South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Mark Mahoney vs. DHEC/OCRM & Lisa Bennish

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Mark Mahoney

Respondent:
South Carolina Department of Health and Environmental Control/Office of Coastal Resource Management, & Lisa Bennish
 
DOCKET NUMBER:
03-ALJ-07-0054-CC

APPEARANCES:
For the Petitioner:
Mary D. Shahid, Esq.

For the Respondents:
Leslie Stidham Riley, Esq. for OCRM

C.C. Harness, III, Esq. for Lisa Bennish
 

ORDERS:

The Petitioner presented testimony as to the panoramic view from his property over the marsh. He claims that the construction of this walkway and pierhead will serve as an encroachment into his view and would severely effect his use and enjoyment of his property. Petitioner argued that the view from his home is unique and very valuable. He testified concerning the purchase price of his lot and house. He stated that he had made other improvements to the property and that its value was approximately $2,000,000.00. However, he did not provide any expert evidence of its value or of any potential diminution in value due to any construction of a dock and walkway by Respondent on her property. No appraisals were placed into the record. I find that Petitioner’s evidence is not persuasive. Immediately after the purchase of his property, Petitioner constructed a walkway and dock on his property. It increased the value of his property. Finally, there are other docks in the region that can be seen from Petitioner’s property, including Petitioner’s own dock, which has a white storage box, and a community dock immediately upstream. It is also important to note that even at its closest point the proposed dock will be over 400 feet from the Petitioner’s own dock and pierhead.

Petitioner testified that he was assured by his realtor at the time of his purchase that no other docks would be built within his view; however, he did not at any time consult with the permitting agency to confirm this fact. Only the permitting agency can make these decisions. Petitioner claims that the construction of the dock will affect the view of the marsh from his property. Our court has held previously that although the construction of a dock and walkway may affect the vista from a property, view alone is not a sufficient reason to deny a permit. Joseph et al. v. SCDHEC-OCRM, 2002 WL 385176 (S.C. Admin. Law Judge Div.) Further, our Supreme Court has long held that a prescriptive right to an unobstructed view of the marsh does not exist under our law. Hill v. Beach Co., 279 S.C. 313, 306 S.E.2d 604 (1983). This court further notes, that subsection (10) is only one of the ten general considerations which both OCRM and this court must review in determining the balance to be weighed between adjoining landowners and the issuance or the denial of a permit. The evidence is clear that OCRM appropriately balanced the concerns in favor of the Respondent in this matter. The construction of this dock and walkway will not affect the usage of Cedar Creek or other waterways by Petitioner. Its only effect on Petitioner will be that the dock will be within his view from some vantage points at his property. Although Petitioner may not like to view Respondent’s dock, there is insufficient evidence to show that it will affect either the value or the enjoyment of his property to the extent that the permit should be denied.

Further, to help alleviate some of the concerns of Petitioner concerning the view issue, this court will modify the permit.

As to the current deficiencies in the current application

Petitioner alleged and Respondent acknowledged that there were some inaccuracies in the dock application, especially relating to the dimensions of the walkway. Specifically, the dock application lists the walkway as 450 feet when surveys suggest the true measurement may be closer to 650 feet.

Mr. Bryan testified that the figure was determined based on an estimate made by sight. At the time of the application, OCRM did not require that a survey be attached to the application. The two individuals assisting Respondent with the application preparation made a good faith estimate of the distances. Mr. Bryan testified that prior to the requirement that surveys be performed, it was not unusual for the applicant to not walk the entire distance for measurement purposes. He testified that he had filed applications with OCRM and had been issued permits where there were incorrect measurements.

Mr. Shaffer testified that it had been the policy of OCRM heretofore to allow an applicant to shift the dock and pierhead within the property lines to get adequate spacing between docks and to move off the property lines.

Mr. Joyner testified that a mistake in measurements could be corrected by an amendment and would not require the denial of the permit. The court finds the current deficiencies and measurements do not prevent the permit from being issued.



CONCLUSIONS OF LAW


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

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. 2003), and §§ 1-23-600 et seq. (1986 & Supp. 2003). Pursuant to S.C. Code Ann. § 48-39-150(D) (Supp. 2003), the Division is authorized to hear contested cases arising under Chapter 39 of Title 48 of the 1976 Code.

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).

3.The standard of proof in weighing the evidence and making a decision on the merits in a

contested case hearing is “a preponderance of the evidence.” Nat’l Health Corp. v. S.C. Department of Health and Envtl.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 on an issue.).

4.Permits for construction of private docks in the coastal zone of South Carolina are governed

by the South Carolina Coastal Zone Management Act. S.C. Code Ann. § 48-39-10 et seq. (1987 & Supp. 2003) and the regulations promulgated thereunder. 23A S.C. Code Regs. 30-1 et seq. (Supp. 2003). Those regulations govern the management, development, and protection of the critical areas and coastal zone of this state. Respondent 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 Regs. 30-10.A.(1)(Supp. 2003); S.C. Code Ann. § 48-39-130 (1987 & Supp. 2003).

5.23A S.C. Code Regs. 30-12 (A)(Supp. 2003) sets forth the specific project standards for construction of docks and piers for tidelands and coastal waters.

6.23A S.C. Code Regs. 30-12.A.(2)(p)(Supp. 2003) states that a dock should not “normally be allowed to be built closer than 20 feet from extended property lines with the exception of common docks shared by two adjoining property owners.” However, the Department may allow construction closer than 20 feet or over extended property lines “where there is no material harm to the policies of the Act.” 23A S.C. Code Regs. 30-12.A.(2)(p)(Supp. 2003) (emphasis added).

7.23A S.C. Code Regs. 30-12.A.(2)(e)(Supp. 2003) provides that applications for docks should “accurately illustrate the alignment of property boundaries with adjacent owners and show the distance of the proposed dock from such extended property boundaries,” and that “[t]he Department may consider an alternative alignment if site specific characteristics warrant.”

8.23A S.C. Code Regs. 30-12.A.(2)(n)(Supp. 2003) provides that docks should normally “extend to the first navigable creek.” A navigable creek is defined as one with a defined channel, exhibiting a significant change in grade or having an established history of navigational access or use. Except in exceptional cases, the construction of docks across a navigable creek is prohibited. Regs. 30-12.A.(2)(n)(Supp. 2003).

9.In determining whether or not to issue a permit, one of ten factors that OCRM must consider

is the extent to which the dock could affect the value and enjoyment of adjacent owners. 23A S.C. Code Regs. 30-11.B.(10)(Supp. 2003); S.C. Code Ann. § 48-39-150(A)(Supp. 2003).

10.This dock application was not governed by a Dock Master Plan or DMP regulations, and since the Respondent’s property was platted prior to 1993, there is no limitation on the width of her lot to qualify it as a waterfront lot. 23A S.C. Code Regs. 30-12(A)(2)(o)(Supp. 2003).

11.A prescriptive right to an unobstructed view does not exist under South Carolina law. Hill

v. Beach Co., 279 S.C. 313, 306 S.E.2d 604 (1983). Further, view alone is not a sufficient reason to deny a permit. Joseph et al. v. SCDHEC-OCRM, 2002 WL 385176 (S.C. Admin. Law Judge Div.).

12.Respondent’s dock, as permitted by OCRM, will be located over 400 feet from Petitioner’s

dock.

13.Any miscalculations as to distances and widths, prior to the requirement that surveys be attached to the applications, were handled in-house or by amendments to the applications. Such miscalculations are not sufficient to deny the issuance of an a permit.

14.23A S.C. Code Regs. 30-11.A.(2)(p) provides that OCRM may allow a dock to be constructed closer than 20 feet to or over extended property lines when there is “no material harm to the policies of the Act.” In determining whether a dock proposed to be built over or closer than 20 feet from extended property lines “harms the policies of the Act,” OCRM has looked at factors including the distance between docks, whether a dock will block access of waterfront property owners to water or an existing dock, whether an owner is attempting to illegally create waterfront property, environmental impacts, and to address lots that are narrow.

15.In an effort to alleviate some visual impacts and to address aesthetic concerns in the issuance of permits, OCRM has from time to time placed certain restrictions in permits, such as eliminating handrails, removing benches and roofs, relocating docks, redirecting lighting on docks, angling walkways, and lowering the elevation of docks, provided that they remain in compliance with the regulations. The court finds it appropriate to modify the permit as delineated hereinafter.

ORDER

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

ORDERED that the permit is approved and shall be issued to Respondent with the following conditions and modifications:

(1)That the dock shall conform to the design as shown on Attachment A of the permit as modified by OCRM staff (see attached Exhibit A), with the following modifications:

(A) no handrails nor cantilevered benches will be authorized on the walkway;

(B) structures on the pierhead are limited to a bench along two adjoining sides of the pierhead to a maximum height of three (3) feet above the decking;

(C) only one boatlift, limited to a capacity and weight limit of 1,500 pounds,

is authorized and must be anchored to the authorized single piling (located as shown on the attached Exhibit A); in the alternative, Respondent may utilize a commercially available lift suitable for a single pile with a capacity close to 1,500 pounds, but in no event to exceed 1,800 pounds;

(D) no permanent lightning is allowed on the pierhead;

(E) the dock and walkway must be located within the dock corridor as shown on Petitioner’s Exhibit #2 (a survey dated September 3, 2003); and

(F) no roof is authorized to be constructed on the pierhead.

(2)This matter is remanded to OCRM to amend the permit by adding the above modifications and conditions;

AND IT IS SO ORDERED.

_____________________________

Marvin F. Kittrell

Chief Administrative Law Judge

April 27, 2004

Columbia, South Carolina

            The Petitioner presented testimony as to the panoramic view from his property over the marsh. He claims that the construction of this walkway and pierhead will serve as an encroachment into his view and would severely effect his use and enjoyment of his property. Petitioner argued that the view from his home is unique and very valuable. He testified concerning the purchase price of his lot and house. He stated that he had made other improvements to the property and that its value was approximately $2,000,000.00. However, he did not provide any expert evidence of its value or of any potential diminution in value due to any construction of a dock and walkway by Respondent on her property. No appraisals were placed into the record. I find that Petitioner’s evidence is not persuasive. Immediately after the purchase of his property, Petitioner constructed a walkway and dock on his property. It increased the value of his property. Finally, there are other docks in the region that can be seen from Petitioner’s property, including Petitioner’s own dock, which has a white storage box, and a community dock immediately upstream. It is also important to note that even at its closest point the proposed dock will be over 400 feet from the Petitioner’s own dock and pierhead.

            Petitioner testified that he was assured by his realtor at the time of his purchase that no other docks would be built within his view; however, he did not at any time consult with the permitting agency to confirm this fact. Only the permitting agency can make these decisions. Petitioner claims that the construction of the dock will affect the view of the marsh from his property. Our court has held previously that although the construction of a dock and walkway may affect the vista from a property, view alone is not a sufficient reason to deny a permit. Joseph et al. v. SCDHEC-OCRM, 2002 WL 385176 (S.C. Admin. Law Judge Div.) Further, our Supreme Court has long held that a prescriptive right to an unobstructed view of the marsh does not exist under our law. Hill v. Beach Co., 279 S.C. 313, 306 S.E.2d 604 (1983). This court further notes, that subsection (10) is only one of the ten general considerations which both OCRM and this court must review in determining the balance to be weighed between adjoining landowners and the issuance or the denial of a permit. The evidence is clear that OCRM appropriately balanced the concerns in favor of the Respondent in this matter. The construction of this dock and walkway will not affect the usage of Cedar Creek or other waterways by Petitioner. Its only effect on Petitioner will be that the dock will be within his view from some vantage points at his property. Although Petitioner may not like to view Respondent’s dock, there is insufficient evidence to show that it will affect either the value or the enjoyment of his property to the extent that the permit should be denied.

            Further, to help alleviate some of the concerns of Petitioner concerning the view issue, this court will modify the permit.

 As to the current deficiencies in the current application

            Petitioner alleged and Respondent acknowledged that there were some inaccuracies in the dock application, especially relating to the dimensions of the walkway. Specifically, the dock application lists the walkway as 450 feet when surveys suggest the true measurement may be closer to 650 feet.

            Mr. Bryan testified that the figure was determined based on an estimate made by sight. At the time of the application, OCRM did not require that a survey be attached to the application. The two individuals assisting Respondent with the application preparation made a good faith estimate of the distances. Mr. Bryan testified that prior to the requirement that surveys be performed, it was not unusual for the applicant to not walk the entire distance for measurement purposes. He testified that he had filed applications with OCRM and had been issued permits where there were incorrect measurements.

            Mr. Shaffer testified that it had been the policy of OCRM heretofore to allow an applicant to shift the dock and pierhead within the property lines to get adequate spacing between docks and to move off the property lines.

            Mr. Joyner testified that a mistake in measurements could be corrected by an amendment and would not require the denial of the permit. The court finds the current deficiencies and measurements do not prevent the permit from being issued.



CONCLUSIONS OF LAW


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

 

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. 2003), and §§ 1-23-600 et seq. (1986 & Supp. 2003). Pursuant to S.C. Code Ann. § 48-39-150(D) (Supp. 2003), the Division is authorized to hear contested cases arising under Chapter 39 of Title 48 of the 1976 Code.

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).

3.         The standard of proof in weighing the evidence and making a decision on the merits in a

contested case hearing is “a preponderance of the evidence.” Nat’l Health Corp. v. S.C. Department of Health and Envtl.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 on an issue.).

4.         Permits for construction of private docks in the coastal zone of South Carolina are governed

by the South Carolina Coastal Zone Management Act. S.C. Code Ann. § 48-39-10 et seq. (1987 & Supp. 2003) and the regulations promulgated thereunder. 23A S.C. Code Regs. 30-1 et seq. (Supp. 2003). Those regulations govern the management, development, and protection of the critical areas and coastal zone of this state. Respondent 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 Regs. 30-10.A.(1)(Supp. 2003); S.C. Code Ann. § 48-39-130 (1987 & Supp. 2003).

5.         23A S.C. Code Regs. 30-12 (A)(Supp. 2003) sets forth the specific project standards for construction of docks and piers for tidelands and coastal waters.

6.         23A S.C. Code Regs. 30-12.A.(2)(p)(Supp. 2003) states that a dock should not “normally be allowed to be built closer than 20 feet from extended property lines with the exception of common docks shared by two adjoining property owners.” However, the Department may allow construction closer than 20 feet or over extended property lines “where there is no material harm to the policies of the Act.” 23A S.C. Code Regs. 30-12.A.(2)(p)(Supp. 2003) (emphasis added).

7.         23A S.C. Code Regs. 30-12.A.(2)(e)(Supp. 2003) provides that applications for docks should “accurately illustrate the alignment of property boundaries with adjacent owners and show the distance of the proposed dock from such extended property boundaries,” and that “[t]he Department may consider an alternative alignment if site specific characteristics warrant.”

8.         23A S.C. Code Regs. 30-12.A.(2)(n)(Supp. 2003) provides that docks should normally “extend to the first navigable creek.” A navigable creek is defined as one with a defined channel, exhibiting a significant change in grade or having an established history of navigational access or use. Except in exceptional cases, the construction of docks across a navigable creek is prohibited. Regs. 30-12.A.(2)(n)(Supp. 2003).

9.         In determining whether or not to issue a permit, one of ten factors that OCRM must consider

is the extent to which the dock could affect the value and enjoyment of adjacent owners. 23A S.C. Code Regs. 30-11.B.(10)(Supp. 2003); S.C. Code Ann. § 48-39-150(A)(Supp. 2003).

10.       This dock application was not governed by a Dock Master Plan or DMP regulations, and since the Respondent’s property was platted prior to 1993, there is no limitation on the width of her lot to qualify it as a waterfront lot. 23A S.C. Code Regs. 30-12(A)(2)(o)(Supp. 2003).

11.       A prescriptive right to an unobstructed view does not exist under South Carolina law. Hill

v. Beach Co., 279 S.C. 313, 306 S.E.2d 604 (1983). Further, view alone is not a sufficient reason to deny a permit. Joseph et al. v. SCDHEC-OCRM, 2002 WL 385176 (S.C. Admin. Law Judge Div.).

12.       Respondent’s dock, as permitted by OCRM, will be located over 400 feet from Petitioner’s

dock.

13.       Any miscalculations as to distances and widths, prior to the requirement that surveys be attached to the applications, were handled in-house or by amendments to the applications. Such miscalculations are not sufficient to deny the issuance of an a permit.

14.       23A S.C. Code Regs. 30-11.A.(2)(p) provides that OCRM may allow a dock to be constructed closer than 20 feet to or over extended property lines when there is “no material harm to the policies of the Act.” In determining whether a dock proposed to be built over or closer than 20 feet from extended property lines “harms the policies of the Act,” OCRM has looked at factors including the distance between docks, whether a dock will block access of waterfront property owners to water or an existing dock, whether an owner is attempting to illegally create waterfront property, environmental impacts, and to address lots that are narrow.

15.       In an effort to alleviate some visual impacts and to address aesthetic concerns in the issuance of permits, OCRM has from time to time placed certain restrictions in permits, such as eliminating handrails, removing benches and roofs, relocating docks, redirecting lighting on docks, angling walkways, and lowering the elevation of docks, provided that they remain in compliance with the regulations. The court finds it appropriate to modify the permit as delineated hereinafter.

ORDER

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

ORDERED that the permit is approved and shall be issued to Respondent with the following conditions and modifications:

(1)       That the dock shall conform to the design as shown on Attachment A of the permit as modified by OCRM staff (see attached Exhibit A), with the following modifications:

(A) no handrails nor cantilevered benches will be authorized on the walkway;

(B) structures on the pierhead are limited to a bench along two adjoining sides of the pierhead to a maximum height of three (3) feet above the decking;

(C) only one boatlift, limited to a capacity and weight limit of 1,500 pounds,

is authorized and must be anchored to the authorized single piling (located as shown on the attached Exhibit A); in the alternative, Respondent may utilize a commercially available lift suitable for a single pile with a capacity close to 1,500 pounds, but in no event to exceed 1,800 pounds;

                        (D) no permanent lightning is allowed on the pierhead;

(E) the dock and walkway must be located within the dock corridor as shown on Petitioner’s Exhibit #2 (a survey dated September 3, 2003); and

                        (F) no roof is authorized to be constructed on the pierhead.  

(2)       This matter is remanded to OCRM to amend the permit by adding the above modifications and conditions;

AND IT IS SO ORDERED.

 

 

 

                                                                        _____________________________

                                                                        Marvin F. Kittrell

                                                                        Chief Administrative Law Judge

April 27, 2004

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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