Thursday, April 24, 2014

SC Administrative Law Court Decisions

CAPTION:
Robert W. White et al. vs. SCDHEC et al.

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Robert W. White and Frances J. White

Respondent:
South Carolina Department of Health and Environmental Control (OCRM), and Joyce R. Felts

Intervenor:
Henry G. Hoffmeyer,
 
DOCKET NUMBER:
95-ALJ-07-0517-CC

APPEARANCES:
Stuart A. Feldman, Esquire for the Whites

Elizabeth H. Warner, Esquire for Joyce Felts

John P. Kassebaum, Esquire for SCDHEC-OCRM

Newman Jackson Smith, Esquire for Henry G. Hoffmeyer
 

ORDERS:

ORDER AND DECISION

This matter is before the Administrative Law Judge Division pursuant to S.C. Code Ann. § 48-39-150(D) (Supp. 1995) and § 1-23-310 et seq. (Rev. 1986 and Supp. 1995) for a contested case hearing pursuant to two requests for review. One is a request for review by Robert W. and Francis J. White ("the Whites") of the decision by the Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management ("OCRM") to issue a permit to the Respondent, Joyce R. Felts ("Felts"), to construct a private dock. The proposed structure will have a 4' by 475' walkway leading to a 10' by 16' floating dock on and adjacent to Parrot Point Creek. The second is a request for review by Henry G. Hoffmeyer ("Hoffmeyer") and the Whites of OCRM's decision to issue a permit to Felts to place a mooring piling adjacent to an existing dock on Parrott Point Creek.

On October 18, 1993, Felts applied to OCRM for a permit authorizing the placement of a mooring piling approximately 30 feet upstream of an existing fixed dock. Permit CC-93-283 was issued on May 17, 1994, and timely appealed by Robert W. White and Henry G. Hoffmeyer, the adjacent property owner and Intervenor in the present action. See Docket No. 94-ALJ-07-0159-CC. Prior to a hearing on the merits of Docket No. 94-ALJ-07-0159-CC, a settlement was agreed to by Felts and Hoffmeyer wherein Felts would waive any ownership rights in the Hoffmeyer dock and apply for her own private walkway and pierhead. Felts has stipulated that a permit for her private walkway and pierhead negates the necessity of a mooring piling as set forth in Permit CC-93-283.

On February 15, 1995, Felts applied to OCRM for a permit authorizing the construction of a 4' by 475' walkway from her lot and terminating in Parrot Point Creek. By an Order dated April 25, 1995, this Court held the appeal of the mooring piling in abeyance until a decision was made by OCRM on the Felts dock application. On July 10, 1995, permit OCRM-95-076-F was issued to Felts with conditions authorizing the construction of a private dock.

The Whites appealed the issuance of the dock permit alleging that: (1) the proposed dock crossed the their extended property lines; (2) Felts had water access through the use of an existing dock; (3) Felts did not provide accurate information to OCRM in her permit application; (4) the dock would block access to the creek from the Whites' property; (5) the dock would interfere with the use and enjoyment of their property; and (6) the dock would diminish their property value. The Whites supplemented the above with the additional allegation that the proposed dock would cross a navigable creek in violation of OCRM regulations. Prior to a hearing on this matter, Hoffmeyer timely made a motion to intervene and was made a party to the present action.

After notice to the parties, a hearing on the merits was conducted on December 19, 1995, at the Charleston County Judicial Complex, Charleston County, South Carolina. Prior to the hearing, on December 18, 1996, the undersigned Administrative Law Judge, accompanied by counsel for the parties, visited the Hoffmeyer, Felts and White properties and viewed the existing dock and the site of the proposed dock.

While the mooring permit and the dock permit cases were not consolidated prior to the hearing, after reviewing the evidence this court has concluded that both appeals involve common questions of law and fact and may be consolidated for a determination at this time. For the reasons that follow, the permit application by Felts for a private single family dock is granted, and the appeal of the mooring piling permit is dismissed.

Any issues raised in the proceedings or hearing of this case but not addressed in this Order are deemed denied. Further, the filing of a motion for reconsideration is not a prerequisite to any party filing a notice of appeal of this Order.

FINDINGS OF FACT

I make the following findings of fact, taking into consideration the burden on the parties to establish their respective positions by a preponderance of the evidence, and taking into account the credibility of the witnesses:

1. The Whites own three tracts of land located at 940 Joe Rivers Road, Charleston, S.C. Two tracts are significant with regard to these matters. Tract 47 consists of approximately 4.8

acres and is contiguous to the Felts property. Tract 48 is approximately 3.3 acres, borders on Parrot Point Creek and contains the Whites' residence. The Whites have owned and lived on the property for over forty years. Tract 49, which is not involved in this matter, is adjacent to Tract 48 and is also located on Parrot Point Creek.

2. Felts is the owner of 680 Marsh Point Drive, Charleston, South Carolina. Hoffmeyer is the owner of 678 Marsh Point Drive, Charleston, South Carolina, which he purchased in 1985.

3. Tract 48 and the Felts and Hoffmeyer properties described above are located adjacent to Parrot Point Creek, a tidal creek feeding into Charleston Harbor and which is approximately 60 feet in width at the proposed location.

4. Prior to 1977, a walkway and dock were constructed from 678 Marsh Point Drive to a small tributary that lead to Parrot Point Creek. The tributary has basically dried up and no longer provides navigable access to the creek.

5. In 1977, the walkway and dock were extended from 678 Marsh Point Drive to the creek. This permit required removal of the dock over the tributary, extension of the walkway to the creek, and the construction of the dock at the creek. This permit was later amended in 1981 to authorize the expansion of the pierhead and the addition of a floating dock.

6. Between 1979 and 1982, a 180' walkway was constructed from the Felts property connecting the existing walkway. This addition created a "Y" shaped walkway connecting the Hoffmeyer and Felts properties and terminates at the dock at the creek. Neither the 1977 permit nor the 1981 amendment authorized the 180' extension from the Felts property to the walkway or referenced an intent for the dock to be jointly used by Felts and Hoffmeyer's predecessors in title.

7. A dispute arose in 1989 between Felts and Hoffmeyer concerning ownership of the existing dock. This dispute continues presently.

8. Between 1991 and 1993, Felts submitted documents to OCRM relating to her use or ownership of the dock. These documents included an after-the-fact application to permit the completed connector walkway, a deed purporting to demonstrate joint use access and an attempt to have the 1977-1981 permits for the construction of the docks assigned to her.

9. The existing dock was not permitted as a joint-use dock and there is no documentation in the agency's files referencing a joint use dock. Issuance of a permit for joint use requires both property owners to consent by signing the application and requires specific language in the permit stating its joint use.

10. OCRM did not permit the connector walkway nor assign the construction permits to Felts. Because the dock and floating pierhead had already been constructed, the permits were not assigned, OCRM only assigns active permits.

11. OCRM was aware of the dock ownership dispute between Felts and Hoffmeyer and indicated to the parties that it could not determine ownership issues.

12. On October 18, 1993, Felts applied to OCRM for a mooring piling to be fixed 30 feet upstream from the existing fixed dock. Both Hoffmeyer and White objected to the application. Hoffmeyer objected because Felts did not have joint use or ownership of the walkway and dock to access the mooring piling. White objected because he felt that any boat tied to the piling would impede navigation.

13. After a request for a contested case hearing, Felts and Hoffmeyer reached a settlement on the issue of joint use and ownership in which Felts would relinquish any interest she may have and would apply for a permit to construct a dock extending from her dock corridor, which she did in February 1995.

14. During the public notice period, the Whites objected to Felts dock application on the basis that construction of the dock would interfere with their use and enjoyment of their property by restricting their view, prohibiting the construction of any dock on Tract 47 and impeding navigation on the creek. Further, the Whites allege that Felts already had access to the water through the joint use of the existing dock.

15. OCRM is not authorized to make a determination of the ownership of the existing dock. Permitting decisions on the applications for the mooring piling and the dock were made by OCRM without having to decide ownership. Ownership of a dock is not a prerequisite to construction and use of a mooring piling, therefore the agency was not required to address the issue of ownership. The application for a dock permit submitted by Felts provided that the walkway connector between the Felts property and the existing dock would be removed before construction of a dock extending from the Felts property. The dock permit was issued with a special condition requiring that the connector be removed upon construction of the proposed Felts dock.

16. OCRM determined that Felts' property had water frontage. Based upon the settlement between Felts and Hoffmeyer, OCRM determined that Felts did not have access to the water at the time of her dock application.

17. The purpose of the proposed activities is the private and recreational use of Felts and future owners.

18. The extended property lines of all the parties (except OCRM) in this case, intersect and cross each other. In instances, where property is determined to have water access and the extended property lines converge, OCRM establishes dock corridors for the lots to ensure there is adequate room for dock construction. Dock corridors are a planning tool used by the U.S. Corps of Engineers and OCRM in situations where the existence of waterfront property and conflicting property lines are in question.

19. The subdivision in which the Felts lot is located was platted prior to 1993.

20. The Whites alleged that Tract 47 (adjacent to Felts) has waterfront property and contend that if Felts dock is built as proposed, Tract 47 will be cut off from constructing any dock.

21. Based upon the survey prepared for Mr. White and presented as evidence, Tract 47 does not have 50 or 75 feet of water frontage and would not qualify as waterfront property for permitting a dock. However, OCRM has not made any determination on whether Tract 47 qualifies for a dock and will not do so until an application is submitted.

22. OCRM conducted field measurements in which it determined that there is at least 81 feet between the White's dock and Hoffmeyer's dock, which is enough to construct two docks.

23. Mr. Steve Attaway, who was qualified and testified as an expert appraiser, conducted an on-site inspection of the Whites property, considered comparable property, and otherwise evaluated whether the property would diminish in value if Felts built a dock. He did not appraise the White's properties to render an opinion of overall value. He could only speculate as to diminished value to the Whites property as a result of the construction of the Felts dock.

24. The value of the property is derived from its water frontage. To maintain its value, the property should maintain its access to the water. There was no evidence to conclude that the proposed dock would preclude any future development of the Whites' property or that the dock would cause any diminution of the Whites' property value. Any potential for diminished value is contingent upon the plan to develop Tract 47.

25. Mr. White had a dock on Tract 48 which was destroyed by Hurricane Hugo. Remnants of that dock could be reconstructed to give them water access. Mr. White has no concrete plans for development of the remainder of his property and it is his intention to live on Tract 48 until he dies.

26. The Whites enjoyment of their property comes form the aesthetic beauty of the open spaces and distance from neighbors, the proximity of the creek, and the financial security the property provides for their retirement years.

27. OCRM does not deny permits on the basis of a dock's close proximity to adjoining property or because it affects the view. A property owners right to access the water is the primary concern in the OCRM permitting process.

28. The construction of Felts' dock on the creek would not obstruct navigation of the creek. The creek is between 51 and 150 feet wide. Restrictions on the size of the dock and its placement in the water would resolve any concerns about navigating the bend in the creek.

29. There would not be an impact upon aquatic or marsh organisms or vegetation by the construction of the dock.

30. Construction of the dock would not cause stagnant water flow.

31. Public access would not be restricted by the presence of the dock.

32. Although there are no known historic or archeological sites in this area, the permit conditions require notification of the appropriate authorities if any sites are discovered.

33. Other conditions and restrictions attached to the permit provide safeguards to avoid any environmental impacts from construction of the dock.

34. The location of the proposed dock is the least environmentally damaging alignment available which provides Felts with access to the creek and preserves a dock corridor for the Whites on Tract 47, if OCRM determines that Tract 47 has the requisite water frontage and access.

35. The proposed Felts walkway would not obstruct the Whites' view.

36. The proposed dock will not restrict the reasonable use and enjoyment of Parrot Point Creek by the Whites or the public.

DISCUSSION

The Whites raise four main issues with respect to the issuance of the dock permit. The first is that the proposed dock crosses their extended property line encroaching on and blocking access to the creek from Tract 47. As to the allegation that the dock would block access, OCRM has positioned Felts' dock so that there was sufficient room for another dock to reach the creek from Tract 47, if the Whites are successful in obtaining a dock permit. A dock corridor has been preserved for Tract 47 in its current condition. Reg. 30-12(A)(2)(o) provides that for any lots platted an recorded after 1993, the lot must have 75 feet of water frontage along the marsh edge and at least 75 feet of frontage between extended property lines. If any development of Tract 47 occurs, the lots must meet these requirements in order to be eligible for a dock. It is unlikely that any development of Tract 47 would yield lots eligible for a dock.

Dock corridors are used by the Corps of Engineers and OCRM for lots platted prior to 1993. OCRM regulations allow docks to be constructed over extended property lines where there is no material harm to the polices of the act and site specific characteristics warrant. In a situation where converging property lines would put several docks at the same point in the creek, OCRM devises a dock corridor plan for waterfront property owners in an effort to eliminate access problems for lot owners who qualify for a dock. OCRM used this method to eliminate any impact the Felts dock would have on access by the Whites.

The second issue raised by the Whites is that Felts already has water access by way of the existing dock which she shares with the adjoining land owner Hoffmeyer. The Whites contend that Felts has an ownership interest and therefore a right to use the existing dock. The record is clear that a dispute between Felts and Hoffmeyer over the ownership of the existing dock has existed for several years. Neither OCRM nor this Court can make a determination of legal title to the property in dispute. OCRM can make a determination of joint use by searching its permit files. The agency's files concerning this dock show no evidence of joint use or any intention that the dock would be used jointly when it was permitted. OCRM indicated a preference for joint-use docks especially in a congested area such as this; however, OCRM could not conclude the existing dock was a joint use dock in light of the opposition of Hoffmeyer and without any supporting documentation. Felts would not have access to two docks because the special condition of the permit requires that the connector walkway be eliminated.

The third issue raised by the Whites is that Felts supplied inaccurate information to OCRM because the extended property lines and permit drawings were not drawn to scale; therefore the application did not accurately represent the dock alignment or the extent it would cross the Whites extended property lines. There is no requirement that the application must contain a scaled drawing of the property lines or that the drawing of the location of the dock and creek be prepared by an engineer or surveyor. What is required is that the measurements showing distances between property lines and to the creek be correct. OCRM staff also performed an informal field survey to measure distances and determine the location of the permitted and possible future construction in the critical area. When added to the information submitted by Felts, OCRM concluded that the proposed structure was consistent with regulatory requirements and permit OCRM 95-076-F was issued.

The fourth issue raised by the Whites concern an allegation that the proposed construction would interfere with future development of the Whites property, Tract 47, resulting in loss of value. No witnesses provided any evidence of future interference with development of the Whites property. Although the Whites testified that they had no definite plans for development of the property, they did present a rough development plan to the parties which was introduced at trial. The plan did not include lot size or waterfront footage. Mr. Moore, OCRM permitting administrator, testified that of the eight lots shown on the plan, only lots five, six, seven, and eight as proposed would pass as waterfront property. Mr. Attaway, a real estate appraiser, testified that any loss of value was contingent upon the development plan. If the lots had water frontage, then there is no diminished value. Based upon Mr. Moore's assessment of the plan there would be no loss of value to the Whites caused by the construction of the Felts dock.

The Whites raised an additional issue concerning whether or not Felts' dock extended beyond the first navigable creek. The only evidence presented was that the dock would not cross any navigable creek and therefore construction would be consistent with regulations which prohibit docks from extending past the first navigable creek.

CONCLUSIONS OF LAW

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

1. The Administrative Law Judge Division has subject matter jurisdiction in this action pursuant to S.C. Code Ann. §§ 1-23-500 et seq. (Supp. 1995) and 1-23-310 et seq. (Rev. 1986 and Supp. 1995).

2. S.C. Code Ann. § 48-39-150 (Supp. 1995) authorizes the Administrative Law Judge Division to hear contested cases arising under Chapter 39 of Title 48 of the 1976 Code.

3. OCRM is the subdivision within DHEC charged with implementing the state's coastal zone policies and issuing permits for docks and piers in coastal zone areas.

4. S.C. Code Ann. § 48-39-10 et seq. (Supp. 1995) grants OCRM jurisdiction over activities such as those encompassed by the Felts permit applications.

5. S.C. Code Ann. § 48-39-50 (Supp. 1995) provides the authority for DHEC to promulgate regulations carrying out the provisions of Chapter 39 of Title 48 of the 1976 Code.

6. 23A S.C. Code Regs. 30-1 through 30-20 (1987 & 1995) were promulgated by the Coastal Council (as predecessor to OCRM), as the applicable regulations governing the management, development, and protection of the critical areas of the coastal zone of the state.

7. The project in question is located in a critical area as defined in S.C. Code Ann. § 48-39-10 (Supp. 1995); 23A S.C. Code Regs. 30-1(C)(4) and (12) (Supp. 1995). Any person wishing to alter a critical area must obtain a permit from OCRM. 23A S.C. Code Regs. 30-2(B).

8. S.C. Code Ann. § 48-39-150(A)(Supp. 1995) and 23A S.C. Code Regs. 30-ll (Supp. 1995) set forth the guidelines to be used in assessing the impact of a project in a critical area. Included in these considerations is the extent to which the proposed use could affect the value and enjoyment of adjacent owners. 23A S.C. Code Regs. 30-ll (B)(10). OCRM considered all of these criteria and determined that the dock could be constructed with appropriate conditions and restrictions to minimize any impacts the project may have on the cultural areas.

9. The Whites property values will not be adversely affected by the granting of the dock permit to Felts.

10. The Felts dock will not impair marine life, water quality or public access to the area in question. See Sierra Club, et al. v. Kiawah Resort Associates, et al., ___S.C.___, 456 S.E.2d 397 (1995).

11. Permit OCRM-95-076-F, contains special conditions is in accordance with the applicable statutes and regulations for critical area permits. The proposed activity conforms with coastal zone policies regarding dock location, size, and configuration.

12. 23A S.C. Code Regs. 30-12(A)(Supp. 1995) sets forth the specific project standards for construction of docks and piers for tidelands in coastal waters.

13. OCRM properly applied Reg. 30-12(A)(2)(e) in establishing dock corridors due to the fact that site specific conditions warranted an alternative alignment and the property was platted before 1993.

14. Reg. 30-12(A)(2)(p) requires that no dock or pierhead or other associated structure should normally be allowed to be built closer than 20 feet from extended property lines with the exception of common docks shared by two adjoining owners. However, the Department may allow construction over extended property lines where there is no material harm to the policies of the Act. This is not a normal situation in that the extended property lines converge and cross each other. The policies of the Coastal Zone Management Act will not be harmed by the granting of the dock permit to Felts.

15. Reg. 30-12(A)(2)(o) states, "For lots platted and recorded after the effective date of these regulations, before a dock will be permitted, a lot must have 75 feet of water frontage along the marsh edge and at least 75 feet of frontage between extended waterfront property lines. Lots with less than the required frontage, but with at least 50 feet of frontage, both on the marsh edge and along the water between the waterfront extended property lines may be eligible for a common dock with the adjacent property. Lots less than 50 feet wide are not eligible for a dock." Because the property was platted before this regulation became effective, it is not applicable to this situation. However, any subdivision and platting of Tract 47 would be subject to this provision. Tract 47 may not have 50 or 75 feet of water frontage to be eligible for any permits for docks.

ORDER

Based upon the Findings of Fact, Conclusions of Law, and Discussion contained above, it is hereby

ORDERED that permit OCRM-95-076-F for the construction of a 4" by 475' walkway and a 10' by 16' floating dock on Parrot Point Creek in Charleston County by Joyce Felts is granted. Permit CC-93-283 for a boat mooring piling is no longer necessary and is therefore moot. The contested case relating to the mooring piling bearing Docket No. 94-ALJ-07-0159-CC is therefore dismissed.

AND IT IS SO ORDERED.

__________________________

ALISON RENEE LEE

Administrative Law Judge



June _____, 1996

Columbia, South Carolina.