ORDERS:
FINAL ORDER AND DECISION
I. Statement of the Case
The South Carolina Department of Health and Environmental Control, Bureau of Ocean and Coastal Resource Management
(OCRM) seeks to grant to Michael T. Casa (Casa) a permit allowing Casa to construct two vehicular bridges. The bridges
will connect two small islands to the mainland of Seabrook Island with both the islands and the mainland located within the
Town of Seabrook Island. Pamela Bartenfield, Margaret-Mary Madeux, Seabrook Island POA, Ernest J. Edge, John G.
Garvin, David and Elaine Rugh, and the South Carolina Coastal Conservation League (Petitioners and Intervenors) all
oppose the request for the permit.
The disagreement on the issuance of the permit places contested case jurisdiction in the Administrative Law Judge Division
(ALJD) under S.C. Code Ann. § 48-39-150 (Supp. 1998) and § 1-23-310 et seq. (Rev. 1987 & Supp. 1998). After
considering the evidence presented at the April 2, 1999 hearing and reviewing the briefs filed on May 10, 1999, I find the
permit must be granted.
II. Issues
1. Should a permit be granted to Casa allowing the construction of two vehicular bridges from a location on the mainland to
two islands in the tidelands area adjacent to Seabrook Island?
2. To what extent is the question of local government zoning a proper consideration in OCRM's evaluation of critical area
permits?
3. Should a second public hearing have been conducted by OCRM following the revisions to the permit application made by
Casa after the public hearing held in July 1998?
III. Analysis
A. Permit Requirements
1. Positions of Parties
Bartenfield asserts the permit should be denied since the bridges will adversely impact the value, use and enjoyment of her
property at Bay Point Villas. The other Petitioners and Intervenors as a group argue a denial is required since the
regulations governing bridges in a critical area have not been satisfied. Casa and OCRM assert the bridges will not adversely
impact Bartenfield's property. Further, they argue the permit complies with all requirements governing bridges in a critical
area.
2. Findings of Fact
I find by a preponderance of the evidence the following facts:
a. General
The islands involved in this dispute (designated Island A and Island B) consist of high ground of approximately 2 acres and
1.5 acres respectively. Each island is located in the marsh off Seabrook Island, near Horse Shoe Creek. The permit in this
dispute seeks permission to construct a 290 foot bridge from the mainland of Seabrook Island to Island B and a 600 foot
bridge from Island B to Island A. The bridges will be fourteen feet wide and will be constructed of treated timber. The
bridges will be used by only two residences and will present a use rate that is relatively low in relation to the number of trips
per day versus that of the more typical public transportation route.
b. Adjacent Owners
An adjacent property owner, Bartenfield, lives in a condominium complex known as Bay Point Villas. Madeux is also an
occupant of Bay Point Villas. The villas consist of five buildings with each building containing eight units. Bartenfield lives
in the building which faces the bridge connecting the mainland to Island B.
In deciding the impact upon the view of adjacent owners, an OCRM employee visited the site twice. OCRM imposed
limitations on the bridge as to size and design with an intent to minimize the view impact of the bridge. Such limitations
included restricting the bridge design to allow only that which was necessary to satisfy safety and environmental concerns.
For example, the fourteen foot width of the bridge is mandated by safety considerations related to fire and emergency
vehicles and the five foot height is imposed to assure adequate protection of marsh grass.
In addition to size and design restrictions, view considerations included assessing the number of residents in Bay Point Villas
affected. When constructed, the bridge will not be visible from all of the units located in the complex. Rather, the bridge is
visible to only one building of the Bay Point Villas community.
Finally, loss of property value is relevant. In this case, no loss of value to adjacent property is shown by the evidence.
Rather, no evidence exists of sales of similar property demonstrating a loss of value due to a bridge constructed in a nearby
marsh.
c. Environment
Environmental impacts from the construction and operation of the bridges are relevant considerations in the permitting
process. That environmental concern resulted in a restriction that the elevation of the bridges be five feet above mean high
water. While such an elevation will result in some shading of the marsh, the impact will be negligible. Indeed, marsh grass
will continue to grow under the bridges but at a diminished height.
Destruction of the marsh grass is a concern relevant to the environmental impact of the bridges. No dispute exists that the
construction will require driving pilings into the marsh and that damage to the immediate area surrounding the pilings will
result. However, such damage is only temporary given the normal regenerative properties of the marsh. The destruction is
minimal and creates no significant impact given the very large scale of the salt-marsh system in the area.
A similar environmental concern is the impact the bridge will have on the molecular community known as the diatomic
communities which make their habitat in the mud at the bottom of tidal creeks and marshes. Certainly, the construction will
displace some of the diatomic communities. However, in the instant case, the impact on the diatomic communities is not
significant. Rather, diatomic communities re-colonize easily following a disruption of the degree associated with the
construction of a bridge.
An additional environmental concern is the use of treated lumber to construct the bridge. Treated lumber used as a building
material in marine construction will, to some degree, leach chemicals into the marsh. Those chemicals will include cooper,
chromium, and arsenic. Here, no evidence persuasively quantifies the amount of leachate likely to result from the bridge
sought to be built. Moreover, existing studies demonstrate that water quality is only affected initially and even that impact is
confined within the footprint of the construction that utilizes the treated wood. Indeed, no documented long-term negative
impacts to water quality were demonstrated in this case.
In an effort to diminish any potential negative environmental impact, the permit imposes conditions. One condition imposes a
Restrictive Covenant as part of Special Condition 1 of the permit. This covenant requires an average fifty foot buffer
between the critical area and any development of Islands A and B. The effect of this covenant is that all landscaping,
sodding, land clearing, and construction must be located at an average distance of fifty feet from the critical line on these
islands. Since both islands are ringed by critical area, the fifty foot buffer significantly limits the buildable area found on
these islands. Indeed, such buffers serve to protect adjacent water quality from the impacts of upland development.
Finally, the permit will allow construction of the bridges only upon the execution of a Conservation Easement and Deed of
Conservation Easement which will be made a part of the permit. The Conservation Easement will grant a Deed of Easement
of approximately 300 acres of marsh surrounding the islands. The authority to grant the deed is premised on Casa's view
that he or an entity controlled by Casa holds title to the surrounding marsh. When executed, the Deed of Easement seeks to
preclude any alteration or activity in the marsh inconsistent with the intent of the easement with the only contemplated
alterations being the construction of the bridges and the possible future construction of a dock.
3. Conclusions of Law
Based on the foregoing Findings of Fact, I conclude the following as a matter of law:
Under the facts of this case, the issue becomes determining whether OCRM properly applied the applicable law in granting
the permit. I conclude the permit is proper.
a. Applicable Law
OCRM is the division within DHEC charged with administering the State's coastal zone policies and issuing permits in
coastal zone areas. S.C. Code Ann. §§ 1-30-45(B), 48-39-35, and 48-39-50(C). To assist in accomplishing its task, the
General Assembly has authorized OCRM to promulgate regulations governing the management, development, and
protection of the coastal zone areas of the state. S.C. Code Ann. § 48-39-50(E) (Supp. 1998). Pursuant to that authority,
OCRM promulgated regulations governing permits for bridges designed for vehicular passage. In fact, for bridges designed
for vehicular passage, three specific regulations are pertinent: the general guidelines applicable to all permits in critical areas,
23A S.C. Code Ann. Regs. 30-11; the regulations governing transportation, 23A S.C. Code Ann. Regs. 30-12(F) (Supp.
1998); and the regulations governing bridges, 23A S.C. Code Ann. Regs. 30-12(N) (Supp. 1998). Here, the structure is to
be built in a "critical area" as that term is defined in S.C. Code Ann. § 48-39-10 (J) (Supp. 1998), 23A S.C. Code Ann. Regs.
30-1(C)(4) and (12) (Supp. 1998) and Regs. 30-10(A) (Supp. 1998). Thus, no issue is in dispute that the marsh area is in a
critical area. Accordingly, the regulatory provisions within OCRM's jurisdiction are applicable.
a. Regulations: General Guidelines
The first area of review is that of the general guidelines of Regs. 30-11(B) and (C). Petitioners and Intervenors argue the
following factors demonstrate that the permit should be denied: the extent of the adverse environmental impact, Regs. 30-11(B)(8); the extent to which the proposed use could negatively affect the value and enjoyment of adjacent owners, Regs.
30-11(B)(10); the cumulative, long-range negative effects of the project on important ecological, natural, and scenic
characteristics within the context of other possible development and the general character of the area, Regs. 30-11(C)(1);
and the extent to which plans were not submitted as a whole causing piecemeal evaluation of a project Regs. 30-11(C)(2). I
conclude none of the guidelines warrant denying the permit.
i. Adverse Environmental Impact: Regs. 30-11(B)(8)
Under Regs. 30-11(B)(8), a relevant consideration is "[t]he extent of any adverse environmental impact which cannot be
avoided by reasonable safeguards." Here, the primary environmental concerns are that the bridge will create shading of the
marsh, destroy marsh grass, displace diatomic communities, and allow leaching of chemicals into the marsh. None of theses
concerns are sufficient to warrant denying the permit.
While shading of the marsh will occur, the elevation of the bridges to five feet above mean high water will result in the
shading being negligible. As the evidence establishes, marsh grass will continue to grow under the bridges but simply at a
diminished height. Likewise, while destruction of the marsh grass will result from driving pilings into the marsh, that damage
will be only temporary given the normal regenerative properties of the marsh and will be minimal given the very large scale
of the salt-marsh system in the area. In a similar vein, certainly the construction will displace some of the diatomic
communities. However, the impact is not significant since diatomic communities re-colonize easily following a disruption of
the degree associated with the bridge construction involved in this case.
True, treated lumber will be used as a building material for the bridge and, to some degree, chemicals such as cooper,
chromium, and arsenic will leach into the marsh. However, no evidence persuasively quantifies the amount of leachate likely
to result from the bridge sought to be built in this dispute. Further, existing studies demonstrate that while water quality can
be affected, such occurs only in the initial stages of construction. Additionally, even that initial impact is confined within the
footprint of the construction that utilizes the treated wood. Indeed, no documented long-term negative impacts to water
quality were demonstrated in this case. Accordingly, no environmental concerns warrant denying the permit.
ii. Value and Enjoyment of Adjacent Property Owners: Regs. 30-11(B)(10)
Bartenfield is an adjacent property owner since her condominium unit in Bay Point Villas faces the bridge connecting the
mainland to Island B. Bartenfield asserted the project would "greatly affect the owners of Bay Point Villas, which is where I
reside at this time." For at least three reasons, no persuasive evidence demonstrates how Bartenfield's ability to view the
bridge will present a negative impact on the value, use or enjoyment by the condominium property owners.
First, the persuasive evidence does not demonstrate that a loss in property value to adjacent property owners will result from
the bridge construction. Certainly, no doubt exists that a pleasant scenic view will have an impact upon the value of property
in close proximity to that scenic view. See Long Cove Home Owners' Ass'n, Inc. v. Beaufort County Tax Equalization
Bd., 327 S.C. 135, 488 S.E.2d 857 (1997) (where our Supreme Court quoted with approval from Lake County Board v.
Property Tax Appeal Board, 91 Ill.App.3d 117, 46 Ill.Dec. 451, 414 N.E.2d 173 (Ill.App. 2 Dist. 1980) holding that "[i]t is
apparent that property adjoining or in close proximity to a body of water, a park, golf course or other scenic view may well
have an increased value because of its location."). However, equally as true is the conclusion that valuing real property
creates a factual determination. Cf. Andrews Bearing Corp. v. Brady, 261 S.C. 533, 201 S.E.2d 241 (1973) (where the
court explained that no factual issue was presented since there was "no question of valuation being in issue."). Thus, the fact
issue is presented of what impact on value does the presence of the bridge in the marsh have on adjacent properties.
In the instant case, no evidence supports a conclusion that the bridge will diminish the value of the Bay Point Villas or any
other adjacent property. To arrive at a conclusion that the value of adjacent property is reduced, evidence of sales of similar
property would need to be established showing that the presence of a structure in the marsh has materially and negatively
impacted the value of the adjacent owner's property. No such evidence is persuasively presented in this case. Accordingly,
the permit cannot be denied due to the loss of value imposed on adjacent property owners.
Second, while the bridge will be visible from Bartenfield's residence, most of the units at Bay Point Villas will not have a
view of the bridge. Thus, even assuming a negative impact upon the use and enjoyment could be established, the view of the
bridge is limited to only a proportionately small number of the residences at Bay Point Villas. Accordingly, on the whole,
such a limited impact on view is not sufficient to require denying the permit.
Third, an employee of OCRM visited the site twice and gave consideration to the impact the bridge would have upon view
and enjoyment of adjacent owners. OCRM gave responsible consideration to the view issue. In fact, to accommodate that
impact, the staff of OCRM limited the size and design of the bridge to that which was minimally necessary to satisfy safety
concerns for fire and emergency vehicles. Here, the applicant is authorized to build only that which is necessary to gain
vehicular access to the islands under review. Accordingly, adequate concern was given for the value, use and enjoyment of
adjacent property owners.
iii. Cumulative, Long-Range Effect: Regs. 30-11(C)(1)
Regs. 30-11(C)(1) explains that consideration should be given to "[t]he extent to which long-range, cumulative effects of the
project may result within the context of other possible development and the general character of the area." Here, it is true
that another property owner owns a portion of one of the islands and that such an owner could at a future date seek a similar
bridge. Accordingly, some potential exists for the bridges involved in this permit to have a cumulative impact.
However, such a possibility is not a sufficient reason to deny the permit. The evidence establishes that OCRM considered
such a possibility but did not believe that possibility was a sufficient reason to deny the permit. Such a view is not
unreasonable. Indeed, OCRM could conclude that further development of the island here under review may not justify a
second bridge. Hence, the possibility of future development by itself is not enough to warrant a denial of the current permit.
In addition, the regulation requires that the cumulative impact decision be made in light of "the general character of the
area." It is noteworthy that the general area around the marsh is already the home to a condominium complex with
numerous residences housed in that facility. Thus, the addition of two residences on two nearby islands is not inconsistent
with the current general character of the area. Accordingly, the cumulative, long-range effect of granting the permit is not a
sufficient consideration under Regs. 30-11(C)(1) to deny the permit.
iv. Piecemeal Evaluation: Regs. 30-11(C)(2)
Regs. 30-11(C)(2) states that consideration should be given to, "[w]here applicable, the extent to which the overall plans and
designs of a project can be submitted together and evaluated as a whole, rather than submitted piecemeal and in a fragmented
fashion which limits comprehensive evaluation." Here, the overall plan and design of the project has been submitted in
sufficient detail to allow OCRM to consider the whole project. For example, Casa began with a request for two separate
bridges both originating on the mainland. That request was Casa's project for development of the two islands. In evaluating
the "whole," OCRM concluded only one bridge could originate at the mainland with that bridge then continuing from Island
B to Island A. Thus, on the whole, OCRM properly considered an overall plan to the project so that no basis exists in Regs.
30-11(C)(2) for denying the permit.
b. Regulations: Transportation
The Petitioners and Intervenors assert the permit should be denied since the requirement of Regs. 30-12(F)(2)(e) have not
been satisfied. I cannot agree.
Regulation 30-12(F)(2)(e) explains that "[w]here feasible, maximum care shall be taken to prevent the direct drainage of
runoff water from transportation routes and associated facilities from entering adjacent water bodies." In applying this
regulation, "feasible" is defined to specifically include the concept of reasonableness. Regs. 30-1(C)(6).
Here, the evidence establishes that the bridge will be used by only two residences. Further, the estimated use of the bridge
will be relatively low in relation to the number of trips per day versus that of the more typical public transportation route.
Accordingly, the evidence does not demonstrate that the bridge will produce an adverse runoff warranting additional control
measures. Therefore, the small number of trips per day militates in favor of a much less heightened degree of runoff control.
Such a view is consistent with the dictates of the reasonableness standard applicable to judging feasible measures.
c. Regulations: Bridges
Even if the general guidelines and the transportation requirements are satisfied, a bridge permit seeking "access to small
islands" must further satisfy the requirements imposed by 23A S.C. Code Ann. Regs. 30-12(N) (Supp. 1998). That
regulation acknowledges that development of small islands can have a negative affect both on the values identified in § 48-39-20(E) as well as on the policies identified in § 48-39-30. Id. Thus, to assist in maintaining compliance with the values of
§ 48-39-20(E) and the policies of § 48-39-30, the regulation seeks to "prevent inappropriate access to small islands" and to
that end addresses two primary means of access, filling and bridging. In this case, filling is not a pertinent factor since only
bridging is sought as a means of access.
Bridging will be considered as a means of access by conducting an evaluation of eleven criteria. Here, the Petitioners and
Intervenors argue that the project fails to comply with OCRM bridge regulations since the distance required is too great
under Regs. 30-12(N)(1), the type of bridging and dimensions of bridging are improper under Regs. 30-12(N)(2), the small
size of the islands including the highland and critical areas are inadequate under Regs. 30-12(N)(4), the existence of feasible
alternative access prohibits the bridges under Regs. 30-12(N)(5), no public need exists for the bridges as required by Regs.
30-12(N)(6), the permit fails to consider the impact on protected resources under Regs. 30-12(N)(7), and finally, though not
specifically tied to any individual criteria of Regs 30-12, OCRM's overall application of the factors fails to balance the public
and private interests. None of these arguments are sufficient to require a denial of the permit.
i. Distance, Type, and Dimensions of Bridge: Regs. 30-12(N)(1) & (2)
Regs. 30-12(N)(1) and (2) provide that consideration must be given to the "[d]istance of bridging required" and the "[t]ype
of bridging and dimensions of bridging requested." Here, the total distance of combined bridging is 890 feet with one bridge
being 290 feet and the second being 600 feet.
No evidence persuasively establishes that such a distance is improper. Rather, the evidence confirms that each bridge is
consistent with the length of other bridges approved by OCRM. Further, while not directly comparable due to generally
smaller width and other configuration differences, a single dock is not specifically prohibited until a length of 1000 feet is
reached. Thus, on the whole, the distances required by the two bridges (the longest being 600 feet) are not improper.
Additionally, the type and dimensions of the bridging are not improper. The structure type will be treated lumber with
treated lumber being a common building material for marine structures. While treated lumber has some leachate properties,
those properties are minimal and do not warrant prohibiting the permit. Further, the dimensions of the bridges are to be
fourteen feet wide with that width required due to a need to comply with fire and safety vehicle requirements. Accordingly,
no distance, type, or dimensions requirements of Regs. 30-12(N)(1) and (2) warrant denying the permit.
ii. Inadequate Size of Islands: Regs. 30-12(N)(4)
Regs. 30-12(N)(4) asks that the bridge be considered in light of the "[s]ize of [the] island including highland and critical
area." Here, both Islands A and B have sufficient size for development even after accounting for the size of the critical area.
Island A is a total of 3.3 acres of which 2 acres is highland leaving a critical area of 1.3 acres. Likewise, Island B is 2.1 acres
of which 1.5 acres is highland leaving a critical area of .6 acres. No evidence persuasively establishes that such sizes are
inadequate. On the contrary, the building requirement for lots imposed by the Town of Seabrook Island is approximately a
quarter of an acre. Given Casa's plan to place one residence on each island, the size of the island is not inadequate.
iii. Feasible Alternative Access: Regs. 30-12(N)(5)
Regs. 30-12(N)(5) addresses "[t]he existence of feasible alternative access" to the island. Here, no land route exists to
provide vehicular access to either Island A or B. In addition, no "existing useable causeway" is available for expansion to
reach the islands. Thus, for purposes of the planned use of the property for two residences, no feasible alternative access has
been proven. Therefore, no basis exists for denying the permit under Regs. 30-12(N)(5).
iv. Public Need: Regs. 30-12(N)(6)
One of the eleven factors to be considered in a bridge permit request is "public need." Regs. 30-12(N)(6). While no
definition of public need is provided by statute or by regulation, case law provides some guidance.
In a related area, our Supreme Court established one end of the private vs. public spectrum by holding that a purely
economic benefit is insufficient as a matter of law to establish an overriding public interest. S.C. Wildlife Fed'n v. S.C.
Coastal Council, 296 S.C. 187, 371 S.E.2d 521 (1988). However, on the permissible end of the spectrum, the Court of
Appeals held that an economic benefit derived from a private interest is not fatal to satisfying a public need if the private
interest is sufficiently combined with an activity that provides "benefits to the public." See Concord Street Neighborhood
Ass'n v. Campsen, 309 S.C. 514, 424 S.E.2d 538 (Ct.App. 1992) (where an aquatic science museum and tour boat
(activities that were unchallenged activities satisfying a public need) were sufficiently combined with the private interest of a
restaurant to permit the museum, boat, and restaurant combination to provide benefits to the public within the meaning of
"public need").
Here, the project has at least a minimum consideration of public need since a Conservation Easement is a part of the
permitting conditions. Indeed, the permit will allow construction of the bridges only upon the execution of a Conservation
Easement and Deed of Conservation Easement made a part of the permit. When executed, the Conservation Easement will
grant a Deed of Easement to a named grantee of approximately 300 acres of marsh allegedly owned by Casa or an entity he
controls. The impact of the Deed of Easement is that it will preclude any alteration or activity in the marsh inconsistent with
the intent of the easement.
While it is true that the easement does not add a great deal beyond the limitations already imposed by OCRM's regulations
and Federal laws and regulations, such public sector limitations are just that: public sector limitations. On the other hand, the
easement satisfies a further public need by imposing similar protections by the private sector, i.e., contract and property law
considerations serve to enhance the public need of protecting the marsh.
Accordingly, the public need is adequately considered in this case. While a basic private interest is being satisfied, the
voluntary surrender of property and contract rights in the private area furthers the pubic need of protecting the marsh. Thus,
the permit cannot be denied for failure to adequately consider public need.(1)
v. Protected Resources: Regs. 30-12(N)(7)
In this case, the impact upon the protected resources of the area is not a reason to deny the bridge permit. Here, the
elevation of the bridges assures sufficient photosynthesis while at the same time limiting view impact. Marsh destruction is
minimal and diatomic communities will reestablish easily following the bridge construction. Further, no significant
population of shellfish is noted in the area and the impact of the use of treated wood is minimal since water quality is only
affected initially and only within the footprint of the construction.
Moreover, specific conditions of the permit will serve to enhance protection of the resources of the marsh since required
buffers serve to protect adjacent water quality from the impacts of upland development. For example, the Restrictive
Covenant imposed as part of Special Condition 1 requires an average fifty foot buffer between any development on Islands A
and B and the critical area. Thus, all landscaping, sodding, land clearing, and construction must be located at an average
distance of fifty feet from the critical line on these islands.
Therefore, a consideration of the impact on protected resources does not warrant denying the permit sought by Casa.
vi. Failure To Balance Public and Private Interests
Certainly, a need exists for balance between competing interests in the Coastal Zone. Indeed that need is summarized in §
48-38-30(A)'s explanation that "[t]he General Assembly declares the basic state policy in the implementation of this chapter
is to protect the quality of the coastal environment and to promote the economic and social improvement of the coastal zone
and of all the people of the State." Protecting the quality of the coastal zone while promoting economic and social
improvement is a challenging balancing act.
In an effort to accomplish that balancing act, the statutory structure reminds all developers that many values worth
supporting (ecological, cultural, natural, geological and scenic characteristics, industrial, economic and historical values) can
be "irretrievably damaged or lost by ill-planned development that threatens to destroy these values." S.C. Code Ann. § 48-39-20(E) (Supp. 1998). Even more to the point for the instant case, a plain reading of 23A S.C. Code Ann. Regs. 30-12(N)
(Supp. 1998) reminds developers that inappropriate development of small islands can have a negative affect on the values
identified in § 48-39-20(E) and on the policies identified in § 48-39-30.
Against this framework, the Petitioners and Intervenors essentially argue that granting the permit amounts to furthering an
inappropriate development. They assert the inappropriate development is proven in this case since development of Islands A
and B improperly favors a private interest over the public interest.
Deciding when the balance between public versus private interest has tipped too far to the private side is a matter best
decided based upon the particular facts of each case. For example, the granting of thirty-six docks in connection with a
development project was not an unwarranted privilege granted to private interests at the expense of the public interest since
the docks would not substantially impair marine life, water quality, or public access to the area. Sierra Club v. Kiawah
Resort Associates, 318 S.C. 119, 456 S.E.2d 397 (1995). On the other hand, the facts may demonstrate that the privilege
sought by the private interest improperly impinges upon the public interest. Such was true in State ex rel. Medlock v. S.C.
Coastal Council, 289 S.C. 445, 451, 346 S.E.2d 716, 720 (1986) where the court explained,
"Although we recognize the potential benefit of an aquaculture industry to South Carolina, we cannot find sufficient
evidence of an overriding public interest which would justify removing 660 acres from the Santee Estuarine System and
destroying fifty acres of marshland."
Thus, the inquiry here is whether the impact upon the public interest is so significant as to warrant denying Casa's application
for a vehicular bridge over a marsh. Given the evidence before me, I find the public interest is not so significantly impacted
as to warrant denying Casa's application.
First, the evidence establishes the bridge will not substantially impair marine life. Indeed, shellfish or other marine life are not
a significant factor in the area. Second, public access is not lessened by the bridge. While the bridge is a private structure,
the structure itself does not limit access otherwise available to the area. Third, water quality will not be altered by the
bridge. While nearby Bohicket Creek, its tributaries and marshes carry DHEC's Outstanding Resource Waters
classification, no persuasive evidence demonstrates that these bridges will endanger the Outstanding Resource Waters
classification. Finally, no persuasive evidence demonstrates how the bridges will adversely impact the ecological, cultural,
natural, geological and scenic characteristics, industrial, economic and historical values of the area. Rather, in short,
considering the evidence as a whole, the balance between public and private interest does not require a denial of the permit
request.
B. Zoning Considerations
1. Positions of Parties
Bartenfield argues OCRM should not issue a permit to Casa while an unresolved zoning dispute is pending on whether the
property to which the bridge will connect is zoned for development or conservation. Casa and OCRM argue that the
permitting process cannot be delayed until the zoning controversy is resolved. Rather, Casa and OCRM argue that the
permit can be issued contingent upon the zoning being satisfied.
2. Findings of Fact
I find by a preponderance of the evidence the following facts:
OCRM asked the Town of Seabrook Island for the town's view on the zoning status of Islands A and B as owned by Casa.
The Town of Seabrook Island and Casa disagreed on the zoning status of the Islands. That disagreement caused Casa to
initiate a discussion with the Town of Seabrook Island. Casa intends to seek a determination on the zoning status of his
property and seeks to build two residences with one residence on each island. No resolution of the disagreement has been
reached.
All parties to the instant hearing have stipulated as to the zoning status of Casa's Islands A and B. By stipulation in open
court, all parties specified and agreed that the Town of Seabrook Island asserts Casa's Islands A and B are zoned as
conservation areas. The parties further stipulated and agreed that Casa asserts the islands have no zoning designation.
Furthermore, all parties stipulate that a procedure and a forum outside the Administrative Law Judge Division exists to
resolve the zoning dispute. Finally, General Condition 4 explains to Casa that the granting of the permit does not relieve
Casa of the requirement of complying with any zoning regulation.
3. Conclusions of Law
Based on the foregoing Findings of Fact, I conclude the following as a matter of law:
Zoning is relevant to a determination of whether a permit should be granted or denied since OCRM is directed to consider
the "views of interested agencies, local governments and persons" in its decision making process. S.C. Code Ann. § 48-39-150(B) (Supp. 1998). In this case, the Town of Seabrook Island sought to express its views on the zoning issue since the
Town was asked for its position by an employee of OCRM. The Town responded that its view was that the islands owned
by Casa are zoned "conservation." Likewise Casa sought to express his view that his islands were not zoned "conservation"
but instead were properly zoned to allow residential construction.
While evidence of zoning may be relevant, the extent of evidence presented on the disputed status of the property can be
limited. In fact, the trial judge may limit the evidence presented so as not to unnecessarily multiply the issues and create
confusion. Johnston v. Ward, 288 S.C 603, 344 S.E.2d 166 (Ct. App. 1986). Indeed, the degree to which evidence of a
matter may be pursued is a matter within the trial judge's discretion. See Hofer v. St. Clair, 298 S.C. 503, 381 S.E.2d 736
(1989) (the admission of evidence is a matter addressed to the sound discretion of the trial judge.) Imposing a limit on
evidence received is especially appropriate where, as is the case here, the parties stipulated that the zoning issue was
unresolved and that another forum was available to decide that issue.
Accordingly, receiving extensive evidence seeking to prove the zoning status of the islands here under review is not
warranted. Rather, the parties have stipulated to their positions on the issue and have available to them another forum for
deciding the zoning status. Thus, OCRM was not required to delay its decision on permitting until the zoning issue was
resolved but instead OCRM was required to consider the fact that the zoning issue was not yet settled along with all of the
other considerations relevant to the permit review. In this case, the permitting decision was made with such considerations
in mind and no basis exists for denying the permit due to the unresolved nature of the zoning issue.
C. Public Hearing
1. Positions of Parties
Garvin argues that the public notice of the project was insufficient since the notices made no mention of the construction of
houses on Islands A and B. Casa and OCRM assert the public notice was sufficient since the purpose of Casa's application
was only to provide "private vehicular access to islands A and B, [and] private dock access from island B to Horse Shoe
Creek." OCRM and Casa assert the construction of a residential dwelling situated outside the critical area is beyond the
permitting authority of OCRM and thus not a requirement of the notice.
2. Findings of Fact
I find by a preponderance of the evidence the following facts:
Casa's application was placed on public notice on three different dates. On May 7, 1998, a public notice was issued for the
construction of two bridges and a dock. Both proposed bridges originated from the mainland and made no connection
between the two islands. On September 10, 1998 a Public Notice Revision was issued showing the current configuration of
only one mainland connection, and a connection between the two islands. This Public Notice was in error, since the bridge
was shown as originating from property owned by Bay Point Villas. On October 1,1998, a Public Notice Correction was
issued, showing the correct position of the bridge. Garvin received, or at least was aware of, each of these notices.
3. Conclusions of Law
Based on the foregoing Findings of Fact, I conclude the following as a matter of law:
Garvin argues that the notices make no mention of the construction of houses on Islands A and B. While correct, Garvin's
observation has no legal consequence in terms of invalidating the notices.
OCRM Regs. 30-2(B)(6) require that a permit applicant provide "[a] brief description of the proposed alteration, its purpose
and intended use, including a drawing of the type of structure, a description of the method of construction, and identification
of materials and equipment to be used;..." The reference to "alteration" relates back to 30-2(B) and that reference applies to
"any person wishing to alter a critical area..."
Here, the construction of houses on the two islands involved in this case will be accomplished without altering the critical
area. Indeed, the stated purpose of Casa's application was to provide "private vehicular access to islands A and B, [and]
private dock access from island B to Horse Shoe Creek." Thus, the construction of a residential dwelling outside the critical
area, rather than being an OCRM matter, is a matter within the authority of the local government. Accordingly, no
invalidating error occurred in the issuance of the notices in the instant case.
IV. Order
The South Carolina Department of Health and Environmental Control, Bureau of Ocean and Coastal Resource Management
is directed to grant to Michael T. Casa permit number OCRM-987-162-E, allowing Casa to construct two vehicular bridges
to connect two small islands to the mainland of Seabrook Island.
AND IT IS SO ORDERED
______________________________
RAY N. STEVENS
Administrative Law Judge
Dated: July 22, 1999
Columbia, South Carolina
1. I recognize that Casa argues that a public need is a relevant consideration only when public funds are being expended for
the bridge project. I cannot agree. Routinely OCRM is called upon to consider the public's point of view in its decision
making process. Accordingly, the plain language of the regulation does not give an absurd result and that plain language
should be applied so that OCRM should consider the public need for the project. See Hughes v. Edwards, 265 S.C. 529,
220 S.E.2d (1975) (Unless a different interpretation is required, the words used must be given their ordinary meaning). |
