SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This amended Order is issued pursuant to a scrivener's error that was in the original Order issued February 17, 2000. The Department of Health and Environmental Control had referenced an incorrect permit number which was reflected throughout the original Order. That permit number is corrected in this Order pursuant to Rule 51 of the Rules of Procedure of the Administrative Law Judge Division. See also Goethe v. Cleland, 323 S.C. 50, 448 S.E. 2d 574 (S.C. App. 1984).

This matter is before me pursuant to an appeal by Petitioners seeking review of South Carolina Department of Health and Environmental Control (DHEC), Bureau of Ocean and Coastal Resource Management's (OCRM's) issuance of permit # OCRM-97-302-E with conditions to Respondent Charles Ausburn. Ausburn sought a permit from OCRM for the construction of a vehicle access bridge on and adjacent to Battery Creek at Mink Point Plantation Subdivision, Charlotte Island, Beaufort County, South Carolina. The stated purpose of the project is to provide access for a proposed residential development of 200 lots. The permit was issued on March 9, 1998, with conditions including a requirement that the community dock structure depicted on the Charlotte Island Conceptual Master Plan dated November 4, 1997, be the only dock permitted on Charlotte Island. Deed restrictions must be filed on all other waterfront lots on Charlotte Island to exclude any additional dock structures. The permit also included the condition that a storm water plan for Charlotte Island be submitted to and approved by OCRM staff prior to commencing construction of the bridge.

The Petitioners filed this appeal on April 23, 1998. The Petitioners are, for the most part, residents of the Mink Point Plantation Subdivision (Mink Point) in Beaufort County. Ratel Circle, within Mink Point, is the road that will be used to access the bridge to Charlotte Island. The basis for the Petitioners' appeal is their concern over the potential effects that the increased traffic associated with 200 home sites could have on Mink Point, and specifically Ratel Circle.

Beaufort County moved to intervene in the appeal on May 12, 1998. The motion was heard on June 5, 1998, and the County's Motion was granted.⁽¹⁾ Beaufort County objects to the issuance of the permit based on the following grounds:

a. The permit was issued in violation of OCRM's own regulations and the statutory laws of South Carolina, including S.C. Code Ann. §§ 48-39-20 and 49-39-30 (Supp. 1998).

b. In particular, OCRM did not consider the public need, as provided in 23A S.C. Code Ann. Regs. 30-12(N)(6) (Supp. 1998), by balancing the benefits and the burdens of the project.

c. The issuance of the permit will have a negative impact on the health and general welfare of the citizens of Beaufort County.

d. The bridge's construction will have a negative impact on the environment, result in increased traffic and pollutants, and violate the County Development Standards Ordinance.

e. The project would increase the burden on the current infrastructure.

A hearing was conducted on this matter on July 22, 1999, at the Administrative Law Judge Division (ALJD or Division) in Columbia, South Carolina.

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 Facts

1. Notice of the date, time, place, and nature of the hearing and the notice of the Respondent's bridge application was timely and properly given to all parties.

2. Respondent Charles Ausburn seeks a permit for the construction of a vehicle access bridge on and adjacent to Battery Creek at Mink Point Plantation Subdivision, Charlotte Island, Beaufort County, South Carolina. The bridge would be built in a "critical area" and would commence upon a strip of land Mr. Ausburn owns on Ratel Circle, in Mink Point. As proposed, the bridge will be constructed from timber and will be 420' long and 24' wide with a 22' wide roadway surface. Additionally, the bridge would be at least 5' in height.

3. Charlotte Island is not a typical "marsh island." The island contains 33 acres of high ground. It also is not surrounded by spartina alterniflora (marsh grass) or by water. In fact, this island differs from the traditional concept of an island because it can be accessed from Ratel Circle on foot. That access is possible because the high marsh area that surrounds the island is under water only on rare occasions during extremely high tides.

4. Although their property does not adjoin the property upon which the bridge to Charlotte Island would be constructed, Petitioners Bill and Karen Peyton reside on Ratel Circle in Mink Point. Ratel Circle is the only street that would provide access to the proposed bridge.

5. Local counties often approve a development plan for projects such as the Charlotte Island bridge in conjunction with OCRM's determination of whether or not to issue a permit. In these instances, OCRM has a better concept of the total project. However, in this case, Beaufort County required that the issue of access by way of this bridge be a condition precedent to obtaining local review of a development plan. Therefore, since Beaufort County would not consider a development plan for this island until the issue of this bridge permit was resolved, the development plan has yet to be approved by Beaufort County. However, Respondent Ausburn testified that he will not build a bridge until his development has received local approval.

Small island permitting criteria

6. There are no criteria for determining if an island should be considered a "small island" under 23A S.C. Code Ann. Regs. 30-12(F) (Supp. 1998). I find that Charlotte Island is a small island as determined by the OCRM permitting staff. However, though Charlotte Island is a small island, it is among the largest of the islands reviewed under the criteria for bridges to small islands. Furthermore, OCRM has issued permits for at least three other similar timber bridges in close proximity to this project, including developments known as "The Islands at Beaufort" and "Bull Point." None of the parties to this action objected to these bridges or contested the permits issued for their construction.

7. 23A S.C. Code Ann. Regs. 30-12(N) (Supp. 1998) requires consideration of eleven criteria in determining whether or not to grant a permit to construct a bridge to a small island in South Carolina. Reg. 30-12(N)(1) and 30-12(N)(2) require that OCRM consider the length, type, and dimensions of the proposed bridge. This proposed bridge's length will be 420'. There is no evidence in the record to suggest that this length is unreasonable or inconsistent with lengths approved in other applications for bridges. In fact, OCRM has permitted a number of bridges in Beaufort County that are much longer than this proposed project. Given the size of the island and the number of individual home sites proposed to be located on the island, the length of the bridge is not out of the ordinary. Additionally, a timber bridge is typically constructed to connect a small island to the mainland. This type of construction will have minimal visual impacts. Therefore, the proposed bridge is consistent with Reg. 30-12(N)(1) and (2).

8. Reg. 30-12(N)(3) requires consideration of the configuration of the shoreline when making a decision to permit access to small islands. The shoreline at the proposed bridge site is perpendicular to the mainland, thus minimizing visual impacts from the mainland and from the houses located on Ratel Circle.

9. Reg. 30-12(N)(4) requires that the size of the island, including the size of the highland area and the critical area must be taken into account. In this case, Charlotte Island contains approximately 33 acres of high ground surrounded by 9 acres of high marsh. There is no evidence of any freshwater wetlands on the site. Charlotte Island contains sufficient high ground to warrant a proposal to develop the island, and to justify an application for a bridge to gain access.

10. Reg. 30-12(N)(5) requires that OCRM consider "feasible alternative access." Given the size of the island and the proposed size of the development on Charlotte Island, it is not feasible to obtain access to the island by water. Additionally, because of the nature of the island there are very few sites that would provide acceptable water access. Furthermore, as part of the application process, the developer prepared a Dock Master Plan and agreed to restrict the number of docks on the island to one -- the community dock. Therefore, under the Dock Master Plan, which was approved in connection with this bridge application, there is no feasible alternative access by water for the residents on the island.

11. Under Reg. 30-12(N)(6), public need is also a consideration. If constructed, the bridge will result in an initial adverse environmental impact in the marsh. However, while the bridge will result in some shading of the marsh, the impact will be negligible. In fact, marsh grass will continue to grow under the bridge but at a diminished height. Furthermore, the construction will require driving pilings into the marsh with the result of damage to the immediate area surrounding the pilings. However, such damage is only temporary given the normal regenerative properties of the marsh. Therefore, there will be no permanent, adverse environmental impacts resulting from the construction of this bridge. Additionally, the Stormwater Management and Sediment Control Permit will place measures upon that permit that will protect this development and the surrounding area against water quality impacts that are likely to occur from residential development. Moreover, no credible evidence was offered by the Petitioners that supports a finding of negative economic or fiscal effects resulting from this project.

12. The potential for impact of this project on protected resources must also be considered in accordance with Reg. 30-12(N)(7). OCRM routinely consults its Geographic Information System, which compiles information from various agencies regarding such impacts. The Geographic Information System reveals that there are no prohibited shellfish classifications in the area, no sites on the historic register, no endangered species that would be affected, and no archeological sites in or around the area. Additionally, there is no scientific evidence in the record to suggest that there would be anything more than a negligible impact from this bridge construction. I find that OCRM and the applicant have satisfied the requirements of Reg. 30-12(N)(7).

13. Reg. 30-12(N)(8) provides that OCRM shall consider whether an owner can "tie into existing sewer utilities or meet SCDHEC standards for septic tanks." The evidence shows that the Beaufort-Jasper Water and Sewer Authority wrote a letter to Respondent Ausburn informing him that they would provide sewer service for up to 200 lots upon the development. I find that if sewer service is obtained for the residents of Charlotte Island at set forth in the February 25, 1998 letter of Ed Saxon, permitting a bridge to the island is acceptable.

14. Under Reg. 30-12(N)(9), the values set forth in S.C. Code Ann. § 48-39-20(E) (Supp. 1998) must be considered in determining whether to issue a permit extending a bridge to a small island. These include ecological, cultural, natural, geological, scenic characteristics, industrial, economic, and historical values. The only impact that may result from the construction of this bridge, which significantly relates to these values, is the scenic impact upon the nearby property owners. Scenic impact is sometimes a consideration in Geographic Areas of Particular Concern (GAPC). However, Charlotte Island and the Ratel Circle area are not in a GAPC.

I find that there will be no impact to ecological, cultural, natural, geological, industrial, economic, and historical values and characteristics. The impact to scenic values and characteristics in the area has been minimized through the design of the bridge. Furthermore, the testimony and photographic evidence shows that there is a dense, vegetated area between the backyards of the residents of Ratel Circle and the area where the bridge is to be located. This area will function as a natural visual buffer.

15. OCRM must also consider whether the area is subject to OCRM's stormwater and management policies as set forth in Reg. 30-12(N)(10). OCRM included a special condition in its permit for the bridge requiring that the OCRM staff approve a Stormwater Plan prior to construction. Therefore, any development of this island will be regulated through the Stormwater Management and Sediment Control permitting program administered by OCRM. A Stormwater Permit will require buffers and other water quality measures.

16. The Applicant submitted both a Dock Master Plan and a Development Plan in compliance with Reg. 30-12(N)(11). The Development Plan that the applicant submitted showed an intensive development of approximately 200 lots. Though the level of the potential development of Charlotte Island is disputed by the parties, I find that a development plan that approves at least 10 residences upon Charlotte Island warrants the approval of the bridge permit. Furthermore, the Dock Master Plan is also sufficient to allow the construction of the proposed bridge.

CONCLUSIONS OF LAW

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

1. The Administrative Law Judge Division has jurisdiction in this action pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 1998). Furthermore, S.C. Code Ann. § 48-39-150 (Supp. 1998) authorizes the ALJD to hear contested cases arising under Chapter 39 of Title 48 of the 1976 Code.

2. OCRM is the state agency charged with implementing the State of South Carolina's coastal zone policies. S.C. Code Ann. § 48-39-30 (Supp. 1998) sets out the policies governing the management, development and protection of the coastal zone areas. Additionally, S.C. Code Ann. § 48-39-50 (Supp. 1998) provides DHEC with the authority to promulgate regulations to carry out the provisions of Chapter 39 of Title 48 of the 1976 Code.

3. In weighing the evidence and deciding a contested case on the merits, the Administrative Law Judge must make findings of fact and conclusions of law by 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. S.C. Code Ann. § 48-39-130(c) (Supp. 1998) requires a person or entity to obtain a permit for any alteration of the "critical area" of the coastal zone.

5. Prior to the adoption of 23A S.C. Code Ann. Regs. 30-12(N) (Supp. 1998), developers typically sought to gain access to islands by construction of a causeway through the marsh. Such construction, which resulted in the destruction of marsh, had the potential for tremendous environmental consequences. Regulation 30-12(N) was promulgated to insure that a developer bridged marsh, rather than filling it. Pursuant to Regulation 30-12(N), a bridge that creates "access to small islands" must comply with several requirements. Specifically, Regulation 30-12(N) requires that "[t]o prevent inappropriate access to small islands, permanent filling for access is prohibited, except for the expansion of existing useable causeways. Under Reg. 30-12, bridging will be considered based upon:

(1) Distance of bridging required;

(2) Type of bridging and dimensions of bridging requested;

(3) Configuration of shoreline;

(4) Size of the island including highland and critical area;

(5) The existence of feasible alternative access;

(6) Public need;

(7) Impacts on protected resources;

(8) The ability of the owner to tie into existing sewer utilities or meet SC DHEC standards for septic tanks;

(9) Impact upon values set forth in Section 48-39-20(E);

(10) The island is subject to stormwater and management policies set forth in the Program Document;

(11) The owner must provide a dock master plan, and a development plan. Mitigation will be required for any fill placed in the critical area for widening causeways."

Petitioners claim that OCRM did not follow Reg. 30-12(N) in making the decision to issue the permit in question. I conclude, however, that OCRM did in fact consider each and every element of Reg. 30-12(N), and the project satisfied each element.

6. S.C. Code Ann. § 48-39-20 (E) (Supp. 1998) provides that "important ecological, cultural, natural, geological and scenic characteristics, industrial, economic and historical values in the coastal zone are being irretrievably damaged or lost by ill-planned development that threatens to destroy these values."

7. Petitioners claim that OCRM did not sufficiently consider public need. Regulation 30-12(N)(6) sets forth that one consideration in determining whether or not to grant a bridge permit is public need. However, there is no definition of public need set forth in Reg. 30-12 or in Chapter 39 of Title 48. Need is a relative term which varies, within reasonable limits, according to the circumstances to which it is applied. See Black's Law Dictionary 1031 (6th ed. 1990). Thus, an analysis of whether this bridge is needed by the public must be based upon the circumstances of this case. Additionally, the OCRM regulations do offer some discernment in this regard in 23A S.C. Code Ann. Regs. 30-12(F)(2)(j) (Supp. 1998). Regulation 30-12(F)(2)(j) sets forth that "new road or bridge projects involving the expenditure of public funds to provide access to previously undeveloped barrier islands will not be approved unless an overriding public interest can be demonstrated." (Emphasis added). Therefore, if this project involved the expenditure of public funds, the determination of whether to issue this permit would be subject to greater scrutiny.

Though the concepts of "public need" and "public interest" are obviously different, the regulatory definition of "public interest" presents a framework for analyzing what is "public need." 23A S.C. Code Regs. 30-1(C)(11) defines public interest as "the beneficial and adverse impacts and effects of a project upon members of the general public, especially residents of South Carolina who are not the owners and/or developers of the project." (Supp. 1998) Additionally, Reg. 30-1 (C)(11) adds the analytical framework that "[t]o the extent that, in the opinion of the Department, the value of such public benefits is greater than the public costs embodied in adverse environmental, economic and fiscal effects, a proposed project may be credited with net public benefits." That analysis is also applicable in ascertaining public need. In other words, if the value of the bridge is "greater than the public costs embodied in adverse environmental, economic and fiscal effects," the bridge may be needed.

Furthermore, in Concord Street Neighborhood Ass'n v. Campsen, the South Carolina Court of Appeals held that an economic interest that is derived from a private interest will not result in a failure to satisfy the public need if the private interest is coupled with an activity that provides "benefits to the public." 309 S.C. 514, 424 S.E. 2d 538 (Ct. App. 1992). However, "a purely economic benefit is insufficient as a matter of law to establish" a public need. Id. at 309 S.C. 519. In this case, the "public need" consideration must be viewed in light of the activity sought to be permitted. In other words, Respondent Ausburn seeks to construct a bridge to a public community (versus a private gated community) providing access to residents and visitors. Additionally, the bridge will have a negligible impact upon the environment. Furthermore, the evidence did not establish any economic or fiscal cost associated with the construction of the bridge. Other "public need" concerns relating to the use or zoning of Charlotte Island are best addressed by those local governmental bodies with jurisdiction over such matters. Accordingly, public need has been adequately considered in this case.

8. Petitioners Bill and Karen Peyton contend that the bridge would diminish their property values and view of the marsh. A prescriptive right to an unobstructed view of the marsh does not exist under South Carolina Law. Hill v. The Beach Co., et al., 279 S.C. 313, 306 S.E.2d 604 (1983). However, in considering whether to grant a permit S.C. Code Ann. § 48-39-150(A)(10) (Supp. 1998) provides that "[t]he 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. See also 23A S.C. Code Ann. Regs. 30-11(B)(10)(Supp. 1998). Therefore view and property value are general considerations in assessing the potential impact of a project in a critical area. However, these consideration are to be considered under the penumbra of all the other considerations to be made in this case. In this case, impact on view is not a compelling reason, in itself, to deny a permit application.

Furthermore, the only instance in which the regulations specifically set forth view of an adjacent landowner as a consideration is in reference to roofs on private docks. See 23A S.C. Code Ann. Regs. 30-12(A)(2)(r) (Supp. 1998). View is also considered by OCRM in some instances in which a project is proposed in a Geographic Areas of Particular Concern (GAPC). GAPCs are "areas within South Carolina's coastal zone which have been identified in the State's Coastal Management Program as being of such importance as to merit special consideration during the Department review of permit applications. GAPC's consist of: (1) areas of unique natural resource value; (2) areas where activities, development, or facilities depend on proximity to coastal waters, in terms of use or access; and (3) areas of special historical, archeological or cultural significance." 23A S.C. Code Ann. Regs. 30-1(D)(21) (Supp. 1998). Chapter IV of The State of South Carolina Coastal Management Program and Final Environmental Impact Statement contains the identification of Geographic Areas of Particular Concern and their locations. As set forth in paragraph 14 of the above Findings of Fact, Charlotte Island and the Ratel Circle area are not in a GAPC.

9. Petitioners Bill and Karen Peyton are also concerned about the size of the proposed development and the impact it will have on their neighborhood, specifically the potential for an increase in traffic. This issue relates more to the considerations given by local governments in zoning decisions than to the OCRM permitting process. During the review of this project, OCRM was aware of the potential for increased traffic on Ratel Circle, and considered this in making a decision on this application. However, the potential for increased traffic is not a sufficient reason to deny this application. "While traffic and density may sometimes be an issue that OCRM should take into consideration in imposing limitations on permits, it is not a reason alone to deny a permit." Save the Wando v. SCDHEC & Cann-Hal, Docket No. 97-ALJ-07-0769-CC, 1999 WL 186849 (March 5, 1999). Moreover, pursuant to S. C. Code § 5-23-10 (1976), Beaufort County has the following authority:

For the purpose of promoting health, safety, morals or the general welfare of the community, the legislative body of cities and incorporated towns may by ordinance regulate and restrict the height, number of stories and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts and other open spaces, the density of population and the location and use of buildings, structures and land for trade, industry, residences or other purposes.

(Emphasis added).

I conclude that though the Petitioners' concerns with regard to an increase in traffic, while legitimate, are more properly expressed before local elected officials in the zoning debates on this project. Beaufort County has the responsibility and authority to consider the density of this proposed development in light of the safety and general welfare of the community. The issue of traffic ingress and egress on Ratel Circle is clearly related to community safety. Therefore, these issues should be addressed when Beaufort County takes action on the proposed Development Plan for Charlotte Island. As I have concluded that there are no public costs in the form of adverse environmental impacts, and no credible evidence of adverse economic effects, I find that public need was adequately considered with this project.

Likewise, this Court does not have jurisdiction to determine whether land labeled as "open space" is a proper location to place a bridge or whether the island is proper for residential development according to Beaufort County zoning laws. These too are issues that should be addressed when Beaufort County takes action on the proposed development plan for Charlotte Island.

ORDER

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

ORDERED that OCRM shall grant permit # OCRM-97-302-E to Respondent Ausburn, with the additional conditions as set forth below:

1. Respondent Ausburn will not build a bridge until a development plan that approves at least 10 residences upon Charlotte Island has been approved by Beaufort County; and

2. When sewer service has been obtained for all of the approved residences of Charlotte Island at set forth in the February 25, 1998 letter of Ed Saxon, permitting a bridge to the island will be acceptable.

AND IT IS SO ORDERED.

____________________________

Ralph King Anderson, III

Administrative Law Judge

February 25, 2000

Columbia, South Carolina

1. At the hearing before me, Respondent Ausburn raised a continuing objection to intervention by Beaufort County based on the grounds that Ausburn received no notice of the Motion to Intervene or of the hearing conducted on the motion. That objection was overruled.