SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before this tribunal pursuant to the request by Petitioner Walter A. Luszki (Petitioner) for a contested case hearing to challenge the issuance of a dock-construction permit to Respondent Wesley L. Moore. The South Carolina Department of Health and Environmental Control (DHEC), through the Office of Ocean and Coastal Resource Management (OCRM), issued the dock-construction permit to Mr. Moore. Petitioner resides on an adjacent property and claims that the construction of the dock would negatively impact the environment. Petitioner further claims that the construction of the dock and activities at the dock would create a trespass and violate his right to privacy. After timely notice to all parties, a hearing was conducted August 24, 1999 at the Charleston County Courthouse, Charleston, South Carolina. Based upon the following Findings of Fact and Conclusions of Law, this tribunal finds that Petitioner's challenge of the permit must fail.

FINDINGS OF FACT

Having considered all pleadings, motions, testimony, exhibits, and arguments presented at the hearing of this matter, and taking into account the credibility of witnesses and accuracy of evidence, I make the following Findings of Fact by a preponderance of the evidence.

Mr. Moore applied to OCRM to build a private dock, consisting of a walkway with handrails and a pierhead, on and adjacent to a tributary of the Folly River at Lot B, Indian Avenue East, Folly Beach, Charleston County, South Carolina. On December 21, 1998, OCRM issued a Critical Area Permit, P/N# OCRM-98-488-G, with special conditions to Mr. Moore. Mr. Moore had proposed to OCRM to construct a dock with a 4' x 45' walkway and a 10' x 16' pierhead. OCRM issued a permit to Mr. Moore that, among other things, restricted the area of the pierhead to 8' x 10', restricted the length of the dock to 1/4 of the creek's width, provided for the dock to terminate at the first navigable creek, and provided for the dock to remain at least 20' from any adjacent property line. Since obtaining the permit, Mr. Moore has completed the construction of the private dock.

Petitioner claims that the construction and use of the private dock would damage the coastal environment, including a bird sanctuary (blue herons, great egrets, wood storks and white ibis), oyster beds, small tributaries, mud flats of the creek, marshland, shellfish beds, wetlands and a tidal creek. In response, OCRM contends that the private dock will not negatively impact the environment. The Department of Natural Resources similarly has not objected to the dock-construction permit based on an assessment of potential impacts to natural resources. OCRM reasons that, generally, the only real significant environmental impact of such a dock is that if the dock is improperly constructed, the shade created by such a dock may affect the environment. No evidence is presented that the private dock was improperly constructed, and the evidence indicates that there will not be a negative impact from any resulting shade. The evidence further indicates that the private dock should not negatively impact any bird wildlife, oyster beds (if, in fact, they exist in the immediate area of the dock), tributaries, shellfish, mud flats, marshland, wetlands or the tidal creek.

Petitioner further argues that the private dock and activity associated with this dock will constitute a trespass against Petitioner and violate his right to privacy as an adjoining property owner. OCRM presents evidence that Petitioner has constructed an artificial impoundment, consisting of a bank and pond which are not affected by tidal movements. The agency notes that Mr. Moore's dock should not impact Petitioner's bank and pond. OCRM further notes that the depth of the water surrounding the dock should never exceed five (5) feet at high tide. Given the design of the dock and the presence of such shallow water, it is unlikely that more than one small boat at a time would access the dock, and that the dock would be used for private activities, such as swimming and fishing. No evidence is presented to support Petitioner's contention that there would be any influx of people or boats to create a trespass against Petitioner or threaten the privacy of Petitioner.⁽¹⁾

Petitioner also challenges Mr. Moore's permit by claiming that in 1993 OCRM denied a private dock permit to Stephen Johnson, a predecessor-in-interest to the property currently occupied by Mr. Moore. OCRM presents evidence that it did, in fact, grant a permit (P/N OCRM-93-231) to Mr. Johnson containing restrictive special conditions. Mr. Johnson, however, never signed or accepted this permit because of these restrictive special conditions.

Petitioner suggests alternatives to Mr. Moore to the construction of the private dock, including pursuing the joint use of a dock located on the property of one of Mr. Moore's neighbors and implementing hydrostatic dredging to create a small creek from his property to a longer tidal creek for access to Folly River. OCRM contends that, unlike the construction of Mr. Moore's private dock, the dredging of the creek would negatively impact the environment.

CONCLUSIONS OF LAW AND DISCUSSION

Based upon the foregoing Findings of Fact, I make the following Conclusions of Law.

The Administrative Law Judge Division has subject matter jurisdiction in this matter pursuant to S.C. Code Ann. § 48-39-150 (Supp. 1998) and the Administrative Procedures Act, S.C. Code Ann. §§ 1-23-310, et seq. (Rev. 1986 & Supp. 1998), specifically, § 1-23-600(B) (Supp. 1998).

Under S.C. Code Ann. §§ 48-39-50(G) and (V) (Supp. 1997), DHEC, through OCRM, is charged with denying or approving permits for proposed activities within the coastal zone. Further, § 48-39-50(E) authorizes DHEC to promulgate regulations to carry out the provisions of Chapter 39 of Title 48 of the 1976 Code. In this regard, the Coastal Council (the predecessor agency to OCRM) promulgated 23A S.C. Code Ann.Regs. 30-1 through 30-20 (1976 & Supp. 1998), which are currently administered by OCRM in governing the management, development and protection of the coastal zone.

In civil cases, generally, the burden of proof rests upon the party who asserts the affirmative of an issue. 29 AM. JUR.2d Evidence § 127 (1994); 2 AM JUR.2d Administrative Law § 360 (1994); Alex Sanders, et al., South Carolina Trial Handbook § 9:3 Party with Burden, Civil Cases (1994). Petitioner is the party asserting the affirmative in this case; therefore, Petitioner must prove by a preponderance of the evidence that OCRM erred in issuing the permit to Mr. Moore. The preponderance of the evidence "is evidence which is of the greater weight or more convincing than the evidence which is offered in opposition to it." BLACK'S LAW DICTIONARY 1182 (6th ed. 1990). "The preponderance of the evidence means such evidence as, when considered and compared with that opposed to it, has more convincing force and produces in the mind the belief that what is sought to be proved is more likely true than not true." Sanders, supra, § 9:5 Quantum of Evidence in Civil Cases (1994), citing, Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225 (1955).

In the present case, Petitioner fails to prove by a preponderance of the evidence that OCRM erred in issuing the private dock-construction permit to Mr. Moore. Petitioner's evidence consists of merely speculative contentions. His evidence includes a reading of his own letter to OCRM which contests Mr. Moore's permit, as well as public comment letters that other persons submitted to the South Carolina Coastal Council (the predecessor agency to OCRM) in 1993 to contest the granting of a dock permit to Mr. Johnson, a predecessor-in-interest to the property currently owned by Mr. Moore. Petitioner does not present expert testimony or any other evidence to support his claims.

For example, Petitioner presents no evidence to support his contentions that the permitted private dock will negatively impact any bird wildlife, oyster beds, tributaries, shellfish, mud flats, marshland, wetlands or tidal creek. In contrast, OCRM presents documentary and expert testimonial evidence that (a) docks generally do not create an environmental risk, and (b) Mr. Moore's dock, in particular, should not negatively impact the environment. Docks are a "popular method of gaining access to deep water" and are "least objectionable from an ecological point of view." See 23A S.C. Code Ann.Regs. 30-12(A)(1). Furthermore, OCRM presents expert testimony that Mr. Moore's dock satisfies the "General Guidelines for All Critical Areas," which govern this dispute See 23A S.C. Code Ann.Regs. 30-11. Also, the Department of Natural Resources, which has jurisdiction over issues concerning fisheries, wildlife and other natural resource, has not objected to the issuance of Mr. Moore's permit and merely has recommended that the dock should not encroach upon any shellfish or shellfish beds.

Similarly, Petitioner's claim that the private dock or activities associated with the private dock constitute a trespass or violate Petitioner's right of privacy must fail. OCRM presents evidence that Petitioner has constructed an artificial impoundment, which consists of a bank and pond that is not affected by tidal movements. Mr. Moore's dock should not affect Petitioner's bank or pond. OCRM further presents evidence that the depth of the water should never exceed five (5) feet. Consequently, it is unlikely that more than one small boat at a time will be able to access the dock. Given the shallow water and the design of the private dock, OCRM anticipates that the uses of the dock may include swimming, fishing and similar activities. OCRM commonly grants private dock-construction permits, and permitees regularly engage in these recreational activities. Furthermore, the permit provides for the dock to remain at least 20' from any adjacent property line. Consequently, there is no evidence in the record to support Petitioner's claims of trespass or violations of a right to privacy.

Petitioner's argument that OCRM's 1993 denial of a dock-construction permit to Mr. Johnson supports the denial of a dock-construction permit to Mr. Moore also fails for want of evidence. Contrary to Petitioner's contentions, OCRM presents evidence that it did, in fact, grant a permit to Mr. Johnson, but Mr. Johnson refused the permit based on the restrictive special conditions contained in the permit. Petitioner does not present evidence to explain his belief that OCRM did not grant a permit to Mr. Johnson.

Finally, Petitioner's argument that Moore should pursue the joint use of a neighbor's dock or, alternatively, dredge his property to create a small creek from his property to a longer tidal creek for access to Folly River also fails to persuade this tribunal. In this case, whether Mr. Moore pursues the joint use of his neighbor's dock is irrelevant to whether OCRM's issuance of Mr. Moore's dock-construction permit was appropriate. A permit may be granted when it complies with 23A S.C. Code Ann.Regs. 30-11 and 30-12. Expert testimony adduced at trial demonstrates that Mr. Moore's permit does indeed comply with these regulations. Furthermore, OCRM's uncontroverted testimony was that dredging, as opposed to constructing a dock, does negatively impact the environment.

This tribunal finds the expert testimony and other evidence presented by OCRM to be credible. The weight and credibility assigned to evidence presented at the hearing of a matter is within the province of the trier of fact. See South Carolina Cable Television Ass'n v. Southern Bell Telephone and Telegraph Co., 308 S.C. 216, 417 S.E.2d 586 (1992). Furthermore, a trial judge who observes a witness is in the better position to judge the witness's demeanor and veracity and to evaluate his testimony. See McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982); Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973); Mann v. Walker, 285 S.C. 194, 328 S.E.2d 659 (Ct. App. 1985); Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Ct. App. 1984).

Moreover, where an expert's testimony is based upon facts sufficient to form an opinion, the trier of fact must weigh its probative value. Small v. Pioneer Machinery, Inc., 329 S.C. 448, 494 S.E.2d 835 (Ct. App. 1997). The trier of fact is not compelled to accept an expert's testimony, but may give it the weight he determines it deserves. Florence County Dep't of Social Services v. Ward, 310 S.C. 69, 425 S.E.2d 61 (Ct. App. 1992). As Petitioner did not introduce any expert or other corroborative testimony at trial, this tribunal finds OCRM's expert testimony to be probative of the issues raised in these proceedings.

Based on the aforementioned findings of fact and conclusions of law, I find that OCRM properly granted the private dock-construction permit to Respondent Moore under 23A S.C. Code Ann.Regs. 30-11 and 30-12. Therefore, the permit issued by OCRM must be upheld as written.

ORDER

IT IS THEREFORE ORDERED that the issuance of the private dock-construction permit, P/N# OCRM-98-488-G, with conditions be upheld.

AND IT IS SO ORDERED.

__________________________________

JOHN D. GEATHERS

ADMINISTRATIVE LAW JUDGE

September 3, 1999

Columbia, South Carolina

1. Petitioner claims that on four occasions he witnessed a boat at Mr. Moore's dock, and that on these occasions the boats varied with respect to coloring and markings. This evidence alone does not contradict that only one boat at a time should be able to access the dock.