SC Administrative Law Court Decisions

This matter is before me pursuant to S. C. Code Ann. §1-23-600 (1976 & Supp. 1998) of the Administrative Procedures Act and S. C. Code Ann. §38-49-150(D) (1976 & Supp. 1998) of the Coastal Zone Management Act, upon appeal of a denial of an application for a permit to construct a pier and dock in a critical area. The Petitioner filed a request for a contested case hearing on February 4, 1999, requesting that this Court grant his permit. The Petitioner's request listed South Carolina Department of Health and Environmental Control, Bureau of Ocean and Coastal Resource Management (OCRM) as the sole Respondent. By Orders dated March 19, 1999, and June 22, 1999, this Court granted the motions of Brookgreen Gardens (Brookgreen), which leases the Huntington Beach State Park property to the Department of Parks, Recreation, and Tourism (PRT), and PRT, respectively, to intervene and added them as Respondents. A contested case hearing on this matter was held on November 30, 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:

1. The Petitioner and Jack T. Patrick are the co-owners of record of Lots A and B located in Inlet Capital Subdivision (the Lot). ⁽¹⁾ On September 22, 1998, the Petitioner applied for approval to construct a 560' x 4' pier connected to a 30' x 30' fixed dock and a 10' x 14' floating dock, located in Oaks Creek, near Murrells Inlet, Georgetown County, South Carolina. OCRM denied the application by letter dated January 22, 1999. OCRM's denial letter explained that the marsh area to be crossed by the Petitioner's proposed pier is a Geographic Area of Particular Concern (GAPC) for two reasons:

a. the marsh is a portion of the property operated by PRT as Huntington Beach State Park; and

b. the area is included in the State Heritage Trust Program in recognition of the outstanding natural values of the marsh.

2. Brookgreen was the grantee in a deed dated December 1938 that conveyed the marsh (Marsh) to Brookgreen. Brookgreen is a nonprofit private benefit corporation under the laws of the State of South Carolina, whose corporate purposes include the preservation and protection of local flora and fauna. The lands owned by Brookgreen, and all waters entering into those lands, have been designated by the South Carolina General Assembly as a wildlife sanctuary for the protection of game, birds, and animals. S. C. Code Ann. § 50-11-950 (Supp. 1998).

Brookgreen entered into a Heritage Trust Registration Agreement with the S.C. Department of Natural Resources in 1985 for 990 acres, including the subject Marsh, pursuant to S.C. Code Ann. Section 51-17-10 (Supp. 1998). This Registration Agreement designates the area as Heritage Trust property and requires that it remain in its essential natural state. Moreover, the Registration Agreement prohibits structures in the Marsh and, more specifically, the construction of docks in the Marsh.

3. PRT operates the State Park System and, as operator of the State Park System, is the successor in interest to the Department of Forestry. The high ground eastward of the Lot is currently operated by PRT as Huntington Beach State Park (the Park). Additionally, PRT, together with its predecessor, the Department of Forestry, has operated the Park continuously on property leased from Brookgreen since 1960. Both the 1960 lease relating to Huntington Beach State Park, and the current lease that amended and extended the 1960 lease, lease the Marsh to PRT.

4. Oaks Creek and the Marsh contain no man-made structures other than the boardwalk at the Park. The Marsh is a place of natural interests and beauty in which the public may observe and enjoy the unique aesthetics of the area. PRT conducts educational programs about the Marsh from an "observation deck" at the end of a boardwalk in the Park. ⁽²⁾ Approximately 27,000 people have attended educational programs at the Park between February and October 1999. The observation deck plays a key role in PRT's educational programs about the Marsh and in particular about ecology in general. From the Park's observation deck, individuals are allowed to view the Marsh without man-made structures distracting from that view.

Additionally, the Park conducts kayaking tours of the Marsh so that individuals can observe and learn about the Marsh. Approximately 500 people went on the kayaking tour in the Marsh between April and October 1999. The Petitioner's application to construct a dock and a pier in Oaks Creek included a map in which the Lot was shown by a hand-drawing not to scale. However, the application did not establish the site of the proposed construction with any specificity. Nevertheless, the Petitioner's application prompted concern from PRT about, among other things, the impact the construction would have on the educational kayaking trips PRT conducts in the Marsh. Steve Roth, an interpreter at Huntington Beach State Park, used a large aerial photograph to demonstrate where he conducted those kayaking tours and how the Petitioner's construction would require him to conduct those trips in a less desirable and less safe portion of the Marsh. Although the Petitioner challenged the allegations of Mr. Roth, he admitted that he could not locate on the aerial photograph either the site of the proposed construction or the area where PRT conducts its kayaking tours. Further, the Petitioner offered no other evidence that showed the location of the proposed construction with any greater specificity than his application. Consequently, neither OCRM nor this Division can determine the degree, if any, that the proposed construction would impair PRT's educational kayaking activities in the Marsh.

The Petitioner's dock could be seen not only during the kayaking tours conducted by the Park but also from the observation deck of the Park. The Marsh is only approximately ½ mile wide. The Petitioner's proposed walkway, itself, crosses 560 feet of the Marsh. The walkway and the dock would occupy a significant portion of the Marsh. Consequently, the Petitioner's dock would obstruct the view of the "undisturbed" nature of the Marsh and could potentially impede the navigation of the kayaking tours.

5. Oaks Creek and the Marsh comprise a pristine natural site from Huntington Beach State Park and Huntington Marsh Subdivision. Preservation of the natural beach dune estuary system was the primary motivation for the placement of the Marsh in the Heritage Trust Program in 1985. However, over the years, as the area around the Marsh and other marshes in South Carolina have become more and more developed, the uniqueness of Oaks Creek and the Marsh as a pristine area free of piers and docks warrants even more protection than it did in 1985. Further, the construction of one private dock in Oaks Creek and the Marsh increases the likelihood that other docks will be permitted in the area, thereby nullifying the protection sought by committing this pristine area to the Heritage Trust Program. Therefore, PRT has sought to restrict the structures in the Marsh so as to maintain the pristine "undisturbed" nature of this Park.

6. Prior to closing the purchase of the Lot, the Petitioner knew that the approval of OCRM would be required before he could construct the pier and the dock shown in the OCRM application. However, the Petitioner made no attempt to contact OCRM. More specifically, the Petitioner could have inquired as to what conditions, if any, OCRM would impose on such an application or he could have sought information from OCRM's files with respect to prior pier/dock permits in the general area.

7. The Petitioner argued that PRT allows a boat landing at Oyster Landing in the Marsh when the Registration Agreement prohibits boat landing construction. The Petitioner contends that if PRT violates the Registration Agreement in this manner, it is improper not to allow him to build a dock. However, the boat landing is a small natural area that has existed for a long period of time from which people launch small boats. There has been no construction or addition of materials at that site, such as concrete, to make a public boat landing or parking area. Additionally, the size of the area and the inferior water depth limits this area from becoming a significant public landing.

Based upon the above Findings of Fact, I conclude the following as a matter of law:

1. The Administrative Law Judge Division has subject matter jurisdiction in this proceeding pursuant to S. C. Code Ann. §§ 1-23-600(B) and 1-23-310 et seq. (1976 & Supp. 1998). Section 48-39-150 specifically authorizes the Administrative Law Judge Division to hear contested cases arising under Chapter 39 of Title 48 of the South Carolina Code of Laws. S. C. Code Ann. § 48-39-150 (Supp. 1998). As a statewide administrative tribunal authorized to take evidence and determine contested case hearings, the Administrative Law Judge Division is the fact finder in this matter for purposes of administrative and judicial review. Lindsey v. South Carolina Tax Comm'n, 302 S.C. 504, 397 S.E. 2d 95 (1990).

2. S. C. Code Ann. § 48-39-50 (Supp. 1998) authorizes the Department of Health and Environmental Control (DHEC) to promulgate regulations implementing the provisions of Chapter 39 of Title 48 of the Code. OCRM is the subdivision within DHEC charged with implementing the State's coastal zone policies and with issuing permits in coastal zone areas. 23A S. C. Code Ann. Regs. 30-1 to 30-20 (Supp. 1998) govern the management, development, and protection of the critical areas of the State coastal zone. These critical areas include coastal waters, tidelands, beaches, and the beach/dune system. S. C. Code Ann. § 48-39-10(J) (Supp. 1998). Any person wishing to alter the critical area must obtain a permit from OCRM. 23A S. C. Code Ann. Regs. 30-2(B) (Supp. 1998).

3. The Marsh is part of a state park facility in a coastal zone and has also been dedicated to the Heritage Trust Program. The South Carolina Coastal Management Program Document (CMPD) provides that state parks in the coastal zone and Heritage Trust properties are GAPCs. See CMPD, Chapter IV(A)(2)(a). 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." (Emphasis added). S.C. Code Ann. Regs. 30-1(A)(21) (Supp.1998). Therefore, since OCRM is required by law to give heightened protection to GAPCs, the Petitioner's permit was analyzed from that perspective.

4. The Petitioner contends that the GAPC designation was not proper because Brookgreen does not possess fee simple title to the Marsh and thus has no claim of title to the Marsh. S.C. Code Ann. § 51-17-10 (10) (Supp. 1998) sets forth that "'[r]egister' or 'registration' [of a property under the Heritage Trust Program] means the process by which the owner of a natural or cultural feature shall enter into a written agreement with the board of the department recognizing the unique and outstanding characteristics thereof in accordance with the procedures set out in Section 51-17-100." (Emphasis added). See also, S.C. Code Ann. § 51-17-100(4) (Supp. 1998). The Petitioner contends that since Brookgreen never commenced a suit under S. C. Code Ann. § 48-39-220 (Supp. 1998) to establish title to lands below the mean high water mark, the Heritage Trust Registration Agreement and the Heritage Trust Lease Agreement as they relate to the Marsh area in question have no legal effect. He argues that upon his filing of an application to install a dock, 23A S.C. Code Ann. Regs. 30-2(I)(3) (Supp. 1998) imposes a duty on Brookgreen to file an action to prove title to the Marsh pursuant to Section 48-39-220 within thirty days of expiration of the comment period, and that any adjoining landowner who fails to file such a suit forfeits his right to the land in question even if those rights are totally independent of the permitting process. Brookgreen never filed an action to prove title pursuant to Regulation 30-2(I)(3) and Section 48-39-220. Therefore, the Petitioner maintains that failure to do so by a complaining landowner should result in the issuance of a permit to the applicant.

Section 48-39-220(A) provides that:

Any person claiming an interest in tidelands which, for the purpose of this section, means all lands except beaches in the Coastal zone between the mean high-water mark and the mean low-water mark of navigable waters without regard to the degree of salinity of such waters, may institute an action against the State of South Carolina for the purpose of determining the existence of any right, title or interest of such person in and to such tidelands as against the State. Service of process shall be made upon the secretary of the State Budget and Control Board.

(Emphasis added). Additionally, Regulation 30-2-I(2) and (3) relates to applications involving adjoining landowners claiming ownership of critical areas and reads as follows:

The alleged adjoining landowner of critical area must be notified pursuant to the provisions of Section 48-39-140(C) and R.30-2.

If the alleged adjoining landowner of critical area files a written objection to the permit application [timely] based upon a claim of ownership and indicates an intention to file a court action pursuant to Section 48-39-220, the application will be deemed incomplete and further processing of the permit will not take place until a final judicial decision is rendered by a court of competent jurisdiction. However, written proof of filing a court action pursuant to Section 48-39-220 must be received by the Department within 30 days of the date of the expiration of the comment period. If no such written proof is timely received, the permit will be processed pursuant to law.

The cardinal rule in statutory construction is to give effect to the legislative intent, if the same can be discerned from a reading of the statute. Bankers Trust of South Carolina v. Bruce, 275 S.C. 35, 267 S.E. 2d 424 (1980). A statute as a whole must receive a practical, reasonable, and fair interpretation consonant with the purpose, design, and policy of the lawmakers. State v. Baker, 310 S.C. 510, 427 S.E. 2d 670 (1993). The specific language in Section 48-39-220(A) clearly reflects the intention of the General Assembly to provide a mechanism by which a landowner may establish, beyond question, fee simple title to lands between the mean high-water mark and the mean low-water mark. This same language reflects the equally clear intention of the General Assembly that a failure to commence such a suit would not deprive a party of any ownership interests it may have in the land. As a result, the Petitioner's claim - that Brookgreen's failure to commence such a suit mandates the conclusion that Brookgreen has no title to the Marsh - contradicts the clear language of and the legislative intent behind the statute on which the Petitioner relies. The OCRM regulations require that an individual seeking a permit either own the property over which the extended property lines pass or have the permission of the owner. See 23A S.C. Code Ann. Regs. 30-12 (A)(2)(e) (Supp. 1998). Regulation 30-2(I)(2) and (3) is limited by its language to providing a means for the individuals involved in a dispute concerning the placement of a dock upon their property to resolve the matter.

Moreover, the Petitioner's argument ignores Brookgreen's established claim of title to the Marsh. Brookgreen acquired title to the Marsh by a deed recorded in the Office of the Register of Deeds for Georgetown County in Deed Book W-2 at page 652 on December 15, 1938. This claim of title has been accepted by various agencies of the State of South Carolina.

While this Court is not ruling that - and does not decide whether - Brookgreen has fee simple title to the Marsh, Brookgreen has, at the least, a colorable claim of title to the Marsh. This claim of title is sufficient enough that this Court cannot invalidate the Registration Agreement executed by Brookgreen, PRT, and the South Carolina Department of Natural Resources. Furthermore, this Court cannot rewrite a portion of or entirely void the lease between Brookgreen and PRT.

5. The Petitioner also contends that there was nothing in the Office of the Register of Deeds for Georgetown County to alert him of the GAPC status of the Marsh in front of his property or that Brookgreen claimed title to the Marsh. The Petitioner relies upon a deed from L.C. Lachicotte to Stephen Carr dated April 12, 1902, granting title to the Marsh down to mean high water. Since, Carr is the Petitioner's predecessor in title, the Petitioner contends that ownership of the Marsh is in dispute.

South Carolina is a race-notice state. See MI Co., Ltd. v. McLean, 325 S.C. 616, 482 S.E. 2d 597 (S.C. App. 1997). However, the notice that is required is notice of an easement or appurtenance effecting his property. In this case, the Petitioner's title to his land is not effected by the GAPC status of the Marsh or that Brookgreen claims title to the Marsh. The Petitioner is not seeking to place a dock upon his own property. Rather, the Petitioner is seeking a permit to build a walkway beyond the mean high water into the Marsh with a dock ultimately stationed in the waters of Oaks Creek. Therefore, the Petitioner is objecting to lack of notice not to any encumbrance upon his property, but to the status of the Marsh and Oaks Creek which he certainly does not own. Furthermore, the deed conveying the Marsh to Brookgreen was, in fact, recorded in the Office of the Register of Deeds and therefore constitutes public notice of Brookgreen's claim of title. National Bank of Newberry v. Livingston, 155 S.C. 264, 152 S.E. 410 (1930).

Moreover, before closing the purchase of the Lot, the Petitioner could have determined if OCRM would approve the construction of his dock and pier. However, prior to that closing, the Petitioner did not contact OCRM or examine its relevant files. Though the Petitioner knew about PRT's lease of the Huntington Beach State Park property and knew that OCRM's consent would be required for construction, he did not contact either of those public agencies or obtain available documents that would have alerted him prior to that closing of the position taken with respect to his application.

For example, the lease and Registration Agreement were available upon request from the Department of Natural Resources. A copy of the Registration Agreement was also contained in the files of OCRM relating to at least one of the prior applications for piers and docks from landowners in Huntington Marsh Subdivision. Furthermore, the listing of all GAPC's was available from OCRM upon request. Therefore, I find that the Petitioner is not entitled to relief based on his claim of lack of actual knowledge of the terms of public documents readily available to him.

6. Finally, whether or not Brookgreen owns the Marsh is irrelevant for the determination of the Petitioner's right to place a dock in the Marsh. The Marsh is a GAPC by virtue of the fact that the Marsh is currently a state park and a Heritage Trust property. The Petitioner must first have those designations removed by the proper authorities before the Marsh will no longer be a GAPC. Furthermore, even if the particular piece of Marsh upon which the Petitioner's walkway will be situated is not owned by Brookgreen and therefore not itself classified as a GAPC, the Petitioner does not challenge the status of Oaks Creek as a GAPC. Chapter IV of The South Carolina Coastal Management Program Document details the policies and guidelines concerning permits in or around GAPC's:

When a project overlaps with, is adjacent to, or significantly affects [sic] a GAPC, the Council will carefully evaluate a project based on the criteria listed as the priority of uses which specifically addresses each type of GAPC. A project would be prohibited if it would permanently disrupt the uses of priority for the designated area. A project would be strongly discouraged or the permit conditioned if the project would interrupt, disturb or otherwise significantly impact the priority uses of the designated area. . . . For example, in consideration of the permit for a project adjacent to a State Park which would significantly interfere with the primary recreational activities of that GAPC, every effort would be made to preserve the highest priority use of the park.

(Emphasis added). This case is within the policies outlined above. Clearly, the Petitioner's property is contiguous to both Heritage Trust land and the Huntington Beach State Park. Both the Heritage Trust property and the Park are GAPCs. Therefore, since ultimately the Petitioner's property will be located adjacent to a GAPC, the determination of whether to grant the permit will be analyzed in accordance with "the criteria listed as the priority of uses" of the State Park and the Heritage Trust property.

7. The Petitioner contends that since there is no specific management plan, that the requirements of Chapter IV of the CMPD for a Heritage Trust have not been met. He argues that the CMPD requires a Heritage Trust property to have specific management criteria, rules and regulations which relate to the "priority of uses" set forth in Chapter IV. Therefore, since this is a "major requirement" pursuant to Chapter IV, the Marsh cannot be brought into GAPC protection.

Chapter IV(A)(2)(a)(1) of the CMPD sets forth that:

A major requirement of the program is provision of management criteria, rules and regulations, and "allowable use" guidelines for Heritage Preserves. A management plan must be developed for each property in the Heritage Trust. These management mechanisms are intended "to preserve the primary natural character of such areas or features and to provide the maximum public usage thereof which is compatible and consistent with the character of the area."

The Registration Agreement complies with the requisites of the above provision. It provides numerous requirements for the management of the Marsh. For instance, the Registration Agreement provides the following requirements of specific interest in this case:

(b) No structures shall be placed in said site without the agreement of the owner, the lessee, and the staff of the South Carolina Heritage Trust Program. Restrictions on such structures shall include but not be limited to docks, boardwalks, quays, and piers.

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(f) Scientific studies may be carried out on this Heritage Site with permission of PTR, however, removal of plant or animal material, in conjunction with such studies, shall be allowed only with written permission from PRT.

(g) That the primary responsibility for enforcement of these rules and regulations rests with PRT.

Therefore, the Registration Agreement clearly operates as a management plan.

Additionally, Chapter IV(A)(2)(a) of the CMPD does not set forth a requirement for a "management plan" for state parks but rather requires that "PRT must prepare a master plan for each major park facility, identifying plans for development of facilities, and the preservation and use guidelines for the park." The Marsh is a part of the Huntington Beach State Park and the Park has a "master plan" that was prepared by PRT. In fact, the Huntington Beach master plan specifically references the Marsh. Therefore, the Petitioner failed to show the Park's master plan did not satisfy the master plan requisites under the CMPD.

8. The Petitioner contends that the only harm demonstrated by the placement of his dock in the Marsh was that the pristine Marsh view would be blemished. The Petitioner, therefore, argues that since an impaired view is normally not an issue unless related to a Special Area Management Plan (SAMP), his permit should not be denied, in part, for those reasons. S.C. Code Ann. § 48-39-150(A) (Supp. 1998) sets forth, in relevant part, that "[i]n determining whether a permit application is approved or denied the department shall base its determination on the individual merits of each application, the policies specified in Sections 48-39-20 and 48-39-30 and be guided by the following general considerations:

(5) The extent to which the development could affect existing public access to tidal and submerged lands, navigable waters and beaches or other recreational coastal resources.

* * *

(7) The extent of the economic benefits as compared with the benefits from preservation of an area in its unaltered state.

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(10) The extent to which the proposed use could affect the value and enjoyment of adjacent owners."

S.C. Code Ann. § 48-39-30(D) (Supp. 1998) also provides that:

Critical areas shall be used to provide the combination of uses which will insure the maximum benefit to the people, but not necessarily a combination of uses which will generate measurable maximum dollar benefits. As such, the use of a critical area for one or a combination of like uses to the exclusion of some or all other uses shall be consistent with the purposes of this chapter.

(Emphasis added).

The Marsh in its pristine state provides a substantial benefit to this State. As noted above, approximately 27,000 people attended educational programs at the Park between February and October 1999 and approximately 500 went on the kayaking tour in the Marsh between April and October 1999. Moreover, as the areas around other marshes have become more developed, the uniqueness of Oaks Creek and the Marsh as a pristine area free of piers and docks warrants even more protection. Therefore, both of these factors weigh heavily in favor of denying the permit.

Additionally, S.C. Code Ann. Regs. 30-11(C)(1) (Supp. 1998) provides that OCRM shall be guided by "[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." In Weaver v. South Carolina Coastal Council, 309 S.C. 368, 423 S.E. 2d 340 (1992), the South Carolina Supreme Court addressed a case in which three individuals were previously granted dock permits under similar circumstances by the Coastal Council that was indistinguishable from that of the Petitioner's dock. The Court held that "[c]ouncil violated the equal protection and due process provisions of the state and federal constitutions in treating the Petitioner in a manner different" than the three other individuals similarly situated. Therefore, if the Petitioner is granted a permit to construct a walkway and dock into the Marsh and Oaks Creek, others similarly situated as the Petitioner could also seek equivalent permits. Consequently, granting the Petitioner's permit could result in a proliferation of docks in the Marsh which would change the entire nature of this Park System. The long range cumulative effect of such an occurrence would spoil the current character of the area.

9. S.C. Code Ann. Regs. 30-11(C)(3) (Supp. 1998) provides that "[t]he determination of negative impacts [upon a GAPC] will be made by the Department in each case with reference to the priorities of use for the particular GAPC." The priorities of use are found in Chapter IV of the South Carolina Coastal Management Program Document. Chapter IV(A)(2)(a)(1) of the CMPD sets forth the priority of uses for the Heritage Trust Program as:

1. Uses which are consistent with the management plan developed for each property.

2. Uses which allow public enjoyment of the area as long as the primary natural character of the area is not disrupted.

3. Uses which are compatible with the area's wildlife and wildlife management plan.

The Heritage Trust Registration Agreement, which serves as a management plan, specifically prohibits the construction of docks. Therefore, permitting a dock would not be consistent with the management plan for the Marsh. Likewise, permitting a dock would disrupt the "primary natural character" of the Marsh. The purpose of Brookgreen Gardens, in part, is to exhibit and preserve the flora and fauna of South Carolina. The property is registered under the Heritage Trust Program pursuant to S.C. Code Ann. § 51-17-100 (Supp. 1998) in order to preserve the pristine nature of the Marsh. Section 51-17-100(7) provides that "[u]nless the registration agreement [under the Heritage Trust Program] is terminated, the owner of a Heritage Site shall maintain its essential natural character." (Emphasis added). Consequently, permitting the Petitioner's dock would not comply with the priority of uses for the Heritage Trust Program under the CMPD.

Additionally, Chapter IV(A)(2)(a)(3) of the CMPD sets forth the priority of uses for state parks as:

1. Varied recreational activities open to the public.

2. Non-intensive uses which require minimal feasible alteration and maintain the natural function of the area.

3. Provision of educational opportunities to visitors of the parks.

Therefore, in determining whether to permit a private dock within a state park, this Division must consider whether the Petitioner's dock is a "non-intensive" use which requires minimal feasible alteration to the operation of the Huntington Beach State Park. "Intensive" has been defined as "highly concentrated" or "tending to strenghthen or increase." Merriam Webster's Collegiate Dictionary 608 (10th ed. 1993). Given the character of the area in this case, the placement of a dock as requested by the Petitioner would be an "intensive use."

Furthermore, this Division must consider whether the Petitioner's dock interferes with the educational opportunities afforded by the Park to the Park's visitors. As set forth above, permitting the Petitioner's dock would negatively impact both the educational programs conducted from the boardwalk and the kayaking tours. One of the Park's primary functions is the education of visitors concerning the interactions within a salt Marsh. In order to meet that goal, the natural aesthetic features of the Marsh must be maintained.

10. The Petitioner's remaining claim for relief is based on the contention that the records of the Register of Deeds for Georgetown County do not contain a copy of the lease between Brookgreen and PRT, a copy of the Registration Agreement recognizing the Marsh as a Heritage Site under the Heritage Trust Program, any indication that Brookgreen claims title to the Marsh, or any other indication that the Petitioner would not be permitted to construct a pier and dock connecting the Lot to Oaks Creek. ⁽³⁾ The Petitioner contends that, in the absence of such notice, the denial constitutes a form of taking without compensation and, therefore, must be reversed. However, a permit denial action cannot be reversed by the Administrative Law Judge Division on the basis that the action may result in an unconstitutional taking of property. Rather, the appropriate redress for a takings claim is in a forum having jurisdiction to award monetary damages. See Lucas v. South Carolina Council, 505 U.S. 1003 (1992).

IT IS THEREFORE ORDERED that OCRM's Denial is affirmed.

AND IT IS SO ORDERED.

Ralph King Anderson, III

Administrative Law Judge

August 24, 2000

Columbia, South Carolina

1. The application represented that the Petitioner was the sole owner of the Lot even though the Petitioner actually co-owned the Lot with Jack T. Patrick.

2. The structure is a boardwalk and observation deck only, with no dock or other facility to provide access to a boat.

3. As set forth earlier, the Petitioner's argument ignores Brookgreen's established claim of title to the Marsh. Brookgreen acquired title to the Marsh by a deed recorded in the Office of the Register of Deeds for Georgetown County in Deed Book W-2 at page 652 on December 15, 1938. This claim of title has been accepted by various agencies of the State of South Carolina.