Burden of Proof § 9:1 at 9-2 (1994). The burden of proof
"denotes the duty of establishing the truth of a given proposition or issue by the quantum of evidence
the law demands in the case in which the issue arises. . . ." Id. at 9-1.
23A S.C. Code Ann. Regs. 30-12 addresses standards for the construction of docks and piers and
provides in part:
The Department sets forth the following standards for size and use of pierheads and
floating docks, these figures do not include the square footage of the walkways:
. . . .
Creeks between 51 and 150 feet shall be restricted to docks up to 160 square feet unless
special geographic circumstances and land uses warrant a larger structure. Larger creeks
will be handled on a case by case basis pursuant to established permitting rules and
regulations.
(Emphasis added). This regulation clearly restricts the size of a dock to 160 square feet on a creek
between 51 and 150 feet wide.
As the width of Wagner Creek has been found not to exceed 150 feet at any point within
Petitioners' extended property or dock corridor lines, the permit must be restricted to 160 square feet
as mandated by Regs. 30-12(A)(2)(q)(iii). Further, Petitioners presented no evidence that special
geographic circumstances or land uses warrant a structure larger than 160 square feet.
Even though Petitioners presented testimony that the creek was wider than 150 feet within their property
lines, such testimony was unpersuasive because (1) the witness held an interest in the granting of the
permit; (2) the witness lacked training as a professional surveyor; and (3) the witness's testimony
contradicted a surveyed master plan. The weight and credibility assigned to evidence presented at the
hearing of a matter is within the province of the trier of fact. See South Carolina Cable Television Ass'n
v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). Furthermore, a trial judge who
observes a witness is in the better position to judge the witness's demeanor and veracity and to evaluate
his testimony. See McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982); Peay v. Peay, 260 S.C.
108, 194 S.E.2d 392 (1973); Mann v. Walker, 285 S.C. 194, 328 S.E.2d 659 (Ct. App. 1985); Marshall
v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Ct. App. 1984).
Petitioners also contend that OCRM is not constrained by the Master Plan of their subdivision
in its permitting decision. Currently, the Master Plan of Dunes West would preclude Petitioners from
building their desired dock. While a development Master Plan does not supersede statutory or
regulatory law, OCRM may utilize the Master Plan as a framework for permitting decisions (23A S.C.
Code Ann. Regs. 30-12(A)(3))(1). Regulatory authority also provides that "[g]eneral permits may be
issued for docks covered by a master plan," in keeping with the Master Plan to the extent that the Master
Plan reflects OCRM policies and regulations. S.C. Code Ann. 30-12(A)(3)(C). The Dunes West
Architectural Board lacks the power to override State regulations, and its granting of a variance to
Petitioners to build a dock which exceeds regulatory limits is not binding on OCRM. Further, the
development's application to increase the size of certain other docks to 160 square feet bears no
relevance to Petitioners' application.
Petitioners' argument that OCRM should not consider the size limitations in the Master Plan
because Petitioners lacked notice of those limitations is without merit. First, as previously explained,
a permit may be granted only if it complies with 23A S.C. Code Ann. Regs. 30-12(A)(2)(q)(iii),
regardless of variances approved by architectural review boards or the Master Plan. Second, the State's
significant interest in coastal zone management often outweighs the interests of private landowners. See
McQueen v. South Carolina Coastal Council, No. 2779, 1998 WL 11710, (S.C. Jan. 12, 1998); Carter
v. South Carolina Coastal Council, 281 S.C. 201, 314 S.E.2d 327 (1984); cf. S.C. Code Ann. §
48-39-30(1) (Supp. 1997). Accordingly, a lack of notice would not negate the State's police power to
regulate docks by considering a development's master plan under 23A S.C. Code Ann. Regs. 30-12(A)(3). Finally, this argument is unfounded under the law. The law imputes notice recitals contained
in the written instruments found in the chain of title to a purchaser of real estate. Abbott v. Arthur, 261
S.C. 31, 198 S.E.2d 261 (1973); Harbison Community Ass'n, Inc. v. Mueller, 319 S.C. 99, 459 S.E.2d
860 (1995).
Based on the aforementioned findings of fact and conclusions of law, Petitioners are not entitled
to construct a pierhead and floating dock in excess of the 160-square-feet limit found in 23A S.C. Code
Ann. Regs. 30-12(A)(2)(q)(iii); therefore, the permit issued by OCRM must be upheld as written.
ORDER
IT IS THEREFORE ORDERED that the issuance of the permit [P/N# OCRM-97-357-I] with
conditions be upheld.
AND IT IS SO ORDERED.
__________________________________
JOHN D. GEATHERS
ADMINISTRATIVE LAW JUDGE
June 3, 1998
Columbia, South Carolina
1. In order to protect the tidelands and coastal waters, OCRM assesses the cumulative
effects of the overall development, rather than examining a proposed development in a piecemeal
fashion. 23A S.C. Code Ann. Regs. 30-11(C)(1) and (2) (Supp. 1997). Such an approach is
consistent with the State policy of promoting comprehensive coastal zone development and
protection. S.C. Code Ann. §§ 48-39-20 and 48-39-30 (Supp. 1997). |
