THE STATE OF SOUTH CAROLINA
`
`IN THE COURT OF APPEALS
`
`Appeal from the south Carolina Administrative Law Court
`
`Shirley C. Robinson, Administrative Law Judge
`
`' Case No. 12—ALJ-O7-0050-CC
`
`' James R. Maull,
`
`V.
`
`Appellant,
`
`South Carolina Department of Health and,
`Environmental Control and David Abdo,
`
`and Russell and Laura Schaible,
`
`Respondents.
`
`FINAL BRIEF OF APPELLANT ‘
`
`YOUNG CLEMENT RIVERS, LLP I
`Michael A. Molony I
`25 Calhoun Street, Suite 400
`
`Charleston, SC 29401
`PO. Box 993 (29402)
`(843) 724-6631
`‘
`Attorney for the Appellant, Jam es R.‘ Maull
`
`
`
`
`
`IN THE COURT OF APPEALS
`
`Appeal from the south Carolina Administrative Law Court
`
`Shirley C. Robinson, Administrative Law Judge
`
`' Case No. 12—ALJ-O7-0050-CC
`
`' James R. Maull,
`
`V.
`
`Appellant,
`
`South Carolina Department of Health and,
`Environmental Control and David Abdo,
`
`and Russell and Laura Schaible,
`
`Respondents.
`
`FINAL BRIEF OF APPELLANT ‘
`
`YOUNG CLEMENT RIVERS, LLP I
`Michael A. Molony I
`25 Calhoun Street, Suite 400
`
`Charleston, SC 29401
`PO. Box 993 (29402)
`(843) 724-6631
`‘
`Attorney for the Appellant, Jam es R.‘ Maull
`
`
`
`
`
`TABLE OF CONTENTS
`
`gage
`
`TABLE OF CONTENTS ............................................................................. ..i
`
`TABLE OF AUTHORITIES ........................
`
`.............................................ii
`
`INTRODUCTION .........
`
`.............................................................................1
`
`STATEMENT OF ISSUES ON APPEAL ............................................. .. 2
`
`STATEMENT OF THE CASE .............................;.................................. 3
`
`STANDARD OF REVIEW ..................................................................... .. 8
`
`ARGUMENT ............................................................................................ .. 9
`
`The ALC erred in affirming the Amendment where it
`I.
`incorrectly determined that this matter is a private dispute that does
`not
`impact
`the public interest by (a) wrongfully ignoring or
`misapprehending material and uncontroverted evidence (including
`the only expert testimony in the record) regarding the potential for
`public harm resulting from the Amendment and/or (b) wrongfully
`ignoring or misapprehending legal precedent
`regarding public
`navigational hazards in applying DHEC/OCRM’S regulations and
`determining that the Amendment complied with the requirements of
`23A S.C. Code Ann. Reg. 30-12(A)(1)(a); .... .; ........................................ .. 9
`
`II. The ALC erred in affirming the Amendment where it incorrectly
`determined that the Amendment complied with the requirements of
`23A S.C. Code Ann. Reg. 30—11 and S.C. Code Ann. § 48-39-150, but
`DHEC/OCRM failed to consider the (unduly) adverse impact of the
`Amendment upon Maull’s value and enjoyment of adjacent property,
`as is required Reg. 30-11 and § 48-39-150. .......................................... .. 20
`
`CONCLUSION .......................................................................................... .. 24
`
`
`
`TABLE OF AUTHORITIES
`
`.1322:
`
`Cases
`
`BroWnlee V. S.C. Dep’t of Health &'Envtl. Control, 382 SC. 129,‘676
`S.E.2d 116 (2009) .................................................................................... .. 18
`Dorman V. S.C. Dep’t ofHealth & Envtl. Control, 350 S. C. 159, 565'S.E.
`2d 119 (Ct. App. 2002) ............................................................................ .. 20
`Hanahan V. Simpson, 326 SC. 140, 485 S.E.2d 903 (1997) ...................... .. 15
`Hill V. S.C. Dep’t ofHealth & Envtl. Control, 389 SC. 1, 698 SE. 2d 612
`(2010)...., .................................................................................................... .. 8
`Pratt V. Morris Roofing, Inc., 357 SC. 619, 594 S.E.2d 272 (2004) ......... .. 14
`White V. S.C. Dep’t ofHealth & Envtl. Control, 392 S. C. 247, 708 S. E. 2d
`812(Ct. App. 2011) ..................................................................... "15,16, 24
`
`Statutes
`
`.
`
`SC. Code Ann. § 1-23-380 ........................................................................... .. 9
`SC. Code Ann. § 1-23-610 ..................................................................... ..8, 13
`SC. Code Ann. § 48—39-150 ................................................................. ..22, 23
`South Carolina Constitution Article 14, § 4 ................................................ .. 18
`
`_
`_
`Regulations
`23A SC. Code Ann. Reg. 30-11 ................................................................. .. 22
`23A SC. Code Ann. Reg. 30—12(A)(l)(a) .............................................. .. 9, 21
`
`ii
`
`
`
`INTRODUCTION
`
`This case arises out of Respondent South Carolina Department of
`
`Health and Environmental Control, Office of Ocean and Coastal Resource
`
`Management’s (“DHEC” or “OCRM”) issuance of an amendment (the
`
`“Amendment”) to a critical area permit identified as P/N # OCRM-O7-128-F
`
`(the, “Permit”) to Respondent David Abdo (“Abdo”) for construction of a
`
`private recreational dock adjacent
`to the Atlantic Intracoastal Waterway
`(“AIWW”) on Wappoo Creek. The Appellant, James R. 'Maull (“Maull”),
`
`an adjacent property owner, duly opposed the Amendment, and requested a
`
`contested case hearing before the South Carolina Administrative Law Court
`
`(“ALC”) to challenge DHEC’s decision to issue the Amendment. Maull
`
`now appeals the ALC’s decision to this Honorable Court. Respectfully, both
`
`DHEC’s decision to issue the Amendment and the ALC’s affirmance thereof
`
`are erroneous and should be reversed.
`
`
`
`STATEMENT OF ISSUES ON APPEAL
`
`Did the ALC err in affirming the Amendment where it incorrectly
`determined that this matter is a private dispute that does not
`impact
`the public interest by (a) wrongfully ignoring or
`misapprehending material
`and
`uncontroverted
`evidence
`(including the only expert testimony in the record) regarding the
`potential for public harm resulting from the Amendment and/or
`(b) wrongfully ignoring or misapprehending legal precedent
`regarding
`public
`navigational
`hazards
`in
`applying
`DHEC/OCRM’S
`regulations
`and
`determining
`that
`the
`Amendment complied with the requirements of 23A S.C. Code
`Ann. Reg. 30-12(A)(1)(a)?
`
`II.
`
`Did the ALC err in affirming the Amendment where it incorrectly
`determined that the Amendment complied with the requirements
`of 23A S.C. Code Ann. Reg. 30-11 and S.C. Code Ann. § 48-39-
`150, but DHEC/OCRM failed to consider the (unduly) adverse
`impact of the Amendment upon Maull’s value and enjoyment of
`adjacent property, as is required Reg. 30-11 and § 48—39-150?
`
`
`
`STATEMENT OF THE CASE
`
`The Permit was originally issued to Abdo’s predecessor in title,
`
`Charles R. Palmer (“Palmer”), on August 2, 2007. The Permit authorized
`
`construction of a private recreational dock adjacent to the AIWW at property
`
`identified as 29 Broughton Road, Charleston County, SC. The Permit
`
`authorized the location of the dock, at the water’s edge, as 82.5 feet from
`
`Maull’s existing dock. Maull resides at 27 Broughton Road. The Permit
`
`further authorized a distance of 132.1 linear feet at the water’s edge between
`
`Abdo’s dock and the dock constructed at 31 Broughton Road, owned by
`
`Respondents Russell and Laura Schaible (the “Schaibles”).
`
`Prior to issuance of the original Permit, OCRM staff contacted Maull,
`
`Palmer, and the Schaibles for purposes of meeting to discuss permitting of
`
`the Palmer (now Abdo) dock. The Schaibles had objected to the location of
`
`the Palmer dock. Maull suggested that Palmer move the boatlift from the
`
`side of the dock closest to the Schaibles to the other side, pushing it closer to
`
`Maull, which resulted in 82.5 feet of separation between the Maull and
`Palmer/Abdo dock. The dock was approved as suggested by Maull, with the
`
`boatlift moved away from the Schaibles’ property line. The Schaibles
`
`objected and unsuccessfully sought a review by the Board of Health and
`
`Environmental Control (the “Board”). After the Board denied review, no
`
`
`
`further challenge was made to the Permit upon issuance in 2007.
`
`Abdo’s purchase contract for 29 Broughton was contingent upon
`
`Palmer obtaining a permit for a dock. The purchase occurred after the
`
`Permit was issued. Following the purchase of the property, just prior to the
`
`expiration of the Permit, Abdo decided that
`
`the configuration of the
`
`approved dock was not acceptable to him as the floating dock was located in
`
`front of the pierhead and the boatlift was located to the side of the pierhead.
`
`The action giving rise to this contested case, the Amendment, which
`
`was issued to Abdo on October 6, 2011, authorized the movement of the
`
`dock structure much closer towards Maull’s dock and property.
`The
`Amendment as approved reduces the distance between the Abdo dock and
`the Maull dock, at the water’s-edge, to approximately 39 feet.
`Consequently, the Amendment reflects that the floating dock extends
`
`towards the Schaibles’ dock.
`
`In order to maintain separation between Abdo
`
`and Schaible, the Abdo pierhead, floating dock, and boatlift are relocated
`
`closer to the shared property line with Maull. This results in substantially
`
`reducing the separation between the Maull dock and the Abdo dock, but
`
`increasing the separation between the Abdo dock and Schaible dock.
`
`Importantly, following resolution of the configuration of the Palmer
`
`dock in August of 2007, Maull sought and obtained authorization on May
`
`
`
`r 14, 2008, to change the configuration of the floating docks at 27 Broughton
`
`Road.
`
`In accordance with this authorization, Maull removed the existing
`
`floats, which were in a “U” configuration, and installed a 10’ x 44’ floating
`
`dock. The 10’ x 44’ floater replaced a 10’ by 30’ floater, reducing by a few
`
`‘ feet the off—set between the Palmer boatlift as shown on the Permit and the
`
`Maull float. Maull modified his dock and added the longer floating dock in
`
`September of 2008..
`Abdo’s basis for moving the dock closer to Maull was to preserve as
`
`much space as possible between Abdo and Schaible in the event Abdo
`
`decides to purchaser a larger boat and requires a longer floating dock.
`
`Maull’s challenge to the Amendment
`
`raises his concerns
`
`regarding
`
`navigational safety, which is impaired by moving Abdo’s dock closer to
`
`Maull’s dock. '
`
`On December 8, 2011, the Board held a Final Review Conference to
`review Abdo’s - requested '7 Amendment.
`V During the Final Review
`
`Conference, Department staff explained to the Board that the previous belief
`
`that Maull’s dock was located only 10 feet off the extended property line
`was erroneous and based upon an unintentional error while interpreting
`
`Maull’s permit. The staff determined his dock was actually 18.5 feet away
`
`from the eXtended property line. This explanation is in conflict with the
`
`
`
`Administrative Summary of Review, wherein DHEC staff sought to address
`
`Maull’s navigational concerns, not just impose the minimum 20-foot offset
`
`from extended property lines contemplated in 23A SC. Code Reg. 30-
`
`12(A)(1)(p)-
`
`On January 9, 2012, the Board in a split (5-2) decision issued its Final
`
`Agency Decision granting the Amendment. The Board decided that no
`
`special conditions to the permit were necessary to address navigational
`
`concerns.
`
`The Board further authorized construction of the requested
`
`walkway with handrails leading to a covered pierhead with benches and a
`ramp leading to-a floating dock as well as the addition of a four-pile boat lift
`
`for Abdo’s personal use and the extended dock. The Board’s decision
`
`eliminated the special condition that the structure be located 30.5 feet from
`
`the extended prOperty line. Despite the claim that this permit condition was
`
`based on a mistake in interpreting the Abdo permit drawings, the DHEC
`
`staff had clearly included this condition of separation to address Maull’s
`
`concerns regarding navigation. A distance of 30.5 feet from the extended
`
`property line created a separation of approximately 50 feet between the two
`
`docks.
`
`In response to this decision, Maull filed a Notice of Request for
`
`Contested Case with the ALC on February 8, 2012. On July 24, 2012,
`
`
`
`DHEC filed a Motion for Partial Summary Judgment and Motion to Dismiss
`
`against Maull. On August 2, 2012, Maull filed a response to DHEC’s
`
`Motion to Dismiss and Motion for Partial Summary Judgment.
`
`. OnAugust
`
`23, 2012, a Motion Hearing was held at the ALC. On October 4, 2012, the
`
`ALC issued an Order granting DHEC’s Motion for Partial Summary
`
`Judgment as to issues raised by Maull regarding alleged procedural defects
`
`in the process of conducting a Final Review Conference. The ALC also
`
`denied DHEC’s Motionto Dismiss.
`
`On January 15, 2013 a hearing was held in the ALC, the Honorable
`
`Shirley G. Robinson presiding. Maull presented witness Crayton Walters
`
`(“Walters”) who was qualified, without objection, as an expert witness in
`maritime matters including navigation, tidal and water current issues, and
`vessel navigation. walters was the only expert in the proceeding. On
`
`August 1, 2013,
`the ALC issued its Final Order and Decision (“ALC
`Order”), affirming DHEC’s issuance of the ‘Amendment.
`
`This appeal timely follows.
`
`
`
`STANDARD OF REVIEW
`
`“The review of the administrative law judge’s order must be confined
`
`to the record,” and “[t]he court may not substitute its judgment for the
`
`judgment of the administrative law judge as to the weight of the evidence on
`
`questions of fact.” SC. Code Ann. § 1-23-610(B); see also Hill v. S.C.
`
`Dep’tof Health & Envtl. Control, 389 SC. 1, 9 698 SE. 2d 612, 616—17
`
`(2010) (Under South Carolina’s Administrative Procedures Act, the ALC
`
`presides as the fact finder in contested cases and appellate review is limited
`
`to determining whether the findings were supported by the substantial
`
`evidence or were controlled by an error of law).
`
`But this Court may remand the case for further proceedings; or, it may
`
`reverse or modify the decisionif the substantive rights of the petitioner
`
`(here, Maull) have been prejudiced because the finding, conclusion, or
`
`decision of the ALC is:
`
`(a)
`
`in violation of constitutional or
`provisions;
`
`statutory
`
`(b)
`
`in excess of the statutory authority of the
`
`agency;
`
`(0) made upon unlawful procedure;
`
`(d) affected by other error of law;
`
`(e)
`
`clearly erroneous in View of the reliable,
`probative, and substantial evidence on the
`
`8,
`
`
`
`whole record; or
`
`(i) arbitrary or capricious or characterized by
`abuse of discretion or clearly unwarranted
`exercise of discretion.
`
`Section 1-23-610(B); S.C. Code Ann. § 1-23—380(5).
`
`ARGUMENT
`
`I.
`
`The ALC erred in affirming the Amendment where it incorrectly
`determined that this matter is a private dispute that does not
`impact
`the public interest by (a) wrongfully ignoring or
`misapprehending material
`and
`uncontroverted
`evidence
`(including the only expert testimony in the record) regarding the
`potential for public harm resulting from the Amendment and/0r
`(b) wrongfully ignoring or misapprehending legal precedent
`regarding
`public
`navigational
`hazards
`in
`applying
`DHEC/OCRM’S
`regulations
`and
`determining
`that
`the
`Amendment complied with the requirements of 23A S.C. Code
`Ann. Reg. 30-12(A)(1)(a).
`
`The ALC found and concluded that Maull’s navigational concerns do
`
`not impact the public interest. According to the ALC, “[a]ny maneuvering
`
`of his vessel that [Maull] asserts he would have to undertake in order to
`
`navigate between the two docks [(i.e., Maull’s dock and Abdo’s dock as
`
`would be allowed by the Amendment)], if he can at all, would take place in
`
`close proximity to his and Mr. Abdo’s docks and would have little or no
`
`impact on waterway traffic.”
`
`(Rf pp. 9-10 (1i 14).) The ALC rejected
`
`Maull’s expert’s testimony based on the ALC’s determination that
`
`the
`
`expert, Walters, opined that 100 feet was needed between Maull’s dock and
`
`
`
`his neighbors’ docks and such a separation was impossible to attain.
`
`(R. p.
`
`10, (11 15).) The ALC wrongfully ignores or misapprehends Maull’s expert’s
`
`testimony and opinions (along with other evidence, or lack thereof, in the
`
`record) and,
`
`in turn, erred in determining the nature of the navigational
`
`hazard arising from the Amendment and the Amendment’s regulatory
`
`compliance.
`
`The only expert in this matter is Walters. A licensed harbor pilot, he
`
`was, without objection, qualified as an expert in maritime matters, including
`
`matters he has previously testified to, currents in the creek area, navigability
`
`of boats, vessels, and allowed to opine about
`
`the appropriate distance
`
`between two docks.
`
`(R. p. 330, line 24 - p. 331 line 14.) Walters provided
`
`the following pivotal, and undisputed, testimony (that only hewas qualified
`
`to do in this matter):
`
`-
`
`'
`
`-
`
`°
`
`'
`
`The area where Abdo’s and Maull’s docks are located has the
`
`strongest currents in the Charleston area.
`25.)
`
`(R. p. 331 lines 23-
`
`The Wappoo Creek is a unique situation.
`
`(R. p. 332, lines 2—5.)
`
`The current at the dock location does not stay in the middle of
`the channel but hits one side of the Cut and then goes to the
`other.
`(R. p. 332, line 24 - p. 333, line 13.)
`
`As a Harbor Pilot, Walters prefers two boat lengths of distance
`to maneuver to a dock. (R. p. 334, line 14 — p. 335, line 7.)
`
`Because of the dynamics of water, wind, and current, adequate
`
`10
`
`
`
`separation between docks is necessary for maneuverability.
`p. 335, line 8 - p. 336, line 4.)
`
`(R.
`
`Without sufficient space to maneuver there is a risk to other
`vessels and for accidents. (R. p. 336, line 5 - p. 337, line 17.)
`
`landing located in close
`Risk is created by having a boat
`proximity to the Abdo/Maull docks, having a great deal of boat
`traffic, and having insufficient space to maneuver the boat to
`the dock, with no room for error in a dynamic setting. (R. p.
`338, line 16 - p. 339, line 18.)
`
`Boaters in Wappoo Creek do not have a lot of leeway when it
`comes to getting in and out of traffic. (R. p. 354, line 20 - p.
`356 line 5.)
`
`Maneuverability is also restricted because of siltation of the
`Cut, and the fact
`that access is
`limited at certain times
`eliminating options for navigating back to the dock.
`(R. p. 340,
`lines 2—17.)
`
`Maull may not be able to moor his 48 foot boat at his clock as a
`result of the Abdo permit modification.
`(R. p. 344, line 9 — p.
`345, line 2.)
`‘
`
`Walters’ opinions and observations were supported by Maull’s
`
`testimony.
`
`Small boats traveling at high speeds are frequent users of the
`Cut at Maull’s dock. (R.'p. 361, lines 5-20.)
`
`Maull got involved in the Palmer permit application to insure
`he had room to move his boat to and from his dock.
`(R. p. 367,
`line 15 - p. 371, line 2.)
`
`Maull’s concerns regarding the proximity of the Abdo dock to
`his dock are based on general navigational safety in the
`Wappoo Creek and the safety issues created for the general
`public by the existence of a hazardous condition.
`(R. p. 376
`
`ll
`
`
`
`lines 5—10, p. 381, line 1 - p. 382, line 6.)
`
`°
`
`-
`
`The strong current and wind affects small boats too and the
`approach to the dock needs
`to be made with the right
`conditions, and is unsafe to other boaters if forced in bad
`conditions. (R. p. 379, lines 2-22.)
`
`Maull uses his boat and dock hundreds of times every year and
`observes extensive boat and barge traffic traveling past his
`dock. Maull estimates that traffic has increase 40% in the past
`30 years.
`(R. p. 363, lines 5-10, p. 378, line 6 - p. 382, line 6.)
`
`-
`
`-
`
`Maull also notes that new types of watercraft are present such
`
`asjet skis etc.
`
`(R. p. 381, line 15 - p. 382, line 6.)
`
`Moreover, whereas Walters was an (the only) expert, and Maull
`
`himself has extenSive experience navigating and docking in Wappoo Creek,
`
`Abdo admitted having limited experience docking in Wappoo Creek,
`
`although he had boated through the Creek.
`
`(R. p. 436, lines l-4.) Schaible
`
`uses his boat approximately once a month.
`
`(R. p. 456,
`
`lines 10-16.)
`
`OCRM’s witness, Jeff Thompson, has been in Wappoo Creek a “fair number
`
`of times” (R. p. 482, line 17) but there is no testimony to support that he was
`
`responsible for maneuvering water craft
`
`through the Creek and he
`
`acknowledged that he had no experience on a larger boat in the Creek or
`
`maneuvering to Maull’s dock.
`
`(R. p. 488, lines 19-24.) Yet, the ALC relied
`
`on Thompson’s testimony to support a conclusion that the hazards and harm
`
`identified by Walters and Maull were private, and not public. (R. p. 6 (1119-
`
`20).)
`
`12
`
`
`
`Respectfully, the ALC’s decision in this regard cannot be sustained.
`
`It is contradictory to the only reliable and probative evidence on point in the
`
`record and,
`
`indeed, derived from vwitnesses without
`
`the appropriate
`
`foundation and experience to identify the potential for public harm in this
`
`area.
`
`The Administrative Procedures Act, which governs appeals from the
`
`ALC, authorizes this Court to reverse the findings and conclusions of the
`
`ALC if the ALC’s decision is “clearly erroneous in View of the reliable,
`
`probative and substantial evidence on the whole record.”
`
`§ 1-23-610(B).
`
`Substantial evidence is m; a mere scintilla of evidence, but is evidence
`
`which, considering the record as a whole, would allow reasonable minds to
`
`reach the conclusion the administrative agency reached. Pratt v. Morris
`Roofing, Inc., 357 SC. 619, 622, 594 S.E.2d 272, 274 (2004). And the test
`
`is three-pronged. It is not merely sufficient to establish substantial evidence,
`but, of course, the evidence must also be reliable and probative.
`
`The testimony of Thompson, Schaible, and Abdo was not reliable or
`probative as to the issue of whether the proximity of Abdo’s and Maull’s
`
`docks created a navigational hazard for users of Maull’s dock that impacted
`
`the public. The mere fact that these witnesses had some experience being in
`
`boats in Wappoo Creek did not qualify them to provide reliable and
`
`13
`
`
`
`probative evidence of the potential public harm arising from constraints on
`
`Maull’s ability to safely berth his boat. Probative evidence is “the tendency
`
`of evidence to establish the proposition that
`
`it
`
`is offered to prove.”
`
`McCormick on Evidence, Title 7, Chapter 16, Relevance; cf. Rule 401,
`
`SCRE (evidence is not relevant when it does not have “any tendency to
`
`make the existence of any fact that is of consequence to the determination of
`
`the action more probable or less probable than it would. be without the
`
`evidence”); Hanahan v. Simpson, 326S.C. 140, 149, 485 S.E.2d 903, 908
`
`I (1997) (“[V]erdicts may not be permitted to rest upon surmise, conjecture or
`
`speculation”).
`
`The most reliable testimony as to the potential for public harm was
`
`provided by Walters (and, again, of course, no reliable testimony was
`
`presented to the contrary). This testimony was neither weighed nor applied
`
`by the ALC, however, since it reached the erroneous conclusion that the
`
`potential harm was private, not public.
`
`The ALC’s determination of private harm is inconsistent with the
`
`applicable precedent of White v. South Carolina Department of Health and
`
`Environmental Control, 392 S. C. 247, 708 S. E. 2d 812 (Ct. App. 2011).
`
`There, White challenged a permit authorizing construction of a community
`
`dock over the shared extended property line based on White’s concerns that
`
`14
`
`
`
`the proximity between his dock and the community dock will cause a
`
`disruption to his commercial operations from his dock (selling fuel and ice
`
`to commercial shrimpers). The HOA claimed that the dispute regarding the
`
`location of the dock was a private dispute, but this Court disagreed. The
`
`Court found that “the present case involves disruption of a commercial
`
`enterprise and its customers. The objection lodged by White does not
`
`involve merely a private dispute with Coffin Point, but also concerns the
`
`needs of White’s customers, who themselves are members of the public, and
`
`the local shrimping industry in general. .
`mere private navigational dispute.”
`
`.
`
`.
`
`[T]his case does not involve a
`
`Contrary to the Finding of Fact No.17 of the ALC Order, there was
`ample testimony that numerous docks are located in the area in close
`
`proximity to Maull’s dock and especially on the north side of the Wappoo
`Creek, all of which narrow the width of the waterway, which only increases
`
`the safety concern highlighted by Maull’s challenge to the Amendment. The
`
`
`following language from the White Court is pertinent in this regard:
`
`The limited amount of space between White’s
`dock and coffin points’ dock combined with the
`size of their shrimp boats presented a danger of
`their boats colliding with the Coffin Point dock
`when they attempted to leave White’s dock to exit
`the creek.
`.
`.
`. Significantly, an OCRM official
`admitted that OCRM staff would consider any
`“significant
`impact” on a neighboring dock to
`
`15
`
`
`
`constitute material armed to the policies of the Act.
`
`I_d. at 258, 708 S.E.2d at 817-18.
`
`Here, we have undisputed testimony that the limited space between
`
`the Abdo and Maull
`
`docks would necessarily require
`
`additional,
`
`unnecessary, and potentially dangerous maneuvering in the busy Wappoo
`
`Creek area posing an impediment
`
`to the free flow of commercial and
`
`recreational traffic in the area.
`
`' Contrary to the ALC’s decision (and, indeed, that of the DHEC Board
`
`before it'), even the initial Permit noted the potential impact on navigation of
`
`l The DHEC Board also concluded that the appeal of the Amendment was a purely
`private dispute.
`Interestingly, on p. 4 (R. p. 46) of their Final Decision, they reference a
`comment letter to the Department’s staff from Maull.
`In the Order, they state that the
`comment letter provides, “In the event that both neighbors at 27 and 29 Brought Road
`[Mr. Abdo, Mr. Maull] come to their dock at the same time, there would not be enough
`space for safe docking for either party.” Apparently, the Board selectively extracted this
`one comment from Mr. Maull’s two page well-reasoned letter. The sentence quoted
`above is the last line in the following paragraph in that same comment letter:
`
`I am concerned that placing this dock too close to my dock
`could be dangerous for boats and boaters due to the strong
`Wappoo Creek current, which moves very swiftly. On the
`outgoing tide, the water under the bride going toward the
`Harbor makes a swift “S” turn and hits the bank between
`
`my dock and the proposed dock for 29 Broughton Road.
`This current is very difficult to navigate, and the closeness
`of the proposed dock will only increase the danger to all
`boaters. As I am sure you are aware, there is heavy boat
`traffic in the Wappoo Creek, and boat safety should not be
`endangered by constructing dockstoo close to the other .
`.
`.
`
`Clearly, Maull expressed concern not only in the initial 2007 application with respect to
`navigation issues, but also in the very letter cited by the Board in its decision that
`
`16
`
`
`
`location of the docks. Again, the Wappoo Creek is part of the AIWW.
`
`It
`
`has a significant amount of traffic, and according to Walters, is one of the
`
`most heavily trafficked waterways in the lowcountry. The AIWW is the
`
`functional equivalent of an interstate highway for commercial
`
`and
`
`recreational vessels.
`
`In the case of Brownlee v. S.C. Department of Health and
`
`Environmental Control, 382 S.C. 129, 676 S.E.2d 116 (2009), our Supreme
`
`Court addressed navigability and expressly noted that pleasure traffic, not
`
`just commercial floatage, is entitled to protection in using the waterway.
`South Carolina Constitution Article 14, § 4, in fact, declares all navigable
`
`waters to be public highways for which all citizens are entitled to free
`
`access.
`
`In this case, there is undisputed testimony that public access will be
`
`adversely affected by location of the docks pursuant to the Amendment.
`
`Notably, in Brownlee, the Court further admonished DHEC that its
`failure to require adherence to theiconditions of the dock permit in that case
`
`spawned unnecessary litigation.
`In this situation, we have an analogous
`circumstance in that the DHEC staff and Board failed to adhere to, much
`less even consider, the same issues that were resolved in the 2007 permit.
`
`Failure to do so has spawned this litigation to protect the use and enjoyment
`
`navigation issues were not soley related to his dock, but to those of the general public.
`
`17
`
`
`
`of Maull’s dock as well as the interest of the public in free and unimpeded
`
`navigation in the Wappoo Creek area.
`
`The ALC makes an additional finding that the question of navigation
`
`of the Maull boat can be resolved by mooring it on the outboard portion of
`the clock. This finding is itself clear errOr and further reflective of the
`
`ALC’s error in affirrning the Amendment by determining that this was a
`
`purely private dispute.
`
`As stated over and over during the trial by both Maull and Walters,
`
`traffic in that area creates heavy wave action and potentially dangerous
`
`maneuvering by recreational boats that would not only damage Maull’s
`
`boat, but could pose a safety hazard given the relatively narrow width of the
`Wappoo Creek at that location along with its especially strong currents at
`
`high and low tide.
`
`The unique character of the Wappoo Creek area is indeed well
`
`illustrated by how readily this matter is distinguished from that of Dorman V.
`South Carolina Department of Health and Environmental Control, 350 S. C.
`
`159,, 565 S.E. 2d 119 (Ct. App. 2002), a case relied upon by the ALC.
`
`In
`
`
`Dorman, there was a small tidal creek that was effectively only utilized by
`
`small craft at high tide.
`
`'(R. pp. 509-10.)
`
`18
`
`
`
`Walters testified that the location at issue here is at a curve in the
`
`Wappoo Creek (which creek is, just as a. general matter, a busy thoroughfare
`
`of the AIWW) where the current is particularly treacherous.-(R. p. 331, line
`
`18 - p. 333, line 7.) He has maneuvered many boats in and out of docks on
`
`that side of the waterway and testified that it was quite a daunting task, even
`
`for someone of his skill, to maneuver the vessel, of any size, into the dock.
`
`His testimony was clear (and without contradiction in the record):
`
`the
`
`maximum distance available between docks provides the safest protection
`
`for the interest of the public utilizing the waterway.
`
`The ALC makes a finding that there are no vessels of similar size on
`
`the southern portion of the Wappoo Creek Where the Maull’s dock is
`
`located: That is contrary to the evidence, and there is no testimony to
`
`support that finding. Furthermore, evidence was presented that there are
`
`many large, and perhaps larger, vessels that are docked on the other side of
`the Wappoo Creek. These vessels also travel in and out of their docks
`
`«
`
`further creating issues for the heavily—trafficked Wappoo Creek area.
`
`Here, Maull has demonstrated a navigational concern that clearly
`
`affects the boating public on Wappoo Creek. The reliable, probative, and
`
`substantial evidence offered by Maull and his expert demonstrates that the
`
`proximity of the Abdo dock is not a mere inconvenience to Maull, but is
`
`19
`
`
`
`problematic for the public.
`
`Also, the navigational restriction that Reg. 30-12(A)(1)(a) seeks to
`
`prevent—restrictions and hazards to public navigation in the AIWW—has
`
`been demonstrated in this contested case. Because, as explained herein, the
`
`overwhelming reliable, probative, and substantial evidence was that
`
`the
`
`dispute impacts
`
`the public,
`
`the ALC erred in determining that
`
`the
`
`navigational restriction was private, and failed to weigh the evidence that
`
`overwhelmingly supports a conclusion that
`
`the restriction impacts the
`
`general boating public.
`
`In addition to error on account of the lack of
`
`evidentiary support, this error is an error of law and warrants reversal.
`
`II.
`
`The ALC erred in affirming the Amendment Where it determined
`that the Amendment complied with the requirements of 23A SC.
`Code Ann. Reg. 30-11 and SC. Code Ann. § 48-39-150, but
`‘ DHEC/OCRM failed to consider the (unduly) adverse impact of
`the Amendment upon Maull’s value and enjoyment of adjacent
`property, as is required Reg. 30-11 and § 48—39-150.
`
`The following facts were demonstrated before the ALC and are
`
`undisputed.
`
`In 2007, Abdo’s predecessor in title, Palmer, submitted an
`
`application for a dock permit and requested authorization to construct a
`
`pierhead, floating dock, and boatlift, extending toward Appellants dock. A
`
`conditional permit was issued, reducing the impact on Maull, based on
`
`OCRM’s determination that “The proposed dock would likely affect
`
`Maull’s ability to navigate a large boat to and from a “u” shaped slip on his
`
`20
`
`
`
`dock and the Department should address this through a conditional permit.
`
`Therefore, the dock configuration will be condensed without any movement
`
`towards the Schiables. This should present an agreeable solution to all
`
`parties.”
`
`(R. pp. 85—86, 90, 93-94, 103-106, p. 369, line 20 - p. 376, line
`
`10.)
`
`After resolving the issue of distance between the Palmer/Abdo dock
`
`and Maull’s dock, Maull sought and obtained a permit to construct a slip for
`
`his boat located on the side of the dock closest to Palmer/Abdo.
`
`(R. pp.
`
`558-64.)
`
`This permit authorized approximately 82 feet of separation
`
`between the docks. Moreover, in 2007, at
`
`the same time as he was
`
`commenting on the Palmer/Abdo permit and seeking authorization for a
`boat slip on the side of his dock closest to Palmer/Abdo, he purchased a 40’
`
`fishing boat. (R. p. 360, line 10 — p. 364, line 20.)
`
`Now, inexplicably, the Palmer/Abdo dock has been moved to w
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