FINAL ORDER AND DECISION
I. Statement of the Case
Robert Donato (Donato) filed an application with the South Carolina Department of Health and
Environmental Control, Office of Ocean and Coastal Resource Management (OCRM) requesting
permission to construct a dock on Hobcaw Creek at 632 Fisherman's Bend, Mount Pleasant,
Charleston County, South Carolina. OCRM granted the permit but that decision has been challenged
by Mark and Jane Garrison (Garrison).
The challenge places contested case jurisdiction in the Administrative Law Court under S.C. Code
Ann. §§ 48-39-150 (Supp. 2003) and §§ 1-23-310 et seq. (Rev. 1987 & Supp. 2003). Having
considered the evidence and applicable law, I conclude the permit must be granted.
Does Donato meet the general guidelines of 23A S.C. Code Ann. Regs. 30-11 (Supp. 2003)
applicable to all permits for additions made in critical areas?
Regulatory Considerations For Docks
A. Findings of Fact
Based on the preponderance of the evidence, the following findings of fact are entered:
Hidden Cove Subdivision is located in Mount Pleasant, Charleston County, South Carolina. In an
effort to plan the use of docks in the subdivision, OCRM in 1988 agreed upon a planning guide
which identified dock corridors. Under the planning guide, lots 107 and 108 were identified as
suitable for a single dock which would be jointly used by the owners of lots 107 and 108.
In 1998, Donato purchased the adjacent lots of 107 and 108 located at 632 Fisherman's Bend, Mount
Pleasant, Charleston County, South Carolina. He filed an application with OCRM for a permit to
construct a dock in an effort to access a tributary of Hobcaw Creek. The structure that OCRM
agreed to permit will begin at the joint property line between lots 107 and 108 with a walkway four
feet wide and 312 feet long. The walkway will have handrails and will lead to a 6' by 10' pierhead
with benches and handrails. Channelward of the pierhead will be a 6' by 11.5' floating dock
accessible from the walkway by a 4' by 5' landing leading to a 3' by 20' ramp.
Garrison, an adjacent property owner, filed an objection to the proposed dock. The argument is that
the structure will adversely interfere with the value and enjoyment of property located at 357 Anchor
Circle. Garrison has recently completed a pool and accompanying landscaping in the back portion
of the 357 Anchor Circle lot. From the pool, the walkway and dock will be visible, but the view of
the marsh and creek will not be totally obstructed.
B. Conclusions of Law
Based on the foregoing Findings of Fact, I conclude the following as a matter of law:
The Garrisons assert the permit is improper since granting the permit will adversely affect their value
and enjoyment of their property. See Regs. 30-11(B)(10).
a. Applicable 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). More specific to the instant
case, a party may not erect any structure on or in a critical area unless OCRM issues a permit. S.C.
Code Ann. § 48-39-130(C) (Supp. 2003).
When reviewing a request for a dock permit in critical areas, the regulations within 23A S.C. Code
Ann. Regs. 30-11 (Supp. 2003) are applicable. Specifically, Regs. 30-11(B)(10) are relevant here.
b. Value and Enjoyment of Adjacent Property Owners: Regs. 30-11(B)(10)
Here, value and enjoyment considerations do not warrant denying the permit.
– Value –
As to value, the argument is that granting the permit will negatively impact the property value of
neighboring properties. Under the facts of this case, granting the permit will not reduce the value
of the Garrison’s property.
Certainly, no doubt exists that a pleasant scenic view will have an impact upon the value of property
in close proximity to that scenic view. See Long Cove Home Owners' Ass'n, Inc. v. Beaufort
County Tax Equalization Bd., 327 S.C. 135, 488 S.E.2d 857 (1997) (where our Supreme Court
quoted with approval from Lake County Board v. Property Tax Appeal Board, 91 Ill.App.3d 117,
46 Ill.Dec. 451, 414 N.E.2d 173 (Ill.App. 2 Dist. 1980) holding that “[i]t is apparent that property
adjoining or in close proximity to a body of water, a park, golf course or other scenic view may well
have an increased value because of its location.”). However, equally as true is the conclusion that
valuing real property creates a factual determination. Cf. Andrews Bearing Corp. v. Brady, 261 S.C.
533, 201 S.E.2d 241 (1973) (where the court explained that no factual issue was presented since
there was “no question of valuation being in issue.”).
In making that factual determination the judge must both weigh the evidence and evaluate witness
credibility. See Doe v. Doe, 324 S.C. 492, 478 S.E.2d 854 (Ct. App. 1996); Rogers v. Kunja
Knitting Mills, Inc., 312 S.C. 377, 440 S.E.2d 401 (Ct. App. 1994), cert. dismissed, 318 S.C. 187,
456 S.E.2d 918 (1995). Weighing of evidence is purely a discretionary matter for the judge; for
example, even when evidence is uncontradicted, the trial judge is not required to accept such
evidence if the judge finds the evidence unconvincing. All v. Prillaman, 200 S.C. 279, 20 S.E.2d
741 (1942). Likewise as to credibility; even for expert testimony, the judge must give the testimony
the credibility the judge determines it deserves. Florence County Dep't of Social Serv. v. Ward, 310
S.C. 69, 425 S.E.2d 61 (1992); S.C. Cable Tel. Assn. v. Southern Bell Tel. and Tel. Co., 308 S.C.
216, 417 S.E.2d 586 (1992); Greyhound Lines v. S.C. Public Serv. Comm'n, 274 S.C. 161, 262
S.E.2d 18 (1980).
In the instant case, having weighed the evidence and evaluated the credibility of the witnesses, I
conclude that the preponderance of the evidence does not establish that the dock here will impose
a negative impact upon the value of adjacent property. I am not persuaded that a lot with a view of
a neighbor’s dock is less valuable than that same lot without a view of a neighbor’s dock. At best,
the evidence here presents opinions of witnesses not certified as experts who dispute the impact on
the value of property from being able to see a dock on a neighboring property. Further, the opinion
evidence is unconvincing and is not supported by sales in the market place of similar property
adjacent to docks. In the absence of convincing evidence, the permit cannot be denied on the
unproven assertion that a loss of value will result from being able to view the dock of an adjacent
– Enjoyment –
Somewhat related to the value concern is the concern that the presence of the dock will negatively
impact the enjoyment experienced by the adjacent lots. When standing on Donato's property and
facing the water, an adjacent property owner to the left is Garrison. Based on that proximity, the
specific issue is whether the dock will so interfere with Garrison's view of the marsh and river as to
require denying the permit. From the facts of this case, I conclude that the visibility of the proposed
dock does not present a degree of obstruction so detrimental as to warrant denying the permit.
Certainly, the regulations impose a duty to consider the enjoyment of all adjacent owners. However,
that duty requires balancing the competing concerns of those owners in a fair and reasonable manner.
Regs. 30-11(B)(10) and 73B C.J.S. Public Lands § 178 (1983). In making such consideration, one
should note that Garrison constructed a residence with a pool and landscaping that seeks to
maximize the view of the marsh and the river. In an effort to preserve that view, Garrison seeks to
deny other parties from diminishing that view. However, the law in South Carolina does not grant
Garrison the right to an unobstructed view.
Rather, a private land owner does not acquire an easement that provides 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); Schroeder v. O'Neill, 179 S.C. 310, 184 S.E. 679 (1936). Thus, no reasonable
expectation existed at the time of Garrison’s purchase of the property or at the time of constructing
the swimming pool that any existing view would remain the view over time. Instead, especially for
a view overlooking public trust property, no inherent right to a continued view exists. Rather,
OCRM, the agency charged with overseeing the State’s coastal public trust property, must balance
all of the legitimate uses of the public trust property.
Accordingly, while Garrison has every right to position a home in a manner that provides an
extensive view of the public trust property, such a positioning is not a sufficient basis for denying
a dock which seeks access to the public trust property. In addition, absent the view concern, the
proposed dock will not otherwise significantly diminish Garrison’s enjoyment of the private
property. For example, the evidence does not establish that the presence of the dock will unduly
interfere with daily living associated with a residential use such as outside recreational activities or
the rest and quiet of home life.
Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:
OCRM is directed to grant Robert Donato's application for a joint use dock on Hobcaw Creek at 632
Fisherman's Bend, Mount Pleasant, Charleston County, South Carolina.
AND IT IS SO ORDERED.
RAY N. STEVENS
Administrative Law Judge
Dated: October 13, 2004
Columbia, South Carolina