South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Jeffrey Pierce vs. SCDHEC et al.

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Jeffrey Pierce

Respondent:
South Carolina Department of Health and Environmental Control, Bureau of Ocean and Coastal Resource Management, and John P. Gillies and Gabrielle G. Gillies
 
DOCKET NUMBER:
98-ALJ-07-0053-CC

APPEARANCES:
Stanley C. Rodgers for Petitioner Nielsen

John P. Kassebaum, II for Respondent, OCRM

Christopher McG. Holmes for Petitioner/Respondent Pierce

Frank M. Cisa for Respondent Gillies
 

ORDERS:

FINAL DECISION AND ORDER

STATEMENT OF THE CASE

These contested cases arise from two permit decisions of the South Carolina Department of Health and Environmental Control - Office of Ocean and Coastal Resource Management ("Department" or "OCRM") on applications by the Petitioner/Respondent Pierce ("Pierce") to construct a private dock from property he owns adjacent to a tidal creek and the Atlantic Intercoastal Waterway (AIWW) in Awendaw, Charleston County, South Carolina. Petitioner Nielsen ("Nielsen") is Pierce's adjacent property owner to the north and the Respondents Gillies (" The Gillies") are the adjacent owners to the south.

Pierce initially applied to OCRM for a permit to construct a private dock in the AIWW. The Gillies objected to a dock upon the Intercoastal Waterway. The AIWW application was thereafter modified during the public comment period to show a dock to the tidal creek. After the tidal creek permit(1) was issued by OCRM, Nielsen and other neighbors appealed that decision. Subsequently, the parties to that appeal requested that it be dismissed with leave to restore within ninety days. A Consent Order granting this request was issued on September 11, 1997. Pierce then reapplied for a dock to the AIWW. This permit request was denied by OCRM on January 6, 1998.(2) Pierce filed an appeal of the denial, and the Gillies filed a Motion to Intervene which was granted. The Nielsen appeal(3) of the issued permit was restored to the docket, and on April 3, 1998, following motion and hearing, an Order consolidating the two cases for hearing was issued. The contested case hearing commenced on May 1, 1998 and concluded on July 10, 1998.

DISCUSSION

Permits for the construction of private docks in the coastal zone(4) are governed by the South Carolina Coastal Zone Management Act, S.C. Code Ann. §48-39-10 et seq. (Supp. 1997), and the regulations promulgated pursuant thereto, S.C. Code Regs. 30-1 et seq. (Supp. 1997). There are general statutory and regulatory policies governing all permit decisions and specific project standards for docks and piers. The latter are found at S.C. Code Regs. 30-12A.

Jeffrey Pierce owns lots 12 and 12A in the Romain Retreat subdivision, Awendaw, South Carolina. The property is bounded on the north by lot 11 owned by Robert Nielsen and on the south by lots 13 and 13A owned by John and Gabrielle Gillies. The Pierce property is waterfront property. A tidal creek runs in front of Pierce's property from north to south and is approximately 20 feet wide. Pierce's property is unusual from a dock permitting standpoint in that there is the potential for three possible dock alignments to three different bodies of water. One alignment extends to the Atlantic Intercoastal Waterway (AIWW), another is the tidal creek and the third is a small tributary which runs from the tidal creek towards the Pierce-Nielsen property line. OCRM-97-118-I permits a dock to the tidal creek. Permit number 97-1E-329-P which proposed a dock to the AIWW was denied. OCRM determined, upon a review of the file and site visits, that the AIWW permit would cross over the Gillies' private property. However, OCRM was not aware of the concerns as to the tidal creek dock raised by Nielsen until after that permit had been issued.

Pierce contends that he can align and build a dock in compliance with OCRM's regulations to the AIWW so that it does not trespass upon the Gillies' privately owned high ground or any areas of the Gillies' marsh lot which lie above the mean high-water mark. He contends that a dock to the AIWW has greater utility and imparts greater value to his property than does a dock to the tidal creek.

Nielsen contends that a dock permitted to the tidal creek presents a safety hazard due to the narrowness of the channel in this creek, the location of the dock on a bend in that creek, and the velocity of rising and falling tides entering and exiting the creek. He also contends that an oyster bed in the tidal creek would be negatively impacted because boaters navigating the creek would be forced by the location of the pierhead to travel near the opposite bank where the bed is located. While Nielsen does not oppose the AIWW dock, he believes a tidal tributary much closer to Pierce's property is a more reasonable location for Pierce to build a dock.

The Gillies oppose any AIWW dock alignment which results in a trespass of their private property, crosses their marsh lot, or crosses their extended property lines. They also oppose the AIWW dock location because it will interfere with their view of the waterway from their home and property.



FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion by the parties, I make the following Findings of Fact by a preponderance of evidence:

General Findings

1. Pierce, Nielson, and the Gillies are residents of the Romain Retreat Subdivision in Awendaw and all own lots adjacent to the marsh and creeks along the AIWW. Romain Retreat was developed subject to recorded restrictive covenants and platted lots. All three of the individual parties are water front lot owners under OCRM guidelines. The water front lots in Romain Retreat were granted by way of fee simple deeds to high ground surveyed to the 5' mean high-water contour and quit claim deeds to designated marsh lots adjacent to the high ground(5). The Gillies' marsh lot (designated lot 13-A on the plat) is bordered by the AIWW. Nielsen and Pierce's marsh lots (12-A and 11-A respectively) border on the tidal creek. Nielsen and the Gillies have docks from their properties. The Gillies' dock is constructed to the AIWW, and Nielsen's dock is located in the tidal creek.

On March 28, 1997, Pierce submitted a permit application to OCRM for the construction of a private walkway and pierhead to extend from his high ground property to the waters of the Intercoastal Waterway. The permit application was placed on public notice on April 11, 1997. John and Gabrielle Gillies objected to the dock as proposed based upon their claim they owned the intervening tidelands across which Pierce's dock walkway would have to be aligned to reach the AIWW. The Gillies did not object to locating the dock in the tidal creek. While Pierce believed a dock to the creek would have less utility than a dock to the AIWW, to avoid confrontation, Pierce agreed to change the alignment of his dock and requested that OCRM modify his permit application to reflect an alignment to the tidal creek directly in front of his property.

Permit number OCRM-97-118-I was issued with conditions on June 23, 1997, and accepted by Pierce on June 24, 1997. Adjacent property owners and other interested parties were notified of the permit's issuance and given 15 days to appeal. However, when notice of the tidal creek dock permit was received by Nielsen, he and other upstream neighbors of Pierce filed an appeal claiming a dock to the creek would create a safety hazard, impede navigation in that water body and result in environmental degradation to oyster beds and other marine resources. OCRM determined that no decision on the merits of the AIWW permit had been reached because Pierce had withdrawn that request. It was therefore concluded that if Pierce could align a dock to the AIWW so as to avoid an area of high ground in the marsh which appeared to be within the Gillies' extended high ground property lines and if the Gillies did not commence an action to quiet title to the tidelands, OCRM would issue a permit to the AIWW. Accordingly, the parties to the pending appeal agreed to request that this Court hold that action in abeyance while a new application was submitted.

In response to this new application and public notice, the Gillies restated their objections to the permit. While the Gillies did not pursue their claim of private ownership of the tidelands, they did supplement their response to OCRM with a survey prepared by Lewis Seabrook, a registered professional surveyor, purporting to show that the Pierce AIWW dock alignment would cross a portion of their marsh lot at a point above the mean high-water mark. Upon receipt of this survey, Richard Chinnis, OCRM's permit coordinator, returned to the site and walked across the marsh to the AIWW. Chinnis concluded that there was "no way" Pierce could align a dock to the AIWW without crossing over the Gillies' private property. Accordingly, OCRM notified Pierce that the permit was denied.(6)

2. All things being equal, OCRM prefers to permit docks to larger bodies of water because recent scientific evidence indicates that these docks have less of a deleterious environmental impact. Additionally, to the extent environmental damage is anticipated from construction and location of the docks, both the AIWW and tidal creek docks would have practically the same impact. However, a dock to the tributary advanced by Nielsen entails a more environmentally damaging alignment than a dock to the tidal creek or the AIWW.

3. S.C. Code Regs 30-2I provides a procedure by which adjacent landowners claiming ownership over critical areas in or over which a project is to be constructed may stay the processing of the permit application while that claim is pursued in the courts. Although notified of the availability of this process, the Gillies took no steps to establish private ownership of the tidelands between their high ground and the AIWW.

4. Phase I of Romain Retreat Subdivision was platted with corridors for the construction of docks relative to certain water front and marsh front lots including the Gillies and Pierce lots. Pursuant to the Declaration of Covenants for Romain Retreat Subdivision, the lot owner must apply to the Homeowners Association's Dock Committee for permission to construct a dock. Pierce's previous application to the Dock Committee for a permit to construct a dock to the AIWW was denied. The Homeowners Association will approve the construction of a dock only if the proposed dock lies within the lot owner's corridor. Pierce's proposed dock to the AIWW lies outside of his corridor and also crosses the extended property line of the Gillies. However, this Court lacks jurisdiction to resolve the above dispute.

Tributary Dock

5. The alternative dock location advanced by Nielsen is a narrow drainage area which extends from the tidal creek perpendicularly to the Pierce lot. Pierce's predecessor used this area as a launching spot for john boats and canoes, but no dock was ever constructed for these purposes. Since this use was discontinued, the marsh grass has grown into the tributary and therefore use of the tributary is now more constricted than when it was used on a regular basis.

The tributary is approximately the same depth as the tidal creek and would be usable at the same approximate tide stages as the creek. However, though the tributary is navigable, it is more accurately characterized as a "flooding corridor," and as such, a dock located in this tributary has much less utility than one located in either the tidal creek or AIWW. Furthermore, while the physical impacts of the AIWW dock and the tidal creek dock on the marsh are essentially the same, a dock to the tributary could have a greater "shading effect" on the marsh vegetation and, on that basis, might represent a "more damaging environmental alignment."



Tidal Creek Dock

6. The dock permit issued to Pierce allows a 4' x 295' walkway leading to a 10' x 12' pierhead and a single pile boat lift. Special condition number three provides that the dock's maximum channelward extension not exceed ¼ of the creek's width as measured from marsh grass to marsh grass. The pier is restricted to extending no more than a fourth of the way into the creek. This dock would be 65'-70' downstream (closer to the AIWW) of the Nielsen dock.

7. The tidal creek to which the dock permit has been issued is approximately 25' in width as measured from the marsh grass on each bank. However, the actual channel of the creek is only approximately 6'-8' wide. Due to water depths, the tidal creek is presently navigable for four hours on each side of the high tide cycle, or approximately 16 hours a day. In fact, the channel has two inches or less of water depth at low tide. Moreover, the channel in the tidal creek runs along the inside bank, at the point Pierce has been permitted to build a dock. Therefore, a dock which extends ¼ of the creek's width at this location will occupy a portion of the navigable channel and reduce navigation in the creek at least to some extent.

AIWW Dock

8. The proposed AIWW dock would have a 4' x 570' walkway with a 16' x 20' fixed pier. In addition, there would be a 16' x 20' floating dock attached to the pier by a 3' x 24' gangway and a four pile covered boat lift. This dock would be approximately 60' from the Gillies' dock. While the AIWW is undeniably navigable at all tide stages, docks are restricted to the banks of the waterway by the Corps of Engineers. Therefore, even a dock on the AIWW would have no water underneath it at low tide.

However, a dock in the AIWW would be usable approximately 20 out of every 24 hours. Furthermore, because of the width of the AIWW, a much larger fixed pier and floating dock can be permitted by OCRM at this location. Moreover, none of the navigation and safety concerns expressed in regard to the tributary or tidal creek docks would apply to a dock constructed to the AIWW.

Surveys

9. Lewis Seabrook, who surveyed the property for the Gillies, located the mean high- water mark on his survey by consulting the USGS quad map for this location which indicates an approximate tide range of 5'. From this information Seabrook extrapolated that the mean high-water mark would reach an elevation of 2.5' above mean sea level ("MSL"). Upon establishing a benchmark on the high ground, Seabrook then located a 2.5' MSL elevation in the marsh at several points and placed them on a prepared plat. However, Seabrook acknowledged he used an average of 2.5' MSL. In other words, some of the points he located were slightly less than 2.5' and others were slightly above that elevation. Seabrook also admitted that he could have placed his surveying pole 2-3 feet on either side of the point he selected and still have obtained the same elevation. The marsh vegetation is identical on either side of the line established by Seabrook as representing the mean high-water mark.

On the other hand, Chuck Dawley, who surveyed the property for Pierce, initially consulted the Corps of Engineers' office to obtain tide range data for this site. According to the information he received, the mean high-water mark at Moore's Landing (the nearest site where a tidal gauge is located and which is approximately three miles from Romain Retreat) would be located at an elevation of 2.8' MSL. Upon establishing a benchmark at the Pierce site to ascertain the 2.8' MSL elevation, Dawley proceeded to locate the mean high-water mark. Dawley did not rely solely upon the 2.8' MSL elevation to determine the mean high-water mark. In tidelands, vegetation can also be an indicator of mean high-water. Therefore, Dawley also used the break in vegetation from Spartina grass to bushier plants to determine the appropriate mean high-water mark. Based upon vegetation and Moore's Landing tidal gauge, Dawley located a mean high-water mark at an elevation of 3.04' MSL. Dawley's mean high-water line is approximately 40' closer to the high ground than Seabrook's.

Using the Dawley survey, it would be possible to align a dock from the Pierce's high ground in a straight line to the AIWW without crossing the above mean high-water mark on the Gillies' marsh lot. Even if the Seabrook survey is used to determine the mean high-water line it would be possible to align a dock from the Pierce's high ground in a straight line to the AIWW without crossing Seabrook's mean high-water mark on the Gillies' marsh lot. However, the walkway would have to commence at a point on the high ground closer than 20' to the common property line between Nielsen and Pierce.

I find that the mean high-water mark at Pierce's property is at an elevation of 2.8' MSL.

Conclusion

10. It appears that by using the elevation of 2.8' MSL as the mean high-water mark, Pierce can align a dock from his high ground to the AIWW in a manner that complies with OCRM regulations for dock construction. That alignment will potentially require that the Pierce dock begin at a point closer than 20 feet from Nielsen's extended property line. However, Nielsen does not object to Pierce constructing a dock at a location closer than 20 feet to their common property line.

11. In this case, each parties' contentions have some merit. Unfortunately, there simply is no resolution that will not detrimentally impact one of the parties to some extent. The use of both the proposed AIWW and tidal creek docks is limited. However, a dock to the AIWW would have more uses and could be larger than that which is allowable in the creek.

The Gillies oppose any crossing of their extended property line. The Gillies contend that construction of a dock to the AIWW would greatly impact their view. A dock to the AIWW will significantly cross the Gillies' extended property lines of the Gillies' high ground lot and is well in front of Gillies' corridor. Moreover, it appears that the Gillies reasonably expected to have an open view of the marsh and AIWW when they purchased their property. However, OCRM originally permitted a dock to the AIWW and believes the policies of its regulations are not violated by crossing the Gillies' extended property lines. In fact, in the absence of a Special Area Management Plan (SAMP), OCRM has never denied a private dock permit based solely on an adjacent neighbor's objections to impacts upon view. Furthermore, in addition to the Nielsen's dock, there are four other private docks upstream in the tidal creek which are used by nine or ten families. Navigation of the creek would be impeded if Pierce builds a pierhead upon the tidal creek extending one-fourth of the width of the creek.

12. The use of both the proposed AIWW and tidal creek docks is limited. While a dock to the Atlantic Intercoastal Waterway would allow Pierce to build a bigger structure compared to the tidal creek, he would gain little additional use due to lack of water depth in the waterway. However, a dock to the AIWW would have more uses than that which is allowable in the creek. Additionally, permitting a dock to the AIWW would eliminate the above navigation concerns. Furthermore, though the Gillies' view would be diminished, it certainly would not be spoiled. In fact, their dock is built to the northeast of their home. In other words, their view of a dock permitted to the AIWW from the Pierce property would also overlook their own walkway. Therefore, I find that based on the totality of the circumstances, the policies of the Coastal Zone Management Act would not be materially harmed by the construction of a private dock to the AIWW across the Gillies' extended property lines, provided that the dock does not cross the Gillies' high ground.



CONCLUSIONS OF LAW

Based upon the above Findings of Fact, I conclude as a matter of law the following:

1. The Division has jurisdiction over this matter pursuant to S.C. Code Ann. §1-23-600 (Supp. 1997) and S.C. Code Ann. § 48-39-150 (Supp. 1997).

2. The standard of proof in weighing the evidence and making a decision on the merits at a contested case hearing is a preponderance of the evidence. Nat'l Health Corp. v. S.C. Department of Health and Environmental Control, 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989).

3. Permits for the construction of private docks in the coastal zone are governed by the South Carolina Coastal Zone Management Act, S.C. Code Ann. §48-39-10 et seq. (Supp. 1997), and the regulations promulgated pursuant to those provisions, S.C. Code Regs. 30-1 et seq. (Supp. 1997).

4. The project in question is located in a critical area as defined in S.C. Code Ann. § 48-39-10 (Supp. 1997); 23A S.C. Code Regs. 30-1(C)(4) and (12) (Supp. 1997). Any person wishing to construct a dock in a critical area must apply for and receive a permit. The application must include, inter alia, a plan or drawing describing the proposed activity, a plat or copy of a plat of the area in which the proposed work will take place, and a certified copy of the instrument under which the applicant claims ownership or permission from the owner to carry out the proposal. S.C. Code Regs. 30-2(B).

5. Docks which would have the effect of impeding navigation or restricting the reasonable public use of State lands and waters cannot be permitted. S.C. Code Regs. 30-12A(2)(a); cf. S.C. Code Regs. 30-11B(2).

6. "The extent to which the proposed use could affect the value and enjoyment of adjacent owners" is a consideration to be made in determining whether or not to issue a permit. S.C. Code Ann. § 48-39-150(A)(10); cf. S.C. Code Regs. 30-11 (B). Enjoyment of view is a consideration under the penumbra of whether the permit affects "the value and enjoyment of adjacent owners." However, impact on view is not a compelling reason, in itself, to deny a permit application. See Hill v. The Beach Co., et al., 279 S.C. 313, 306 S.E.2d 604 (1983) (holding that there is no prescriptive right to an ocean view in South Carolina).

7. S.C. Code Regs. 30-12A(2)(n) sets forth that "[d]ocks must extend to the first navigable creek with a defined channel as evidenced by a significant change in grade with the surrounding marsh. Such creeks cannot be bridged in order to obtain access to deeper water." Regulation 30-12A(2)(n) is applicable in situations where navigable creeks are sought to be crossed in an effort to reach deeper water. However, Regulation 30-12A(2)(n) does not require docks to be built to the closest navigable creek to an applicant's property. Therefore, Regulation 30-12A(2)(n) does not require Pierce to build a dock to the tributary as suggested by Nielsen, or even to the tidal creek. Since a dock can be constructed to the AIWW or the tidal creek without crossing any intervening navigable creeks, S.C. Code Regs. 30-12A(2)(n) does not present an impediment to that permit.

8. "In the case of a tidal navigable stream the boundary line is the high-water mark, in the absence of more specific language showing that it was intended to go below the high-water mark, and the portion between the high and low water mark remains in the State in trust for the benefit of the public." State v. Hardee, 259 S.C. 535, 193 S.E.2d 497 (1972).

9. S.C. Code Regs. 30-12A(2)(p) provides that "[n]o docks or pierheads or other associated structures should normally be allowed to be built closer than 20 feet from extended property lines with the exception of common docks shared by two adjoining property owners. However, the Department may allow construction over extended property lines where there is no material harm to the policies of the Act . . . ." Furthermore, S.C. Code Regs. 30-12A(2)(e) allows consideration of alternative alignments for docks based on site specific characteristics. In light of these provisions, I conclude that allowing the construction of a private dock across extended property lines which will be visible to the adjacent property owner, absent any showing of adverse effects on the environment or upon navigation, does not result in material harm to any policies of the Coastal Zone Management Act.

10. S.C. Code Ann. § 48-39-30 (D) provides that "[c]ritical areas shall be used to provide the combination of uses which will insure the maximum benefit to the people, but not necessarily a combination of uses which will generate measurable maximum dollar benefits. As such, the use of a critical area for one or a combination of like uses to the exclusion of some or all other uses shall be consistent with the purposes of this chapter."

11. The size and extension of docks must be limited to that which is necessary for the intended use. S.C. Code Regs. 30-12A(2)(c).

12. Docks must use the least environmentally damaging alignment. S.C. Code Regs. 30-12A(2)(d).

ORDER

IT IS THEREFORE ORDERED that OCRM is to prepare and issue to Pierce a permit reflecting a dock alignment to the AIWW in keeping with the findings of fact made in this Order. Upon receipt of this permit, Pierce is to relinquish any rights to P/N # OCRM-97-118-I.

AND IT IS SO ORDERED.



__________________________

Ralph King Anderson, III

Administrative Law Judge

January 7, 1999

Columbia, South Carolina

1. P/N # OCRM-97-118-I.

2. P/N # 97-1E-329-P.

3. Only Nielsen perfected his appeal by filing a Prehearing Statement, and the other appellants were dismissed as parties. By Order dated February 9, 1998 (dismissal of parties).

4. Beaufort, Berkeley, Charleston, Colleton, Dorchester, Georgetown, Horry and Jasper counties. S.C. Code Ann. §48-39-10(B) (1976).

5. While generally (although not exclusively) treated as such by Romain Retreat homeowners, these marsh "lots" are not dock "corridors" created pursuant to a dock master plan as allowed by OCRM regulations. See, S.C. Code Regs 30-12A(3).

6. While the denial letter contains references to several statutory and regulatory policies of OCRM, Chinnis acknowledged at trial that the denial was based on his belief that the Pierce AIWW dock would cross the Gillies' private property.


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