SC Administrative Law Court Decisions

I. Statement of the Case

Nancy Flynn (Flynn) filed an application with the South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management (OCRM) requesting permission to construct a dock on Johns Island in Charleston County on Abbapoola Creek. OCRM denied the permit and Flynn challenged that decision. A neighbor of Flynn's, Phyllis R. Hinson (Hinson) intervened in this matter in support of the decision to deny the permit.

Flynn's challenge places contested case jurisdiction in the Administrative Law Judge Division under S.C. Code Ann. §§ 48-39-150 (Supp. 2002) and §§ 1-23-310 et seq. (Rev. 1987 & Supp. 2002). Having considered the evidence and applicable law, I conclude the permit must be granted.

II. Issue

Does Flynn satisfy both the general guidelines of 23A S.C. Code Ann. Regs. 30-11 (Supp. 2002) and the requirements of 23A S.C. Code Ann. Regs. 30-12(A) (Supp. 2002) governing docks constructed in a critical area?

III. Analysis

Requirements For Docks

A. Findings of Fact

Based on the preponderance of the evidence, the following findings of fact are entered:

Flynn seeks a permit to construct a walkway and dock on a lot subdivided on January 26, 1987 and located at 3610 Legreeville Road on Johns Island in Charleston County. The structure is the only means available to Flynn to access Abbapoola Creek.

The proposed walkway originates on Flynn’s property and crosses tidal marshland before reaching the waters of Abbapoola Creek. The walkway has a length of approximately 308 feet and connects to a 10' x 10' fixed pierhead. From the northern side of the fixed pierhead, a ramp 20' x 3' extends to a 8' x 16' floating dock which will rest upon Abbapoola Creek.

While standing on Flynn’s property and facing Abbapoola Creek, on the left (i.e. to the west of Flynn’s property) is a lot owned by Hinson and on the right (i.e. to the east) is a lot owned by Lauren Dean (Dean). Hinson has a dock. Dean has a dock. Thus, Flynn’s structure will be between the two existing docks.

While Hinson owns a thirty two foot boat which she utilizes at her dock, construction of Flynn’s dock will not impede navigation in Abbapoola Creek. More specifically, Flynn’s floating dock will be 56' from Hinson’s dock and 40' from Dean’s dock. Further, the dock will not deny Hinson access to or enjoyment of the public trust properties in the immediate area.

Approximately 135' into the marsh, Flynn’s walkway crosses an imaginary “extended property line,” a line which is the extension of the highland boundary line that separates Flynn’s lot from Hinson’s lot. However, crossing that extended property line is not unique to the proposed Flynn construction. Rather, the existing Dean dock already crosses the imaginary Flynn/Hinson extended property line.

Flynn’s dock will not interfere with Hinson’s or Dean’s outside recreational activities nor interfere with activities associated with the rest and quiet of home life. In addition, Flynn’s dock will not impact the value of either Hinson’s or Dean’s property.

B. Conclusions of Law

Based on the foregoing Findings of Fact, I conclude the following as a matter of law:

OCRM and Hinson assert two positions, one primary and one in the alternative. The primary position is that a permit cannot be granted since the lot to which Flynn seeks to attach her walkway and dock is not a waterfront lot. The alternative position is that even if the lack of waterfront property is not fatal, the dock must nonetheless be denied since the requirements of Regs. 30-11 and 30-12 have not been met. Each position is addressed below.

1. Non-Waterfront Lot

While the extension of Flynn’s western property line reaches Abbapoola Creek, extending the eastern property line does not. Instead, the extended eastern property line first crosses property owned by Dean. From these facts, OCRM concluded Flynn’s lot is not “waterfront property” and, based on that classification, denied Flynn’s request for a permit. I disagree with OCRM’s denial.

For Flynn’s lot (a lot subdivided on January 26, 1987), no statute or regulation demands “waterfront property.” On the contrary, a requirement for waterfront property applies only to lots subdivided after May 23, 1993. In fact, the imposition of a waterfront requirement for lots subdivided after May 23, 1993 is persuasive evidence that no such waterfront imposition exists for lots subdivided before that date. Hodges v. Rainey, 341 S.C. 79, 86, 533 S.E.2d 578, 582 (2000) (“The canon of construction ‘expressio unius est exclusio alterius’ or ‘inclusio unius est exclusio alterius’ holds that ‘to express or include one thing implies the exclusion of another, or of the alternative.’”). Also see Dorman v. Department of Health and Environmental Control, 350 S.C. 159, 565 S.E.2d 119 (Ct. App. 2002) (“Regulation 30-12.A(2)(o) is inapplicable to this case because the lot in question was platted before 1993.”). Thus, no water frontage requirement existing, Flynn’s application cannot be denied for a failure to have water frontage.

2. Requirements of Regs. 30-11 and 30-12

a. Crossing Extended Property Lines

OCRM and Hinson argue the permit must be denied since the walkway and dock will cross an extended property line. I disagree.

The regulations state that “[n]o docks or pierheads or other associated structures should normally be allowed to be built closer than 20 feet from extended property lines” (emphasis added) Regs 30-12(A)(2)(p). Thus, by identifying the normal rule, the regulation expressly contemplates deviations from the norm. In fact, Regs 30-12(A)(2)(p) provides the criteria for allowing deviations:

However, . . . construction closer than 20 feet [from an extended property line] or [construction] over extended property lines [is permitted] where there is no material harm to the policies of the Act.

Here, the evidence does not establish a material harm to the policies of the Act. As for policies of the Act, “the basic state policy . . . is to protect the quality of the coastal environment and to promote the economic and social improvement of the coastal zone and of all the people of the State.” S.C. Code Ann. § 48-39-30(A) (Supp. 2002). Plainly, the addition of a dock such as Flynn’s is not an action having a great propensity to impact the “quality of the coastal environment” since the existing regulations acknowledge that “[d]ocks and piers are the most popular method of gaining access to deep water.” Regs. 30-12(A)(1). Further, no material harm to the policies of the Act results in this case since the area here under review is not one in which docks are non-existent. On the contrary, both neighbors on either side of Flynn have docks.

Moreover, the crossing of the extended property line here in dispute will not create any material harm to the policies of the Act since the exact extended line now under review has already been crossed by an existing dock owned by Dean. As to the Dean crossing, nothing in the evidence demonstrates how the Dean crossing imposed then nor imposes now any material harm to the policies of the Act.

In the same manner, the construction and crossing of that very same line by a similar structure erected by Flynn will not materially harm the “quality of the coastal environment.” Instead, allowing the crossing will promote the “social improvement of the coastal zone” by allowing access to deep water by Flynn who seeks only to cross an imaginary line that has already been crossed by one of her neighbors. Accordingly, the crossing of the Flynn/Hinson extended property line by Flynn’s walkway and dock is not a basis for denying the permit since such a crossing imposes “no material harm to the policies of the Act.”

b. Other Regulatory Requirements

Aside from the crossing of an extended property line, OCRM asserts that three requirements of applicable regulations warrant denying the permit.

i. Value and Enjoyment of Adjacent Owners

OCRM and Hinson argue that granting the permit will adversely affect the value and enjoyment of adjacent owners (S.C. Code Ann. Regs. 30-11(B)(10) (Supp. 2002). I cannot agree.

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."). Here, the evidence does not support a reduction in value to any of the neighboring lots due to the addition of Flynn’s walkway and dock. For example, probative (albeit not necessarily controlling) evidence of a loss of value might include sales in the market place of similar property adjacent to docks demonstrating a loss of value due to the presence of a new dock. No such sales were produced. Indeed, no quantifiable evidence of loss of value is present in this case. Thus, I find no persuasive loss of value established here.

Somewhat related to the value concern is the concern that the presence of the dock will negatively impact the enjoyment experienced by the adjacent lots. The duty to consider the enjoyment of all adjacent owners requires balancing the competing concerns of those owners in a fair and reasonable manner. Regs. 30-11(B)(10). In calculating that balance, at least two areas of impact must be considered: the degree to which the permit will impact the neighbors’ use of their private properties and the degree to which the permit will impact the neighbors’ use of the public trust property. See S.C. Code Ann. § 48-39-30 (Supp. 2002) and 73B C.J.S. Public Lands § 178 (1983).

Here, the neighbors’ enjoyment of their private property is not significantly impaired. For example, no persuasive evidence establishes that the presence of Flynn’s dock will interfere with daily living associated with the residential use of their properties including outside recreational activities or the rest and quiet of home life.

Further, as to the enjoyment of the public trust property, Hinson asserts her enjoyment is impaired since she has a thirty two foot boat which will be more difficult to dock if the Flynn structure is allowed. Again, consideration of the “enjoyment” factor requires balancing the competing concerns of the adjacent owners in a fair and reasonable manner.

In the instant case no fair balance is struck by denying Flynn’s permit. Rather, while any applicant may seek to enjoy any size boat she wishes, OCRM regulations allow a distance between docks of 40 feet. That distance is satisfied in the instant case. Accordingly, on the whole, a balancing of the diverse interests of the adjoining lot owners does not warrant denying Flynn’s permit.

ii. Cumulative Effect

OCRM argues that granting the permit will have a long-range cumulative effect which will negatively impact other possible development as well as negatively impact the general character of the area (Code Ann. Regs. 30-11(C)(1) (Supp. 2002). More particularly, the argument is that granting the Flynn dock will create a precedent for other owners of “non-waterfront property” and will lead to a proliferation of improper docks. I disagree.

First, except for properties subdivided after May 23, 1993, no requirement for docks demands the presence of waterfront property. Thus, an applicant with “non-waterfront property” may apply for and obtain a permit if the requirements for a dock permit are satisfied.

Second, while others in the area could at some future date seek permits that cross extended property lines, doing so is entirely within their rights. Indeed, the "extended property line" regulation requires OCRM to consider the individual circumstances of each application. For example, the regulation uses the word “normally” and implies a less than mandatory rule prohibiting the crossing of extended property lines. Indeed, the regulation grants the freedom to cross extended property lines “where there is no material harm to the policies of the Act.” Regs. 30-12(A)(2)(p).

Accordingly, the concern of creating a precedent from granting the instant permit is not a valid basis for concluding that the “long-range, cumulative effects” Regs. 30-11(C)(1) are negatively impacted. Rather, just the opposite is true. OCRM is already encouraged to weigh such requests (Regs. 30-12(A)(2)(p)) and thus, Regs. 30-11(C)(1) is not a basis for denying Flynn’s permit.

iii. Impeding Navigation

Both Hinson and OCRM argue that granting the permit will have a negative affect by impeding navigation. S.C. Code Ann. Regs. 30-12(A)(2)(a) (Supp. 2002). More particularly, OCRM’s witness explained that the denial was based on concerns that Flynn’s dock would have a negative impact on navigation around the neighbors’ docks. Likewise, Hinson testified that Flynn’s dock would impede navigation at her next-door dock. Under existing law, OCRM’s and Hinson’s positions are improper interpretations of the regulations.

Rather, the Court of Appeals has affirmed the Coastal Zone Management Appellate Panel’s position “that navigation, as contemplated in the regulation, did not encompass problems between neighbors or conflict with nearby docks but only applied to impediments to the general public's use of State waters.” Dorman v. Department of Health and Environmental Control, 350 S.C. 159, 565 S.E.2d 119 (Ct. App. 2002). Accordingly, access to and from neighboring docks by the neighbors is not a valid basis for denial of Flynn’s permit.

IV. Order

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:

OCRM shall grant Nancy Flynn's application for a dock permit at 3610 Legreeville Road on Johns Island in Charleston County to access the waters of Abbapoola Creek.

AND IT IS SO ORDERED.

_________________________________

RAY N. STEVENS

Administrative Law Judge

Dated: January 6, 2004

Columbia, South Carolina