Thursday, July 24, 2014

SC Administrative Law Court Decisions

CAPTION:
Mark and Jane Garrison vs. DHEC, et al

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioners:
Mark and Jane Garrison

Respondents:
South Carolina Department of Health and Environmental Control, and Robert Donato
 
DOCKET NUMBER:
04-ALJ-07-0131-CC

APPEARANCES:
Petitioners & Representative:
Mark and Jane Garrison, Pro se

Respondents & Representative:
South Carolina Department of Health and Environmental Control, Leslie S. Riley, Esquire and Robert Donato, Pro se
 

ORDERS:

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.


II. Issue


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?




III. Analysis


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). Footnote I disagree.


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 property owner.


– 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.




IV. Order


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