SC Administrative Law Court Decisions

STATEMENT OF THE CASE

The above-captioned matter is before this tribunal upon the request of Petitioner Charles Mappus (Petitioner) for a contested case hearing to challenge the decision of Respondent South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management (OCRM or Department) to issue a permit to Respondent Clarence G. Westendorff (Respondent) for the construction of a community dock on the Stono River at the terminus of Sea Water Drive on James Island in Charleston County, South Carolina. The proposed dock would provide water access to a planned residential community to be known as Grimball Shores and would be constructed on a strip of land specifically reserved for that purpose in the original platting of the community. Petitioner owns and resides upon property immediately adjacent to the parcel upon which the proposed dock is to be constructed, and brought the instant case to challenge the issuance of the permit on the grounds that, in issuing the permit, OCRM misapplied the applicable dock permitting regulations and failed to consider the adverse impact the dock would have on the value and enjoyment of his property.

After timely notice to the parties, a hearing of this matter was held on December 11, 2003, at the Administrative Law Judge Division in Columbia, South Carolina. Based upon the evidence presented at the hearing, the applicable law, and the arguments of counsel, I find that OCRM’s decision to issue a community dock permit to Respondent Westendorff must be sustained and the permit upheld.

FINDINGS OF FACT

Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:

1.On August 31, 1960, a subdivision plat for the Grimball Shores community was recorded with the Charleston County Register of Mesne Conveyances. The platted property consists of a 14.8-acre tract at the end of Sea Water Drive on James Island in Charleston County, South Carolina. As platted, this tract is subdivided into 28 lots (numbered 3 through 30), an un-numbered parcel labeled as “Bulah G. Robinson, et al.,” an area marked “Reserved,” and at least one strip of land described as an “Easement.” Of this subdivision, only Lot #3, the “Bulah G. Robinson” parcel, the Reserved area, and the Easement front on the Stono River; the remaining lots, numbered 4 through 30, do not have direct water access. The recorded plat is stamped as an “Approved Final Plat” by the Clerk of the Charleston County Council and the Director of Planning for the Charleston County Planning Board, with the date of approval listed as July 24, 1959. See Pet’r Ex. #1.

2.On November 4, 1959, the owners of the Grimball Shores property executed a set of protective and restrictive covenants and reserved easements for the community, which were recorded with the Charleston County Register of Mesne Conveyances on August 31, 1960. These restrictive covenants provide for the construction of a typical residential neighborhood. Of particular relevance to the case at hand, restrictive covenant (S) provides that “[t]he area marked ‘Reserved’ on the said plat of Grimball Shores is reserved for the joint use of the present and future owners, occupants and guests of owners and occupants of the lots covered by these protective and restrictive covenants, as a means of access to the waterfront.” See Pet’r Ex. #11.

3.On July 24, 1967, Petitioner Charles Mappus purchased the unnumbered lot labeled “Bulah G. Robinson et al.,” lying between Lot #3 and the “Reserved” area, from the owners of the Grimball Shores tract. Just over a year later, on November 1, 1968, the owners of Grimball Shores sold the remainder of the subdivision, consisting of Lots #4 through #30, the “Reserved” area, and the adjoining Easement, to Respondent Clarence Westendorff and three others. Respondent subsequently acquired the interests of his three partners in the property on June 30, 1971. In 2001, Respondent conveyed an undivided, one-half interest in the property to his wife, Charlotte Westendorff. See Pet’r Ex. #11; Resp’t Ex. #1.

4.Petitioner currently maintains a residence on his property adjoining the Grimball Shores tract and has a private dock extending from his property to the Stono River. A building has also been constructed on Lot #3, which lies to the north of Petitioner’s property, and a dock has been built from that property to the Stono River. See Pet’r Ex. #3.

5.In the thirty years he has owned the property, Respondent has not made any improvements to the Grimball Shores subdivision, which remains undeveloped. Currently, the property is zoned only for mobile homes, not fixed residences. Additionally, the subdivision is not connected to any county or municipal water or sewer lines, and is not approved for the use of wells or septic tanks on any of the lots. However, at the hearing, Respondent testified that it is his intention to develop the property into a residential subdivision as originally planned. Respondent plans to construct the homes in the community either through an independent home builder with whom he has had contact or through several limited liability companies he has recently organized for the purpose of developing the property. Respondent further testified that, while he has not yet made any formal zoning or environmental permitting requests for the development of the subdivision, he has, within the past year, contacted, and had a meeting with, the relevant regulatory authorities, including county zoning and planning authorities and representatives of the South Carolina Department of Health and Environmental Control. See Hr’g Tr. at 13-37.

6.On January 22, 2003, Respondent, through Billy Bryan at Lowcountry Permitting Solutions, submitted an application to OCRM for a permit for the construction of a community dock on the Stono River from the “Reserved” lot of the Grimball Shores property. The proposed dock would consist of a 4' by 362' walkway leading to a 20' by 20' covered pierhead with a 10' by 40' floating dock attached by a ramp. The application stated that the purpose of the dock was “[t]o serve Grimball Shores subdivision lots.” A survey included with the application combines the “Reserved” area and the adjoining “Easement” depicted on the Grimball Shores plat into an “Area Reserved for Dock” with 34' of frontage on the marshes abutting the Stono River, and locates the dock in the center of the 34'-wide corridor created by this water frontage. If constructed as surveyed, the community dock, at its widest point, would be approximately 79' away from Petitioner’s dock in the Stono River. See Resp’t Ex. #1.

7.In response to public notice of Respondent’s permit application, Petitioner submitted a letter to OCRM on March 7, 2003, setting forth two principal objections to the proposed permit: (1) that the proposed dock would violate Department regulations by originating from a lot with insufficient water frontage, and (2) that the proposed dock would violate Department regulations by being located too close to his extended property line and to his existing dock, thereby interfering with the use of his dock. See Pet’r Ex. #6.

8.OCRM reviewed the permit application under the community dock policies and standards set out in 23A S.C. Code Ann. Regs. 30-12(E) (Supp. 2003). Upon completing this review, OCRM determined that the proposed dock did not contravene any of the coastal zone regulations and would not impact the value and enjoyment of the adjoining properties. See Resp’t Ex. #2.

9.Accordingly, on July 8, 2003, OCRM issued Respondent permit number 2002-1E-021-P for the construction of the community dock as proposed in the permit application. Several special conditions were imposed upon the permit, including a condition restricting the dock from extending any further into the river channel than the existing docks nearby and a condition disallowing any permanent moorage at the dock. Petitioner timely requested a contested case hearing before this tribunal to challenge the issuance of the community dock permit to Respondent.

10.Based upon the testimony and evidence presented at the hearing, I find that Respondent Westendorff does intend to develop a residential neighborhood with more than four homes in the Grimball Shores subdivision, and that the proposed dock will be used to provide community water access for the residents of that development. Further, as no evidence was presented at the hearing demonstrating that the proposed dock would negatively affect the value and enjoyment of Petitioner’s property, including his existing dock, I cannot find that the proposed dock would have any adverse impact upon Petitioner.

CONCLUSIONS OF LAW

Based upon the forgoing Findings of Fact, I conclude the following as a matter of law:

Jurisdiction and Burden of Proof

This tribunal has jurisdiction over this contested case matter pursuant to S.C. Code Ann. § 48-39-150 (Supp. 2003) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2003). Petitioner has brought the instant challenge to Respondent’s permit before this tribunal, and, as the party affirmatively asserting OCRM’s error in granting the requested permit, Petitioner bears the burden of proof in this matter. See Leventis v. S.C. Dep’t of Health & Envtl. Control, 340 S.C. 118, 132-33, 530 S.E.2d 643, 651 (Ct. App. 2000) (holding that the burden of proof in administrative proceedings generally rests upon the party asserting the affirmative of an issue); 2 Am Jur. 2d Administrative Law § 360 (1994) (same). Therefore, Petitioner must demonstrate, by a preponderance of the evidence, that Respondent’s community dock, as permitted, does not comply with the relevant statutory and regulatory criteria governing the issuance of such permits. See Anonymous v. State Bd. of Med. Exam’rs, 329 S.C. 371, 375, 496 S.E.2d 17, 19 (1998) (holding that the standard of proof in an administrative proceeding is generally the preponderance of the evidence).

In the case at hand, Petitioner contends that the proposed dock should not have been permitted (1) because it violates at least two of the dock permitting standards under 23A S.C. Code Ann. Regs. 30-12(A)(2) (Supp. 2003), which he argues should have been applied to evaluate the permit rather than the community dock standards in 23A S.C. Code Ann. Regs. 30-12(E) (Supp. 2003), and (2) because it will interfere with the value and enjoyment of his adjacent property, a fact which he argues OCRM failed to properly consider as required by S.C. Code Ann. § 48-39-150(A)(10) (Supp. 2003) and 23A S.C. Code Ann. Regs. 30-11(B)(10) (Supp. 2003). Each position will be addressed in turn.

Permitting Standards Applicable to Community Docks

In evaluating and granting Respondent’s permit application to construct a community dock, OCRM applied the regulatory guidelines found in Regulation 30-12(E) (entitled “Marina/Community Dock Location and Design”), and, in particular, the “Standards for Community Docks” listed at subsection (7) of that regulation. See 23A S.C. Code Ann. Regs. 30-12(E)(7) (Supp. 2003). Petitioner, on the other hand, contends that OCRM should have applied the private dock permitting standards found in Regulation 30-12(A)(2) in reviewing Respondent’s application. In support of this contention, Petitioner makes a two-part argument. First, Petitioner argues that the permitting standards found in Regulation 30-12(A)(2) apply to all docks, community or otherwise, while the standards found in Regulation 30-12(E)(7) are merely additional requirements that community docks must also satisfy. Second, Petitioner contends that, even if the standards in Regulation 30-12(E)(7) are the exclusive guidelines for community docks, Respondent has not established that his dock will actually be a community dock, and therefore, his permit application should have been evaluated under the general standards for private docks under Regulation 30-12(A)(2). Petitioner’s arguments must, however, fail.

Nevertheless, Petitioner’s first argument is understandable. The language of Regulation 30-12 is somewhat lacking in clarity regarding the permitting standards to be applied to community docks. Regulation 30-12(A)(2) plainly states, without limitation, that “[t]he following standards are applicable for construction of docks and piers,” and would seem, therefore, to set permitting standards for all docks, regardless of type. However, Regulation 30-12(E)(7) just as plainly states, also without limitation (or cross-reference to 30-12(A)(2)), that “[t]he following standards are applicable for the construction of community docks,” presumably setting specific requirements for community docks. Further, Regulation 30-12(A)(1) contains the ambiguous admonition that, “[f]or more detailed standards pertaining to community docks, refer to 30-12(E)(5), (6) and (7) herein.” On the face of this phrase alone, it is difficult to determine whether these “more detailed standards” are criteria to be applied to community docks in addition to the standards in 30-12(A)(2) or criteria to be applied to community docks instead of the 30-12(A)(2) standards. Yet, under a close reading of these provisions and of Regulation 30-12 as a whole, this lack of clarity can be resolved.

A number of basic principles of statutory construction weigh in favor of interpreting the standards set forth in Regulation 30-12(E) as the standards to be applied to community docks, rather than the private dock standards found in Regulation 30-12(A)(2). First, the provisions of Regulation 30-12(E), and in particular, Regulation 30-12(E)(7), are specifically addressed to “community docks” and, as such, should control over the more general provisions of Regulation 30-12(A)(2), which refers broadly to “docks and piers.” See, e.g., Mims v. Alston, 312 S.C. 311, 313, 440 S.E.2d 357, 359 (1994) (holding that a specific statute will control over a general statute). Further, when these two particular provisions are read in conjunction, and Regulation 30-12 is read as a whole, it becomes evident that Regulation 30-12 sets up two different and distinct sets of permitting standards under subsection (A), which applies to single-owner and joint-use “Docks and Piers,” and subsection (E), which applies to “Marina/Community Dock Location and Design.” See, e.g, State v. Gordon, 356 S.C. 143, 152, 588 S.E.2d 105, 110 (2003) (“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, if it can be done by any reasonable construction.”). Accordingly, given these separate and distinct sets of permitting criteria, the first subsection of Regulation 30-12(A) directs the reader to 30-12(E)(5), (6), and (7), and not to 30-12(A)(2), for the standards pertaining to community docks.

And, in fact, an attempt to construe 30-12(E)(7) not as a permitting process for community docks separate from 30-12(A)(2), but as a set of criteria for community docks cumulative to the standards for private docks found in 30-12(A)(2), would produce an absurd and redundant result. The first five of the six community dock standards set out in 30-12(E)(7) are virtually identical to the first five private dock permitting standards in 30-12(A)(2). To read these two sets of standards as cumulative would therefore render five of the six community dock permitting standards redundant and essentially meaningless, leaving a prohibition on using a community dock for commercial purposes as the sole distinct permitting criteria for community docks. The regulations in question should not be interpreted to produce such a patently redundant and absurd conclusion. See, e.g., S.C. Coastal Council v. S.C. State Ethics Comm’n, 306 S.C. 41, 44, 410 S.E.2d 245, 247 (1991) (noting that the provisions of a statute should be interpreted to support the statute and not to lead to an absurd result).

Moreover, it should be noted that reading Regulation 30-12 as providing for separate permitting standards for single-family docks and community docks comports with OCRM’s interpretation of the regulation. See, e.g., Brown v. Bi-Lo, Inc., 354 S.C. 436, 440, 581 S.E.2d 836, 838 (2003) (noting that courts generally give deference to an administrative agency’s interpretation of its own regulations). In sum, under a reading of Regulation 30-12 that gives effect to the whole regulation and avoids any absurd results, it becomes clear that the permitting standards set forth in Regulation 30-12(E)(5), (6), and (7), are the sole permitting standards in Regulation 30-12 applicable to the construction of community docks.

And, with regard to Petitioner’s second contention that Respondent’s dock does not qualify as a community dock, it is equally clear that the proposed dock will be a community dock. Regulation 30-1 defines a community dock as “any docking facility which provides access for more than four families, has docking space of less than 200 linear feet and is not a marina.” 23A S.C. Code Ann. Regs. 30-1(D)(13) (Supp. 2003). Here, Petitioner argues that, because the Grimball Shores subdivision has yet to be developed, Respondent has not proven that the dock will be used to provide access for more than four families so as to qualify as a community dock. While the development of the Grimball Shores subdivision is only in the initial planning stages, the credible evidence produced in this case demonstrates that Respondent is working to develop a residential neighborhood on the twenty-seven remaining lots in the subdivision according to the subdivision plat filed and approved some forty years ago. The use of the dock by the residents of these twenty-seven homes would certainly qualify the dock as a community dock. Even if a reduced number of lots are developed (e.g., if the sizes of individual lots are increased to accommodate septic tanks and wells), the subdivision tract would remain large enough to support more than four residences, and thus qualify for a community dock. Further, there is nothing in the record to suggest that Respondent plans to use the dock for his individual purposes or for any other purpose than to provide water access to the Grimball Shores subdivision. The evidence in the instant case is sufficient to establish that the “purpose and intended use” of the proposed dock is for use as a community dock by the future residents of Grimball Shores. See 23A S.C. Code Ann. Regs. 30-2 (B)(6) (Supp. 2003) (requiring a permit application to contain a statement of the “purpose and intended use” of the dock).

In the case at hand, OCRM correctly applied the community dock permitting standards set forth in Regulation 30-12(E), rather than the private dock permitting standards of 30-12(A)(2), to evaluate Respondent’s permit application to construct a community dock for the Grimball Shores subdivision. And, Petitioner has not argued, nor does the evidence suggest, that the dock as permitted fails to satisfy those requirements. Accordingly, OCRM’s determination that Respondent’s community dock met the requirements found in Regulation 30-12(E)(7) must be sustained.

The Value and Enjoyment of Adjacent Owners

Both Section 48-39-150(A)(10) of the Coastal Zone Management Act and Regulation 30-11(B)(10) require OCRM to consider “[t]he extent to which the proposed use could affect the value and enjoyment of adjacent owners” before granting a dock permit. Here, Petitioner contends the proposed dock will interfere with the use of his dock, and thereby impair the value and enjoyment of his property. However, as noted above, Petitioner did not present any evidence at the hearing, other than his letter of objection, to support a finding that the location of Respondent’s dock–some seventy to eighty feet from his dock–would have any adverse impact upon the use of his dock or upon the value and enjoyment of his property. Moreover, Petitioner did not present any evidence to suggest that OCRM failed to properly consider the potential effect of the dock upon the value and enjoyment of his property. Accordingly, Petitioner’s argument on this point cannot be sustained.

Conclusion

For the reasons set forth above, I find that Petitioner’s objections to Respondent’s permit must fail, and therefore that OCRM’s decision to grant Respondent a permit to construct a community dock for the Grimball Shores community must be sustained.

ORDER

Based upon the Findings of Fact and Conclusions of Law stated above,

IT IS HEREBY ORDERED that OCRM’s decision to issue a permit to Respondent Westendorff for the construction of a community dock on the Stono River at the terminus of Sea Water Drive on James Island in Charleston County, South Carolina, is SUSTAINED.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667

February 25, 2004

Columbia, South Carolina