Maull v. South Carolina Department of Health & Environmental Control

768 S.E.2d 402, 411 S.C. 349, 2015 S.C. App. LEXIS 4
CourtCourt of Appeals of South Carolina
DecidedJanuary 28, 2015
DocketAppellate Case No.2013-001878; No. 5289
StatusPublished
Cited by1 cases

This text of 768 S.E.2d 402 (Maull v. South Carolina Department of Health & Environmental Control) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Maull v. South Carolina Department of Health & Environmental Control, 768 S.E.2d 402, 411 S.C. 349, 2015 S.C. App. LEXIS 4 (S.C. Ct. App. 2015).

Opinion

LOCKEMY, J.

James Maull appeals the Administrative Law Court’s (ALC’s) order affirming the South Carolina Department of [354]*354Health and Environmental Control’s (DHEC’s) decision to issue an amendment to a critical area permit to David Abdo for the construction of a dock along the Atlantic Intracoastal Waterway (the intracoastal waterway) in Charleston County. Maull argues the ALC erred in (1) finding this matter is a private dispute that does not impact the public interest and (2) failing to consider the adverse impact of the amendment on his use and enjoyment of his property. We affirm in part and remand.

FACTS

Maull lives at 27 Broughton Road in Charleston County near the intracoastal waterway and Wappoo Creek. He has a private recreational dock where he docks his 48-foot sport fishing boat. In August 2007, Abdo purchased property at 29 Broughton Road from the Estate of Rebecca Palmer (Palmer). A condition of this purchase was for Palmer to obtain a dock permit. On August 2, 2007, DHEC issued a critical area permit to Palmer (the Permit), which was later transferred to Abdo. The Permit authorized the location of a dock 82.5 feet from Maull’s existing dock.1 Russell and Laura Schaible reside at 31 Broughton Road and their property is adjacent to Abdo’s property. The Schaibles objected to the Permit because they believed the proposed dock would be too close to their property line. They sought to have the Permit reviewed by DHEC’s board (the Board) but review was denied.

In May 2008, Maull obtained approval from DHEC to change the configuration of his floating docks. Maull removed his existing floating docks, which were in a “U” configuration, and installed a 10' x 44' floating dock. Installation of the 10' x 44' floating dock resulted in Maull’s dock being 19.8 feet from the shared property line with Abdo’s property (the shared property line). In September 2009, Maull submitted as-built drawings for his dock, which reflected his dock was actually built approximately 18 feet from the shared property line.

In May 2011, Abdo applied to amend the Permit. Specifically, Abdo requested to reconfigure his proposed dock so that it would be located 20.5 feet from the shared property line and [355]*355approximately 39 feet from Maull’s existing dock. On October 6, 2011, DHEC issued an amendment to the Permit (Amendment), with a condition requiring the proposed dock to be located 30.5 feet from the shared property line and approximately 49 feet from Maull’s dock.

Thereafter, Maull, Abdo, and the Schaibles requested a final review conference before the Board. Maull requested the Amendment require Abdo’s dock to be built 40.5 feet from the shared property line. Abdo and the Schaibles requested the dock be built 20.5 feet from the shared property line. During the conference, DHEC staff explained to the Board that its condition requiring the proposed dock to be located 30.5 feet from the shared property line was based on an erroneous belief that Maull’s dock was located only 10 feet from the extended property line. The staff informed the Board that it later determined Maull’s dock was actually 18.5 feet away from the shared property line.

The Board issued a final decision removing the special condition, finding it was based on DHEC staffs erroneous belief that Maull’s dock was located 10 feet rather than 18.5 feet from the shared property line. The Board approved the Amendment as requested by Abdo and authorized approximately 39 feet between the Abdo proposed dock and Maull’s dock.

Maull appealed the Board’s decision to the ALC. Thereafter, the Schaibles filed a motion to intervene, which was granted.2 At the hearing before the ALC, Abdo testified he requested the Amendment because the Permit placed his dock in a different location than the other docks in the area and would make it difficult to dock his boat at low tide. He explained he also requested the Amendment to preserve space for future potential modifications to his dock. Abdo confirmed that his proposed dock is 40 feet from the shared property line with the Schaibles.

Maull testified the distance between his dock and the proposed dock as approved by the Amendment will not allow him enough space to safely maneuver his 48-foot fishing boat onto [356]*356the landward side of his dock. Maull testified he has previously docked his boat on the “channelward” side of his dock; however, he stopped because heavy boat traffic on the weekends would “beat the boat up against the dock ... and put a lot of wear and tear on the pier.” Maull stated he did not object to Abdo building a dock, he only objected to the location of the proposed dock as stated by the Amendment.

On cross-examination, Maull admitted he could dock his boat at a marina; however, he enjoys working on his boat and sitting on it while it is docked at his home. He further admitted that even without Abdo’s proposed dock, there are safety concerns with docking his boat because of the heavy boat traffic in the area and the strong currents. Maull admitted he could dock his boat on the channelward side of his dock; however, his boat is safer on the landward side because of the weekend boat traffic in the area.

Maull presented Crayton Walters who was qualified, without objection, as an expert witness in navigation, tidal and water current issues, and vessel navigation. Walter testified he has frequently navigated the intracoastal waterway and Wappoo Creek. He explained the area of the intracoastal waterway where Maull’s dock is located is one of the heaviest trafficked areas for recreational boating activity in Charleston. According to Walters, there are strong currents near Maull’s dock and the proposed dock that present unique navigational hazards to commercial and recreational traffic due to the difficulty of maneuvering and docking in the area. Walters stated that if Maull were required to navigate his boat out of the 40-foot space between Maull’s dock and Abdo’s proposed dock as permitted by the Amendment, it would be unsafe for members of the public who were navigating in the channel. He opined that 100 feet or two boat lengths were needed to safely navigate Maull’s boat to the landward side of Maull’s floating dock. He admitted, however, it was possible for Maull to amend the configuration of his dock to be able to safely dock his boat even with the proposed location of Abdo’s dock. Finally, Walters stated that boats as large as Maull’s boat are somewhat rare on Maull’s side of Wappoo Creek.

Jeff Thompson, a senior wetland project manager with DHEC, testified amendments to critical area permits are not [357]*357uncommon and that property owners who purchase property with an existing dock will often apply for amendments to make changes to the permitted dock. Thompson testified that in deciding whether to grant the Amendment, he considered navigational concerns related to the public’s ability to navigate in Wappoo Creek. He explained Wappoo Creek is approximately 565 feet wide, and due to its width, Thompson disagreed with Walters’ testimony that docking Maull’s boat would create a safety hazard in the channel. He opined that docking Maull’s boat would have little impact on public safety.

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Bluebook (online)
768 S.E.2d 402, 411 S.C. 349, 2015 S.C. App. LEXIS 4, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maull-v-south-carolina-department-of-health-environmental-control-scctapp-2015.