ORDERS:
FINAL ORDER AND DECISION
This matter came before me on October 20, 2003, for a contested case hearing following
the grant of a dock permit. Petitioner, James Dickinson (“Dickinson”) challenges Permit
Number OCRM-02-461-C issued February 25, 2003, to Respondent Elizabeth C. Oliveros
(“Oliveros”) by Respondent South Carolina Department of Health and Environmental Control,
Office of Ocean and Coastal Resource Management (“OCRM”).
BACKGROUND
Oliveros is the record owner of property described as Lot 4, Roseville Road, located on
Wadmalaw Island in Charleston County, South Carolina. Lot 4 is a waterfront lot located
adjacent to Bohicket Creek.
Dickinson owns the property adjacent to Lot 4, described as TMS No. 151-00-00-250.
On the other side of Lot 4 is a tract known as the “Bailey & Bailey Tract”, also a waterfront lot
which is owned by Oliveros adjacent to Bohicket Creek.
Oliveros retained the services of Robert L. Frank, a registered land surveyor, and J.
Howard Yates, an attorney specializing in real estate, to prepare and submit her permit
application for Lot 4 to OCRM. The application described a dock consisting of walkway
measuring 4 feet x 120 feet, leading to a 10'x10' fixed pier head, a 3'x15' ramp and an 8'x10'
floating dock. The dock, as proposed, is located approximately 33 feet from both of Lot 4’s
property line extensions, and parallel to the extensions. OCRM issued the permit as proposed in
the application with a special condition that the floating dock and ramp be located to the south of
the fixed pier-head and away from the extended property line shared with Dickinson, instead of
to the north as Oliveros had applied.
Ms. Oliveros inherited Lot 4 and the Bailey & Bailey Tract when her first husband, Mr.
Bailey, died in 1991. Oliveros requested permits for both lots. OCRM issued the permit for the
Bailey & Bailey Tract. That permit is not the subject of an appeal. Mrs. Oliveros plans to sell
lot 4, and believes that it will be more marketable with a dock. [Tr. p. 64, l 4–16] She intends
for the Bailey & Bailey Tract to remain in her family for her personal use, as well as her three
children and their families.
After Mrs. Oliveros submitted her application to OCRM for a dock on Lot 4, the Agency
solicited public comment. On February 3, 2003, Dickinson submitted written comments to
OCRM objecting to the construction of the dock. Harold Ridge, the owner of Lot 3 adjoining
the Bailey & Bailey Tract, filed an objection to the permit application. Ridge specifically
requested that any dock permits issued to Ms. Oliveros for Lot 4 and for the Bailey & Bailey Lot
maintain at least a 50 foot off-set from his shared property line with the Bailey & Bailey tract.
FINDINGS OF FACT
Based on the record created before me, including the testimony of the parties and the
witnesses and the exhibits, I make the following findings of fact:
1.Elizabeth Oliveros is the record owner of Lot 4 and the Bailey & Bailey Tract,
two adjoining lots located on Bohicket Creek. James K. Dickinson is the record owner of the
parcel directly adjoining Lot 4, known as TMS No. 151-00-00-250. Harold J. Ridge, Jr. owns
Lot 3 adjacent to the Bailey & Bailey tract, and Alvin L. Steinberg owns Lot 1, adjacent to Lot 3.
All of the aforementioned properties are waterfront, located on Bohicket Creek.
2.I find that there is an ongoing dispute among the neighbors. The contentiousness
between the parties appears to have arisen from a dispute over access to Mrs. Oliveros’ property
[Tr.pp38–40, 43–45].
3.Dickinson, Ridge and Steinberg all have docks or permits for docks to Bohicket
Creek. Dickinson expressed two concerns regarding the dock as it was permitted by OCRM for
Lot 4. Dickinson is concerned that the dock will be in his sight line where it is permitted, and
that the dock will adversely impact a large live oak tree located near the property line that he
shares with Oliveros.
4.To address the concern that this dock will be located in his sight line, Dickinson
proposed an alternative alignment for the dock. This alternative alignment proposed that the
dock extend at a 90° angle between the extended property lines. By aligning the dock at that
angle, rather than aligning it to run parallel between the extended property lines, Dickinson
achieves a greater separation from the dock. Such an alignment, however, pushes the pier-head,
ramp and floating dock over the extended property line shared between Lot 4 and the Bailey &
Bailey Tract. Dickinson was not aware until the hearing that the ramp and floating dock were
already located away from his property to the south of the pier head. In addition, Dickinson
conceded that construction of the Oliveros’ dock as permitted would have no impact upon the
live oak about which he was concerned. Rather, the increased boating traffic resulting from his
proposed placement of the dock could lead to more erosion and endanger the live oak.
5.Dickinson’s dock consists of a 12'x20' fixed pier, a 30'x12' boat lift, and a ramp
extending to a 10'x30' floating dock. In addition, Dickinson’s dock is constructed 282 feet from
the property line shared with Lot 4. Dickinson keeps his boats at this dock and uses his boats in
Bohicket Creek.
6.With an approximate 33 foot off-set from extended property lines as shown on the
Oliveros permit, Dickinson’s dock will be 315 feet from Oliveros’ dock.
7.Based on the specifications approved by OCRM for a dock at the Bailey & Bailey
Lot, there is a 68 foot separation between the dock at Lot 4 and the Bailey & Bailey dock. In
addition, there is a 105 foot separation between the Ridge dock and the Bailey & Bailey dock.
8.Oliveros considered the possibility of a joint-use dock for Lot 4 and the Bailey &
Bailey dock but rejected that possibility based on the economic benefit to be derived from both
lots having individual dock permits, and based on her intent to sell Lot 4.
9.Bohicket Creek is at least 400 feet wide at the location of the Bailey & Bailey Lot
and Lot 4. Lot 4 and the Bailey & Bailey Lot each have at least 100 feet of frontage on Bohicket
Creek.
10.Oliveros’ surveyor, Mr. Robert Frank, depicted the extended property lines for
Lot 4 and created a dock corridor by using the method provided for in OCRM Regulation 30-12(A)(2)(e). By centering the dock between her extended property lines, Oliveros was able to
maintain more than sufficient off-sets from the properties on either side. By locating her floating
dock on the south side of her pier head, OCRM minimized any potential for negative impact on
Dickinson. Despite the location of this floating dock on the southern side of the pier head, there
is still a 33 foot off-set from the property line shared with the Bailey & Bailey dock. Therefore,
the alignment as permitted also addresses the potential of any negative impact to the Bailey &
Bailey Lot.
11.The alignment suggested by Dickinson does nothing more than shift the alleged
negative impact over to the proposed Bailey & Bailey dock by pushing the dock for Lot 4 across
the extended property line shared with Bailey & Bailey. In addition, in order to maintain
sufficient separation between the docks for Lot 4 and the Bailey & Bailey dock, such shift would
necessitate relocating the Bailey & Bailey dock closer to or over the property line shared with
Ridge. Ridge is on record through the public notice process requesting that these docks be
constructed at least 50 feet from his property line.
12.As a general rule, OCRM regulation 30-12(A)(2)(e) authorizes the extension of
property lines as they were depicted by Mr. Frank in the survey prepared for Oliveros. However,
OCRM allows deviation from this rule when site specific characteristics are present that would
warrant varying the extension of these lines. Such site specific conditions include the existence
of shellfish beds or the potential for crowding docks. Neither OCRM nor Dickinson identified
site specific characteristics here that would warrant varying the typical extension of property
lines authorized by R. 30-12.
13.Lot 4 is a waterfront lot in accordance with OCRM’s regulatory definition, R. 30-1(52). Lot 4 has sufficient water frontage at the critical line and at Bohicket Creek to comply
with R. 30-12(A)(2)(o). The size of the dock proposed by Oliveros and permitted by OCRM is
consistent with OCRM’s regulations governing dock sizes for creeks the size of Bohicket Creek,
as set forth in R. 30-12(A)(2)(q).
14.Oliveros’ surveyor, Robert Frank, correctly represented the extended property
lines for Lot 4 by drawing them as straight line extensions into Bohicket Creek. There is no
reason to draw these extended property lines in any other fashion than that done by Mr. Frank.
15.The proposed location of the dock on Lot 4; that is, centered between the two
property lines, and running parallel to the property lines, is the appropriate location for a dock on
this lot. Such an alignment limits the potential for a negative impact on adjoining properties. It
further ensures that a dock can be constructed on the Bailey & Bailey tract in keeping with the
request of Mr. Ridge, the owner of Lot 3, to keep the dock sufficiently separated from Lot 3.
Finally, such an alignment insures a safe separation between Dickinson’s dock, the dock on Lot
4, and the dock proposed for the Bailey & Bailey tract.
16.Petitioner presented no evidence that his use and enjoyment of his property would
be negatively impacted by construction of the dock as proposed. While Petitioner is concerned
that this dock will be in his view corridor, any weight to be assigned to Petitioner’s concerns is
questionable, given that Petitioner was not familiar with the final configuration of the dock as
permitted and had not assessed the impact such configuration could have on his use and
enjoyment.
CONCLUSIONS OF LAW
1.The Court has jurisdiction to hear this matter. The ALC 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 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). The Rules of Procedure for
the Administrative Law Judge Division, Rule 2H, specifically includes “[a]n applicant. . . whose
application is the subject of a request for a contested case hearing. . .” RPALC 2.
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). The burden of proof
in a contested case hearing is upon the moving party to establish by a preponderance of the
evidence that the agency erred in its decision. 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.) Here, Petitioner has the burden of demonstrating, by a preponderance
of the evidence, that the permit issued to Ms. Oliveros was issued in violation of OCRM’s
statutory authority and/or regulatory standards.
3.While OCRM’s regulations clearly impose a duty to consider the enjoyment of all
adjacent owners, that duty requires balancing the competing concerns of these owners in a fair
and reasonable manner. Regs. 30-11(B)(10). “In calculating that balance, at least two areas of
impact must be considered. First, the degree to which the permit will impact the neighbors’ use
of their private properties, Second, the degree to which the permit will impact the neighbors’ use
of the public trust property.” See, Embry vs. South Carolina Department of Health and
Environmental Control, Office of Ocean and Coastal Resource Management, and Edisto Island
Yacht Club, Docket No. 01-ALJ-07-0262-CC and Stevenson v. South Carolina Department of
Health and Environmental Control, Office of Ocean and Coastal Resource Management and
Jeffrey McCall, Docket No. 00-ALJ-07-0241-CC.
4.In making factual determinations the judge weighs the evidence and evaluates
witness credibility. Doe v. Doe, 324 S. C. 492, 478 S. E. 2d 854 (Ct. App. 1996).
5.A private landowner does not acquire an easement providing an unobstructed
ocean view, breeze, light or air over adjoining property. Hill v. The Beach Co. et al., 279 S. C.
313, 306 S. E. 2d 604 (1983.)
6.When OCRM makes a permitting decision with the potential to impact an
adjoining landowner’s use or enjoyment of property, by impacting the view, that decision must
be rationally based. Embry v. SCDHEC-OCRM et al., supra.
7.Here, Dickinson presented no evidence of a negative impact on the use and
enjoyment of his property, other than a generalized concern that the dock as permitted will be
visible from his property. Assuming, however, that this rises to the level of a negative impact, I
find and conclude that OCRM struck the appropriate balance between the parties in authorizing
this dock to be aligned parallel to the extended property lines and to be located at the center of
Lot 4. Any other alignment which might decrease the potential of a negative impact on
Dickinson will merely shift that impact to the other waterfront property owners – Oliveros (the
Bailey and Bailey tract) and Ridge.
8.The Petitioner failed to carry his burden of proof.
Therefore, it is ORDERED that Permit Number OCRM-02-461-C, as it was issued to
Elizabeth Oliveros by OCRM on February 25, 2003, is hereby affirmed.
AND IT IS SO ORDERED.
___________________________________
Carolyn C. Matthews
Administrative Law Judge
May 11, 2004
Columbia, SC |
