SC Administrative Law Court Decisions

This contested case matter is before the Administrative Law Judge Division pursuant to S.C. Code Ann. § 48-39-150(D) (Supp. 1997) and § 1-23-310 et seq. (1986 and Supp. 1997) upon a request for a hearing filed by Petitioners to contest the issuance of a critical area permit by the South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management ("OCRM") to Respondent, LaFon LeGette, Jr., to construct a private dock at Lot 7, Highway 17 Business, Murrells Inlet, in Georgetown County, on or adjacent to Murrells Inlet Creek. After notice to the parties, a hearing on the merits was conducted on June 8, 1998, at the Georgetown County Courthouse, in Georgetown, South Carolina. Based upon the relevant and probative evidence and applicable law, the proposed permit is denied.

LaFon LeGette, Jr. ("LeGette") seeks issuance of a dock permit to allow construction of a private dock on an unimproved lot on Murrells Inlet Creek which he intends to purchase from Francis P. Adams. Petitioners Dorman and May, the adjoining landowners to the subject parcel, oppose issuance of the dock permit. The proposed LeGette dock is to be constructed between the existing May and Dorman docks. The total distance between the existing May and Dorman docks is 43.54'. The LeGette lot is triangular, or "pie-shaped," in configuration, narrowing from its greatest width of 153.10' along its western boundary at Highway 17 to its most narrow width of 33.66' along its eastern boundary where it fronts on the water or marsh. The proposed dock would include a 4'x122' walkway leading to 12'x10' fixed dock, which is connected by a ramp to a 8'x15' floating dock. The position of the proposed LeGette floating dock would place it 14.52' south of Dorman's existing fixed dock and 13.47' north of May's floating dock. Because of the narrowing angle of the property lines and the length the dock must be constructed to reach navigable water from the lot, any dock built from the LeGette lot which extends far enough to reach the creek, no matter the angle or design, must necessarily cross the extended boundary lines of the LeGette lot.

Petitioners oppose the proposed dock on a number of grounds, asserting that: LeGette did not provide accurate and complete information to OCRM in his permit application; OCRM failed to give adequate notice of the permit application to interested persons; the lot upon which the proposed dock is to be situated lacks the requisite amount of frontage of water and/or marsh to support a dock, in contravention of 23A S.C. Code Ann. Regs. 30-12 (A)(2)(p) (Supp. 1997); the proposed dock crosses their extended property lines in violation of R. 30-12 (A)(2)(p); the proposed dock will impede navigation in violation of 23A S.C. Code Ann. Regs. 30-12 (A)(2)(a) (Supp. 1997) and be a safety hazard to boaters and others using the creek; the placement of the floating dock will cause it to rest on the creek bottom at normal low tide, in violation of 23A S.C. Code Ann. Regs. 30-12 (A)(2)(n) (Supp. 1997); the proposed dock will block access to the creek from the Mays' property; and the proposed dock will diminish their property value. The issues are addressed below.

Petitioners claim that LeGette did not provide accurate and complete information to OCRM in his permit application, as required by statute and regulation, and the application should therefore be denied. Specifically, Petitioners claim LeGette's application did include an accurate depiction of the proposed activity, a certified plat of the area in which the proposed dock would be built, or proof of ownership or legitimate authorization by the owner to seek the permit.

LeGette's application did include a hand-drawn sketch of the subject lot and the proposed structure, written authorization signed by the record owner of the subject lot to seek a dock permit, and a copy of a certified plat of the adjacent Dorman lot which showed the location of the LeGette lot. LeGette's application attachments substantially comply with all the requirements of 23A S.C. Code Ann. Regs. 30-2 (Supp. 1997), which sets forth the necessary information and documents to be submitted with a dock permit application. While the Dorman plat does not include specific metes and bounds for the LeGette lot, it is a sufficiently detailed "plat or copy of a plat of the area in which the proposed work will take place" to meet the requirements of 23A S.C. Code Ann. Regs. 30-2(B)(3) (Supp. 1997).

Prior to issuance of the proposed permit, OCRM issued a general public notice for the proposed work and gave specific notice to interested persons and governmental agencies as required by law. Adjacent property owners are among those persons required to be sent notice. Petitioner Dorman did not receive written notice of the pendency of the application. OCRM mailed the notice to Dorman by certified mail; however, the notice was returned undelivered. Petitioner May did receive the notice and submitted comments to OCRM detailing his opposition to the permit. Subsequent to final action by OCRM, both May and Dorman timely requested a contested case hearing before the ALJD. The Petitioners were both present and represented by common counsel at the hearing. Accordingly, I conclude that OCRM acted in good faith in attempting to comply with all notice requirements and Dorman was not prejudiced by his lack of formal notice.

Petitioners maintain that the subject lot lacks the requisite water frontage to be eligible for a dock, citing 23A S.C. Code Ann. Regs. 30-12(A)(2)(o) (Supp. 1997). Respondents argue conversely, citing the same regulation. Regulation 30-12(A)(2)(o), effective in 1993, provides:

For lots platted and recorded after the effective date of these regulations, before a dock will be permitted, a lot must have 75 feet of water frontage along the marsh edge and at least 75 feet of frontage between extended waterfront property lines. Lots with less than the required frontage, but with at least 50 feet of frontage, both on the marsh edge and along the water between the waterfront extended property lines may be eligible for a common dock with the adjacent property. Lots less than 50 feet wide are not eligible for a dock.

Regulation 30-12(A)(2)(o) is a very poorly drafted regulation. If one reads each of the regulation's three sentences individually, the regulation means one thing and if read collectively, another. The first sentence in the regulation clearly prohibits the construction of docks on lots with less than 75' of water or marsh frontage if the subject lot was platted after the effective date of the regulation. It is reasonable to construe the second sentence of the regulation to mean that for lots platted after the effective date of the regulation which have less than 75' but at least 50' of frontage, a common dock may be shared with an adjoining waterfront lot. The final sentence of the regulation is seemingly straightforward: "Lots less than 50 feet wide are not eligible for a dock." The sentence does have, however, several reasonable but conflicting meanings. It is unclear whether the sentence applies to only those lots platted after the effective date of the regulation or to all lots, regardless of the date of platting. It is also unclear as to whether lot "width" is merely a reference to water or marsh frontage alluded to in previous sentences or rather a distinct factor to be considered separate and apart from frontage. If width is not frontage, it is equally unclear as to how lot width is to be calculated.

Reading the section in its entirety, I conclude that each of the sentences is either expressly or implicitly prefaced with the qualification that it applies only to those lots platted after the effective date of the regulation. Since the subject lot was first platted in 1951, it is unnecessary to determine

whether width and frontage are synonymous or distinct.⁽¹⁾

Likewise, even though the subject lot has

only 33.6' of frontage, the 75' and 50' frontage requirements are not controlling.

Crossing of Extended Property Lines

As a general rule, no dock may be constructed closer than twenty feet from an extended boundary line of the subject lot; however, construction over extended property lines may be allowed if there is no material harm to the policies of the Coastal Zone Management Act. R. 30-12(A)(2)(p). Since the LeGette lot is only 33.66' wide at the mean high water mark, there is no location that a dock could be constructed on the property which would not violate the 20' buffer rule. In fact, because of the narrowing angle of the property lines and the length which a dock must be constructed to reach navigable water, any dock built from the LeGette lot which extends to navigable water must necessarily cross the extended boundary lines of both lots which adjoin the LeGette lot. Given the length of the proposed dock in relation to other docks in the vicinity, the overall size of the subject lot, and the sharpness of the angle which causes the LeGette property lines to converge, it is not unreasonable, within and of itself, to allow a dock at this location to be built which crosses an extended property boundary.

The proximity of the proposed dock to the two adjacent docks, however, does pose a problem. With a twenty foot buffer separating a dock from each of the subject lot's extended property lines, no two docks would be less than forty feet apart. In the present case, the existing May and Dorman docks are only 43.54' apart, and LeGette proposes to construct a new dock in between them. Not only does the proposed project necessitate a technical exception to the general "no construction over extended property lines" rule set forth in R. 30-12(A)(2)(p), it contravene's the underlying policy of reserving space between permitted docks. For that reason, I conclude that permitting the proposed dock would result in material harm to the policies of the Coastal Zone Management Act.

Petitioners assert that the proposed dock will impede navigation and be a safety hazard to boaters and others using the creek. Petitioner May also claims that the position of the proposed dock will hinder or prevent him from navigating to and from his floating dock where he moors his boats. R. 30-12 (A)(2)(a).

The proposed dock would not create an undue hazard or navigational obstruction to most boaters on the creek. An additional dock, tucked between the existing Dorman and May docks would not interfere with those merely traveling along Murrells Inlet Creek past the LeGette property. The increase in persons using the creek resulting from another dock being constructed would be negligible, considering the proliferation of docks already in the area.

The proposed dock would, however, unreasonably impede May's boat access to and from his dock. Because of the tide's current and the short distance between the May dock and the proposed dock, boats attempting to moor at the May floating dock would have a difficult time avoiding the LeGette dock. Thirteen and one-half feet is simply not enough space to allow for reasonable navigation between docks.

The placement of the proposed floating dock will cause it to rest on the creek bottom at normal low tide. While not the most significant issue in this permitting case, it is a legitimate factor to be weighed. Regulation 30-12 (A)(2)(n) provides, in pertinent part, that "pierheads must rest over water and floating docks which rest upon the bottom at normal low tide will not normally be permitted." Of course, OCRM regulations give no guidance in interpreting the phrase "will not normally be permitted," nor do they provide direction in identifying reasonable circumstances under which floating docks which rest upon the bottom at normal low tide may or should be allowed.

Respondents OCRM and LeGette admit that the proposed floating dock will rest on the creek's bottom at low tide, but stress that many other docks in the area do also and that it is necessary in this case to minimize the necessary length of the overall dock to reach navigable water without obstructing navigation through the creek. While the overall impact of this one floating dock resting on the mud bottom is minimal, no compelling reason has been offered to allow an exception to the general rule disallowing it.

Because of the proximity of the proposed LeGette dock to the existing adjacent structures on the Dorman and May lots, the proposed dock would diminish the use and enjoyment of those properties. From a navigational, recreational, and aesthetic standpoint, the proposed dock would have an adverse impact upon the value of the adjoining lots and docks. The corridor within which the proposed dock would have to be located is too narrow to reasonably allow all three property owners to enjoy the use of private docks extending from their property to the creek. Unfortunately, as the last of the three to seek a dock permit, LeGette is a victim of the alignment of the two existing docks.

While any one of the issues considered individually may not seem significant enough to support denial, cumulatively they pose a serious problem. To allow issuance of the permit sought would require bending or creating exceptions to the permitting requirements. Of particular concern is the distance between the proposed dock and the two existing docks on adjacent lots. The distance of fourteen feet is too narrow on either side of a dock for the safe, comfortable, simultaneous enjoyment and use of the docks in question. Given the size and configuration of the May and Dorman lots, it is possible to design and construct docks for the May, LeGette, and Dorman lots which would not be so close in proximity. Unfortunately for Mr. LeGette, the Dorman and May docks already exist and LeGette has no legal authority to have them removed, moved, or reconstructed. Absent voluntary action by his neighbors to reconfigure their existing docks, LeGette is without recourse, and the permit sought must be denied.

I find, by a preponderance of the evidence, the following facts:

1. On December 9, 1997, a Critical Area Permit Application was filed with OCRM by John A. Gallup. Jr., on behalf of LaFon LeGette, Jr., for a permit to construct a private dock to access Murrells Inlet Creek (a/k/a Parsonage Creek) from Lot 7, Highway 17 Business, Murrells Inlet, South Carolina, in Georgetown County.
2. The proposed project consists of the construction of a 4'x100' walkway, with handrails, leading to a 10'x12' covered dock, with a 3'x16' ramp leading from the fixed dock creekward to an 8'x15' floating dock.
3. The purpose of the proposed dock is the private and recreational use of LeGette and future owners.
4. Attached to the permit application was an Affidavit of Ownership or Control dated December 8, 1997, completed by John A. Gallup, Jr., as agent of LaFon LeGette, Jr., indicating that LeGette was record owner of and/or under contract to purchase the subject property.
5. The record owner of the subject lot is Francis P. Adams.
6. LeGette filed a copy of a document with OCRM which grants permission from Francis P. Adams to LeGette to apply for a dock permit for the subject lot.
7. LeGette's application also contained a sketch of the subject property and configuration of the proposed dock.
8. OCRM gave public notice of the permit application by notice dated December 18, 1997.
9. Prior to issuance of the proposed permit, LeGette filed a copy of a plat of the adjacent Dorman lot with OCRM, which showed the general configuration of the LeGette lot without specific metes, bounds, and measurements, but LeGette did not file a deed or plat of the subject lot with OCRM.
10. On January 26, 1998, OCRM issued the permit with conditions and attachments, Permit Number OCRM-97-568.
11. By letter dated February 2, 1998, OCRM noted several typographical errors in the permit, modified the permit accordingly, and substituted a new Attachment "A" to the permit.



12. By letter dated February 23, 1998, OCRM further amended Permit Number OCRM-970568, by extending the length of the proposed walkway from 90' to 122' in order to allow the dock to reach Murrells Inlet Creek
13. After issuance of the proposed permit by OCRM, LeGette filed a copy of a plat of the subject property with OCRM.
14. Adjacent landowners Paul Dorman and Charles May oppose the issuance of the proposed permit and timely filed a request for a contested case hearing.
15. Petitioner Dorman never received formal notice from OCRM of the filing of the permit application, but Dorman was not prejudiced by the lack of such notice since he timely requested a contested case hearing, was a party to this proceeding and was represented by counsel.
16. Upon notice to all parties, a contested case hearing was conducted on June 8, 1998, at the Georgetown County Courthouse, in Georgetown, South Carolina.
17. Murrells Inlet Creek is a navigable creek used by fishermen, jet skiers, and recreational boaters to access Murrells Inlet and the Atlantic Ocean.
18. The intersection of Woodland Creek and Murrells Inlet Creek is approximately 200' from the proposed project site.
19. Because of its proximity to the confluence of the two creeks, the current is strong at the proposed dock site.
20. The LeGette lot is triangular, or "pie-shaped," in configuration, narrowing from its greatest width of 153.10' along its western boundary at Highway 17 to its most narrow width of 33.66' along its eastern boundary of the high water mark of the creek.
21. The LeGette lot was platted prior to 1993.

1. By means of extending the high ground property lines of the LeGette lot, the lot has no frontage on the creek.
2. The extended property lines of all the parties (except OCRM) in this case, intersect and cross each other.
3. Because of the narrowing angle of the property lines and the length the dock must be constructed to reach navigable water from the lot, any dock built from the LeGette lot which

extends far enough to reach the creek, no matter the angle or design, must necessarily cross the extended boundary lines of the LeGette lot.

1. In many instances where property is determined to have water access and the extended property lines converge, OCRM establishes dock corridors for the lots to ensure there is adequate room for dock construction. Dock corridors are a planning tool used by the U.S. Corps of Engineers and OCRM in situations where the existence of waterfront property and conflicting property lines are in question.
2. No dock master plan or dock corridor plan exists for the LeGette, May, and/or Dorman lots.
3. The total distance between the existing May and Dorman docks is 43.54'.
4. The Dorman dock was built prior to 1993.
5. The Dorman lot has approximately 175' of frontage on the creek.
6. The Dorman dock is approximately 60' from the edge of the Dorman lot which is shared with the LeGette lot.
7. The position of the proposed LeGette floating dock would place it 14.52' south of Dorman's existing fixed dock.
8. The position of the proposed LeGette floating dock would place it 13.47' north of May's floating dock.
9. The May dock was constructed in 1946.
10. A portion of the Dorman dock is covered.
11. The May dock has two floating docks attached which are used for mooring boats.
12. To moor a boat on one of the May floating docks requires the boat to be navigated on the north side of the dock, in the approximate location as the proposed LeGette dock.
13. If the proposed LeGette dock is constructed at the location proposed, it would create a navigational hazard for boats attempting to moor at or launching from the May floating dock.
14. The construction of LeGette's dock on the creek would not obstruct navigation for through boat traffic on the creek nor restrict the reasonable use and enjoyment of Creek by the general public, except adjacent property owners .





15. Because of the extreme proximity of the proposed dock to the existing docks of neighboring landowners, the location and configuration of the LeGette dock would have an adverse affect upon Petitioners' enjoyment of their property and water access.
16. May and Dorman's enjoyment of their property comes from the aesthetic beauty of the open spaces and distance from neighbors, the proximity of the creek, and the ease of access and egress to and from their docks.
17. There would be an impact upon aquatic or marsh organisms or vegetation by the construction of the dock, in that the floating dock will sit on the mud bottom of the creek at mean low tide.

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 subject matter jurisdiction in this contested case matter pursuant to S.C. Code Ann. §§ 1-23-500 et seq., (Supp. 1997 ); S.C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1997); S.C. Code Ann. § 48-39-150 (Supp. 1997) and 23A S.C. Code Ann. Regs. 30-6 (Supp. 1997).
2. 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).
3. OCRM is the subdivision within DHEC charged with implementing the state's coastal zone policies and issuing permits for docks and piers in coastal zone areas. S.C. Code Ann. § 48-39-10 et seq. (Supp. 1997)
4. S.C. Code Ann. § 48-39-50 (Supp. 1997) provides the authority for DHEC to promulgate regulations 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 (1983 & Supp. 1997) were promulgated by the Coastal Council (as predecessor to OCRM), as the applicable regulations governing the management, development, and protection of the critical areas of the coastal zone of the state.
6. 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 form the owner to carry out the proposal. R. 30-2(B).
7. LeGette has complied with the application requirements of R. 30-2(B).
8. Approval or denial of a critical area permit is subject to the individual merits of each case and the application of the ten general considerations set forth in S.C. Code Ann. § 48-39-150(A) and R. 30-11(B).
9. Regulation 30-12 provides the specific project standards for tidelands and coastal waters, including dock construction.
10. The location and configuration of the proposed dock would adversely affect the existing public access from the May dock to tidal and submerged lands, navigable waters and beaches, and other recreational coastal resources, contrary to S.C. Code Ann. § 48-39-150(A)(5), and R. 30-11(B)(5).
11. The location and configuration of the proposed floating dock does not include all reasonable safeguards to prevent the adverse environmental impact resulting from the floating dock sitting on the mud bottom at low tide, contrary to S.C. Code Ann. § 48-39-150(A)(8) and R. 30-11(B)(8).
12. The location and configuration of the proposed dock would adversely affect the use and enjoyment of the adjacent May and Dorman docks, contrary to S.C. Code Ann. § 48-39-150(A)(10) and R. 30-11(B)(10).
13. The location and configuration of the proposed dock would impede navigation to and from the May dock and would restrict the reasonable use of the May dock and surrounding public waters, contrary to R. 30-12(A)(2)(a).
14. The only dock permit at issue in this case is the proposed LeGette dock. Any permitting issues raised regarding other structures are not properly before this tribunal in this contested case matter.
15. Regulation 30-12(A)(2)(o) provides, "For lots platted and recorded after the effective date of these regulations, before a dock will be permitted, a lot must have 75 feet of water frontage along the marsh edge and at least 75 feet of frontage between extended waterfront property lines. Lots with less than the required frontage, but with at least 50 feet of frontage, both on the marsh edge and along the water between the waterfront extended property lines may be eligible for a common dock with the adjacent property. Lots less than 50 feet wide are not eligible for a dock." Because the subject property was platted before this regulation became effective, it is not mandatory that the lot have 75 or 50 feet of frontage to be permitted to construct a dock.
16. In construing a legislative act or regulation, the provision as a whole must receive practical, reasonable, and fair interpretation consonant with the purpose, design, and policy of lawmakers. Statutory provisions should be given reasonable and practical construction consistent with the purpose and policy of the entire act. In interpreting a provision, the language of the section must be read in a sense which harmonizes with its subject matter and accords with its general purpose. Stephen v. Avins Const. Co., 324 S.C. 334, 478 S.E.2d 74 (Ct.App. 1996).
17. Regulation 30-12(A)(2)(p) requires that no dock or pierhead or other associated structure 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 owners. Construction over extended property lines may be allowed, however, where there is no material harm to the policies of the Coastal Zone Management Act.
18. The stated policies of the Act are set forth in S.C. Code Ann. § 48-39-30 (Supp. 1997) and embodied in the statutes of the Coastal Zone Management Act and OCRM regulations, and include the ten general considerations set forth in S.C. Code Ann. § 48-39-150(A) and R. 30-11(B).
19. State policy recognizes that "the use of a critical area for one or a combination of uses to the exclusion of some or all other uses shall be consistent with the purposes of [Title 48, Chapter 39]." S.C. Code Ann. § 48-39-30 (Supp. 1997).
20. Given the length of the proposed dock in relation to other docks in the vicinity, the overall size of the subject lot, and the sharpness of the angle which causes the LeGette property lines to converge, it would be reasonable and not violative of state policy to allow a dock at this location to be built which crosses an extended property boundary, if no existing neighboring docks were in close proximity. The proximity of the proposed dock to the two adjacent docks will create a navigational hazard and adversely impact the use and enjoyment of adjoining

landowners, resulting in material harm to the policies of the Coastal Zone Management Act, however, does pose a problem.

1. Any issues or motions raised during the hearing of this contested case not specifically addressed herein are deemed denied, pursuant to ALJD Rule 29(C).

For the foregoing reasons, Permit Number OCRM-97-568 is denied.

AND IT IS SO ORDERED.

__________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

August 14, 1998

Columbia, South Carolina

1. In an earlier ALJD decision, William S. McLean and John E. Howard, and Dylan B. Jones, Intervenor, vs. South Carolina Department of Health and Environmental Control, Bureau of Ocean and Coastal Resource Management, and Douglas R. James, Case No. 97-ALJ-07-0302-CC, Order filed September 23, 1997, it was held that the width requirement set forth in the third sentence of Reg. 30-12(A)(2)(o) requires a separate test from the frontage requirements provided for in the first part of the regulation. Absent a regulatory definition of "wide" or "width," or any other guidance as to how a lot's width must be calculated, the ALJ employed a formula to determine whether at least 50% of the subject lot's area was encompassed within a 50 foot wide boundary. While the interpretation/formula applied in McLean is reasonable, I am not sure I would follow it if faced with the same issue. Reading Reg. 30-12(A)(2)(o) as a whole, I am inclined to believe that width is an unartful reference to frontage, rather than a separate factor to be considered out of context with the remaining portions of the section.