ORDERS:
CONSENT ORDER
This matter is before me by consent of all parties for entry of a Consent Order. This is a contested case matter arising out of
Respondent South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource
Management's (SCDHEC-OCRM) certification of the Kiawah Real Estate Company's East Beach Hotel project. The
project is located between the existing conference center and the dunes of the Atlantic Ocean adjacent to Sea Forest Drive
on Kiawah Island, Charleston County, South Carolina.
The parties have come to a resolution in this case, as evidenced by the Resolution Agreement between the Petitioners and the
Respondents, attached hereto as Exhibit A, and by the Resolution Agreement between Respondent S.C. Department of
Health and Environmental Control, Office of Ocean and Coastal Resource Management, and Respondent Kiawah Real
Estate Company, attached hereto as Exhibit B. The Court finds the Agreement to be fair and reasonable, and retains
jurisdiction for enforcement of its provisions.
THEREFORE, it appearing that the above-titled matter has been settled by the parties hereto, it is ORDERED that the
above-entitled matter is dismissed with prejudice.
AND IT IS SO ORDERED.
__________________________________
MARVIN F. KITTRELL
Chief Administrative Law Judge
I consent:
__________________________________
Newman Jackson Smith
Attorney for Petitioners
I consent:
_____________________________________
Ellison D. Smith, IV
Attorney for Respondent Kiawah Real Estate Company
I consent:
_____________________________________
Mary D. Shahid
Attorney for Respondent SCDHEC-OCRM
STATE OF SOUTH CAROLINA
ADMINISTRATIVE LAW JUDGE DIVISION
Mr. and Mrs. Jean Hiestand, Mr. and
Mrs. Paul Putman, Mr. and Mrs. Richard
K. Schwarz, Ms. Charlotte J. Millar, Mr.
and Mrs. Phillip R. Grimm, Mr. L.
Morgan Hall, III, and Mr. and Mrs.
Richard T. Alkire, and Mr. and Mrs.
Robert Tieken,
Petitioner,
vs.
South Carolina Department of Health
and Environmental Control, Office of
Ocean and Coastal Resource
Management, and Kiawah Real Estate
Company,
Respondent. |
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DOCKET NO. 99-ALJ-07-0216-CC
RESOLUTION AGREEMENT
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The parties hereto hereby agree to resolve the above-captioned appeal under the terms of this Resolution Agreement. This
Resolution Agreement shall be attached to a Consent Order of Dismissal of the above-captioned appeal and shall be binding
upon the parties hereto. Petitioners Mr. and Mrs. Jean Hiestand, Mr. and Mrs. Paul Putman, Mr. and Mrs. Richard K.
Schwarz, Mr. and Mrs. John Marsh, Ms. Charlotte J. Millar, Mr. and Mrs. Phillip R. Grimm, Mr. L. Morgan Hall, III, Mr.
and Mrs. Richard T. Alkire, and Mr. and Mrs. Robert Tieken ("Petitioners/Appellants), Respondent Kiawah Island Real
Estate Company ("KIRE") and Respondent Office of Ocean and Coastal Resource Management ("OCRM"), South Carolina
Department of Health and Environmental Control agree that the above-captioned appeal shall be settled and dismissed with
prejudice upon the terms of this Agreement and upon the terms of an agreement by and between Respondent KIRE and
Respondent OCRM. The Coastal Zone Management Certification and 401 Water Quality Certification for the Project
known as P/N 98-1X-042-C shall be issued for the revised proposal, which Certifications shall contain the conditions and
requirements agreed to therefore by and between Respondents and the conditions relevant thereto agreed to herein. The
revised proposal plans dated December 15, 1999 are attached hereto and incorporated herein.
The revised plans provide 4.29 acres of onsite wetlands and mitigation along with the offsite mitigation as approved by
OCRM. The Construction and Management Plan for the wetlands require five (5) years of monitoring of the onsite
mitigation areas to ensure their success, and the composition of the created wetlands in such areas shall be diversified and
shall be approved by OCRM prior to planting. The Construction and Management Plan must be submitted and approved
before construction.
The Hotel, Ballroom, Retail buildings and associated parking shall be sited and constructed as authorized by OCRM, except
that the Hotel's East Wing shall be no closer than three hundred feet (300') from the Enclave at Turtle Beach Lot No. 18's
western property line. The proposed condominium building(s) may be constructed between the Hotel building and Lot No.
18 as allowed by the existing regulations, ordinances, applicable law of and as allowed by the Town of Kiawah Island, and
according to the following set of parameters:
1. Ocean Front: No condominium building shall be constructed seaward of the Lot No. 18 oceanfront property line for a
distance of one hundred and twenty-five feet (125') west of Lot No. 18's western property line. At the one hundred twenty-five foot (125') point, construction may be seaward of the Lot No. 18 oceanfront property line a distance of ten feet (10'),
but only for up to forty-two foot (42') condominium buildings. At one hundred thirty feet (130') from Lot No. 18's western
property line, construction may be seaward of the Lot No. 18 oceanfront property line a distance of ten feet (10'), but only
for up to fifty-two foot (52') condominium buildings. At one hundred forty-five feet (145') from Lot No. 18's western
property line, construction may be seaward of the Lot No. 18 oceanfront property line a distance of ten feet (10') for up to
sixty-two foot (62') condominium buildings. At one hundred sixty-five feet y (165') from Lot No. 18's western property line,
construction may be twenty-two and one-half feet (22½') seaward of Lot No. 18s oceanfront property line. No
condominium my be more than twenty-two and one -half feet (22½') seaward of Lot No. 18's oceanfront property line up to
three hundred feet (300') from Lot No. 18's western property line. These distances are shown on the revised plans attached
hereto.
2. Lateral distance: Forty-two feet (42') condominium buildings may be constructed beginning at a line eighty-five feet (85')
from and parallel to the Lot No. 18 western property line; fifty-two feet (52') condominium buildings may be constructed
beginning at a line one hundred feet (100') from and parallel to the Lot No. 18 western property line; sixty-two feet (62')
condominium buildings may be constructed beginning at a line one hundred and twenty-five feet (125') from and parallel to
the Lot No. 18 western property line.
The above parameters 1 and 2 apply only to those buildings between the Hotel building and the Enclave at Turtle Beach.
The on-site wetland mitigation areas shall be established in the field by survey prior to the construction of the Hotel building.
An OCRM, stormwater permit must be obtained by KIRE before construction of the Hotel building may commence. It is
also agreed that all lighting for all aspects of the approved plans shall be consistent with those practices which do not lead
sea turtle hatchlings away from the sea.
Petitioners agree that if the terms herein agreed to are implemented and followed by the developer of the Hotel and
condominium project, Petitioners will not in any way contest the development of the Hotel or the condominium(s), including
but not limited zoning. Petitioners agree that they will remove their objection to the Army Corps of Engineers permit,
provided Respondent KIRE revises its application to conform to the revised Certification to be issued by Respondent OCRM
and this Agreement.
Respondents agree that the Petitioners may allow their undersigned counsel to sign for and on their behalf as their attorney-in-fact, and Petitioners hereby agree to be bound by the execution of this Resolution Agreement by their attorney as if signed
individually. Respondents and Petitioners agree that this Agreement may be signed in counterparts.
WHEREFORE, the parties have put their hands and seals hereto this 16th day of December, 1999.
SMITH, BUNDY, BYBEE & BARNETT
_________________________________
Ellison D. Smith, IV, Esquire
49 Broad Street
Charleston, SC 29402
(843) 577-6302
James H. Harrison, Esquire
1819 Hampton Street
Columbia, SC 29201
(803) 256-0049
Attorneys for Respondent Kiawah Real Estate Company
NELSON MULLINS RILEY & SCARBOROUGH, L.L.P
______________________________________________
Newman Jackson Smith
Liberty Building, Suite 500
151 Meeting Street
Post Office Box 1806 (29402)
Charleston, SC 29401
(843) 853-5200
Attorneys for Petitioners/Appellants
SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL
______________________________________
Mary D. Shahid
Office of Ocean and Coastal Resource Management
1362 McMillan Avenue; Suite 400
Charleston, SC 29405
(843) 744-5838
Attorneys for Respondent SCDHEC OCRM
STATE OF SOUTH CAROLINA
ADMINISTRATIVE LAW JUDGE DIVISION
Mr. and Mrs. Jean Hiestand, Mr. and
Mrs. Paul Putman, Mr. and Mrs. Richard
K. Schwarz, Ms. Charlotte J. Millar, Mr.
and Mrs. Phillip R. Grimm, Mr. L.
Morgan Hall, III, and Mr. and Mrs.
Richard T. Alkire, and Mr. and Mrs.
Robert Tieken,
Petitioner,
vs.
South Carolina Department of Health
and Environmental Control, Office of
Ocean and Coastal Resource
Management, and Kiawah Real Estate
Company,
Respondent. |
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DOCKET NO. 99-ALJ-07-0216-CC
RESOLUTION AGREEMENT
|
The Respondents, S.C. Department of Health and Environmental Control, Office of Ocean and Coastal Resource
Management (SCDHEC-OCRM) and Kiawah Island Real Estate Company (KIRE), hereby agree to resolve the above-captioned appeal under the terms of this Resolution Agreement. This Agreement shall be attached to a Consent Order of
Dismissal of the above-captioned appeal and shall be binding on the parties hereto. SCDHEC-OCRM and Kiawah agree that
the above-captioned appeal shall be settled and dismissed, and that the Coastal Zone Management Certification and 401
Water Quality Certification for the Project known as P/N 98-1X-042-C shall be issued for the revised plans dated December
15, 1999, attached hereto and incorporated herein. The following conditions have been agreed to by the parties:
1. KIRE agrees that the total on-site preservation and creation of wetlands (and buffer) will be at least 4.29 acres. This
amount equals the total on-site mitigation contained in the plan approved January 13, 1999.
2. KIRE agrees that only the approximately .39 acres of wetlands west of Sea Forest Drive (as shown on the August 17,
1999 proposal) will be preserved. All created wetlands will be connected and/or contiguous to the existing wetlands.
However, the actual location of the created wetlands may vary slightly as plans further develop.
3. KIRE agrees to submit for review and approval a construction and management plan for the wetlands created on-site to
include a five-year monitoring program.
4. KIRE will contribute $200,000 toward the preservation of approximately 27 acres of natural wetlands at Prospect Hill.
5. KIRE will contribute an additional $100,000 toward additional off-site mitigation. DHEC agrees to inform KIRE of
which projects(s) it determines will be the best use of the funds to preserve additional wetlands.
6. The restrictive covenants placed on the preserved and created wetlands will allow KIRE to maintain the upland buffer
adjacent to the road in accordance with the overall landscape of the development. It will also allow KIRE to manage the
wetlands in such a manner so as to enhance the habitat, with consideration of visual aesthetics from the adjacent
development. The details of this will be described in the management plan and included in the restrictive covenants as
appropriate.
7. SCDHEC-OCRM agrees to issue a consistency letter for a plan to be submitted by KIRE consistent with this agreement.
8. The Department of Health and Environment Control agrees to issue a 401 water quality certification for the proposed
development.
9. SCDHEC-OCRM and DHEC understand that the KIRE development plan may undergo changes as the technical details of
both the hotel and the condominiums are further refined. KIRE agrees to notify SCDHEC-OCRM of any potential conflicts
with this agreement as the development process continues. In the event of a conflict, both SCDHEC-OCRM and KIRE will
consult to reach a mutual agreement of resolution, to include modification of the restrictive covenant if necessary.
10. SCDHEC-OCRM and DHEC agree to cooperate fully with KIRE in obtaining the necessary Storm Water drainage
permit and any and all other permit requirements for this development.
WHEREFORE, the parties have put their hands and seals hereto this 16th day of December, 1999.
SMITH, BUNDY, BYBEE & BARNETT
_____________________________
Ellison D. Smith, IV, Esquire
49 Broad Street
Charleston, SC 29402
(843) 577-6302
James H. Harrison, Esquire
1819 Hampton Street
Columbia, SC 29201
(803) 256-0049
Attorneys for Respondent Kiawah Real Estate Company
KIAWAH ISLAND REAL ESTATE COMPANY
___________________________________
Jonathan P. Weitz, Esquire
Director of Development, General Counsel
Kiawah Island Real Estate Company
12 Kiawah Beach Drive
Kiawah Island, SC 29455
SOUTH CAROLINA DEPARTMENT OF HEALTH AND
ENVIRONMENT CONTROL
________________________________
Mary D. Shahid, Esquire
Chief Counsel
Office of Ocean and Coastal Resource Management
1362 McMillan Ave., Suite 400
Charleston, SC 29405
(843) 744-5838 Ext. 112 |
