SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This contested case arises from decisions of the South Carolina Department of Health and Environmental Control ("DHEC") on an application by the Respondent Cann-Hal to construct a marina on and adjacent to the Wando River in Cainhoy, Berkeley County, South Carolina. The decisions were made by two separate sections of DHEC, the Office of Ocean and Coastal Resource Management ("OCRM"), and the Bureau of Water ("Bureau"). Specifically, a permit was issued to Cann-Hal on November 25, 1997, which allows, inter alia, the construction of three floating docks to be attached to an existing dock in the Wando River which will be used for wet slips and staging in conjunction with a 360 unit capacity dry stack marina on the adjacent highground. The marina will be constructed in two phases with the first phase consisting of 160 dry storage slips and reconfiguring the existing docking facility to add three floating docks to the current fixed pier for mooring space for up to twenty (20) vessels. The second phase will consist of adding the final 200 dry stack storage space. In addition, this OCRM permit contains, as an internal function of DHEC, a certification by the Bureau pursuant to Section 401 of the Federal Clean Water Act⁽¹⁾, that there is a reasonable assurance that the project will not alter or degrade water quality at this site. In addition to the standard conditions placed on all OCRM permits, the permit also contains thirty seven (37) special conditions restricting or governing the operations at the marina.

Petitioner Save the Wando filed a notice of appeal, and in response to petitions filed during the public notice of the appeal, intervenor status was granted to St. Thomas Point Homeowners' Association representing the interests of residents of a nearby residential subdivision and John S. Sanders, III, an adjacent property owner to the marina site.⁽²⁾ Petitioner and the intervenors all oppose the issuance of this permit.

Following discovery by the parties, petitioner moved for summary judgement on the grounds that OCRM's consideration of impacts to the Cainhoy Historic District and its evaluation were inadequate. This motion was denied by Order dated September 25, 1998.

A contested case hearing was held over the course of five days. Based upon the testimony, exhibits and site visit, the permit is modified. Any issues raised in the proceeding or hearing of this matter that are not specifically addressed in this Order are deemed denied. ALJD Rule 29(C).

DISCUSSION

The issuance of a permit for a coastal marina is governed by the Coastal Zone Management Act, S. C. Code Ann.§§48-39-10 et seq. (Supp. 1998) and the regulations promulgated thereunder, 23A S.C. Code Ann. Regs. 30-1 et seq. (Supp. 1998). The water quality certification decision is governed by 25A S.C. Code Ann. Regs. 61-101 (Supp. 1998). Before reaching a certification decision, the Bureau also consults 25 S.C. Code Ann. Regs. 61-68 (Water Classification and Standards), 25 S.C. Code Ann. Regs. 61-69 (Classified Waters) and, where applicable, 24A S.C. Code Ann. Regs. 61-47 (Shellfish) (Supp. 1998). In addition to the standards imposed by statutes and regulations, OCRM applies the policies set forth in the Coastal Zone Management Program (CZMP) document to all critical area permit applications. Within the CZMP are policies for sites designated Geographic Areas of Particular Concern (GAPC) which, when found to exist in proximity to a proposed permit site, trigger additional review criteria.

Petitioner and the intervenors (collectively referred to as "opponents") raised areas of opposition to this marina project: 1) adverse impacts to the Cainhoy Historic District; 2) adverse impacts to water quality in the Wando River; 3) adverse impacts to adjacent property owners; and, 4) adverse impacts to navigation in a tributary to the Wando near the marina site.

More specifically, the opponents of the project claim a dry stack marina, with its storage buildings and the noise and traffic it will generate, will degrade the Cainhoy Historic District; that OCRM did not properly consider and apply the CZMP policies as they relate to this GAPC; and that OCRM improperly relied upon the South Carolina Department of Archives and History's (A&H) final written comment on the application.

As to water quality, the opponents contend that the existing boatyard and docks can not properly be considered a marina, that the regulations prohibit the establishment of a new marina in the Wando River because the river is classified as shellfish harvesting waters (SFH), and that DHEC improperly placed a shellfish harvesting closure zone around the existing facility.

The opponents contend that for the same reasons they believe the Cainhoy Historic District will be negatively affected, adjacent property owners will have their life styles disrupted and their property values lowered if the marina is constructed. Finally, the opponents suggest that public navigation in a small tidal creek that flows into the Wando River near the location of the proposed docks for the marina will be blocked by those docks.

Cann-Hal asserts that its property has historically been used as a boatyard and was in use as a boatyard when the Cainhoy Historic District was created; that its continued use as a commercial boatyard has not disrupted or negatively impacted the Historic District; and, that conversion of the facility to a combination dry stack and wetslip marina will result in a quieter, cleaner business which will improve the enjoyment and value of its neighbors' properties without degrading water quality or navigation.

DHEC (the Bureau and OCRM) contends the statutes, regulations and CZMP policies were correctly applied to the review of this application, that all relevant concerns were considered, and that the permit, as conditioned, was properly issued.

Opponents argue that the operation of a marina at the boatyard site will cause an increase in traffic and noise, particularly on weekends, an increase in boat traffic in the Wando River, and visual impacts to their property from the construction of the buildings needed to store up to 360 boats. These conditions, they believe, will result in a reduction in their property values and in their enjoyment of their properties.

The opponents are also concerned that the marina noise will be in addition to, and not substituted for, the existing noise generated by the boatyard. They contend they will still have the boatyard noise during the week and now will have to endure the marina noises at night and on the weekends as well. Dedication of the high ground to boat storage sheds will necessarily limit the areas available for boat repairs, thus decreasing to some level that activity. Also, according to Cann-Hal, the do-it-yourself repair work will cease.

Additionally, several witnesses raised concerns that a marina at this location would result in 360 more boaters on the Wando River with the concomitant noise, boat wakes, and water and visual pollution. These witnesses all recounted how they had relocated to the Cainhoy area to escape the traffic and congestion of more crowded areas.

It is highly unlikely, even if the marina is built to its full 360 boat capacity and achieves 100% occupancy, that all 360 boat owners will use their boats on the same day or that, once launched, they will simply hover in the vicinity of Cainhoy. There was no testimony tending to establish that the users of this marina will operate their watercraft in an unlawful manner or in a manner differently than that of the witnesses testifying. There will be, however, an increase in traffic and activities on the weekend which the neighbors do not currently experience. This activity would be disruptive to the Cainhoy Historic District and the neighboring residents as it will increase traffic on the weekends and summer months. Opponents also, fear, despite assurances from Cann-Hal, that the hours of operation of the facility will extend into the late evening or early morning hours.

Finally, it is questionable whether OCRM can factor traffic impacts into a marina (or other critical area) permit even assuming information on the issue was provided. Traffic impacts typically flow from land use and planning decisions undertaken by local government, and these types of arguments are issues more properly brought before those bodies when development proposals are presented to them. However, OCRM is authorized to consider the impacts the proposed marina will have on the enjoyment of adjacent property owners as well as the impacts on the Historic District. Therefore, I find it appropriate to add the conditions referenced in this Order to minimize the negative impact on adjacent property owners. See S.C. Code Ann. § 48-39-150(A)(10) (Supp. 1998).

Finally, the Bureau was aware of the proposed uses and numbers when it reviewed this project and it certified that there was a reasonable assurance that existing classified water uses would not be impaired and that existing water quality standards would not be violated as a result of the uses authorized by this permit. There is nothing in the record made by the opponents to warrant reversal of that finding. I find and conclude, however, that it is appropriate and necessary to require Cann-Hal to cease operation of its boat repair facility, other than limited repairs incident to marina operations, as an added condition of the permit. This condition should prevent excessive noise that adjacent property owners would have to endure. In addition, in light of the effect the marina will have on the enjoyment of adjacent property owners, the following conditions should also be added to Cann-Hal's permit: (1) access to the marina shall not be through the Historic District; (2) the number of boats in the dry stack marina shall be limited to 150 due to the limited space available for the parking of vehicles; (3) the location of the dry stack marina must be the farthest point away from adjoining land owners; (4) the hours of operation reflected in the O & M manual must be modified to reflect hours of operation from 8 a.m. to 8 p.m. on summer weekends and 8 a.m. to 5 p.m. on summer weekdays and during winter. See S.C. Code Ann. § 48-39-150(A)(10) (Supp. 1998).

I make the following Findings of Fact, considering the burden of the parties to establish their respective cases by a preponderance of evidence and taking into account the credibility of the witnesses:

1. Cann-Hal proposes to construct a combination dry stack and wet slip marina on property adjacent to the Wando River in Cainhoy, South Carolina, which is presently the site of Halsey-Cannon Boatyard, a full service commercial boat repair business⁽³⁾. This property has been used, with only short and intermittent interruption, as a boat repair yard since the 1940's.

2. The village of Cainhoy traces its roots to colonial South Carolina when it was a ferry landing connecting the interior of Berkeley County with the City of Charleston. The Cainhoy Historic District was created upon nomination by the S.C. Department of Archives and History (A&H) in the early 1980's based upon the history of the area as an early ferry landing and river port as well as architecture of approximately eight buildings within the defined area of the district. The district also encompasses properties designated as "non-contributing" properties, including the Halsey-Cannon Boatyard.

3. Since 1981, OCRM⁽⁴⁾ has had at least four occasions to consider permit actions at the Cann-Hal site. In 1981, a permit was issued authorizing construction of a commercial dock in conjunction with a proposed seafood processing plant to be constructed on the highground. In 1985, a second permit was issued for dredging and construction of piers for a "travel lift" to remove boats from the water for repairs on the high ground. Both of these permits were issued and upheld following administrative appeals brought by Mr. John Sanders, Jr. In addition, both of these permits were amended at least once each by OCRM.⁽⁵⁾

4. In the Wando River at the Halsey Cannon Boatyard site there presently exists, in addition to a marine railway apparently constructed in the 1940's and the travel lift piers, 145' of floating dock attached to a fixed walkway of 125', with a"T" floating dock of 65' at the end. The boatyard has approximately seven acres of highground on which there is a two-story metal office building with a slightly higher building adjacent to it in which certain boat repair work is done. At any one time there are approximately 30-40 boats undergoing repair or tied up to the docks. The boats being repaired are mostly large vessels 30' in length or greater and include sailboats with fixed mast extending 40' and more into the air. Boat repair services provided include sandblasting, scraping, painting and engine repair. While the Boatyard advertises as being open 24 hours a day, seven days a week, typical operations are Monday-Friday from 7am to 6pm.

5. Immediately across the Wando River from Cainhoy is Detyens Shipyard, a ship repair facility that works primarily on large vessels such as those of the U. S. Navy and Coast Guard. Residents of Cainhoy acknowledge that lights and noise from this facility are discernible at their properties, often well into the night.

6. The access to the boatyard is through Fogarty Lane, a twelve-feet wide road partially paved and partially unimproved, which also leads into the Historic District. A second road to the Boatyard is further down Fogarty Lane and within the Historic District.

7. Since the Cainhoy Historic District was created in 1982, at least two of the eight structures listed in the nomination form as contributing to the integrity of the site are no longer in existence, and a third is in such a state of disrepair that its structural integrity is in question. Another historic building owned by the intervenor Sanders had been altered in the form of additions to the structure, changes in windows and the addition of vinyl siding.

8. Despite these changes, the Historic District is worthy of protection.

9. The village of Cainhoy and its surroundings have obviously undergone tremendous growth in recent years with the completion of the Mark Clark Expressway (Interstate 526) and the opening of nearby Daniel Island to development. The access road to Cainhoy, Clements Ferry Road, is undergoing rapid development, both commercially and industrially, and truck traffic has become quite heavy. In addition, residential subdivisions such as St. Thomas Point have grown up along the banks of the Wando River in this area.

10. An area listed on the National Register of Historic Places, or nominated for listing, is considered to be a Geographic Area of Particular Concern (GAPC) for purposes of OCRM's permitting review and process.

11. In accordance with S.C. Code Ann. § 48-39-80(B)(4), OCRM is required to "inventory and designate areas of critical state concern within the coastal zone, such as port areas, significant natural and environmental, industrial and recreational areas." This has been accomplished through the identification of GAPC's in the CZMP.

12. OCRM regulations at 23 S.C. Code Ann. Regs. 30-11(C)(3), require OCRM to consider "the extent and significance of negative impacts on Geographic Areas of Particular Concern (GAPC). The determination of negative impacts will be made by the Department in each case with reference to the priorities of use for the particular GAPC."

13. "Areas of Special Historic, Archeological or Cultural Significance" is a category of GAPC, found at IV-22 of the CZMP. This category includes sites that are on or eligible for listing on the National Register and encompasses the Cainhoy Historic District.

14. In reviewing permit applications for projects that have the potential to affect sites on the National Register, OCRM is required to protect an established priority of uses for the GAPC. The highest priority for sites eligible or on the National Register is "uses which preserve the historical or cultural values for which the site was placed on the National Register." IV-25, CZMP.

15. OCRM has an established practice of consulting with the South Carolina Department of Archives and History, and the Institute of Archeology and Anthropology, to determine whether a project will negatively impact a historic site. To memorialize this practice and procedure, these three resource and regulatory entities executed a Memorandum of Agreement (MOA) in 1996 governing their coordination and review of applications for property in proximity to such sites.

16. As noted above, in the procedural history of this matter, at least four permitting actions have occurred relative to this site since 1981. Any of these actions since the time of the nomination in 1982 would have triggered review, through public notice procedures and later through the MOA, of impacts to the Cainhoy Historic District. At no time between 1982 and the review of the 1997 application has A&H, or the Institute of Archeology and Anthropology, contended any of the activities or projects would result, or has resulted, in negative impacts to the Historic District.

17. These permits and their amendments affected the critical area more than this permit which affects the critical area and a large portion of the highground because of the proposed construction of the drystack marina.

18. Several letters were exchanged between A&H and OCRM regarding Cann-Hal's 1995 application and 1997 application. On September 15, 1997, A&H issued its final comment to OCRM on this permit, and stated the following:

In summary, this project still has the potential to affect the historic district. We have no objection to the issuance of the permit, because this will allow continued operation at an existing facility. However, we would like to make that opinion contingent on the opportunity to review and comment on the effects of the landscaping plans and the traffic study when these are available.

(emphasis added).

19. Two employees of A&H who were involved in the review of this application were of the opinion that this project would not negatively or adversely effect the Historic District.

20. According to the letter from A&H, construction of a dry stack marina would not be a detriment to the historic and cultural values for which the Historic District was listed on the National Register. Activity that would negatively impact the Historic District is any activity that significantly altered or destroyed individual structures within the historic district.

21. In making its determination that there would be no negative impact on the District, A&H took into account the fact that there had always been some type of commercial use at the boatyard site, and that one of the characteristics that led to the nomination was the use of the waterfront.

22. A&H did not require Cann-Hal to prepare a traffic study or submit a landscaping plan. However, if such plans had been required by the City of Charleston, A&H wanted to review and comment on traffic and landscaping during the process of reviewing this project through City zoning standards.

23. OCRM has no history of requiring applicants to submit landscaping plans to reduce visual impacts, or in requiring traffic studies in order to determine impacts. While OCRM will consider any information provided to it during the public notice and review period and prior to acting on an application, vehicular traffic and landscaping are activities that normally occur on the high ground, outside of OCRM's direct permitting jurisdiction.

24. OCRM made numerous visits to the site, and observed the current operations of the Halsey-Cannon boatyard. OCRM conducted a public hearing and made a record of the concerns of surrounding property owners. OCRM visited the Cainhoy Historic District. OCRM consulted with the experts in this State, the Institute of Archaeology and Anthropology, and the Department of Archives and History, regarding this project's potential for impacts. OCRM has engaged in a lengthy history of reviewing alterations at this site.

25. The historic and cultural values which made the Cainhoy Historic District worthy of being nominated and listed on the National Register of Historic Places, and entitled to heightened protection, are the values associated with having a number of structures integral to an 18th or 19th century village intact. These values are not adversely impacted by the conversion of a portion of the adjacent Halsey-Cannon boatyard into a dry stack marina facility.

26. The Wando River in the vicinity of the Halsey Cannon Boatyard is presently classified as shellfish harvesting (SFH) waters by DHEC. Prior to creation of the designation SFH for waters open to shellfish harvesting, such waters were classified as SA. The Wando River was first classified as SA in 1988. Before being reclassified as SA waters in 1988, the Wando River bore a classification that restricted shellfish harvesting⁽⁶⁾.

27. In waters designated SFH (and prior to that, SA), DHEC determines if there are any discharges or activities which present a potential for risk to humans from consumption of contaminated shellfish. If such an activity or discharge is found, DHEC establishes a closure zone around the activity or discharge for some distance based on various assumptions and calculations.

28. When the Wando River was reclassified as SA, DHEC established a 1000' closure zone around the Detyens Shipyard; however, DHEC failed to establish a closure zone around the Halsey Cannon Boatyard even though it was in operation and the docking facilities were in place.

29. The existing Halsey Cannon Boatyard dock has more than 200 linear feet of docking space used for mooring boats and is capable of mooring more than ten boats. In addition, the existing Halsey Cannon Boatyard dock is used for maintenance and repair services.

30. Both the Bureau and OCRM determined that the existing Halsey Cannon Boatyard dock and the uses allowed by the previous permits renders the facility an existing marina.

31. Prior to submitting the application for this permit, Cann-Hal met with DHEC to determine if there was, or should be, a closure zone around the existing facility. As a result of this inquiry and DHEC's subsequent investigation of the existing facilities and the permits authorizing their construction (all of which pre-dated the reclassification of the Wando River), a 200' closure zone was established around the existing boatyard. The size of the closure zone was based, in part, on DHEC's determination that the existing dock space could moor twenty boats.

32. Establishment of a closure zone, in and of itself, is not an indication that water quality has been, or will be, degraded by a particular activity. Rather, it constitutes a recognition that activities will take place which have the potential to impact water quality and, due to the presence of shellfish and the potential for them being harvested and consumed in conjunction with such an incident, considerations of public health mandate the closure zone.

33. The proposed construction of the additional docks within the footprint of the existing dock structure and the restriction of the permit to no more than twenty permanent boat berths would not require the expansion of the existing closure zone.

34. Almost one half of the 37 special conditions placed on this permit are designed to protect water quality and were the result of the Bureau's water certification analysis as well as the empirical knowledge and expertise gained by OCRM and the Bureau in dealing with marina issues over the years.

35. Despite testimony relating to the flushing characteristics of the Wando River, there is no substantive evidence to establish that the operation of this marina in the manner permitted would result in a degradation of the quality of the Wando River waters.

36. There is a reasonable assurance that construction of docks and operation of a combination wet slip and dry storage marina at the Halsey-Cannon Boatyard site will be conducted in a manner which will not violate applicable water quality standards regulations.

37. The issued permit shows three floating docks extending at approximately 120 degree angles from the existing floating dock. The most landward of these floating docks had the potential to block navigation of a small creek at the point where it flowed into the Wando River.

38. Measurements were taken at and around the mouth of the creek in order to determine if there was a change in depth and a discernible channel. In addition, measurements from the mouth of the creek to the staked location of the floating dock were taken. According to OCRM's findings, the distance from the mouth of the creek to the landward most floating dock was ninety feet. No discernible channel was found.

39. Based on this investigation, OCRM concluded that navigation from the small creek to the Wando River was facilitated by the separation of ninety feet. However, to insure that there were no adverse navigational impacts, the size of the most landward float was decreased to 110 feet, thus allowing 140 feet distance between the mouth of the creek and the floating dock for navigation.

40. The condition limiting the size of the most landward floating dock to 110 feet is sufficient to protect against any possible navigational obstruction resulting from this project.

41. The boatyard currently has approximately 25 employees who enter and leave the boatyard each day. Delivery trucks arrive daily. A number of boats are stored at the boatyard and the owners perform their own repairs and thus come to the boatyard for those purposes.

42. Boats on trailers and large trucks have had problems gaining access to the marina because of the narrow Fogarty Lane and the right turn required to gain access.

43. As the marina storage buildings are constructed, there will be, of necessity, less land available for storing and repairing the large vessels currently being serviced at Halsey-Cannon. The principals of Cann-Hal have expressed their desire to move from a boat repair business to a marina/storage type of operation with only the limited repairs normally associated with marinas. One of the first steps in this conversion will be the elimination of the do-it-yourself repair opportunity now offered. Also, with fewer boats to repair fewer employees will be needed and fewer deliveries will arrive. Thus, some reduction in the current level of traffic can be expected from the boatyard operations.

44. On the other hand, persons wishing to use their boats stored at the marina will increase traffic to the area particularly on weekends, holidays and during the warm weather months.

45. Daniel Island Marina is a dry stack/wet slip marina in a tributary to the Cooper River approximately six miles from the Halsey-Cannon Boatyard. The parties, their counsel, and the Court visited this marina. It is representative of the type of facility Cann-Hal intends to operate. Daniel Island Marina has 44 wet slips and dry storage capacity for 300 boats; at the time of the hearing, 245-247 of the dry slips were occupied.

46. Documents which indicate the usage of stored boats by their owners at the Daniel Island Marina for the period November 1997-October 1998 were submitted. The greatest use of stored boats occurred on weekends during the summer months. Spring and fall were the next highest use months, again with weekends and warm weather being the dominant factors. December - February are periods of low boat usage. Throughout the year, there are a number of days when no boats at all are moved from storage.

47. There will clearly be increased traffic at the boatyard on summer weekends. There is no indication that the relative average of traffic will increase significantly from this changed use.

48. There is insufficient parking area to accomodate the number of vehicles which may utilize a 360 dry stack and 20 wet ship marina.

49. The increased noise concerns expressed by the opponents primarily relate to the starting of boat motors, both before and after the boats are placed in the water, the sounds of the fork lift used to retrieve and store boats, and the noise of the boat owners and their guests. These concerns are heightened because of the statement in Cann-Hal's Operation and Maintenance Manual⁽⁷⁾ that the marina will be full service and open twenty-four hours a day.

50. It is Cann-Hal's intentions to have hours of operation similar to that at the Daniel Island Marina as testified to by Mr. Miller; those hours were stated by Mr. Miller to be from 8am-5pm during the winter and 8am-5pm during summer weekdays and 8am-8pm on summer weekends. The Operations and Maintenance Manual states that the marina will be open 24 hours a day.

51. Cann-Hal's O&M manual has been made a part of the permit by special condition 3. Under special conditions 2 and 3, OCRM must review the O&M at least every five years, and earlier if warranted. OCRM can require amendment of the O&M, and Cann-Hal can request OCRM approval of amendments. Finally, the O&M "must be...revised to keep it up-to-date with existing...operations." Special condition 3.

52. Mr. Sanders and his father, along with a witness, Mr. Smoak, live immediately adjacent to the Halsey-Cannon Boatyard and expressed their objections to the proposed boat storage building. It is their belief that the storage building will be a four hundred foot long, forty foot high structure built almost directly on the property lines separating them from the boatyard property. As a result, they claim, this building will block the breeze and late afternoon sun, ruining their views and the enjoyment of their homes.

53. The location of a drystack building located off of the property line of Mr. Smoak would adversely affect his enjoyment. There are other locations on the property available for such a building.

54. The building should be located away from adjoining residential property.

55. Although the proposed location of the building is on high ground, OCRM is authorized by S.C. Code Ann. § 48-39-150(A)(10) (Supp. 1998) to impose appropriate conditions on the permit to minimize the negative impacts on adjacent property owners.

56. Both Petitioner and Respondent presented expert testimony of certified real estate appraisers. Petitioner's expert opined that the values of properties in the vicinity of the boatyard would decline anywhere from 25%-43% as a result of the proposed marina. Cann-Hal's witness expressed his opinion that construction and operation of a dry stack marina at the boatyard would have no impact on surrounding property values.

57. After careful consideration of both experts' testimony and the reports they prepared, I find that the marina will have very little negative impact on the property values.

58. Petitioner's expert's opinion was based upon his comparison of residential property values in two subdivisions in Rockville, a small fishing village in southern Charleston County. One subdivision is on a road that leads to a small boatyard and marina and the other has no marina traffic. Lots on the non-marina road appear to be higher than in the other subdivision. However, there could have been other factors leading to this discrepancy in value including elevations of the lots, whether wetlands exist on the lots, the availability of water and sewer or the suitability of the lots for septic systems. Most importantly, there was no evidence as to the value of the lots before the marina/boatyard was located there (if in fact it post-dated the residential lots). Many people desire to live around marinas, and there are a number of very expensive condominium/residential properties in Charleston County that have been built in conjunction with marinas.

59. Most significant on this point, a boatyard already exists in this community, and it has existed for a number of years. It is not difficult to conclude that this industrial use has had less than a positive impact on property values in the neighborhood. Petitioner has not persuaded this Court that a dry storage marina at this site, even if it is in conjunction with the boatyard rather than a replacement of it, will measurably contribute to a decline in property values.

CONCLUSIONS OF LAW

Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of law:

1. The Administrative Law Judge Division has contested case jurisdiction to hear this matter pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 1997), S.C. Code Ann. § 48-39-150 (Supp. 1997), and 23A S.C. Code Ann. Regs. 30-6(B) (Supp. 1997) ("Any person adversely affected by the Department staff's initial permitting application decision has the right to file a request for a contested case hearing before an administrative law judge").

2. In a contested case proceeding, "the ALJ is not sitting in an appellate capacity and is not restricted to a review of the decision below. Instead, the proceeding before the ALJ is in the nature of a de novo hearing." Reliance Ins. Co. v. Smith, 327 S.C. 528, 489 S.E.2d 674, 677 (Ct. App. 1997).

3. In weighing the evidence and making a decision on the merits in a contested case, the proper standard of proof to be applied is a preponderance of the evidence. Anonymous (M-156-90) v. State Bd. of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998).

4. Findings of fact based upon a preponderance of the evidence are those supported by the greatest "weight, amount, credibility or truth" as reflected by the whole of the evidence before the court. Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225, 235 (1955).

5. The trier of fact must weigh and pass upon the credibility of evidence presented. See S.C. Cable Television Ass'n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992).

6. As "the party seeking the aid of the judicial process to advance its position, the Petitioner carries the burden of proof." Alex Sanders, Deborah Neese, and John S. Nichols, Trial Handbook for South Carolina Lawyers § 9:1 at 9-1 (1994). The burden of proof in the strict sense "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.

7. "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of opinion or otherwise." Rule 702, SCRE.

8. An expert is granted wide latitude in determining the basis of his or her opinion. Where an expert's testimony is based upon facts sufficient to form the basis for an opinion, the trier of fact must weigh its probative value. Small v. Pioneer Machinery, 494 S.E.2d 835, 329 S.C. 448 (1997); Berkeley Elec. Coop. v. South Carolina Public Serv. Comm'n, 304 S.C. 15, 402 S.E.2d 674 (1991).

9. The trier of fact is not compelled to accept an expert's testimony, but may give it the weight and credibility he determined it deserves and may accept the testimony of one expert over another. S.C. Cable Television Ass'n. v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992); Florence County Dep't of Social Servs. v. Ward, 310 S.C. 69, 425 S.E.2d 61 (Ct. App. 1992).

10. In any decision to grant or deny a coastal zone permit, OCRM exercises significant discretion. See 1 Am. Jur. 2d Administrative Law § 118 (1962). In exercising that discretion, OCRM must apply its statutory principles in a reasoned judgment supported by a rational basis; to do otherwise would produce an arbitrary decision. Cf. Deese v. State Bd. of Dentistry, 286 S.C. 182, 332 S.E.2d 539 (Ct. App. 1985).

11. S.C. Code Ann. § 48-39-130(C) requires a person to obtain a permit for any alteration of the "critical area" of the coastal zone.

12. S.C. Code Ann. §§ 48-39-10 et seq. (1987 & Supp. 1997) and 23A S.C. Code Ann. Regs. 30-1 through 30-20 (1976 & Supp. 1997) govern the issuance of permits in the coastal zone.

13. In issuing this permit, OCRM satisfied the regulatory and statutory requirements, found in S.C. Code Ann. § 48-39-150 (Supp. 1998) and Regulation 30-11, to consider and avoid adverse impacts to Geographic Areas of Particular Concern. In this case, with the specified conditions to the permit, there will be no adverse impacts of this project on the Cainhoy Historic District.

14. The priority of uses established for protection and preservation of areas of historic importance, and provided for in Chapter IV of the Coastal Zone Management Document, are not impacted by this project.

15. OCRM regulations define a marina as "any of the following: (a) locked harbor facility; (b) any facility which provides fueling, pump-out, maintenance or repair services (regardless of length); or (c) any facility which has permanent docking space of greater than 200 linear feet." 23A S.C. Code Ann. Regs. 30-1C(14) (Supp. 1998).

16. DHEC Shellfish regulations define a marina as "any water area with a structure (docks, basin, floating docks, etc.) which is: 1) used for docking or otherwise mooring vessels; and, 2) constructed to provide temporary or permanent docking space for more than ten boats, or has more than 200 linear feet of docking space." 24A S.C. Code Ann. Regs. 61-47A(2)(u) (Supp. 1998).

17. OCRM regulations prohibit marinas in waters classified for shellfish harvesting if they will require the establishment or expansion of closure zones. 23A S.C. Code Ann. Regs. 30-12E(3). (Supp. 1998).

18. The existing dock structure at the Halsey-Cannon Boatyard, and the uses to which those docks are put, support the conclusion that the facility constitutes an existing marina as defined by 23A S.C. Code Ann. Regs. 30-1C(14) and 24A S.C. Code Ann. Regs. 61-47A(2)(u) (Supp. 1998).

19. The South Carolina Department of Health and Environmental Control has jurisdiction to review this project pursuant to 33 U.S.C.A. §1251, et seq. and Regulation 61-101, and DHEC's Bureau of Water properly established a shellfish harvesting closure area around the existing dock facility.

20. The construction, operation and uses allowed by the issued permit will not result in the establishment or expansion of a shellfish closure zone.

21. There is a reasonable assurance that construction of docks and operation of a combination wet slip and dry storage marina at the Halsey-Cannon Boatyard site will be conducted in a manner which will not violate applicable water quality standards regulations, and the South Carolina Department of Health and Environmental Control correctly so concluded.

22. OCRM gave proper and sufficient consideration to the requirement in S.C. Code Ann. § 48-39-150(A)(2) and (5) and Regulation 30-11B(2) and (5) to protect navigation and public access to navigable waters by reducing the length of the most landward dock.

23. It was appropriate for OCRM, in considering the extent of impacts on the value and enjoyment of adjacent owners, to give consideration to past permit decisions relative to this site and to current and existing uses on the property.

24. Issues related to traffic, landscaping and location of upland structures are relevant to the consideration of the impacts the proposed project will have on adjacent property owners. Therefore, conditions imposed on the permit to minimize adverse impacts on adjacent owners are appropriate. This includes amendments to the Operations and Maintenance Manual submitted as part of the application. This consideration alone, however, is not sufficient to justify denial of the permit.

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

ORDERED that Cann-Hal permit P/N # 97-1B-121-P issued by OCRM is modified to add the following conditions:

(1) the hours of operation reflected in the O&M manual must be modified to reflect hours of operation from 8 a.m. to 8 p.m. on summer weekends and 8 a.m. to 5 p.m. on summer weekdays and during winter;

(2) the number of boats in the dry stack marina is reduced to 160;

(3) the location of the dry stack marina must be the farthest point away from adjoining residential land owners;

(4) Cann-Hal shall cease operation of its boat repair facility, other than limited repairs incident to marina operations; and

(5) access to the marina shall not be through the Historic District.

AND IT IS SO ORDERED.

_________________________________

ALISON RENEE LEE

Administrative Law Judge

March 5, 1999

Columbia, South Carolina.

1. 33 U. S. C. A. §1251.

2. Intervenor status was denied to approximately 45 other individuals who sought intervenor status based upon this Court's decision that their petitions raised no additional matters and that their interests would be adequately protected by those already parties to the appeal. See, Order, April 7, 1998.

3. An earlier application by Cann-Hal submitted in 1995 was withdrawn prior to a decision being reached by any of the regulatory agencies. The permit under appeal is based upon an application submitted in 1997.

4. Including its predecessor, South Carolina Coastal Council.

5. The amendments dealt with converting portions of a fixed pier to floating dock, extending the length of the travel lift piers into the river to eliminate dredging needs and changes in use to convert from a seafood operation to boat storage and repair.

6. On January 8, 1996, the South Carolina Department of Natural Resources advised the Corps of Engineers and OCRM in response to the 1995 application, "Intertidal shellfish resources at the site were found to be minimal, with the majority of the living resource growing on rip-rap and in poor condition. The overall suitability of the site for shellfish propagation is considered poor." Respondent's (OCRM) exhibit 1.

7. An Operations and Maintenance (O&M) manual is required to be submitted by all applicants for marina permits and must be provided to and reviewed by OCRM before the application will even be placed on public notice. OCRM marina regulations spell out the items which must be addressed in an O&M manual. See 23A S.C. Code Ann. Regs. 30-12E(6).