ORDERS:
FINAL DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to a request by Michael J. Oliveto, II and Elizabeth Anne
Thompson ("Petitioners") for a contested case hearing. Both Petitioners own lots on Edisto
Island in Charleston County, South Carolina. Thomas Ball, an adjoining property owner, sought
a permit for a walkway and dock at his property by filing an application with the South Carolina
Department of Health and Environmental Control, Office of Ocean and Coastal Resource
Management ("OCRM") on September 1, 1995. After review of the public notice and proposed
location for the permit, Petitioners and two other neighbors filed objections with OCRM to the
permit issuance. Mr. Ball requested a contested case hearing because he objected to special
conditions placed on the permit. However, when the case was forwarded to the Administrative
Law Judge Division ("Division") the names of the adjoining property owners who objected to the
issuance of the permit were not listed as opposing parties. Further, after receiving notification of
the request for a hearing by Mr. Ball before this tribunal (Docket No. 95-ALJ-0706-CC),
Petitioner/Michael Oliveto II informed OCRM of his desire to intervene in the action. Prior to
receiving Mr. Oliveto's request to intervene, OCRM and Mr. Ball came to an agreement on the
special conditions placed on the permit and Mr. Ball withdrew his request for a contested case
hearing by letter sent to OCRM and subsequently forwarded to the Division. Without any
knowledge of protests or objections by adjoining property owners, this tribunal dismissed Docket
No. 95-ALJ-07-0706-CC pursuant to Mr. Ball's request on November 13, 1995.
Petitioners are now asking the Administrative Law Judge Division ("Division") to reopen the
determination process on the issuance of the walkway and dock permit to Mr. Ball and seek a
temporary restraining order against Mr. Ball from constructing the walkway and dock pending
this appeal process.
A hearing was held at the Charleston County Judicial Center on December 16, 1996 after notice
to the parties. After listening to the testimony and arguments of the respective parties and having
determined that no construction by Mr. Ball of the walkway and dock had been started nor was
imminent, this court determined that the issuance of a temporary restraining order was not
necessary and informed the parties of that decision.
Having further reviewed the file contained in Docket No. 95-ALJ-07-0706-CC and all materials
filed in this case, and having considered the arguments of the parties and reviewed the Rules of
Procedure of this Division and OCRM, the request to reopen is denied.
FINDINGS OF FACT
By a preponderance of the evidence I make the following findings of fact:
1. All parties were provided timely notice of the date, time, place and nature of the hearing.
2. On September 1, 1995, Respondent Thomas Ball submitted an application to OCRM for a
dock permit for an undeveloped lot, bearing Tax Map # 028-01-00-006, on Edisto Island in
Charleston County, South Carolina.
3. Mr. Ball listed as "adjacent property owners" on the application Carol and Bryan Mull,
Elizabeth Thompson and Fran and Mike Oliveto.
4. The dock, as requested on the application, would begin at a point on the northern corner of Mr.
Ball's property and run northwest to the waters of Milton Creek.
5. OCRM mailed a copy of the public notice dated September 7, 1995 concerning this dock
application to Petitioners. The notice stated that "To assure review by the OCRM, comments
regarding this application must be received by the OCRM on or before September 22, 1995." The
public notice was also published in the Charleston Post & Courier on September 7, 1995.
6. Petitioner/Elizabeth Anne Thompson, who is an adjacent property owner, sent a letter dated
September 20, 1995 to OCRM wherein she expressed strong objection to the issuance of the
permit. Her letter was received by OCRM on September 21, 1995.
7. The proposed dock and walkway extended in a northwesterly direction from Mr. Balls's
property to Milton Creek. It went across extended property lines of Ms. Thompson.
8. Petitioner/Michael J. Oliveto II, another adjacent property owner of Mr. Ball, addressed a letter
to OCRM dated September 12, 1995 wherein he also strongly objected to the permit issuance.
The dock and walkway went across his extended property line as well.
9. Byron E. and Carol Y. Mull and Dr. and Mrs. Knox Kinlaw, Jr., adjoining property owners,
mailed letters dated September 21, 1995 and September 20, 1995, respectively, to OCRM
objecting to the issuance of the permit as requested by Mr. Ball.
10. Each of the lots owned by these property owners, including Mr. Ball, are located on Pope
Landing Road and front on the marsh. See Attachment E to Petitioners' Exhibit B.
The ownership is as follows:
1. Lot 10, Block D, Tract IV, Middleton Subdivision--Byron E. Mull and Carol Y. Mull.
2. Lot 9, Block D, Tract IV, Middleton Subdivision---Thomas Ball
3. Lot 8, Block D, Tract IV, Middleton Subdivision---Elizabeth Anne Thompson
4. Lot 7, Block D, Tract IV, Middleton Subdivision---Michael J. Oliveto, II
11. A permit was issued by OCRM on October 10, 1995 and mailed to Mr. Ball. It provided that
the dock and walkway would run from the northern peninsula of Mr. Ball's property in a
northeasterly direction to an unnamed tributary of Milton Creek.
12. On October 24, 1995, Mr. Ball filed with OCRM written intent to appeal the permit as issued
on October 10, 1995.
13. On November 2, 1995, OCRM mailed a Transmittal Form to the Division which stated that
Mr. Ball requested a contested case hearing. The only individual listed as an opposing party was
OCRM. The Form was received by the Division on November 3, 1995 and the matter was
assigned to the undersigned on November 9, 1995.
14. An Order for the filing of Prehearing Statements was signed on November 9, 1995 and mailed
to the two parties on the same date.
15. On November 8, 1995, Mr. Ball prepared a letter addressed to "SCDHEC-OCRM" wherein
he stated that "due to changes in the special conditions of permit number OCRM-95-361-F 1," he
wished to withdraw the appeal and would "accept the permit with the conditions that was reissued
today."
16. Mr. Ball's letter of November 8, 1995 was received by the Division on November 13, 1995,
and on that same date an Order was issued by the undersigned dismissing that case. It was mailed
to the parties on November 14, 1995.
17. On November 20, 1995, Petitioner Oliveto wrote a letter to Ms. M.D. Shahid, Chief Counsel
for OCRM, informing her of his desire to intervene on behalf of himself and other affected
adjacent property owners in the dock permit appeal to the Division by Mr. Ball.
18. Ms. Shahid responded to Mr. Oliveto's letter on November 27, 1995, informing him that Mr.
Ball's appeal had been dismissed by the Division on November 13, 1995 at Ball's request.
19. On September 19, 1996, Mr. Perrin Q. Dargan, III, an attorney with the Ogletree law firm in
Charleston, South Carolina, wrote OCRM on behalf of Petitioners and requested that it reopen or
reconsider the appeal of the permit issued to Mr. Ball.
20. Mr. John P. Kassebaum, Staff Attorney with OCRM, responded to Mr. Dargan's letter on
September 24, 1996, stating that the appeal time had run on the permit. Further, he stated that
Mr. Oliveto's motion to intervene in the appeal with the Division was filed after the action had
been dismissed by the Division and thus there was no action in which to intervene.
21. Subsequently, Mr. Oliveto mailed a letter to Mr. H. Lee Smith, the Clerk of the Division,
dated October 19, 1996, requesting that the appeal process relative to permit OCRM -95-361-F
and Docket No. 95-ALJ-07-0706-CC be reopened and reviewed. The letter was received by the
Division on October 19, 1996.
22. As of the date of the hearing on December 16, 1996, Mr. Ball had not begun construction of
the permitted dock and walkway. Further, Mr. Ball acknowledged no intent to begin any such
construction pending the resolution of this action.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact and the applicable law, I conclude as a matter of law
the following:
1. S.C. Code Ann. §1-23-600(B) (Supp. 1996) authorizes the South Carolina Administrative Law
Judge Division to hear contested cases, as defined in S.C. Code Ann. §1-23-310 (Supp. 1996).
2. S.C. Code Ann. §48-39-150 (Supp. 1996) authorizes the Division to hear contested cases
arising under Chapter 39 of Title 48 of the 1976 Code, as amended.
3. OCRM is the state agency charged with implementing the State of South Carolina's coastal
zone policies. S.C. Code Ann. §48-39-30 (Supp. 1996) sets out the policies governing the
management, development and protection of the coastal zone areas. Further, S.C. Code Ann.
§48-39-50 (Supp. 1996) provides the authority for DHEC to promulgate regulations to carry out
the provisions of Chapter 39 of Title 48 of the 1976 Code.
4. S.C. Code Regs. 30-6(B) (Supp. 1996) provides that any person adversely affected by an
OCRM initial permitting application decision has the right to request a contested case hearing
before an Administrative Law Judge. Notice of a Request for a contested case hearing must be
filed with the Department in writing within fifteen days of the date of the notification to the
applicant and other persons who requested notification of the initial staff action.
5. The Department is delineated as a "department" within the executive branch of state
government in the state of South Carolina. S.C. Code Ann. § 1-30-10(A)(Supp. 1996) and S. C.
Code Regs. 30-1.C.50 & 51. OCRM is the subdivision within DHEC charged with implementing
the state's coastal zone policies, which includes the filling in of wetlands, mitigation policies, and
the issuing of permits for docks, piers, and causeways.
6. A "contested case" is defined as a "proceeding, including but not restricted to rate making,
price fixing, and licensing, in which the legal rights, duties or privileges of a party are required by
law to be determined by an agency after an opportunity for hearing." S.C. Code Ann.
§1-23-310(2) (Supp. 1996).
7. "Party" is defined as a "person or agency named or admitted as a party, or properly seeking and
entitled as of right to be admitted as a party." S.C. Code Ann. §1-23-310 (4) (Supp. 1996).
8. S.C. Code Ann. §48-39-150(A) (Supp. 1996) and S.C. Code Regs. 30-11 (Supp. 1996) 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 property owners, the extent to which the proposed use would affect the production of
marine life and wildlife, the extent to which the development could affect the habitats for rare and
endangered species of wildlife or irreplaceable historic and archeological sites, and the extent of
any adverse environmental impact which cannot be avoided without reasonable safeguards. Regs.
30-11(B).
9. S.C. Code Regs. 30-12(A) (Supp. 1996) sets forth the specific project standards for the
construction of docks and piers for tidelands and coastal waters.
10. S.C. Code Ann. § 48-39-140 (Supp. 1996) provides that after a person submits to OCRM an
application for a permit, within thirty (30) days OCRM shall notify, in writing, interested agencies,
all adjoining landowners, local government units in which the land is located and other interested
persons of the application. Further all interested agencies, adjoining landowners, local
governments and other interested persons have thirty days to file a written comment to such
application after receipt of any such notice by OCRM.
11. Although each of the Petitioners, as adjoining landowners and interested or adverse parties
filed written comments objecting to the issuance of the permit as requested, neither of them
complied with S.C. Code Regs. § 30-6.B. (Supp. 1996) which allows such a person the right to
request in writing a contested case hearing with the Division within fifteen (15) days of the date of
notification of the initial staff decision. Further, since neither of the Petitioners was a necessary
party to the issue which was presented to the Division in Docket No. 95-ALJ-07-0706-CC,
OCRM was not required to inform them of that action or notify them of their right to intervene.
Although Petitioners could have moved in that action to intervene and be made parties pursuant
to ALJD Rule 2.G., they failed to do so. Since the time for filing a request for a contested case
hearing has passed, and the time for intervening in the case captioned Thomas Ball, Petitioner vs.
DHEC-OCRM (Docket No. 95-ALJ-07-0706-CC) has passed because that case has been ended
and dismissed for lack of a controversy between the parties, this court does not have jurisdiction
to reopen the 1995 case.
12. ALJD Rule 29.D. allows a party to move for reconsideration of a final decision of an
Administrative Law Judge in a contested case. However, the Petitioners were not "parties" in the
1995 case as that term is defined in ALJD Rule 2. Further, they did not move before the Division
to be made a party in that case in accordance with ALJD Rule 20.A. Since they were not a party
nor a necessary party to the 1995, case nor did they request a contested case hearing within the
statutory time, this court does not have subject matter jurisdiction . See Knight Pub. Co. v.
University of S. C., 295 S.C. 31, 367 S.E.2d 20 (1988); Merchants Mutual Insurance Co. v.
South Carolina Second Injury Fund, 227 S.C. 604, 291 S.E.2d 667 (1982). The Petitioners'
request for reopening of the 1995 case is the equivalent of a request for a contested case hearing
and is untimely filed. Failure to timely request a hearing deprives the court of subject matter
jurisdiction and this court does not have the authority to extend or expand the time in which the
request for the hearing or the notice of the appeal may be filed. Mears v. Mears, 287 S.C. 168,
337 S.E.2d 206 (1985). Moreover, if the request for the hearing or the filing of a notice of appeal
is not timely served, jurisdiction is never vested in this court and Petitioner's request must be
denied. Southbridge Properties, Inc., v. Jones, 292 S.C. 198, 355 S.E.2d 535 (1987).
ORDER
Since the Petitioners either failed to timely request a contested case hearing or to timely intervene
in the 1995 case and, since neither of the parties were not necessary parties to the action filed by
Mr. Ball in the 1995 case, it is hereby
ORDERED that this court lacks jurisdiction to hear the request by Petitioners to reopen the case
entitled Thomas Ball vs. DHEC-OCRM, Docket No. 95-ALJ-07-0706-CC.
AND IT IS SO ORDERED.
____________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
January ____, 1997 |