ORDERS:
Moreover, as explained above, the permit minimizes the potential for shading impacts by
combining the walkways for Lots 1, 2, 3, 4, 5, and 7 thus eliminating three walkways. These
docks were the longest of the docks proposed by Ford and the combination of the walkways
eliminated the potential for shading of approximately 7,920 square feet of marsh grass.
Additionally, the permit requires that the docks for Lots 20, 22 and 23 be pile supported thereby
preventing any adverse consequences to the environment from the floating docks resting on the
creek bottom at low tide.
Ford’s subdivision plans also to a great extent deter potential negative impacts resulting
from the shading of marsh grass. Ford seeks only one dock per 175 feet. However, it was
certainly possible for Ford to double, at a minimum, the number of water front lots. Also, rather
than preserve fifteen (15) interior acres, Ford could have implemented a development plan
proposing interior lots. In addition to applying for private docks, Ford could have also requested
a community dock to provide water access and boat moorage to the interior lots.
I, therefore, find that the potential for adverse environmental consequences arising from
the construction of these twenty-seven (27) docks was given appropriate consideration by
OCRM.
Navigation in Parrot Creek
7.Parrot Creek is navigable between the Petitioners’ properties and Clark’s Sound in
its current condition during most of the tidal cycle. The Petitioners who themselves own docks
on Parrot Creek must navigate their boats past Belle Terre, and, consequently, past most of the
proposed Belle Terre docks, in order to travel downstream. They claim that the construction of
many of the docks at Belle Terre will impede their navigation of Parrot Creek.
Moving downstream, the docks for Lots 23 through 10 consist of 8' by 8' pierheads with 8'
by 10' floats. Because of navigation concerns, OCRM required that the docks on Lots 23, 22 and
20 be relocated behind the low water line. The width of the creek at these lots is 85', 94', and 51'
respectively. The creek width at Lots 19 and 18 is 51' and 59' respectively. However, the docks
on Lots 19 and 18 indicate a low water mark at some distance from the edge of marsh grass.
Therefore, based on the width of the creek at these locations, there is a minimum of
approximately 25' of width in the creek at these locations unencumbered by dock construction.
Nevertheless, there are no docks located across the creek from Lots 18 and 19, nor any features
in the creek that might obstruct or hinder navigation. The remaining lots - Lots 21 and 17
through 10 - have a creek width at the dock location ranging from 56' to 84'. Based on these
widths, and taking into account an 8-foot extension into the channel, the range of width that is
unencumbered by dock construction in the creek is approximately 48' to 76' at the location of
these docks. Finally, the width of the creek from Lot 9 downstream to Lot 1 ranges from 80' to
130'.
The Petitioners presented a “hydrosurvey” of Parrot Creek and the testimony of
Petitioners Patterson and Young who are regular boaters in Parrot Creek to establish that the
Belle Terre permit would impair navigation. The Petitioners contend that their hydrosurvey of
Parrot Creek reflects that the Belle Terre docks will impede navigation. However, the
Petitioners’ survey was prepared using mapping grade GPS equipment and a fathometer to
determine elevations in Parrot Creek. Though the Petitioners’ surveyor is a skilled surveyor, his
method of determining the elevations within the creek was subject to a margin of error of at least
3 feet in a horizontal direction and approximately 6 inches of error in a vertical direction.
On the other hand, the Trico surveyors, who performed the surveying for Ford, walked
into the creek at low tide and visually located the low water line.
The Trico surveyors also went
into the creek using kayaks at high tide to locate the edge of marsh grass in the creek and thereby
determine the width of the creek. Additionally, a “shot” was taken approximately every twenty-five (25) feet and a “shot” was taken at the corners of every dock. The creek depth
measurements were determined by physically placing a measuring stick in the creek at low tide at
a point where a boat would naturally traverse. Trico was then able to produce this information
onto a survey and show the relationship between the platted lots, the docks, and the features that
were mapped in the creek. I find that the methods used by Trico to survey the creek and to
determine the location of the low water line, the width of the creek, and the depth of the creek at
the location of the docks, are more reliable than the survey methods used by the Petitioners’
surveyor. Consequently, the survey produced by Trico and the measurements submitted as part
of the permit application are more reliable evidence. Moreover, the Petitioners’ surveyor
obtained electronic data from Trico which was “rotated” or incorporated into the Petitioners’
survey. The rotating of electronic data from one survey onto another survey is subject to error
and any such error can affect the accuracy of the survey. Here, for instance, the Petitioners’
hydrosurvey shows docks extending well beyond the low water line and close to the center of
Parrot Creek. I find that the docks as shown on the Petitioners’ survey are not an accurate
representation of the docks as permitted by OCRM.
Both Patterson and Young also testified that the Creek would be more difficult to navigate
if the Belle Terre permits are granted. According to Mr. Patterson, only docks at Lots 8 through
11 present no impairment to navigation.
The remaining docks will present varying difficulties to
navigation. He testified that the docks on Lots 22 and 23 will impede navigation if on the water
but that the docks on Lots 15 through 21 were his primary concern with the docks on Lots 21 to
23 causing the most difficulty.
Mr. Young testified that the docks from Lot 23 downstream to
Lot 14 will create navigation problems. However, he testified that primarily the docks from Lots
20 to 23 will cause the most difficulty with Lot 21 being the greatest obstacle. The navigation
“problem” described by Young is that if these docks are constructed he will have to significantly
slow the speed of his boat as he travels downstream.
However, neither Patterson nor Young was familiar with the OCRM permit or knew the
specific location of the approved docks on the Belle Terre lots. Consequently, their opinions as to
the navigational impact of these docks are based, in part, on speculation concerning the location
of these docks. Additionally, the relocation of the dock on Lot 20 from the edge of the oyster
bed and placing the pierheads and floats behind the low water line addresses any navigational
concerns caused by the oyster bed and mud flats. Moreover, the opinions of Patterson and Young
are also based upon data that I have found to be inaccurate. I find that this evidence did not
establish that the Belle Terre docks would impede navigation but that a limited number of the
docks would affect navigation by requiring a boater to slow down near the permitted docks.
Therefore, I find that with the exception of Lots 18 and 19, the Belle Terre docks will not impede,
restrict or block navigation. Furthermore, if the docks on Lots 18 and 19 do not extend to the
centerline of the creek, I find that those docks will not impede, restrict or block navigation.
CONCLUSIONS OF LAW
Based on the foregoing Findings of Fact, I conclude the following as a matter of law:
1.The South Carolina Administrative Law Judge Division has subject matter
jurisdiction in this action pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2001),
and §§ 1-23-500 et seq. (1986 & Supp. 2001). Furthermore, S.C. Code Ann. § 48-39-150(D)
(Supp. 2001) specifically authorizes the Division to hear contested cases arising under Chapter 39
of Title 48 of the 1976 Code.
2.The standard of proof in weighing the evidence and making a decision on the
merits at a contested case hearing is 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). Furthermore, the burden of proof in a contested case hearing is upon the moving party.
See 2 Am. Jur. 2d Administrative Law § 360 (1994); Alex Sanders, et al., South Carolina Trial
Handbook § 9:3 Party With Burden, Civil Cases (1999) (In civil cases, generally, the burden of
proof rests upon the party who asserts the affirmative of an issue.). Therefore, the Petitioners
have the burden of proof to establish by a preponderance of the evidence that a permit should not
have been granted to Ford Development.
3.Permits for the 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.
2001), and the regulations promulgated pursuant to those provisions found at 23A S.C. Code
Ann. Regs. 30-1 et seq. (Supp. 2001). Those regulations govern the management, development,
and protection of the critical areas and coastal zone of this state. Furthermore, OCRM 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. 2001); S.C. Code Ann. § 48-39-130 (Supp. 2001). Additionally, 23A S.C. Code Ann.
Regs. 30-12 (A)(2)(h) (Supp. 2001) sets forth that: “Developers of the subdivisions and multiple
family dwellings are encouraged to develop plans which include joint-use docks and/or
community docks at the time of required dock master plans.” In carrying out its function to use
dock master plans, OCRM developed policies for review of those plans in the Coastal Zone
Management Program Refinements.
Dock Dimensions
4.The Petitioners objected to the size of several of the docks in the Belle Terre
permit. Regulation 30-12 (A)(2)(q) (Supp. 2003) establishes the “total allowable dock square
footage” for pierheads and floating docks in the critical area.
It provides, in part, that:
(ii)On creeks between 20 and 50 feet, as measured from marsh vegetation on
both sides, total allowable dock square footage shall be restricted to 120
square feet unless special geographic circumstances and land uses warrant
a larger structure;
(iii)On creeks between 51 and 150 feet, as measured from marsh vegetation on
both sides, total allowable dock square footage shall be restricted to 160
square feet unless special geographic circumstances and land uses warrant
a larger structure.
Therefore, if a proposed dock does not meet the specific square footage restrictions, the
Department may then approve a larger dock if “special geographic circumstances” warrant such
approval. In making that analysis, the Department considers the “physical characteristics and land
use of surrounding upland and waters which warrant additional consideration toward dock sizes.”
Regulation 30-1 (D)(47) (Supp. 2001). Furthermore, Regulation 30-1 (D)(47) specifically
provides that “no potential access via dockage from the opposite side of the creek” is a “special
geographic circumstance.” In this case, the docks met either the specific square footage
restrictions of Regulation 30-12 (A)(2)(q) or met a geographic circumstance that warranted the
approval of a larger structure.
Placement of floats on the mud at low tide
5.The Petitioners challenged the permitting of docks at Lots 20, 22 and 23 because
they would rest upon the creek bottom at low tide. Regulation 30-12(A)(2)(n) provides that
“pierheads must normally be located over open water and floating docks which rest upon the
bottom at normal low tide will not normally be permitted.”
However, as set forth above, the
floating docks at Lots 20, 22, and 23 will be pile supported. Therefore, the floating docks will
not rest upon the creek bottom ensuring that Regulation 30-12 (A)(2)(n) has not been violated.
Cumulative effects of this project
6.The Petitioners also argue that the Belle Terre permit should be denied because it
will have an adverse cumulative impact upon Parrot Creek. In reviewing a project, the
Department must consider “[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.” 23A S.C. Code Ann. Regs. 30-11(C)(1) (Supp. 2001). The Department also has the
responsibility to consider, “[w]here applicable, the extent to which the overall plans and designs of
a project can be submitted together and evaluated as a whole, rather than submitted piecemeal and
in a fragmented fashion which limits comprehensive evaluation.” 23A S.C. Code Ann. Regs. 30-11(C)(2) (Supp. 2001). As more fully set forth in the Findings of Fact, consideration of the
cumulative impacts of this project does not warrant the denial of the Belle Terre permit.
Safeguards to avoid adverse environmental impacts
7.The Petitioners question whether “all” safeguards were taken to avoid any adverse
environmental impacts resulting from the Belle Terre permit. S.C. Code Ann. § 48-39-150(A)
(Supp. 2001) provides that in determining whether a dock permit should be approved or denied,
the Department’s decision should be guided by the policies specified in Sections 48-39-20 and 48-39-30 and the general considerations set forth in Section 48-39-150. Two of the general
considerations set forth in Section 48-39-150 (8) & (9) are:
(1)The extent of any adverse environmental impact which
cannot be avoided by reasonable safeguards; and
(2)The extent to which all feasible safeguards are taken to avoid
adverse environmental impact resulting from a project.
See also Regulation 30-11(B)(8) & (9) (citing the same considerations). 23A S.C. Code Ann.
Regs. 30-1 (D)(21) (Supp. 2001) provides, in part, that:
As used within these rules and regulations (e.g., "unless no feasible
alternative exists"), feasibility is determined by the Department with
respect to individual project proposals. Feasibility in each case is
based on the best available information, including, but not limited
to, technical input from relevant agencies with expertise in the
subject area, and consideration of factors of environmental,
economic, social, legal and technological suitability of the proposed
activity and its alternatives. Use of this word includes, but is not
limited to, the concept of reasonableness and likelihood of success
in achieving the project goal or purpose.
The considerations set forth in Section 48-39-150(8) & (9) are obviously factors to be weighed
along with the other factors enumerated under that statute. Here, the Petitioners did not establish
that reasonable safeguards were not taken to avoid adverse environmental impact or that there
were any feasible safeguards that were ignored in granting the permit.
Value and Enjoyment
The Petitioners contend that the construction of the Belle Terre docks will have a negative
impact upon their use and enjoyment of their docks. Specifically, they contend that these docks
would adversely affect their ability to navigate in Parrot Creek, significantly reduce the time they
can use Parrot Creek to access Clark’s Sound, and could create safety hazards due to the
additional boats on the creek. Section 48-39-150(A)(10) provides that one of the general
considerations in determining whether a permit application should be approved or denied is “[t]he
extent to which the proposed use could affect the value and enjoyment of adjacent owners.” I
find that the Belle Terre docks will affect their ability to navigate in and out of Parrot Creek.
However, I do not find that the Belle Terre docks will appreciably reduce the time the Petitioners
can use Parrot Creek to access Clark’s Sound or create a safety hazard that does not exist with
the permitting of any tributary dock in South Carolina. Furthermore, the effect upon the
Petitioners’ ability to navigate in Parrot Creek is not unreasonable.
Navigation
8. The Petitioners argue that the proposed Belle Terre docks for Lots 12 through 23
will impede navigation on Parrot Creek. It is undisputed that Parrot Creek is navigable in its
current condition. Section 48-39-150(5) provides that the Department is required to consider
“[t]he extent to which the development could affect existing public access to tidal and submerged
lands, navigable waters and beaches or other recreational coastal resources.” Regulation 30-12
(A)(2)(a) further provides that docks and piers “shall not impede navigation or restrict the
reasonable public use of State lands and waters.” “Impede implies making forward progress
difficult by clogging, hampering, or fettering. . . .” Merriam-Webster OnLine (2003), available at
http://www.m-w.com/ (found at definition of “hinder” under synonyms).
In construing statutory language, the statute must be read as a whole, and sections which
are part of the same general statutory law must be construed together and each one given effect.
TNS Mills, Inc. v. South Carolina Department of Revenue, 331 S.C. 611, 503 S.E.2d 471 (1998).
In applying that principle, “one does not look merely at a particular clause in which a word may
be used, but rather looks at the word and its meaning in conjunction with the purpose of the
whole statute, and in light of the object and policy of the law.” South Carolina Coastal Council v.
South Carolina State Ethics Comm'n, 306 S.C. 41, 44-45, 410 S.E.2d 245, 247 (1991).
Moreover, in interpreting a term set forth in a statute “the Court must presume the legislature did
not intend a futile act, but rather intended its statutes to accomplish something” and that
interpretation of a statute should also not lead to an absurd result. TNS Mills at 476.
Furthermore, “[e]ach part of a statute should be given effect and each word given its plain
meaning if this can be accomplished by any reasonable construction.” Sea Island Scenic Parkway
Coalition v. Beaufort County Bd. of Adjustments and Appeals, 316 S.C. 231, 236, 449 S.E. 2d
254, 257 (Ct. App. 1994).
Obviously, any time a permanent structure is placed in a waterway it presents an obstacle.
I, therefore, find that “impede” as used in Regulation 30-12 (A)(2)(a) does not imply that a dock
cannot can be permitted if it presents any impediment to navigation. Rather, the use of “impede”
implies that docks will not be permitted to hamper the reasonable use of the waterway. Here,
while construction of Belle Terre docks may require the Petitioners to be more vigilant in
navigating Parrot Creek or may even add to the difficulty of navigating Parrot Creek, the
construction of the docks does not hamper the reasonable use of Parrot Creek as a navigable
waterway by the public for pleasure boating. See State ex rel. Medlock v. Reeves, 289 S. C. 445,
346 S. E. 2d 716 (1985).
The Petitioners also argue that Ford did not offer proof of sufficient measures that would
prohibit improper mooring of boats and that boats moored to the Belle Terre docks will impede
navigation. 23A S. C. Code Ann. Regs. 30-12(A)(q)(vii) (Supp. 2003) provides that “[b]oats
moored at docks cannot block or unduly impede navigation.”
The permit further imposes a
“Special Condition” that “all docks or any boats moored at these docks do not impede or unduly
restrict navigation at any stage of the tide cycle.” I find that the above “Special Condition”
reasonably seeks to protect the public from improper boat mooring at the Belle Terre docks.
Moreover, dock owners, such as the Petitioners, are permitted to moor boats at their docks.
Because the mooring of a boat involves many variables, the control of that behavior is best left to
the enforcement arm of OCRM.
ORDER
IT IS THEREFORE ORDERED that OCRM’s issuance of permit numbers 2002-1E-316-P through 2002-1E-341-P, 2002-1E-322-P through 2002-1E-341-P and 2002-1E-434-P are
GRANTED.
AND IT IS SO ORDERED.
Ralph King Anderson, III
Administrative Law Judge
November 13, 2003
Columbia, South Carolina Moreover, as explained above, the permit minimizes the potential for shading impacts by
combining the walkways for Lots 1, 2, 3, 4, 5, and 7 thus eliminating three walkways. These
docks were the longest of the docks proposed by Ford and the combination of the walkways
eliminated the potential for shading of approximately 7,920 square feet of marsh grass.
Additionally, the permit requires that the docks for Lots 20, 22 and 23 be pile supported thereby
preventing any adverse consequences to the environment from the floating docks resting on the
creek bottom at low tide.
Ford’s subdivision plans also to a great extent deter potential negative impacts resulting
from the shading of marsh grass. Ford seeks only one dock per 175 feet. However, it was
certainly possible for Ford to double, at a minimum, the number of water front lots. Also, rather
than preserve fifteen (15) interior acres, Ford could have implemented a development plan
proposing interior lots. In addition to applying for private docks, Ford could have also requested
a community dock to provide water access and boat moorage to the interior lots.
I, therefore, find that the potential for adverse environmental consequences arising from
the construction of these twenty-seven (27) docks was given appropriate consideration by
OCRM.
Navigation in Parrot Creek
7. Parrot Creek is navigable between the Petitioners’ properties and Clark’s Sound in
its current condition during most of the tidal cycle. The Petitioners who themselves own docks
on Parrot Creek must navigate their boats past Belle Terre, and, consequently, past most of the
proposed Belle Terre docks, in order to travel downstream. They claim that the construction of
many of the docks at Belle Terre will impede their navigation of Parrot Creek.
Moving downstream, the docks for Lots 23 through 10 consist of 8' by 8' pierheads with 8'
by 10' floats. Because of navigation concerns, OCRM required that the docks on Lots 23, 22 and
20 be relocated behind the low water line. The width of the creek at these lots is 85', 94', and 51'
respectively. The creek width at Lots 19 and 18 is 51' and 59' respectively. However, the docks
on Lots 19 and 18 indicate a low water mark at some distance from the edge of marsh grass.
Therefore, based on the width of the creek at these locations, there is a minimum of
approximately 25' of width in the creek at these locations unencumbered by dock construction.
Nevertheless, there are no docks located across the creek from Lots 18 and 19, nor any features
in the creek that might obstruct or hinder navigation. The remaining lots - Lots 21 and 17
through 10 - have a creek width at the dock location ranging from 56' to 84'. Based on these
widths, and taking into account an 8-foot extension into the channel, the range of width that is
unencumbered by dock construction in the creek is approximately 48' to 76' at the location of
these docks. Finally, the width of the creek from Lot 9 downstream to Lot 1 ranges from 80' to
130'.
The Petitioners presented a “hydrosurvey” of Parrot Creek and the testimony of
Petitioners Patterson and Young who are regular boaters in Parrot Creek to establish that the
Belle Terre permit would impair navigation. The Petitioners contend that their hydrosurvey of
Parrot Creek reflects that the Belle Terre docks will impede navigation. However, the
Petitioners’ survey was prepared using mapping grade GPS equipment and a fathometer to
determine elevations in Parrot Creek. Though the Petitioners’ surveyor is a skilled surveyor, his
method of determining the elevations within the creek was subject to a margin of error of at least
3 feet in a horizontal direction and approximately 6 inches of error in a vertical direction.
On the other hand, the Trico surveyors, who performed the surveying for Ford, walked
into the creek at low tide and visually located the low water line.
The Trico surveyors also went
into the creek using kayaks at high tide to locate the edge of marsh grass in the creek and thereby
determine the width of the creek. Additionally, a “shot” was taken approximately every twenty-five (25) feet and a “shot” was taken at the corners of every dock. The creek depth
measurements were determined by physically placing a measuring stick in the creek at low tide at
a point where a boat would naturally traverse. Trico was then able to produce this information
onto a survey and show the relationship between the platted lots, the docks, and the features that
were mapped in the creek. I find that the methods used by Trico to survey the creek and to
determine the location of the low water line, the width of the creek, and the depth of the creek at
the location of the docks, are more reliable than the survey methods used by the Petitioners’
surveyor. Consequently, the survey produced by Trico and the measurements submitted as part
of the permit application are more reliable evidence. Moreover, the Petitioners’ surveyor
obtained electronic data from Trico which was “rotated” or incorporated into the Petitioners’
survey. The rotating of electronic data from one survey onto another survey is subject to error
and any such error can affect the accuracy of the survey. Here, for instance, the Petitioners’
hydrosurvey shows docks extending well beyond the low water line and close to the center of
Parrot Creek. I find that the docks as shown on the Petitioners’ survey are not an accurate
representation of the docks as permitted by OCRM.
Both Patterson and Young also testified that the Creek would be more difficult to navigate
if the Belle Terre permits are granted. According to Mr. Patterson, only docks at Lots 8 through
11 present no impairment to navigation.
The remaining docks will present varying difficulties to
navigation. He testified that the docks on Lots 22 and 23 will impede navigation if on the water
but that the docks on Lots 15 through 21 were his primary concern with the docks on Lots 21 to
23 causing the most difficulty.
Mr. Young testified that the docks from Lot 23 downstream to
Lot 14 will create navigation problems. However, he testified that primarily the docks from Lots
20 to 23 will cause the most difficulty with Lot 21 being the greatest obstacle. The navigation
“problem” described by Young is that if these docks are constructed he will have to significantly
slow the speed of his boat as he travels downstream.
However, neither Patterson nor Young was familiar with the OCRM permit or knew the
specific location of the approved docks on the Belle Terre lots. Consequently, their opinions as to
the navigational impact of these docks are based, in part, on speculation concerning the location
of these docks. Additionally, the relocation of the dock on Lot 20 from the edge of the oyster
bed and placing the pierheads and floats behind the low water line addresses any navigational
concerns caused by the oyster bed and mud flats. Moreover, the opinions of Patterson and Young
are also based upon data that I have found to be inaccurate. I find that this evidence did not
establish that the Belle Terre docks would impede navigation but that a limited number of the
docks would affect navigation by requiring a boater to slow down near the permitted docks.
Therefore, I find that with the exception of Lots 18 and 19, the Belle Terre docks will not impede,
restrict or block navigation. Furthermore, if the docks on Lots 18 and 19 do not extend to the
centerline of the creek, I find that those docks will not impede, restrict or block navigation.
CONCLUSIONS OF LAW
Based on the foregoing Findings of Fact, I conclude the following as a matter of law:
1. The South Carolina Administrative Law Judge Division has subject matter
jurisdiction in this action pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2001),
and §§ 1-23-500 et seq. (1986 & Supp. 2001). Furthermore, S.C. Code Ann. § 48-39-150(D)
(Supp. 2001) specifically authorizes the Division to hear contested cases arising under Chapter 39
of Title 48 of the 1976 Code.
2. The standard of proof in weighing the evidence and making a decision on the
merits at a contested case hearing is 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). Furthermore, the burden of proof in a contested case hearing is upon the moving party.
See 2 Am. Jur. 2d Administrative Law § 360 (1994); Alex Sanders, et al., South Carolina Trial
Handbook § 9:3 Party With Burden, Civil Cases (1999) (In civil cases, generally, the burden of
proof rests upon the party who asserts the affirmative of an issue.). Therefore, the Petitioners
have the burden of proof to establish by a preponderance of the evidence that a permit should not
have been granted to Ford Development.
3. Permits for the 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.
2001), and the regulations promulgated pursuant to those provisions found at 23A S.C. Code
Ann. Regs. 30-1 et seq. (Supp. 2001). Those regulations govern the management, development,
and protection of the critical areas and coastal zone of this state. Furthermore, OCRM 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. 2001); S.C. Code Ann. § 48-39-130 (Supp. 2001). Additionally, 23A S.C. Code Ann.
Regs. 30-12 (A)(2)(h) (Supp. 2001) sets forth that: “Developers of the subdivisions and multiple
family dwellings are encouraged to develop plans which include joint-use docks and/or
community docks at the time of required dock master plans.” In carrying out its function to use
dock master plans, OCRM developed policies for review of those plans in the Coastal Zone
Management Program Refinements.
Dock Dimensions
4. The Petitioners objected to the size of several of the docks in the Belle Terre
permit. Regulation 30-12 (A)(2)(q) (Supp. 2003) establishes the “total allowable dock square
footage” for pierheads and floating docks in the critical area.
It provides, in part, that:
(ii) On creeks between 20 and 50 feet, as measured from marsh vegetation on
both sides, total allowable dock square footage shall be restricted to 120
square feet unless special geographic circumstances and land uses warrant
a larger structure;
(iii) On creeks between 51 and 150 feet, as measured from marsh vegetation on
both sides, total allowable dock square footage shall be restricted to 160
square feet unless special geographic circumstances and land uses warrant
a larger structure.
Therefore, if a proposed dock does not meet the specific square footage restrictions, the
Department may then approve a larger dock if “special geographic circumstances” warrant such
approval. In making that analysis, the Department considers the “physical characteristics and land
use of surrounding upland and waters which warrant additional consideration toward dock sizes.”
Regulation 30-1 (D)(47) (Supp. 2001). Furthermore, Regulation 30-1 (D)(47) specifically
provides that “no potential access via dockage from the opposite side of the creek” is a “special
geographic circumstance.” In this case, the docks met either the specific square footage
restrictions of Regulation 30-12 (A)(2)(q) or met a geographic circumstance that warranted the
approval of a larger structure.
Placement of floats on the mud at low tide
5. The Petitioners challenged the permitting of docks at Lots 20, 22 and 23 because
they would rest upon the creek bottom at low tide. Regulation 30-12(A)(2)(n) provides that
“pierheads must normally be located over open water and floating docks which rest upon the
bottom at normal low tide will not normally be permitted.”
However, as set forth above, the
floating docks at Lots 20, 22, and 23 will be pile supported. Therefore, the floating docks will
not rest upon the creek bottom ensuring that Regulation 30-12 (A)(2)(n) has not been violated.
Cumulative effects of this project
6. The Petitioners also argue that the Belle Terre permit should be denied because it
will have an adverse cumulative impact upon Parrot Creek. In reviewing a project, the
Department must consider “[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.” 23A S.C. Code Ann. Regs. 30-11(C)(1) (Supp. 2001). The Department also has the
responsibility to consider, “[w]here applicable, the extent to which the overall plans and designs of
a project can be submitted together and evaluated as a whole, rather than submitted piecemeal and
in a fragmented fashion which limits comprehensive evaluation.” 23A S.C. Code Ann. Regs. 30-11(C)(2) (Supp. 2001). As more fully set forth in the Findings of Fact, consideration of the
cumulative impacts of this project does not warrant the denial of the Belle Terre permit.
Safeguards to avoid adverse environmental impacts
7. The Petitioners question whether “all” safeguards were taken to avoid any adverse
environmental impacts resulting from the Belle Terre permit. S.C. Code Ann. § 48-39-150(A)
(Supp. 2001) provides that in determining whether a dock permit should be approved or denied,
the Department’s decision should be guided by the policies specified in Sections 48-39-20 and 48-39-30 and the general considerations set forth in Section 48-39-150. Two of the general
considerations set forth in Section 48-39-150 (8) & (9) are:
(1)The extent of any adverse environmental impact which
cannot be avoided by reasonable safeguards; and
(2) The extent to which all feasible safeguards are taken to avoid
adverse environmental impact resulting from a project.
See also Regulation 30-11(B)(8) & (9) (citing the same considerations). 23A S.C. Code Ann.
Regs. 30-1 (D)(21) (Supp. 2001) provides, in part, that:
As used within these rules and regulations (e.g., "unless no feasible
alternative exists"), feasibility is determined by the Department with
respect to individual project proposals. Feasibility in each case is
based on the best available information, including, but not limited
to, technical input from relevant agencies with expertise in the
subject area, and consideration of factors of environmental,
economic, social, legal and technological suitability of the proposed
activity and its alternatives. Use of this word includes, but is not
limited to, the concept of reasonableness and likelihood of success
in achieving the project goal or purpose.
The considerations set forth in Section 48-39-150(8) & (9) are obviously factors to be weighed
along with the other factors enumerated under that statute. Here, the Petitioners did not establish
that reasonable safeguards were not taken to avoid adverse environmental impact or that there
were any feasible safeguards that were ignored in granting the permit.
Value and Enjoyment
The Petitioners contend that the construction of the Belle Terre docks will have a negative
impact upon their use and enjoyment of their docks. Specifically, they contend that these docks
would adversely affect their ability to navigate in Parrot Creek, significantly reduce the time they
can use Parrot Creek to access Clark’s Sound, and could create safety hazards due to the
additional boats on the creek. Section 48-39-150(A)(10) provides that one of the general
considerations in determining whether a permit application should be approved or denied is “[t]he
extent to which the proposed use could affect the value and enjoyment of adjacent owners.” I
find that the Belle Terre docks will affect their ability to navigate in and out of Parrot Creek.
However, I do not find that the Belle Terre docks will appreciably reduce the time the Petitioners
can use Parrot Creek to access Clark’s Sound or create a safety hazard that does not exist with
the permitting of any tributary dock in South Carolina. Furthermore, the effect upon the
Petitioners’ ability to navigate in Parrot Creek is not unreasonable.
Navigation
8. The Petitioners argue that the proposed Belle Terre docks for Lots 12 through 23
will impede navigation on Parrot Creek. It is undisputed that Parrot Creek is navigable in its
current condition. Section 48-39-150(5) provides that the Department is required to consider
“[t]he extent to which the development could affect existing public access to tidal and submerged
lands, navigable waters and beaches or other recreational coastal resources.” Regulation 30-12
(A)(2)(a) further provides that docks and piers “shall not impede navigation or restrict the
reasonable public use of State lands and waters.” “Impede implies making forward progress
difficult by clogging, hampering, or fettering. . . .” Merriam-Webster OnLine (2003), available at
http://www.m-w.com/ (found at definition of “hinder” under synonyms).
In construing statutory language, the statute must be read as a whole, and sections which
are part of the same general statutory law must be construed together and each one given effect.
TNS Mills, Inc. v. South Carolina Department of Revenue, 331 S.C. 611, 503 S.E.2d 471 (1998).
In applying that principle, “one does not look merely at a particular clause in which a word may
be used, but rather looks at the word and its meaning in conjunction with the purpose of the
whole statute, and in light of the object and policy of the law.” South Carolina Coastal Council v.
South Carolina State Ethics Comm'n, 306 S.C. 41, 44-45, 410 S.E.2d 245, 247 (1991).
Moreover, in interpreting a term set forth in a statute “the Court must presume the legislature did
not intend a futile act, but rather intended its statutes to accomplish something” and that
interpretation of a statute should also not lead to an absurd result. TNS Mills at 476.
Furthermore, “[e]ach part of a statute should be given effect and each word given its plain
meaning if this can be accomplished by any reasonable construction.” Sea Island Scenic Parkway
Coalition v. Beaufort County Bd. of Adjustments and Appeals, 316 S.C. 231, 236, 449 S.E. 2d
254, 257 (Ct. App. 1994).
Obviously, any time a permanent structure is placed in a waterway it presents an obstacle.
I, therefore, find that “impede” as used in Regulation 30-12 (A)(2)(a) does not imply that a dock
cannot can be permitted if it presents any impediment to navigation. Rather, the use of “impede”
implies that docks will not be permitted to hamper the reasonable use of the waterway. Here,
while construction of Belle Terre docks may require the Petitioners to be more vigilant in
navigating Parrot Creek or may even add to the difficulty of navigating Parrot Creek, the
construction of the docks does not hamper the reasonable use of Parrot Creek as a navigable
waterway by the public for pleasure boating. See State ex rel. Medlock v. Reeves, 289 S. C. 445,
346 S. E. 2d 716 (1985).
The Petitioners also argue that Ford did not offer proof of sufficient measures that would
prohibit improper mooring of boats and that boats moored to the Belle Terre docks will impede
navigation. 23A S. C. Code Ann. Regs. 30-12(A)(q)(vii) (Supp. 2003) provides that “[b]oats
moored at docks cannot block or unduly impede navigation.”
The permit further imposes a
“Special Condition” that “all docks or any boats moored at these docks do not impede or unduly
restrict navigation at any stage of the tide cycle.” I find that the above “Special Condition”
reasonably seeks to protect the public from improper boat mooring at the Belle Terre docks.
Moreover, dock owners, such as the Petitioners, are permitted to moor boats at their docks.
Because the mooring of a boat involves many variables, the control of that behavior is best left to
the enforcement arm of OCRM.
ORDER
IT IS THEREFORE ORDERED that OCRM’s issuance of permit numbers 2002-1E-316-P through 2002-1E-341-P, 2002-1E-322-P through 2002-1E-341-P and 2002-1E-434-P are
GRANTED.
AND IT IS SO ORDERED.
Ralph King Anderson, III
Administrative Law Judge
November 13, 2003
Columbia, South Carolina |
