ORDERS:
FINAL ORDER AND DECISION
This is an appeal filed by Petitioners challenging the issuance of a joint use dock permit to
Respondents Michael Bailey and William Hall for construction of a dock to the Okatie River in
Beaufort County, South Carolina. Respondent Hall is the record owner of property described as
“1.47 acres, more or less, in the Bailey’s Section of Beaufort County.” A subdivision plat reflecting
the development known as Okatie River Estates indicates that Hall’s property is Lot 15 within this
subdivision. Hall’s property adjoins property owned by Respondent Bailey to the east. Bailey’s
parcel is known as Parcel 16 A. Petitioners Gloria and Redden Tuten own the lot located
immediately south of Bailey’s property, known as Parcel 16.
Petitioners’ property is located immediately adjacent to the Okatie River. Petitioners have
a dock to the Okatie River. Respondent Bailey’s property is located adjacent to an area described
as “Marshes of Chechessee River”. Bailey has a small dock on a tributary of the Okatie River that
runs adjacent to his southern property corner.
Historical plats depicting Lot 15, Parcel 16 A, and Parcel 16, indicate the existence of
freshwater lake bounding Lot 15, and an impoundment between the Okatie River and the
development known as Okatie River Estates. This impoundment included lands described as Tract
B, Tract E, and Tract F. These lands were conveyed to Brooke P. Sheffield by deed from her mother
Willa G. Pinckney on July 12, 1981.
It is undisputed that the impoundment that formed the boundary for the freshwater lake is
breached and the previously impounded area has reverted to tidal and brackish wetlands. Aerial
photography indicates the existence of a tributary of the Okatie River that flows alongside the
western boundary of the Petitioner’s property, along the Bailey property, and in front of the Hall
property. It is undisputed that this tributary is a navigable creek.
Respondent Hall’s Lot, Lot 15, is not a waterfront lot. Because of the impoundment of tidal
wetlands in this area and the creation of high ground adjacent to a freshwater lake as shown on the
plat prepared for Willa G. Pinckney, remnants of high ground and marsh exist between Hall’s Lot
and the marshes of the Okatie River. Therefore, Hall and Bailey acquired a .10 acre tract of land
from Brooke Sheffield for purposes of making an application for a dock to the Okatie River. This
conveyance is reflected in a plat prepared July 21, 2003, that was submitted to SCDHEC-OCRM
during the permit application process. This .10 acre conveyance is indicated as property located
above the OCRM critical line,
as is shown on the referenced plat.
On December 12, 2003, Respondent SCDHEC-OCRM issued P/N # OCRM-03-925 to
Michael Bailey and William Hall authorizing construction of a private dock at #1 Cardinal Lane,
adjacent to the Okatie River, Beaufort County, South Carolina. The permit drawings indicate the
dock commences from the boundary shared by Lot 15 and the .10 acre Sheffield conveyance, and
extends to the right, or east towards the location of the Bailey dock. At the approximate location of
the Bailey dock, the walkway straightens out into a ninety degree angle and extends to the Okatie
River. Much of this 470 foot long walkway extends alongside the Petitioners’ western property
boundary.
It is clear from a review of aerial photography that the angle, or alignment, of this walkway
is necessary in order to avoid crossing the tributary located in front of the Hall/ Sheffield tracts.
Respondents must utilize the marsh adjacent to the Tutens’ property in order to avoid impacts to this
navigable tributary.
The permit contains a Special Condition, condition # 6, “[p]rovided that the old dock is
removed prior to completion of this project.” It is undisputed that the old dock contemplated by this
condition is the Bailey dock. It is further undisputed that this dock permit is for a joint use dock for
the use of Bailey and Hall, despite the lack of reference of the term “joint use” in the issued permit.
The Petitioners set forth a number of grounds in support of their appeal of this permit,
including their belief that the dock as permitted will obstruct a navigable tributary that runs behind
their property, and will interfere with their ability to obtain access to the water from the rear of their
property. Petitioners believe that the 470 foot walkway, running the length of their western property
boundary, will impact their use and enjoyment of their property. In addition, the location of a
pierhead and floating dock adjacent to their dock will impact their use and enjoyment of their dock.
Petitioners allege that neither Hall nor Bailey qualify for a dock on the Okatie River, since their
ability to obtain such a dock permit is contingent on the acquisition of Sheffield’s interest in .10
acres of land above the critical line, and the Sheffield conveyance, standing alone, is not a buildable
lot.
FINDINGS OF FACT
Based on the testimony and evidence presented at the hearing, and the record established in
this contested case, I make the following findings of fact:
1.Petitioners Gloria and Redden Tuten own property described as Parcel 16, located in
Beaufort County adjacent to the Okatie River. Petitioners have a dock constructed to the River.
2.Respondent Michael Bailey owns property described as Parcel 16 A, located
immediately north of Petitioners’ property. Respondent Bailey currently has a dock constructed to
a navigable tributary of the Okatie River, which he intends to tear down before building the joint-use
dock at issue in this case.
3.Respondent William Hall owns Lot 15, Okatie River Estates. Hall’s property is not
waterfront on the navigable tributary where Bailey’s dock is located. Previously, the marsh in front
of Lot 15 and adjoining lots in Okatie River Estates was impounded to create a freshwater lake and
high ground parcels between the lake and the Okatie River. At present, this impoundment is
breached and navigability and flow from the Okatie River is restored to those areas in front of the
Okatie River Estates lots. However, remnant parcels of high ground still exist between these lots
and the Okatie River.
4.Brooke Sheffield owns property described as Tract D, E, and F, which is a portion
of the land existing between what was once a freshwater lake and the Okatie River. Her property
is contiguous to Lot 15, and prevents Hall from obtaining access to the navigable tributary where
Bailey presently has a dock.
5.In order to qualify for a dock permit, Hall and Bailey obtained .10 acres of land,
located above, or landward, of the OCRM critical line, from Sheffield. This conveyance is depicted
in a recorded plat dated July 21, 2003, and recorded with the Beaufort County Register of Deeds on
December 16, 2003. This plat was submitted to OCRM in support of the Hall and Bailey permit
application.
6.The initial conveyance from Sheffield to Hall and Bailey was for .06 acres of land,
as reflected in the first plat prepared and submitted to OCRM, dated July 21, 2003, and recorded
August 20, 2003. However, OCRM determined that the amount of linear water frontage of this
initial conveyance was not sufficient to satisfy the requirements of S. C. Code Regs. 30-12
(A)(2)(o)(i), which requires that lots subdivided after May 23, 1993 have 75 feet of frontage at the
marsh edge. As is indicated on the plat reflecting the .10 acre conveyance, the addition of .04 acres
created a 77 foot corridor on the water, thus satisfying the 75 foot requirement.
7.OCRM biologist George Madlinger, who is employed in the Beaufort office and is
familiar with Beaufort County building requirements, acknowledged that this .10 acre parcel is not
of sufficient size to constitute a buildable lot. In addition, although the plat which indicates the
subdivision of this property depicts it above the OCRM critical line, Mr. Madlinger testified that,
based on his inspection, much of this property was marsh.
DISCUSSION
While Petitioners raised a number of grounds in support of their appeal, the bulk of the
testimony, evidence, and argument at the contested case hearing was focused on whether this
conveyance from Sheffield to Bailey and Hall constituted a “lot” within the framework of S. C. Code
Regs 30-12 (A)(2)(o). OCRM’s witness George Madlinger readily conceded that absent the
Sheffield conveyance neither Bailey nor Hall qualified for a dock on the Okatie River. The issued
permit was based on acquisition of the .10 acre of land.
OCRM’s regulations require that “lots subdivided or re-subdivided after June 27, 1997 must
meet the minimum, local requirements to construct habitable structure in order to qualify for a dock”.
Petitioners argue that the recording of the July 21, 2003 plat constitutes subdivision of a lot which
fails to meet the requirements for obtaining a dock permit.
Conclusions of Law
Based upon the foregoing findings of fact and discussion, I conclude the following as a
matter of law:
1.The Division has jurisdiction to hear this matter. The ALJD has been statutorily
authorized to preside over cases appealing the Department’s decisions. See S.C. Code Ann. § 1-23-600(B) (1986 and Supp. 2003). The Administrative Procedures Act (“APA”) provides that all
parties must be afforded an opportunity for a contested case hearing after proper notice. S.C. Code
Ann. § 1-23-320 (1986 and Supp. 2003). The APA defines a contested case as “a proceeding,
including but not restricted to ... licensing, in which the legal rights, duties or privileges of a party
are required by law to be determined by an agency after an opportunity for hearing.” S.C. Code Ann.
§ 1-23-310(2) (1986 and Supp. 2003). Furthermore, a party is a person “named or admitted as a
party, or properly seeking and entitled as of right to be admitted as a party.” S.C. Code Ann. § 1-23-310(5) (1986 and Supp. 2003).
2.The Administrative Law Judge is the fact finder in this matter for purposes of
administrative and judicial review and does not sit in an appellate capacity. Brown v. S. C. Dep’t
of Health and Envtl. Control, 348 S. C. 507, 560 S. E. 2d 410 (2002). Furthermore, the burden of
proof in a contested case hearing is upon the moving party. See 2 Am Jr. 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 on an issue.) In the present case, the Petitioners have the burden of proving that
SCDHEC-OCRM erred in its issuance of this permit for construction of a dock to the Okatie River
to Respondents Bailey and Hall.
3.OCRM’s authority to require a permit for construction of this dock is set forth in S.C.
Code Ann. § 48-39-130. In implementing this authority and making determinations on permitting
applications, OCRM must consider the findings and policies of the South Carolina Legislature as
set forth in §§ 48-39-20 and 48-39-30.
4.Where the terms of a statue or regulation are clear, the court must apply those terms
according to their literal meaning. Brown v. S. C. Dep’t of Health and Envtl. Control, et al., 348 S.
C. 507, 560 S. E. 2d 410 (2002.) An appellate court cannot construe a statute without regard to its
plain meaning and may not resort to a forced interpretation in an attempt to expand or limit the scope
of a statute. Berkebile v. Outen, 311 S. C. 50, 426 S. E. 2d 760 (1993).
5.While a court typically defers to the agency’s construction of its own regulation,
where the plain language is contrary to the agency’s interpretation the court must reject that
interpretation. Richland County School Dist. Two v. S. C. Dep’t of Edu., 335 S. C. 491, 517 S. E.
2d 444 (Ct. App. 1999).
6. S.C. Code Ann. Regs. 30-12(A)(2)(o) is plain and unambiguous. The regulation
requires that lots subdivided after June 27, 1997, will not qualify for a dock unless the lot meets the
minimum, local requirements to construct a habitable structure. This regulation does not lend itself
to construction because its meaning is plain.
7.The .10 acre parcel depicted in the July 21, 2003 plat prepared for Hall and Bailey
is a lot of record, subdivided after 1997.
8.P/N OCRM-03-925 results in the issuance of a dock to the Okatie River from a lot
subdivided after 1997 and recorded in the Office of the Register of Deeds for Beaufort County in
2003, in violation of S.C. Code Ann. Regs 30-12(A)(2)(o).
ORDER
Based on the foregoing,
IT IS HEREBY ORDERED that P/N OCRM-03-925, which authorized construction of a
joint use dock for Respondents William Hall and Michael Bailey, be, and hereby is, REVERSED.
________________________
C. Dukes Scott
Administrative Law Judge
April 21, 2004
Columbia, South Carolina |
