South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Allen S. Terry vs. DHEC/OCRM

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Allen S. Terry

Respondent:
South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management

Intervenor:
South Carolina Department of Archives and History
 
DOCKET NUMBER:
02-ALJ-07-0349-CC

APPEARANCES:
Petitioner & Representative:
Allen S. Terry, C.C. Harnes, III, Esquire

Respondent & Representative:
South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management, Leslie W. Stidham, Esquire

Intervenor & Representative:
South Carolina Department of Archives and History, James S. Chandler, Jr., Esquire
 

ORDERS:

FINAL ORDER AND DECISION

I. Statement of the Case


Allen S. Terry (Terry) filed an application with the South Carolina Department of Health and Environmental Control, Bureau of Ocean and Coastal Resource Management (OCRM) requesting permission to construct a dock on a tributary of the Ashley River in the Bakers Landing subdivision in Dorchester County. OCRM denied the permit. Terry has challenged that decision. The South Carolina Department of Archives and History (DAH) has intervened in support of OCRM’s denial of the application.

II. Issue


Should Terry be granted a construction permit to build a private dock in Bakers Landing subdivision when a preexisting dock permit issued to the original developer of the subdivision includes a restriction prohibiting any additional docks within the subdivision?


III. Analysis


A. Findings of Fact


1. Tamsburg Permit and History


On February 6, 1992, OCRM issued permit number 91-3D-185-P known as the Tamsburg permit with Tamsberg being the developer of Bakers Landing subdivision. The permit restricted the subdivision to eight private docks and one community dock with all docks consisting of a 4' wide walkway leading to a 12' by 16' fixed pierhead with an attached 10' by 16' floating dock. The specific language of the permit allowed these docks “[p]rovided that no additional docks or modifications to permitted docks are permitted within this subdivision.”


The permit and its restricting provision was the culmination of the weighing of input from several interested parties. Tamsburg’s interest was that of seeking ten private docks, a community dock, and a community boat ramp. In reviewing the Tamsburg application, OCRM’s (then the Coastal Council’s) interest focused on developing and issuing a Special Area Management Plan (SAMP) for the historic district of the Ashley River, a district that included the Bakers Landing subdivision. The purpose of the SAMP was

to develop public policy for conservation of the natural and historic character of the Ashley River corridor, thus increasing the predictability of governmental decisions and ensuring the long-term protection of the unique character of the area while taking into consideration the rights of individual citizens.


The public was aware of the plans for a SAMP for the Ashley River and that knowledge produced recommendations ranging from asking the Coastal Council to deny the permit to that of either asking the Coastal Council to apply the SAMP rules to the permit or making no decision on the application until after the SAMP was finalized.


Being cognizant of the several competing interests, Coastal Council’s permitting committee reviewed the application by applying policies associated with a Dock Master Plan in an effort to consider the entire subdivision in its permitting decision. Footnote The result of weighing the competing interests was the issuance of a permit that allowed eight private docks (three of which were joint use docks) and a community dock. However, the request for a community boat ramp was denied and a provision was added to the permit which “[p]rovided that no additional docks or modifications to permitted docks are permitted within this subdivision.” Tamsberg did not disagree with the decision and no appeal was made by any interested party.


After obtaining the permit on February 6, 1992, the subdivision was developed, the lots were sold, and the eight private docks as well as the community dock were constructed. However, notwithstanding the permit’s restriction that no modifications would be permitted, modifications occurred. Some were approved while others were not.


For example, while the original permit with its attached drawings does not provide for handrails or other amenities, today, all nine docks have handrails and at least one of the existing docks has two floats. Many of the structures have lockers and shower-heads on the piers and all but the community dock and the joint use dock for lots 11-12 now have boat lifts and jet ski lifts. In fact, the joint use dock between lots 3 and 4 has two boat lifts and a jet ski lift and lot 5 has two jet ski lifts.


However, even though both permitted and unpermitted changes to the existing nine docks have occurred, only one change has produced the addition of a new dock. On July 29, 2002, the Bakers Landing Property Owners Association notified OCRM that while nine docks were constructed as allowed in the permit, two docks operated as community docks rather than just one as listed in the Tamsburg permit. The second community dock amounts to a “new dock” since it resulted from a conversion of a previously authorized joint-use dock which was to be built between lots 5 and 6 but which was moved to a location between lots 3 and 4. Accordingly, OCRM contacted Tamsburg Properties and required it to seek an amendment to designate the dock as a community dock at lots 3 and 4.


Given that no joint use dock was ever constructed between lots 5 and 6, OCRM received a permit application from Lisa and Kenny Mattox (owners of lot 4) and from Carol and Marvin Wood (owners of lot 5). Each lot owner sought a permit for a separate private dock on their individual lots. After a denial of the applications by OCRM, each lot owner sought a reversal of that decision before the ALC. However, no litigated decision resulted since the parties chose to execute a consent order authorizing a single joint-use permit to Mattox and Wood for a dock to be constructed between lots 4 and 5. Thus, the Tamsburg permit now allows ten docks in the subdivision.


2. Terry Permit


While ten docks have been permitted in the subdivision, Terry now seeks to bring the total to eleven. He owns a home situated on a lot within Bakers Landing Subdivision with the lot and home located on the northwest side of the subdivision. At the time of his purchase in 1998, the recorded restrictive covenants for the subdivision gave notice that a dock permit had been issued for Bakers Landing subdivision and identified the permit number of the Tamsburg permit.


On March 12, 2002, Terry filed with OCRM an application seeking permission to place a dock on a small tributary of the Ashley River. After notice to the public by OCRM advising of Terry’s request, OCRM conducted a review and on August 9, 2002, OCRM notified Terry that his dock permit was denied. This contested case followed.


B. Conclusions of Law


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


1. Subject Matter Jurisdiction


DAH first argues that subject matter jurisdiction is lacking in the ALC and rests that position upon three assertions and a conclusion: the Terry request seeks to amend the Tamsberg permit, the Tamsberg permit cannot be amended without notice to the public, that notice has not been given, and, therefore, the ALC lacks jurisdiction to modify the Tamsburg permit. For purposes of deciding subject matter jurisdiction, it is not necessary to determine the correctness of the three assertions. Rather, since even if the assertions are true, the ALC would still not lack subject matter jurisdiction to decide the instant case.


Generally, all that one must do to find a proper forum to redress an alleged wrong is to present the dispute to a court having the general authority and power to determine the type of action at issue. See Dove v. Gold Kist, Inc., 314 S.C. 235, 442 S.E.2d 598 (1994). Here, Terry filed an application for a dock permit and OCRM denied the request. Plainly, the ALC has the authority and power to determine the correctness of an OCRM denial of a dock permit. See § 48-39-150(D). As such, jurisdiction is met here.


Certainly it is true that even a court with the authority and power to hear a specific type of case may nonetheless find that its authority cannot be invoked if a litigant has failed to satisfy some predetermined, specific criteria imposed by the General Assembly. See e.g. McDonald v. Womack, 293 S.C. 61, 358 S.E.2d 705 (1987) (motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) SCRCP granted where litigant failed to meet criteria imposed by statute requiring the disputed tax to be paid under protest before the court’s jurisdiction could be invoked). However, in the instant case, Terry has not failed to satisfy any prerequisites needed to invoke the jurisdiction of the ALC. Indeed, the notice requirement raised here is not a duty imposed on Terry at all. On the contrary, OCRM has that duty. See S.C. Code Ann § 48-39-140(C) (where the “department” [here OCRM] has the duty of notice); S.C. Code Ann. Regs. § R.30.4.H (the application “will be placed on public notice by OCRM.”). Footnote Accordingly, Terry, has not failed to meet the criteria for invoking the jurisdiction of the ALC.


2. Merits Decision


a. Background Law


OCRM is charged with administering the State's coastal zone policies and issuing permits in coastal zone areas. S.C. Code Ann. §§ 1-30-45(B), 48-39-35, and 48-39-50(C). The authority vested in OCRM requires that a party must obtain a permit to erect a structure on or in a critical area.. S.C. Code Ann. § 48-39-130(C) (Supp. 2003).


To assist in accomplishing its permitting task, OCRM has been directed to promulgate regulations governing the management, development, and protection of the coastal zone areas of the state. S.C. Code Ann. § 48-39-50(E) (Supp. 2003). As a result, for docks in critical areas, two specific regulations are pertinent: the general guidelines applicable to all permits in critical areas, 23A S.C. Code Ann. Regs. 30-11 (Supp. 2003) and the specific regulations governing docks, 23A S.C. Code Ann. Regs. 30-12(A) (Supp. 2003).


b. Application to Facts


Under the unique facts of this case, I conclude the permit must be denied based on the overriding considerations flowing from Regs.30-11(C)(1) (the need to consider the 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) and Regs.30-11(C)(2) (the need to consider the extent to which the overall plans and designs can be submitted together and evaluated as a whole, rather than submitted piecemeal and in a fragmented way which limits comprehensive review).


Here, the facts establish that the original dock plan for the Bakers Landing subdivision arose from spirited negotiations between parties with highly competitive and strongly held interests representing both the private and public sectors. Moreover, in reaching a compromise, all parties sought and in fact achieved the common goal of establishing a plan that would set the appropriate number of docks for the subdivision.


That goal of a common plan of development for Bakers Landing is still a viable goal to pursue when reviewing requests for additional permits in that subdivision. Indeed, the goal of a planned development is entirely consistent with the compliance criteria of Regs.30-11(C)(1) and Regs.30-11(C)(2) which look to the benefits of identifying the long-range implications of a project and to the need to avoid a piecemeal and fragmented approach to dock permitting. Here, given the background of Bakers Landing, granting the permit is simply incompatible with the overriding consideration owed to Regs.30-11(C)(1) and Regs.30-11(C)(2).


As further support for this conclusion, I find that a denial of the permit does create any undue unfairness toward Terry. On the contrary, when Terry purchased his property in 1998 he was charged with notice of the restrictions on docks in the subdivision. A purchaser is charged with notice of those matters that could have been learned by any inquiry which the statements in the instrument made it one's duty to pursue. Binkley v. Rabon Creek Watershed Conservation District of Fountain Inn, 348 S.C. 58, 558 S.E.2d 902 (Ct.App. 2001); Carolina Land Co. v. Bland, 265 S.C. 98, 107, 217 S.E.2d 16, 20, (1975); Harbison Cmty. Ass'n v. Mueller, 319 S.C.99, 103, 459 S.E.2d 860, 863 (Ct.App.1995); Fuller-Ahrens P'ship v. South Carolina Dep't of Highways and Pub. Transp., 311 S.C. 177, 183, 427 S.E.2d 920,923-24 (Ct.App.1993); 66 C.J.S. Notice § 19, at 454 (1998). Here, the developer's restrictive covenants in the chain of title provided notice to Terry that a dock permit had been issued for the Bakers Landing subdivision and specifically identified the dock permit number. A prudent lot purchaser intending to build a dock would have made inquiry into the terms of that permit.


Finally, I have given consideration to the fact that modifications have occurred to existing docks and that at least one dock has been added beyond the nine originally authorized. However, the addition of handrails to many of the docks has resulted from safety concerns and the other modifications have not been extensive. Further, the only new dock added since the original dock plan was issued was a dock which arose due to extenuating circumstances. Even that dock was not allowed until a consent order was executed through the ALC. Thus, there is no evidence of wholesale additions of docks to the subdivision. Accordingly, the denial of Terry’s dock request is not inconsistent with the past practice of OCRM in Bakers Landing.


IV. Order


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

OCRM shall deny Allen S. Terry's application to construct a dock on a tributary of the Ashley River in the Bakers Landing subdivision in Dorchester County.


AND IT IS SO ORDERED.

_________________________________

RAY N. STEVENS

Administrative Law Judge


Dated: September 8, 2004

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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