SC Administrative Law Court Decisions

Prior to the calling of this matter the parties informed the Court that the case has been resolved between the parties.

Now, subject to the agreements herein, the Court hereby dismisses this action with prejudice to the Petitioner, David Miller.

AND IT IS SO ORDERED.

Beaufort, South Carolina ______________________________

March 23, 1998 Presiding Judge

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

March 18, 1998

I so move: _______________________

C. C. Harness, III

Attorney for Respondents

I Consent: ________________________

Armand G. Derfner

Attorney for Petitioner

________________________

Mary D. Shahid

General Counsel, OCRM

I have read the attached Agreement executed by David Miller and Daufuskie Club, Inc.

I understand that the confirmation of access easements by Daufuskie Club, Inc., were necessary in order to attain a dismissal of the suit by David Miller.

Given that the nourishment project which is subject of this action will proceed, I hereby acknowledge my desire to have this case dismissed with prejudice.

Melrose Point, Inc.

March 10, 1998 By: ____________________________

Phillip D. Scott, Secretary

March 9, 1998 ________________________________

Harold E. Resinger

March 9, 1998 ________________________________

Jacqueline K. Resinger

March 9, 1998 ________________________________

James W. Hogg

March 4, 1998 ________________________________

Barbara Lawless

March 5, 1998 ________________________________

Timothy J. Rigas

March 5, 1998 ________________________________

Bruce A. Baker

March 4, 1998 ________________________________

Milton J. Deitch

March 4, 1998 ________________________________

Sara S. Deitch

STATE OF SOUTH CAROLINA ) SETTLEMENT AGREEMENT

) AND RELEASE OF ALL

COUNTY OF BEAUFORT ) CLAIMS

THIS SETTLEMENT AGREEMENT entered into this 18th day of March, 1998 by

and between David Miller ("Miller"), Petitioner in the matter of an appeal in the above captioned case and Daufuskie Club, Inc. ("Daufuskie"), Respondent/Permittee, for resolution of all claims

concerning nourishment of the beach on Daufuskie Island, South Carolina.

WITNESSETH:

1. WHEREAS, the Department of Health and Environmental Control, Bureau of Ocean and

Coastal Resources Management approved a nourishment project, issuing a permit to Daufuskie

Club, Inc., P/N 97-1G-234-P. This project is for placement of sand along the Atlantic shoreline of Daufuskie Island.

2. WHEREAS, David Miller is a Petitioner in the matter of Miller v. South Carolina

Department of Health and Environmental Control, Bureau of Ocean and Coastal Resources

Management, and Daufuskie Club, Inc. This appeal is pending before the Administrative Law Judge Division, Case No. 97-ALJ-07-0667-CC.

3. WHEREAS, Miller has raised the issue of public access as it relates to the issued permit.

4. WHEREAS, Daufuskie Club, Inc. by entering into this agreement does not concede standing on behalf of David Miller nor acknowledge that the issue of public access is appropriately before the Administrative Law Judge Division.

5. WHEREAS, David Miller and Daufuskie Club, Inc. Desire to resolve this matter and any and all potential causes of action that David Miller may have against Daufuskie Club, Inc. as it relates to beach nourishment on Daufuskie Island.

NOW COMES THE PARTIES:

That for and in consideration of the agreements and representations made herein, David

Miller and Daufuskie Club, Inc. agree as follows:

1. David Miller agrees to dismiss his Administrative Appeal, Case No. 97-ALJ-07-0667-CC and to settle any and all causes of action regarding beach nourishment now and in the future by Daufuskie Club, inc. on Daufuskie Island.

2. Daufuskie Club, Inc. Agrees to resolve concerns regarding public access on its property as follows:

a. There are three points of access through property owned by Daufuskie Club, Inc.

These are designated on Exhibit A and further described as follows:

1) Melrose Access - a fifty foot non-exclusive easement for public beach access

with a designated parking area along southwest property line of Melrose

Plantation.

2) Bloody Point Beach Access - A one hundred foot non-exclusive easement for

public beach access along the northeast property line of Bloody Point Plantation.

3) Bloody Point Cemetery/Mungen Creek Access - An access located by

following Bloody Point Road to its termination at Fuskie Lane then traveling on

Fuskie Lane to designated parking.

b. Daufuskie Club, Inc. agrees to undertake the following actions with regard to each

access:

1) As to Melrose Access:

a. Daufuskie will prepare a plat showing fifty foot non-exclusive

easement to the ocean together with parking area.

b. It will insure that there are no improvements on easement that

materially impede public access and agrees that none will be built in the

future.

c. It confirms the public dedication of the existing fifty foot road

beginning at Webb Tract Loop Road leading to the fifty foot public

easement as more fully shown on a plat by Surveying Consultants dated

September 25, 1987.

d. The foregoing is consistent with a commitment made by Steve

Kiser to the Beaufort County Joint Planning Commission on September 4,

1984 on behalf of Melrose Company stated as follows:

[ non-exclusive easement] along the southerly boundary [of

Melrose Plantation] of approximately 4.3 acres of land as a public

beach access, that includes a parking area and a fifty foot wide

dedicated road to the public road system.

2) As to Bloody Point Beach Access:

a. Daufuskie confirms a commitment made by Steve Kiser to the

Beaufort County Joint Planning Commission on May 13, 1989 stated as

follows:

The applicant shall dedicate to Beaufort County a non-exclusive

perpetual beach access and parking easement including emergency

vehicle beach access, along the generally north easterly boundary of

the Bloody Point tract as now fully described on attached Exhibit

"A." Further, the applicant shall construct, at applicant's expense,

and under the supervision of Beaufort County, a new two-lane

access road, parking area and emergency beach access road

according to specifications to be mutually agreed upon. The

existing access to the beach known as Beach Road shall be open for

public use until such time as the new access road and parking area

have been completed.

b. The parties agree that the access as described was created and is

now open for public use.

3) As to Access to the Cemetery and Mungen Creek through Bloody Point

a. Daufuskie confirms a commitment made by Steve Kiser to the

Beaufort County Joint Planning Commission on May 13, 1989 stated as

follows:

Free access will be provided through the Bloody Point project

(known as the Daufuskie Island Club) to the cemetery and Mungen

Creek, with parking, over new roadways and easements to be

constructed by the applicant.

b. The motor vehicle access to the cemetery and Mungen Creek shall

be limited to six parking spaces.

c. The access is limited to the area located by following Bloody Point

Road to its termination at Fuskie Lane then traveling on Fuskie Lane to

designated parking. No parking will be allowed outside the designated

parking area.

d. The right of access and rules will be posted at the Guard gate.

4) This agreement, as it relates to the non-exclusive easements, will be

confirmed by placement of a plat on the records of the RMC for Beaufort County,

South Carolina.

5) This agreement is binding upon the successors, heirs, an assigns of both

parties.

6) This agreement will be attached to an Order of Dismissal and presented to

the Court with the intention of dismissing the action with prejudice to the

Petitioner.

7) Daufuskie will keep at the Bloody Point Guard Gate, a copy of the

agreement and an attached set of guidelines for the public use of the easements and

to inform the public of the rules associated with access to the cemetery and to

Mungen Creek.

This document has been executed by separate conterparts.

IN WITNESS WHEREOF, the Parties, enter into this Agreement and Mungen Creek.

Witnesses:

______________________________ _____________________________

David Miller

______________________________ Date: 3/18/98

Daufuskie Club, Inc.

______________________________

By:___________________________

______________________________ Its: ___________________________

Date: 3/3/98

and

Daufuskie Club, Inc. allows access to the Atlantic Ocean along two non-exclusive

easements shown on the attached map. These easements are located as follows:

1. Bloody Point Beach Access - This 100 foot easement is located along the northeast

border of Bloody Point and has parking and emergency vehicle access.

2. Melrose Beach Access (not yet developed) - This 50 foot easement is located along the southwest border of Melrose Plantation adjacent to Oak Ridge Plantation. It is accessed from

Webb Tract Loop Road and has parking area. This easement has been dedicated to the County

but has not yet been developed.

Neither of these easements requires permission from the property owner to use and they are dedicated for the purpose of free public access to the ocean.

Daufuskie Club allows access to the Bloody Point Cemetery and Mungen Creek as shown

on the attached map and under the following rules:

a. Access to the cemetery and Mungen Creek is by traveling along Bloody Point

Road to Fuskie Lane. Travel on other roads within Bloody Point is prohibited.

b. Access by motor vehicle is limited to the number of vehicles that can park in the

designated parking area. No parking is allowed elsewhere in Bloody Point.