James R. Maull, Appellant,
South Carolina Department of Health and Environmental Control and David Abdo, Respondents, and Russell and Laura Schaible, Respondents
Heard December 10, 2014
This decision is not final until time expires to file motion for rehearing and, if filed, determined.
[Copyrighted Material Omitted]
Appeal From The Administrative Law Court. Shirley C. Robinson, Administrative Law Judge. Appellate Case No. 2013-001878.
Michael A. Molony, of Young Clement Rivers, LLP, of Charleston, for Appellant.
Nathan Michael Haber, of Charleston, for Respondent South Carolina Department of Health and Environmental Control; David Abdo, of Charleston, Pro se; and Leslie S. Riley, of McNair Law Firm, PA, of Charleston, for Respondents Russell and Laura Schaible.
LOCKEMY, J. FEW, C.J., and THOMAS, JJ., concur.
[411 S.C. 353] LOCKEMY, J.
James Maull appeals the Administrative Law Court's (ALC's) order affirming the South Carolina Department of [411 S.C. 354] Health 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.
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. 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 [411 S.C. 355] approximately 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 staff's 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. 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 [411 S.C. 356] the 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 ...