SC Administrative Law Court Decisions

This matter comes before me upon request of Petitioner Chuck Mincey ("Petitioner") for a contested case hearing pursuant to S.C. Code Ann. § 48-39-150 (Supp. 1997) and S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1997). Petitioner opposes the application of Respondent Philip Cross ("Cross") for an amendment to an existing permit (OCRM-93-006) for a private recreational dock on and adjacent to Folly River at Lot 157B, Section VI, Sunset Point Subdivision, Folly Beach, Charleston County, South Carolina. The South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management ("OCRM") preliminarily approved the permit amendment application with conditions. A hearing was conducted at the Charleston County Courthouse in North Charleston, South Carolina, on July 20, 1998. Upon review of the relevant facts and applicable law, OCRM is ordered to grant the amendment to the permit with conditions as proposed.

Permit OCRM-93-006 was issued to Al Loftis for a private recreational dock on and adjacent to Folly River at Lot 157B, Section VI, Sunset Point Subdivision, Folly Beach, Charleston County, South Carolina on February 4, 1993. Loftis never constructed a dock on Lot 157B, and OCRM extended his dock permit until February 4, 1999. Loftis sold Lot 157B to Philip Cross on June 25, 1997, and the Loftis dock permit transferred to Cross with the property. Cross submitted an application to OCRM for an amendment to that permit in October, 1997, and OCRM approved the amendment. Petitioner Chuck Mincey, owner of Lot 157A, which adjoins Cross's lot on the west, opposes the amended dock permit.

The proposed amendment to the permit authorizes the construction of a dock with changes in the location and configuration of the dock from the original permit. The primary difference between the proposed Cross dock permit and the Loftis permit is the proximity of the proposed structure to Mincey's lot and existing dock. The reason for the change in the location of the proposed dock is that since the original permit was granted, several docks have been permitted and constructed on several waterfront lots to the east of the Cross lot. The location and configuration of those docks require the location of the Cross dock to shift westward toward Mincey's dock in order for the Cross dock to reach navigable water and to be in compliance with OCRM permitting requirements regarding distances from extended property lines. If the Cross dock were built pursuant to the original Loftis permit, it would intersect with an existing dock owned by neighbor Harry A. Joye, Jr., owner of Lot 158.

Sunset Point is a highland peninsula which extends into the marsh on and adjacent to the Folly River near Folly Beach, South Carolina. Sunset Point was initially subdivided into residential lots in 1991. In anticipation of development of the lots and attendant dock construction, OCRM's Richard Chinnis sketched a dock corridor plan for Lots 156, 157, 158, 159, 160, 161, and 162, of Sunset Point subdivision, on or about July 23, 1991. Petitioner Mincey, at that time the owner of Lot 157, was consulted by Chinnis during the drafting of the dock corridor plan.

Subsequent to the creation of the dock corridor plan for Sunset Point, several dock permits were issued and docks were constructed. Mincey subdivided Lot 157, selling the portion designated as Lot 157B to his brother-in-law, Al Loftis, and keeping Lot 157A for himself. Mincey then applied for and was issued a dock permit for Lot 157A on November 5, 1991. In 1992, Harry A. Joye, Jr., James Bain, and Al Loftis, applied for dock permits for Lots 158, 159, and 157B, respectively. Mincey objected to the Joye and Bain applications, but did not contest issuance of the permits. Mincey did not oppose the Loftis application. The Joye and Bain docks were built westward of their intended corridors, angling towards Lots 157A and 157B. Loftis never built a dock on Lot 157B, but Mincey constructed a dock on Lot 157A in 1993, pursuant to the permit issued to him in 1991.

In January, 1998, OCRM issued to Cross the amendment to the existing Loftis permit, with the following conditions: (1) provided the dimensions of the fixed pierhead remain 10' by 20'; (2) provided the adjoining extended property lines are verified by a registered land surveyor and submitted to OCRM prior to construction; (3) provided all portions of the permitted dock are a minimum of 20' from the adjoining extended property lines; (4) provided the dock is staked in the field and approved by OCRM prior to construction; and (5) provided the floating dock extends no further channelward than the adjacent existing floating docks.

Mincey opposes the proposed amendment to the permit because: (1) navigation and safety are unreasonably affected by the amendment; (2) the usefulness of Petitioner's dock is abridged by the proximity and configuration of the dock as amended; (3) OCRM did not follow its rules and regulations in issuing the amendment to allow the dock to cross extended property lines; (4) OCRM acted arbitrarily and capriciously and abused its discretion in amending the permit because the applicable regulations were not followed and inconsistent decisions have been made; and (5) the value and enjoyment of Petitioner's property is adversely affected by OCRM's actions.

OCRM drafted the dock corridor plan for Sunset Point to assure that all waterfront lots would be able to have long docks constructed which would provide deep water access to the Folly River. It was apparent that without proper planning, one lot's dock might be configured so as to block or cut off access to the River from an adjacent lot. The dock plan's sole purpose was to insure that all eligible lots maintained water access from a permitted dock.

Despite the existence of the dock corridor plan, the Bain and Joye docks were permitted and constructed outside of their planned corridors. It is unclear whether Mincey's dock is within its intended corridor. Because the Bain and Joye were misaligned and the Loftis/Cross dock is the last of the four docks to be constructed, the dock for Lot 157B cannot physically be located and configured according to the original permit without running directly into the existing Joye dock. The domino effect requires altering the location of the proposed dock for Lot 157B. To comply with the distance requirements of 23A S.C. Code Ann. § 30-12(A)(2)(p) (Supp. 1997), which provides that a proposed project must not be built closer than 20 feet from the extended property lines of the subject lot, the configuration of the fixed pierhead and floating dock must also be altered to decrease the width of the overall structure at its terminus.

Mincey may feel a legitimate sense of betrayal by OCRM for the agency's seeming indifference to the dock corridor plan for Sunset Point in permitting his neighbors' docks, but the facts remain that the dock corridor plan was never formally approved and issued as a general permit for the area. Even though not aligned according to the plan, the existing docks and the proposed dock will all be in compliance with all permitting standards. This tribunal is without the authority to enforce an informal planning document or to require removal or realignment of existing docks on neighboring lots. Accordingly, Mincey's recourse in the present case is limited. Absent a showing that the amendment sought by Cross is violative of some applicable section of the OCRM permitting statutes or regulations, the amended permit must be issued.

Cross is entitled to the amendment to the existing dock permit as modified with conditions by OCRM even though the dock will be constructed closer to Petitioner's dock than the corridor plan anticipated. While the dock corridor plan and the original Loftis permit provided for a wider space between the Mincey dock and other docks, adequate space still exists between Mincey's dock and the Joye's dock at Lot 158 to allow construction of the Cross dock without violating any applicable regulations or standards. The actual dock alignment on Sunset Point does not specifically follow the dock corridor plan, but the ultimate goal of providing waterfront access for each lot within the constraints of OCRM's dock permitting standards is met.

By a preponderance of the evidence, I find:

1. Philip Cross is the owner of Lot 157B, Section VI, Sunset Point Subdivision, on the Folly River at Folly Beach, Charleston County, South Carolina.
2. Petitioner Chuck Mincey is the owner of Lot 157A, which adjoins Cross' property.
3. Folly River is in the tidal and coastal zone area of Charleston County.
4. On or about June 25, 1997, Philip Cross bought Lot 157B from Al Loftis.
5. Al Loftis applied for and was issued a critical area permit, Permit #CC-93-006, to construct a private dock to extend from Lot 157B to the Folly River.
6. Loftis never built a dock for Lot 157B.
7. The dock permit for Lot 157B transferred to Philip Cross from Al Loftis upon the transfer of the title of the property.
8. By application dated October 13, 1997, Cross sought issuance from OCRM of an amendment to Permit #CC-93-006 (OCRM-93-006) to construct for private and recreational use a "340' walkway with handrail leading to a 10' by 30' pierhead with handrail and a covered roof, with a 4' by 20' downramp (with handrail) leading down to a 10' by 30' floating dock, with a 12' by 24' covered boat lift with a 3' by 24' catwalk down one side, and a 3' by 12' catwalk on the end to access boat."
9. Cross proposes to increase the walkway length from 320' to 340' and the covered fixed pierhead from 10' by 20' to 10' by 30'. A 4' by 20' ramp will lead from the fixed pierhead channelward to the 10' by 30' floating dock. The covered 12' by 24' boat lift will be reconfigured and is to be located channelward of the pierhead between the fixed pierhead and floating dock. A 3' by 24' catwalk will be installed on the side of the boatlift and a 3' by 24' catwalk will be added to the east end of the boatlift.
10. Notification of Public Notice of the proposed amendment was issued by OCRM on October 23, 1997, to allow public comment on the amendment application.
11. Petitioner Mincey notified OCRM of his opposition to the construction of the dock with the proposed amendment. Petitioner specifically objects to the location of the dock and its proximity to Petitioner's dock.
12. In January of 1998, OCRM issued Cross an amendment to Permit OCRM-93-006 with general and special conditions for additions and changes to the previously permitted private recreational dock.
13. By letter to OCRM dated January 20, 1998, Petitioner timely requested a contested case hearing before the Administrative Law Judge Division, and on February 26, 1998, OCRM filed an Agency Transmittal Form with the ALJD.



14. The contested case hearing was held in Charleston on July 20, 1998, with notice given to all parties.
15. Sunset Point is a highland peninsula which extends with an irregular shoreline into the marsh on and adjacent to the Folly River near Folly Beach, South Carolina.
16. At the site of the proposed structure, the Folly River is approximately 1,000' wide.
17. Sunset Point was initially subdivided into residential lots in 1991.
18. In anticipation of development of the lots and attendant dock construction, OCRM's Richard Chinnis sketched a dock corridor plan for Lots 156, 157, 158, 159, 160, 161, and 162, of Sunset Point subdivision, on or about July 23, 1991.
19. Petitioner Mincey, at that time the owner of Lot 157, was consulted by Chinnis during the drafting of the dock corridor plan.
20. The dock corridor plan's sole purpose was to insure that all eligible lots would be able to have long docks constructed which would provide deep water access to the Folly River.
21. The Sunset Point dock corridor plan was never placed on public notice or formally issued as a master plan or general permit.
22. Subsequent to the creation of the dock corridor plan for Sunset Point, several dock permits were issued and docks were constructed.
23. By deed dated December 19, 1991, Mincey subdivided Lot 157, selling the portion designated as Lot 157B to his brother-in-law, Al Loftis, and keeping Lot 157A for himself.
24. Mincey applied for and was issued a dock permit for Lot 157A on November 5, 1991, and constructed the dock in 1993.
25. In 1992, Harry A. Joye, Jr., James Bain, and Al Loftis applied for dock permits for Lots 158, 159, and 157B, respectively.
26. Mincey objected to the Joye and Bain applications during the application process, but did not contest the eventual issuance of those permits.
27. Mincey did not oppose the Loftis application.
28. Despite the existence of the dock corridor plan, the Bain and Joye docks were permitted and constructed outside of their planned corridors and across extended boundary lines.



29. The Joye and Bain docks were built westward of their intended corridors, angling towards Lots 157A and 157B.
30. Because the Bain and Joye were misaligned, and the Loftis/Cross dock is the last of the four docks to be constructed, the dock for Lot 157B cannot physically be located and configured according to the original permit.
31. If the Cross dock were built pursuant to the original Loftis permit, it would intersect with the existing dock owned by neighbor Harry A. Joye, Jr., owner of Lot 158.
32. The location and configuration of those docks require the placement of the Cross dock westward of its intended corridor, toward Mincey's dock, in order for the Cross dock to reach navigable water and to be at least 20' from the extended property lines of Lot 157B.
33. The primary difference between the proposed Cross dock permit and the Loftis permit is the proximity of the proposed structure to Mincey's lot and existing dock.
34. Under the original Loftis permit, the dock for Lot 157B would be located approximately 150' from the Mincey dock.
35. Under the proposed amendment, the dock for Lot 157B will be located approximately 67' from the Mincey dock.
36. To prevent the proposed Cross dock from being built closer than 20 feet from the extended property lines of Lot 157B, the configuration of the fixed pierhead and floating dock was altered to decrease the width of the overall structure at its terminus.
37. The size and extension of the proposed dock is limited to that which is reasonable for its intended private recreational use.
38. OCRM followed all applicable regulations and standards during the permit application and decision-making process.

CONCLUSIONS OF LAW

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 in this action pursuant to S.C. Code Ann. § 1-23-600 (Supp. 1997) and S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1997).
2. S.C. Code Ann. § 48-39-150 (Supp. 1997) and 23A S.C. Code Ann. Regs. 30-6 (Supp. 1997) (as amended June, 1995) authorize the Administrative Law Judge Division with jurisdiction to hear contested cases arising under Chapter 39 of Title 48 of the 1976 Code.
3. OCRM is the subdivision within DHEC charged with administering the State's coastal zone policies and issuing permits for docks and piers in coastal zone areas.
4. S.C. Code Ann. § 48-39-50 (Supp. 1997) provides the authority for DHEC to promulgate regulations relating to carrying out the provisions of Chapter 39 of Title 48 of the 1976 Code.
5. 23A S.C. Code Ann. Regs. 30-1 through 30-20 (1976 & Supp. 1997) were promulgated by the Coastal Council, the predecessor to OCRM, as the applicable regulations governing the management, development, and protection of the coastal zone areas of the state and were subsequently amended by OCRM in June of 1995.
6. The project in question is located in a critical area under S.C. Code Ann. § 48-39-10(J) (Supp. 1997); 23A S.C. Code Ann. Regs. 30-1(C)(4) and (12) (Supp. 1997); 23A S.C. Code Ann. Regs. 30-10(A) (Supp. 1997).
7. Section 48-39-150(A) and 23A S.C. Code Ann. Regs. 30-11 (1976 & Supp. 1997) set forth the guidelines to be used in assessing the impact of a project in a critical area.
8. 23A S.C. Code Ann. Regs. 30-12(A) (Supp. 1997) sets forth the specific project standards for construction of docks and piers for tidelands and coastal waters.
9. The proposed project will not impede navigation or restrict the reasonable public use of state lands and waters. 23A S.C. Code Ann. Regs. 30-12(A)(2)(a) (Supp. 1997).
10. The proposed project will not be constructed in a manner that restricts water flow. 23A S.C. Code Ann. Regs. 30-12(A)(2)(b) (Supp. 1997).
11. The size and extension of the proposed project is limited to that which is reasonable for the intended use as a private recreational dock. 23A S.C. Code Ann. Regs. 30-12(A)(2)(c) (Supp. 1997).
12. The proposed project uses the least environmentally damaging alignment. 23A S.C. Code Ann. Regs. 30-12(A)(2)(d) (Supp. 1997).





13. The proposed project will not harmfully obstruct the natural flow of navigable water nor unreasonably interfere with commercial navigation. 23A S.C. Code Ann. Regs. 30-11(B)(2) (Supp. 1997).
14. The proposed project will have minimal impact upon the production or protection of marine life or wildlife. 23A S.C. Code Ann. Regs. 30-11(B)(3) (Supp. 1997).
15. The proposed project should not cause erosion, shoaling, or creation of stagnant water. 23A S.C. Code Ann. Regs. 30-11(B)(4) (Supp. 1997).
16. The proposed project will not affect existing public access to tidal and submerged lands, navigable waters and beaches, or other recreational coastal resources. 23A S.C. Code Ann. Regs. 30-11(B)(5) (Supp. 1997).
17. The proposed project will have minimal or no impact upon the habitats for rare and endangered species of wildlife or irreplaceable historic and archeological sites. 23A S.C. Code Ann. Regs. 30-11(B)(6) (Supp. 1997).
18. The extent of any adverse environmental impact from the proposed project is minimal and can be avoided or minimized by reasonable safeguards. 23A S.C. Code Ann. Regs. 30-11(B)(8) (Supp. 1997).
19. The proposed project includes feasible safeguards to avoid adverse environmental impact resulting from the proposed project. 23A S.C. Code Ann. Regs. 30-11(B)(9) (Supp. 1997).
20. The project will have little or no impact upon the value and enjoyment of adjacent landowners. 23A S.C. Code Ann. Regs. 30-11(B)(10) (Supp. 1997).

1. The proposed project will not be built closer than 20 feet from the extended property line. 23A S.C. Code Ann. Regs. 30-12(A)(2)(p) (Supp. 1997).
2. A master dock plan created by OCRM but not processed as a general permit is used only as a framework for permitting decisions. 23A S.C. Code Ann. Regs. 30-12(A)(3) (Supp. 1997).
3. This tribunal is without the authority to enforce an informal planning document or to require removal or realignment of existing docks on neighboring lots.
4. The actual dock alignment on Sunset Point does not specifically follow the dock corridor plan, but the ultimate goal of providing waterfront access for each lot within the constraints of OCRM's dock permitting standards is met. The amendment to the existing permit is in keeping with the spirit of the original permit and the dock corridor plan. 23A S.C. Code Ann. Regs. 30-12(A)(3)(b) (Supp. 1997).
5. While the dock corridor plan and the original Loftis permit provided for a wider space between the Mincey dock and other docks, adequate space still exists between Mincey's dock and the Joye's dock at Lot 158 to allow construction of the Cross dock without violating any applicable regulations or standards.
6. Cross is entitled to the amendment to the existing dock permit as modified with conditions by OCRM even though the dock will be constructed closer to Petitioner's dock than the corridor plan anticipated.
7. Using the guidelines set forth in Section 48-39-150(A) and R. 30, the proposed project, as modified by OCRM's special conditions, meets the applicable criteria for issuance of a critical area permit.
8. All applicable regulations were followed during the permit application and decision-making process. 23A S.C. Code Ann. Regs. 30-2, 30-4, and 30-6 (Supp. 1997).
9. Pursuant to ALJD Rule 29(B), any issues raised in the proceedings but not addressed at the hearing or in this Order, are deemed denied.

ORDER

IT IS THEREFORE ORDERED that the amendment to Permit OCRM-93-006 is granted, with special conditions, to Respondent Philip Cross.

AND IT IS SO ORDERED.

___________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

August 19, 1998

Columbia, South Carolina