South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
George B. Smith vs. SCDHEC

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
George B. Smith

Respondent:
South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management
 
DOCKET NUMBER:
99-ALJ-07-0253-CC

APPEARANCES:
For the Petitioners: Lee Metz, Pro Se

George B. Smith, Pro Se

For the Respondent: Mary D. Shahid, Esquire
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before me pursuant to the South Carolina Department of Health and Environmental Control (DHEC), Office of Ocean and Coastal Resource Management's (OCRM), denial of Petitioners' applications for single use dock permits for Lots 41 and 42, Wexford Sound, Charleston County, South Carolina. Initially, Petitioners filed separate actions for contested hearings. On September 10, 1999, Petitioners requested that the two cases bearing docket numbers 99-ALJ-07-0253 (George B. Smith v. DHEC-OCRM) and 99-ALJ-07-0254 (Lee Metz v. DHEC-OCRM) be consolidated for hearing purposes. DHEC-OCRM did not object to Petitioners' request. An Order consolidating the two cases was issued on September 30, 1999. A hearing was held on these matters on October 12, 1999 at the Administrative Law Judge Division.



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 the evidence:

1. Petitioner Metz is the owner of Lot 42 in Phase IV of the Wexford Sound Subdivision, Charleston County, South Carolina. He purchased the property from Squire Homes in April 1996. Lot 42 is located on the marsh or tidal creek of Clark Sound and is adjacent to Petitioner Smith's Lot 41. On February 28, 1999, Petitioner Metz applied for a permit to construct a private dock to consist of a 4 foot by 460 foot walkway leading to a 10 foot by 10 foot fixed pierhead.

On April 19, 1999, OCRM denied Petitioner Metz's request for the above dock permit. In denying the permit, OCRM informed Metz that since Lot 42 was not included in the dock master plan for Wexford Sound Subdivision, he was not eligible for a single or joint-use dock because general permits may only be issued for docks covered by a dock master plan, as outlined in Ch.III.C.3.VI.D of the Coastal Zone Management Plan.

2. Petitioner Smith is the owner of Lot 41 in Phase IV of the Wexford Sound Subdivision, Charleston County, South Carolina. In April 1996, Mr. Smith also purchased his property from Squire Homes. Lot 41 is located on the marsh or tidal creek of Clark Sound. On March 15, 1999, Petitioner Smith applied for a permit to construct a private dock to consist of a 4 foot by 340 foot walkway leading to a 10 foot by 10 foot fixed pierhead.

On April 22, 1999, OCRM denied Petitioner Smith's request for the above dock permit. In denying the permit, OCRM likewise stated that since Lot 41 was not included in the dock master plan for Wexford Sound Subdivision he also was not eligible for a single or joint-use dock because general permits may only be issued for docks covered by a dock master plan, as outlined in Ch.III.C.3.VI.D of the Coastal Zone Management Plan.

3. The Petitioners contend that OCRM improperly denied their permits because the dock master plan for Phase IV of the Wexford Sound Subdivision did not exist in April 1996 when Lots 41 and 42 were purchased from Squire Homes.

4. Dock master plans are part of the Coastal Zone Management Program Refinements of 1993. The purpose of a dock master plan is to allow access to waterways by the public or by future property owners while minimizing impact to critical areas. Preparation of a dock master plan involves identifying lots at the beginning of a development, which should qualify for either single or joint-use docks. Dock corridors indicate potential dock placements on the lots identified in the dock master plan. Designation of any lot as a "dock lot" does not guarantee the issuance of a permit to construct a single or joint-use dock. Furthermore, docks proposed under a permit application must meet the requirements set forth in the Permitting Rules and Regulations. The information contained in the dock master plan is passed on to prospective buyers by the developer so they can make an informed decision on whether to purchase the waterfront property.

The dock master plan for Phase IV of the Wexford Sound Subdivision was not prepared until June 21, 1997. Lots 41 and 42 were not included in the dock master plan because they were no longer owned by the developer at the time the plan was prepared.

5. At the hearing, OCRM contended that a joint-use dock permit would be proper in the case of Lots 41 and 42 because a lot must have 75 feet of water frontage along the marsh edge and at least 75 feet of frontage between the extended waterfront property lines as required by the Coastal Zone Management Act and OCRM's regulations. According to OCRM, a joint-use dock is consistent with the docks downstream of the Petitioners' property. Additionally, Lot 41 meets the requirements for placement of a joint-use dock which requires at least 50 feet of frontage, both on the marsh edge and along the water between the waterfront extended property lines. However, Petitioner Metz did not consent to a joint-use dock. Furthermore, Petitioner Smith was not informed of that reason for denial in the April 22, 1999 letter from OCRM denying the permit application. He received notice of the minimum footage requirement for the first time at the hearing before this Court.

If the joint-use permit was not granted, OCRM contended that Smith's permit for Lot 41 should not be granted because Lot 41 lacks the required minimum frontage between the extended waterfront property lines. Lot 42 owned by Petitioner Metz has approximately 105 feet of water frontage and thus more than the minimum 75 feet of frontage between the extended waterfront property lines. However, Petitioner's Smith property, Lot 41, is a pie-shaped lot that converges before it gets to the extended waterfront property lines. His property's shape reduces the distance between the frontage and the extended waterfront property lines to less than 75 feet. As a result, though Lot 41 has approximately 80 feet of water frontage, it does not have 75 feet of frontage between the extended waterfront property lines.



CONCLUSIONS OF LAW

General Law

1. S.C. Code Ann. § 48-39-150 (Supp. 1998) authorizes the Administrative Law Judge Division to hear contested cases arising under Chapter 39 of Title 48 of the 1976 Code. Therefore, the Division has jurisdiction over this matter pursuant to S.C. Code Ann. § 1-23-600 (Supp. 1998).

2. The standard of proof in weighing the evidence and making a decision on the merits of a contested case hearing is by a preponderance of the evidence. Nat'l Health Corp. v. S.C. Department of Health and Environmental Control, 298 S.C. 373, 380 S.E. 2d 841 (Ct. App. 1989).

3. Permits for construction of private docks in the coastal zone are governed by the South Carolina Coastal Zone Management Act, S.C. Code Ann. § 48-39-10 et. seq. (Supp. 1998) and the regulations are promulgated pursuant to those provisions, 23A S.C. Code Ann. Regs. 30-1 et. seq. (Supp. 1998).(1) Therefore, the Office of Ocean and Coastal Resource Management is charged with carrying out South Carolina's coastal zone policies and issuing permits for docks and piers in the critical areas of the coastal waters and tidelands. 23A S.C. Code Ann. Regs. 30-10(A)(1) (Supp. 1998; S.C. Code Ann. § 48-39-130 (Supp. 1998).

4. The properties in question are located in a critical area as defined in S.C. Code Ann. § 48-39-10 (Supp. 1998) and 23A S.C. Code Ann. Regs. 30-1(C)(4) and (12) (Supp. 1998). Any person wishing to construct a dock in a critical area must apply for and receive a permit. The application must include, inter alia, a plan or drawing describing the proposed activity, a plat or copy of a plat of the area in which the proposed work will take place, and a certified copy of the instrument under which the applicant claims ownership or permission from the owner to carry out the proposal. 23A S.C. Code Ann. Regs. 30-2 (B) (Supp. 1998).

5. S.C. Code Ann. Regs. 30-12 (A) (Supp. 1998) sets forth the specific project standards for construction of docks and piers for tidelands and coastal waters. Regulation 30-12(A)(2) specifically provides in part that:

The following general standards are applicable for construction of docks and piers:



(a) Docks and piers shall not impede navigation or restrict the reasonable public use of state lands and waters;

* * *

(e) All applications for docks and piers should accurately illustrate the alignment of property boundaries with adjacent owners and show the distance of the proposed dock from such extended property boundaries. For the purpose of this section, the extension of these boundaries will be an extension of the high ground property line. The Department may consider an alternative alignment if site specific characteristics warrant or in the case of dock master plans, when appropriate.

Dock Master Plans

6. S.C. Code Ann. Regs. § 30-12(A)(3) provides that:

General permits may be issued for docks covered by a master plan, as outlined in CH.III.C.3.VI.D of the Coastal Zone Management Plan. This master plan must be placed on public notice and processed as a major application. If a master plan is approved by the Department, but no general permit is applied for or issued, the approved master plan will be used as a framework for permitting decisions, subject to comments received during the public review process.

The Petitioners contend that OCRM improperly denied their permits because the dock master plan for Phase IV of the Wexford Sound Subdivision did not exist when Lots 41 and 42 were purchased. Since the dock master plan for Phase IV of the Wexford Sound Subdivision was not prepared until June 21, 1997, Lots 41 and 42 were not included in the dock master plan because they were no longer owned by the Developer at the time the plan was prepared. As a result, Lots 41 and 42 are not subject to the dock master plan. However, placement of the docks on the subject lots is still governed by the South Carolina Coastal Zone Management Act and 23A S.C. Code Ann. Regs. 30-1 et. seq. (Supp. 1998).

Required Water Frontage

7. OCRM contends that Smith's permit for Lot 41 should not be granted because Lot 41 lacks the required minimum frontage between the extended waterfront property lines. Regulation 30-12(A)(2) provides, in relevant part, that:

(o) For lots platted and recorded after the effective date of these regulations, before a dock will be permitted, a lot must have 75 feet of water frontage along the marsh edge and at least 75 feet of frontage between extended waterfront property lines. Lots with less than the required footage, but with at least 50 feet of frontage, both on the marsh edge and along the water between the waterfront extended property lines may be eligible for a common dock with the adjacent property. Lots less than 50 feet wide are not eligible for a dock;



(p) No docks or pierheads or other associated structures should normally be allowed to be built closer than 20 feet from extended property lines with the exception of common docks shared by two adjoining property owners. However, the Department may allow construction over extended property lines where there is no material harm to the policies of the Act.

(Emphasis added).The Petitioners contend that private or single-use docks constructed on their property would have greater utility and would impart greater access to the waterway. Without the single-use docks, they have limited access to the waterway for recreational use. The Petitioners argue that there is sufficient space to construct two single-use docks on Lots 41 and 42 even though Lot 41 does not meet the requirements under the regulations. In order to construct the two docks, Lot 41 would have to cross the extended waterfront property line of Lot 42. The Petitioners claim they do not intend to build the docks on the same waterways which would allow for sufficient space and distance between the two docks. However, under S.C. Regulation 30-12 (A), a lot must have 75 feet of water frontage along the marsh edge and at least 75 feet of frontage between the extended waterfront property lines. Consequently, Lot 41 does not meet the requirements for the placement of a private or single-use dock.



Due Process

8. The requirements of due process include notice, an opportunity to be heard in a meaningful way, and judicial review. S.C. Const. art. I, § 22; Stono River Envtl. Protection Ass'n v. South Carolina Dep't of Health and Envtl. Control, 305 S.C. 90, 406 S.E.2d 340 (1991). Due process is not a technical concept with fixed parameters unrelated to time, place and circumstances; rather, it is a flexible concept that calls for such procedural protections as the situation demands. Matthews v. Eldridge, 424 U.S. 319 (1976).

"Due process encompasses all rights which are of such fundamental importance as to require compliance with due process standards of fairness and justice and includes procedural . . . rights of citizens against government actions that threaten the denial of life, liberty, or property." Anonymous v. State Bd. of Med. Exam'rs, 323 S.C. 260, 264, 473 S.E. 2d 870, 872 (Ct. App. 1996), rev'd on other grounds, 329 S.C. 371, 496 S.E.2d 17 (1998). Administrative agencies are required to meet minimum standards of due process. S.C. Const. Art. I, § 3; Smith & Smith, Inc. v. S.C. Public Service Commission, 271 S.C. 405, 247 S.E. 2d 677 (1978). Constitutional due process provisions, apart from the Administrative Procedures Act, are sufficient to confer the rights to notice and for an opportunity to be heard. Stono River Envtl. Protection Ass'n v. South Carolina Dep't of Health and Envtl. Control, 305 S.C. 90, 406 S.E. 2d 340 (1991). Therefore, under the circumstances of this case that Petitioner Smith was entitled to notice and the opportunity to be heard in a meaningful manner.

Conclusion

9. I find that Petitioner Metz should be granted a permit for the construction of a private or single-use dock on Lot 42. However, I conclude that Petitioner Smith was not given notice prior to the hearing by OCRM that his lot did not meet the minimum statutory requirements for a private or single-use dock. At the hearing, the evidence established that a permit could potentially be granted to Smith if the docks of both Petitioners were appropriately placed and if Mr. Metz consented to Mr. Smith's walkway/dock crossing his extended property lines. Therefore, based on the above findings, I remand the case of Petitioner Smith for OCRM to consider whether an agreement can be reached between the parties concerning the placement of a private or single-use dock on Lot 41.



ORDER

IT IS THEREFORE ORDERED that OCRM is to prepare and issue to Petitioner Metz a permit for a single-use dock.

IT IS FURTHER ORDERED that the case involving Petitioner Smith be remanded for consideration of a single-use dock in keeping with this order.

AND IT IS SO ORDERED.



_____________________________

Ralph King Anderson, III

Administrative Law Judge





July 28, 2000

Columbia, South Carolina

1. Regulations 30-1 et seq.were amended effective June 25, 1999. However, the law prior to June 25, 1999 is applicable to this Order as the Petitioners' permit applications were submitted before the amendment.


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