SC Administrative Law Court Decisions

Petitioners requested a contested case hearing to challenge an amendment to a community dock permit granted by the South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management (OCRM) to Big Landing Development (Big Landing). ⁽¹⁾ The amendment removes a condition which prohibited all other docks in the Big Landing subdivision, which is adjacent to Mullet Creek in Little River, Horry County, South Carolina.

The disagreement on the issuance of the permit amendment places contested case jurisdiction in the Administrative Law Judge Division (ALJD) under S.C. Code Ann. § 48-39-150 (Supp. 1999) and § 1-23-310 et seq. (Rev. 1987 & Supp. 1999). After considering the evidence presented at the March 20, 2000 hearing, I find the permit amendment should be granted.

Should permit number 94-1T-308-P for construction of a community dock in Big Landing subdivision in Little River, South Carolina be amended to remove the condition that no other docks be allowed in the subdivision?

A. Positions of Parties

Petitioners assert that removal of the permit condition is unreasonable because it takes away the public benefit of preventing proliferation of docks in the critical area. Petitioners argue that the 1995 condition prohibiting all other docks in the subdivision served as the "dock master plan" for the subdivision, and therefore, OCRM is bound by it. Petitioners also assert that if docks other than the community dock are allowed in the subdivision, the views of adjacent property owners will be negatively affected and their properties will diminish in value. Finally, Petitioners argue that additional docks in the subdivision will adversely impact the environment.

OCRM and Big Landing disagree with Petitioners. OCRM argues that to prevent the unreasonable proliferation of docks in the area it was necessary to reach a compromise with Big Landing that would allow for only 12 joint-use docks on subdivision lots fronting Mullet Creek. OCRM reasons that the community dock permit which was issued in 1995 was approaching its January, 2000 expiration date, and that upon expiration of the permit, the condition prohibiting other docks in the subdivision would be unenforceable. Big Landing argues that the condition unreasonably prevented waterfront lot owners access to Mullet Creek, and, therefore, the amendment removing that condition is reasonable.

B. Findings of Fact

1. Stipulated Facts

At the hearing, the parties stipulated to the following facts:

On January 23, 1995, OCRM issued a permit for construction of a boat docking facility in the Big Landing subdivision on Mullet Creek in Little River, South Carolina. The facility consists of a "T" shaped dock with a walkway leading to an access dock. On February 15, 1999, Respondent Big Landing Development (Big Landing) submitted to OCRM an application to amend the permit to remove the condition that the community dock be the only dock permitted in the subdivision.

On February 25, 1999, OCRM issued public notice of the amendment request. On April 16, 1999, OCRM notified Parker, through his agent Mr. Wayne Beam (Beam), that his application to amend the dock permit had been canceled due to his failure to submit the required administrative fee. In its April 16, 1999 letter to Beam, OCRM stated that any alterations of the critical area would require a new application. On April 19, 1999, OCRM issued public notice of the cancellation of the application for the permit amendment. Attached to this notice was a copy of the April 16, 1999 letter to Beam.

On June 16, 1999, Beam submitted the administrative fee for the permit amendment to OCRM. In his memorandum which accompanied the fee was the following language:

Per our telephone conversation of 14 Jun 99, I am forwarding you the $ 400 permit fee for the above referenced amendment request.

I am asking that 12 docks as depicted on the enclosed sheets 1 of 7 through 7 of 7 be allowed in Mullet Creek. Please note that there will be no floating docks which might block the creek.

Please be advised this request only covers Mullet Creek. The developer is currently negotiating for the release of a spoil easement along the AIWW. Once this easement is released lots may be platted in this area. Lot purchasers may desire to construct docks on these lots. These requests will be handled separately.

On June 23, 1999, OCRM granted the amendment and by letter of June 23, 1999, OCRM indicated that a condition to granting the amendment was that the June 16, 1999 "dock master plan" be recorded in the local RMC office and that proof of recording be submitted to OCRM prior to "subsequent dock applications." Chinnis's letter further states "[t]his letter does not relieve you of the responsibility of acquiring any other applicable federal or local permits that may be required." On June 29, 1999, OCRM issued public notice of its granting of the permit amendment.

• Additional facts

In addition to the stipulated facts, I find, by a preponderance of the evidence, the following facts:

OCRM's amendment to the permit represented a compromise with Big Landing that would allow for only 12 joint-use docks on subdivision lots fronting Mullet Creek. This compromise included requiring Beam's dock alignment proposal to be recorded in the local RMC office as a condition of granting the amendment. ⁽²⁾

At that time, OCRM employees recognized that without such a compromise, it was likely that the community dock permit would expire in January, 2000 without completion of construction, rendering the condition prohibiting other docks in the subdivision unenforceable, and opening up the possibility of receiving dock applications from 29 lots fronting Mullet Creek which would otherwise be eligible for a dock under OCRM regulations.

At the time that OCRM made the decision to grant the amendment, OCRM employees were aware that pilings had been driven into the footprint of the community dock, but they had reason to believe that construction of the dock would not be completed before expiration of the permit. In discussions with OCRM, the developer's representatives indicated that they were contemplating removal of the pilings rather than completing the construction and that they would not proceed forward with the community dock permit without reaching a compromise with OCRM on the allowance of other docks. Taking into account all of the concerns of potential adjacent property owners, and the reasonableness of Big Landing's requested amendment, OCRM determined that it could best minimize the proliferation of docks in the area by amending the permit, conditioned upon the recording of Beam's dock proposal in the local RMC office.

C. 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 amendment. I conclude the permit amendment is proper.

1. Burden of Proof

In administrative proceedings, the burden of proof is on the party asserting the affirmative of an issue. 2 Am. Jur. 2d Administrative Law § 360 (1994). In this case, Petitioners assert that Big Landing's requested amendment to the community dock permit is unreasonable and violates applicable regulations. Therefore, Petitioners assert the affirmative in this case and they must prove their allegations by a preponderance of the evidence. See Anonymous v. State Board of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998)("'Absent an allegation of fraud or a statute or a court rule requiring a higher standard, the standard of proof in administrative hearings is generally a preponderance of the evidence . . . '").

After carefully considering all evidence, arguments of the parties and the applicable law, I find that Petitioners failed to carry their burden of showing that removal of the condition to the community dock permit is unreasonable or violates the applicable regulations.

2. 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. 1999). Pursuant to that authority, OCRM promulgated regulations governing permits for docks. In fact, for docks, two specific regulations are pertinent: the general guidelines applicable to all permits in critical areas, 23A S.C. Code Ann. Regs. 30-11 (Supp. 1999); and the regulations governing docks, 23A S.C. Code Ann. Regs. 30-12.A (Supp. 1999). 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. 1999), 23A S.C. Code Ann. Regs. 30-1(C)(4) and (12) (Supp. 1999) and Regs. 30-10(A) (Supp. 1999). Accordingly, the regulatory provisions within OCRM's jurisdiction are applicable.

The General Assembly also authorized OCRM to develop a comprehensive program for management of land uses and resources in the State's coastal zone. Under this program, OCRM requires the development of dock master plans along the shoreline of properties undergoing development; if lands adjacent to navigable coastal waters are developed and such development requires coastal zone consistency certification by OCRM, the landowner or developer must submit a dock master plan which will provide basic information about the property and proposed uses of the adjacent State waters and marshes. South Carolina Coastal Zone Management Program Document, Chapter III(C)(VI)(D), at III-39.

a. Regulations: General Guidelines for all critical areas

The first area of review is that of the general guidelines of Regs. 30-11(B) and (C). Reg. 30-11(B) lists the ten general considerations required to be considered in the evaluation of any proposed project in a critical area. Of those ten general considerations, the only ones in dispute in this case are the extent of any adverse environmental impact which cannot be avoided by reasonable safeguards; and the extent to which the proposed use could negatively affect the value and enjoyment of adjacent owners. Reg. 30-11(C) lists further guidelines on which OCRM must base its decisions in evaluating permit applications. Of these guidelines, the only one in dispute in this case is the 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. Petitioners argue that these factors demonstrate that the permit amendment should be denied. I conclude that these guidelines do not warrant denying the requested permit amendment.

i. Adverse environmental impact: Regs. 30-11(B)(8)

Petitioners assert that allowing more docks in the subdivision will have an adverse impact on the environment. It is well established, however, that docks are the least objectionable structures in the critical area from an ecological point of view. 23A S.C. Code Ann. Regs. 30-12.A(1) (Supp. 1999). The evidence shows that there are only short-term impacts that are extremely localized in the immediate area surrounding the dock. Notably, none of the interested government agencies who were given an opportunity to comment on the requested permit amendment expressed any concerns regarding any potential damage to the environment.

Further, the evidence shows that many of the environmental impacts associated with docks are not directly caused by the docks themselves, but rather by the activities associated with docks, such as boating. The 12 joint-use docks included in Beam's dock alignment proposal do not have floating docks, but merely pierheads which are not conducive to boat tie-ups. These docks are one of the structures that have the least impact on the environment.

ii. Value and Enjoyment of Adjacent Property Owners: Regs. 30-11(B)(10)

- Enjoyment of Adjacent Owners -

Petitioners complain that those property owners who will be adjacent to one of the 12 joint-use docks will no longer have an unobstructed view of the marsh and the creek, and that the eventual deterioration of the docks will become an eyesore.

A prescriptive right to an unobstructed view of the marsh does not exist under South Carolina Law. Hill v. The Beach Co., et al., 279 S.C. 313, 306 S.E.2d 604 (1983). Although OCRM must consider the enjoyment of adjacent owners in assessing the potential impact of a project in a critical area, this factor is only one of many factors for OCRM to consider. In any event, OCRM has appropriately balanced the competing concerns of all owners of lots fronting Mullet Creek by creating an arrangement for only 12 joint-use docks for these lots. The evidence shows that none of these docks will exceed 200 feet in length and that the pierheads will be only 10' by 20' in size.

Furthermore, OCRM can address view concerns during evaluation of each individual dock application by removing pierhead roofs from any proposals. Moreover, OCRM regularly requires as a condition of dock permits that the docks be maintained in good repair. Therefore, I conclude that the enjoyment of adjacent owners cannot be a basis for denying the permit amendment in this case.

- Value of Adjacent Property -

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 will the removal of the 1995 permit condition have on the properties adjacent to the 12 proposed joint-use docks.

In the instant case, no evidence supports a conclusion that removal of the 1995 permit condition will diminish the value of properties adjacent to the 12 proposed joint-use docks. 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 critical area has materially and negatively impacted the value of the adjacent owner's property. No such evidence is presented in this case. Accordingly, the permit amendment cannot be denied due to the loss of value imposed on property adjacent to the proposed 12 joint-use docks.

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 all twenty-nine owners of lots fronting Mullet Creek could at a future date seek a dock permit, and that they may seek to add features to the docks that are not delineated in Beam's dock alignment plan. However, Richard Chinnis testified that when OCRM receives future individual dock applications from lots fronting Mullet Creek, it will reject any dock proposals that are not consistent with Beam's joint-use dock alignment proposal. I find this testimony to be credible. Relying on this very important testimony, I conclude that the cumulative effects of removing the prohibition on docks in the subdivision will be minimized by OCRM's adoption of Beam's joint-use dock alignment proposal. Moreover, the addition of joint-use docks on lots fronting Mullet Creek will not necessarily be inconsistent with the general character of the area. At least one other property owner in the area, Petitioner Charles Eade, has a dock extending from his property.

Based on the foregoing, the permit amendment cannot be denied on the basis of any long-range, cumulative effects of the permit amendment.

b. Regulations: Docks

Even if the general guidelines are satisfied, a dock permit must further satisfy the requirements imposed by 23A S.C. Code Ann. Regs. 30-12.A (Supp. 1999). Of those requirements, the only one in dispute in this case is the policy that developers of subdivisions are encouraged to develop joint-use or community docks when their plans are in the development stage.

Petitioners argue that the policy of encouraging joint-use or community docks was satisfied by the condition to the community dock permit which Respondents now seek to remove, and that removing the condition without imposing a suitable substitute plan harms the public interest. OCRM argues that to protect the public interest under all of the surrounding circumstances, it was necessary for OCRM to adopt Beam's joint-use dock proposal in exchange for removal of the 1995 permit condition. I agree with OCRM.

The evidence indicates that at the time OCRM made its decision, it was likely that the community dock permit would expire in January, 2000 without completion of dock construction, rendering the condition prohibiting other docks in the subdivision unenforceable and opening up the possibility of receiving dock applications from all 29 lots fronting Mullet Creek.

OCRM employees were aware that pilings had been driven into the footprint of the community dock, but they had reason to believe that construction of the dock would not be completed before expiration of the permit. S.C. Code Ann. § 48-39-150(F) (Supp. 1999) requires work authorized under critical area permits to be completed within five years after the date of permit issuance. OCRM may extend this time limit only for good cause showing that due diligence toward completion of the work has been made as evidenced by significant work progress. Id. In discussions with OCRM, representatives of the developer indicated that they were contemplating removal of the pilings rather than completing the construction, and that they would not proceed forward with the community dock permit until a compromise could be reached on the allowance of other docks.

While there is some evidence that the community dock has now been completed, there is insufficient evidence of its completion date. Moreover, I find persuasive OCRM's argument that a condition not directly associated with a permitted project to alter a critical area (e.g., dimensions of the structure, etc.) is not reasonable to enforce, even if OCRM has the power to enforce it.

Based on the foregoing, I conclude that the permit amendment best minimizes the proliferation of docks in the area under all of the circumstances of the case, and that the policy of encouraging joint-use docks or community docks has been satisfied by the amendment.

c. Dock Master Planning

A dock master plan for a property undergoing development takes one of two forms: (1) the applicant may request a general permit for the construction of all future dock, pier and boat ramps in the development; or (2) the developer may submit a conceptual dock master plan to guide the individual permitting of all future docks, piers and boat ramps in the development. South Carolina Coastal Zone Management Program Document, Chapter III(C)(VI)(D), at III-39. In both cases, a master plan must be prepared pursuant to OCRM rules and regulations. Id. If the applicant pursues a general permit, normal permitting procedures must be followed. Id. If the applicant merely submits a conceptual dock master plan for OCRM's future guidance in permitting decisions, the procedures outlined in the Program Document must be followed. Id.

OCRM's objectives for the dock master plan include the establishment of guidelines for determining the appropriate spacing of docks in order to control congestion, maintenance of the accessibility and navigability of coastal waters, encouraging the use of community docking facilities and preventing degradation of water quality. Id. at III-40. Although in some situations single family docks are appropriate, more favorable consideration will be given to the use of community docks and joint use docks. Id. at III-41. The Program also provides that the dock master plan shall be presumed to take precedence over applications inconsistent with such plan unless new information is revealed in the application to address and overcome concerns identified in the dock master plan. Id. at III-42.

Petitioners assert that there has been a dock master plan at Big Landing since January, 1995: one community dock, no others. There was insufficient evidence, however, to establish that the 1995 permit condition prohibiting all other docks in the subdivision was meant to serve as a dock master plan for the development. In fact, OCRM employee Richard Chinnis testified that OCRM had never received a dock master plan for the subdivision. Therefore, OCRM felt the need to prevent further proliferation of docks in the area by removing the permit condition in exchange for the recording of Beam's dock alignment proposal in the local RMC office.

Petitioners argue that the recording requirement cannot bind those who already purchased from the developer a lot fronting Mullet Creek. However, the binding nature of OCRM's adoption of the dock alignment proposal will manifest itself in OCRM's future permitting decisions on these lots; OCRM's main objective in requiring the dock alignment plan to be recorded was to provide notice to any subsequent purchasers of these lots that OCRM will use the plan as guidance in evaluating future permit applications. ⁽³⁾

Petitioners also assert that the amendment to the 1995 permit requires a similar amendment to the corresponding permit from the United States Corps of Engineers, which requires a coastal zone consistency determination by OCRM. They argue that such a consistency determination invokes the dock master planning policies of the Coastal Zone Management Program, and that OCRM violated those policies by not requiring Beam's dock alignment plan to include a formal site plan depicting property lines, critical area lines and other features of the area. I must disagree.

The language of the Coastal Zone Management Program Document indicates that OCRM's dock master planning policies contemplate the creation of a dock master plan during the initial stages of subdivision development. South Carolina Coastal Zone Management Program Document, Chapter III(C)(VI)(D), at III-39 ("OCRM will require development of dock master plans along the shoreline of properties undergoing development."). Testimony from OCRM employee Richard Chinnis confirms this interpretation. His testimony indicates that by the time OCRM received the application for the permit amendment, development of the subdivision was long past the stage of being subject to the requirement of a formal dock master plan. Therefore, I conclude that the amendment of the community dock permit did not invoke the formal dock master planning policies of the Coastal Zone Management Program.

d. Arbitrary action

Petitioners assert that there is a presumption of correctness and validity of the community dock permit condition prohibiting any other docks in the subdivision. Petitioners argue that OCRM's removal of the condition, in the absence of a showing of new information overcoming concerns leading to the condition, was arbitrary. I conclude that OCRM was presented with such new information when it evaluated the requested permit amendment.

An administrative agency is generally not bound by the principle of stare decisis, but it cannot act arbitrarily in failing to follow established precedent. Concord Street Neighborhood Ass'n v. Campsen, 309 S.C. 514, 424 S.E.2d 538 (Ct. App. 1992). Under all of the circumstances of the case, OCRM's removal of the 1995 permit condition was not arbitrary.

At the time OCRM made its decision, it was likely that the community dock permit would expire in January, 2000 without completion of dock construction, rendering the condition prohibiting other docks in the subdivision unenforceable. Furthermore, OCRM properly determined that even if the condition were technically enforceable, it was not reasonable to enforce it under all of the surrounding circumstances. OCRM appropriately considered concerns expressed about environmental impacts and the proliferation of docks, and it determined that removal of the 1995 condition in exchange for adoption of Beam's joint-use dock plan best addressed these concerns. Therefore, I conclude that OCRM's decision to remove the condition was based in reason and was not arbitrary.

The South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management is directed to grant to Big Landing Development an amendment to permit number 94-1T-308-P, removing the 1995 permit condition that no other docks be constructed in the Big Landing subdivision.

AND IT IS SO ORDERED

______________________________

RAY N. STEVENS

Administrative Law Judge

This 22^nd day of August, 2000

Columbia, South Carolina

1. The permit also authorized filling in .02 acres of wetlands to widen an existing roadway.

2. OCRM did not consider Beam's June 16, 1999 proposal to be a dock master plan which is subject to the formal requirements of the Coastal Zone Management Program. Although OCRM's letter granting the amendment referenced Beam's proposal as a "dock master plan," Richard Chinnis testified that "dock master plan" was a poor choice of words and that he failed to carefully check the language of the letter before he signed it. Rather, OCRM viewed the proposal as an informal dock alignment proposal.

3. Those owners who had already purchased lots from the developer when OCRM granted the permit amendment were notified of the amendment through the Big Landing Property Owners' Association.