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.
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.”).
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 |