ORDERS:
ORDER
I. INTRODUCTION
This matter came before this Court on February 18, 1998, in Charleston, South Carolina,
pursuant to Petitioners' November 26, 1997, Petition for Administrative Review ("Petition") of the
South Carolina Department of Health and Environmental Control-Ocean and Coastal Resource
Management's ("Department" or "OCRM") decision in a letter dated November 14, 1997, that the
proposed motor speedway project of respondent Interstate Speedway ("Interstate") remains
consistent with the South Carolina Coastal Zone Management Program ("CZMP") even though the
Department reclassified the nearby Beidler Forest ("Forest") as a Geographic Area of Particular
Concern ("GAPC").
Prior to the Department's reclassification of the Forest as a GAPC, this Court held two
separate hearings on contested cases arising from the Department's issuance of Storm Water Permit
#15-95-10-2(1) and a septic tank permit(2) to Interstate. The issue of the septic tank permit was
remanded to OCRM for a determination of whether or not the CZMP should review this type of
permit prior to its issuance. A decision pursuant to this remand has not yet been issued. The
issuance of the land-disturbance / storm water permit was upheld and is currently under appeal to
the Department's Board ("Board").
After this Court determined at the contested case hearing that issuance of the Storm Water
Permit was proper, the Petitioner appealed this Court's order to the Board. While the appeal to the
Board was pending, the Forest automatically became a GAPC when the South Carolina Department
of Archives and History ("SCA&H") informed OCRM that a portion of the Forest was potentially
eligible for the National Register of Historical Places. The classification of the Forest as a GAPC
was significant because the effect of "noise" upon a GAPC is an issue to be considered by the
Department in determining whether to grant a permit affecting that GAPC.
Therefore, in light of the reclassification, the Department requested that the Board hold the
appeal before the Board upon the storm water permit in abeyance until the Department could make
a determination of the appropriate action to take. Afterwards, the Department issued a letter in
which it formally reclassified the Forest and determined that the project remained consistent with
the CZMP. Furthermore, the Department set forth "[that] [i]nterested parties are provided ten days
from receipt of this letter to appeal the action of the OCRM." Within that ten-day period, OCRM
received several letters from interested persons appealing the Department's decision that Interstate's
project proceed. These appeals were based primarily on the issuance of the land-disturbance permit
and on the impact that noise generated from the speedway would have on the existing natural habitat
of the Forest. Based on the appeals of the interested persons received by OCRM and the Petition
referred to above, on December 11, 1997, the Department filed a Motion to Reopen Contested Case
Record of the land-disturbance/ storm water permit and to consolidate the appeals of the interested
persons. The Department sought to reopen the case in this Court as no final decision of the Board
had been rendered. This Court assigned this matter a new docket number, thereby treating it, at first
glance, as a separate case from the previously heard storm water permit contested case currently
under appeal before the Board.
Upon commencement of the hearing on this matter, this Court released several of the
appellants/petitioners either due to their lack of appearance or upon their request. At the end of the
hearing, the Department withdrew its motion to reopen, leaving the issue of the Petition pending
before the Court. This Court heard arguments from both parties and reserves judgment only as to
the issues presented below at this time.
II. ANALYSIS
Jurisdiction
The Petitioners argue the issuance of the land-disturbance/ storm water permit should be
reviewed in a "new contested case hearing" in light of the reclassification of the Forest as a GAPC,
even though the Department found that the speedway would have "no adverse effect on the
characteristics that makes the Francis Beidler Forest eligible for the National Register." (3) In other
words, the Petitioners contend that the classification of the Forest as a GAPC warrants a review of
whether Interstate should be allowed to build its racetrack as a new case because the Interstate
Speedway could create noise that will adversely affect the Forest.
Therefore, this Court must now determine if it has jurisdiction to hear a case dealing with the
same facts--a land disturbance permit to build Interstate Speedway--as those at issue in the case
currently on appeal to the Board. Jurisdiction of the original contested case on the land disturbance/
storm water permit vested in this Court under S.C. Code Ann. § 44-1-50 and §1-23-600(B) (Supp.
1997). In that case, as stated above, the Administrative Law Judge ("ALJ") upheld the issuance of
Permit # 15-95-10-2 based upon examination of the procedures utilized by the Department when
it issued the permit. The Petitioner timely appealed the ALJ's final decision to the DHEC Board for
its review. Once a notice of appeal is filed, the appellate court has exclusive jurisdiction over the
appeal. Bunkum v. Manor Properties, 321 S.C. 95, 467 S.E.2d 758 (Ct. App. 1996). Accordingly,
this Court finds that jurisdiction in the Hadstate case is now vested in the Board and is appellate in
nature. S.C. Code Ann. § 1-23-610(A) (Supp. 1997).
The new evidence that was not available at the full ALJ hearing is the reclassification of the
Forest as a GAPC. Based on this GAPC categorization, the new issue in this matter is the impact
noise will have on the Forest. The Petitioners contend that the storm water permit should be revoked
in light of the GAPC categorization because of the high noise levels that would be generated from
the racetrack.
Geographic Areas of Particular Concern are defined as those "areas within South Carolina's
coastal zone which have been identified in the State's Coastal Management Program as being of such
importance as to merit special consideration during the Department review of permit applications.
GAPC's consist of: (1) areas of unique natural resource value; (2) areas where activities,
development, or facilities depend on proximity to coastal waters, in terms of use or access; and (3)
areas of special historical, archeological or cultural significance." S.C. Code Regs. 30-1(C)(7)
(Supp. 1997).
Chapter IV of The State of South Carolina Coastal Management Program and Final
Environmental Impact Statement ("Coastal Program") contains the identification of GAPCs, their
locations, and the policies and guidelines for determining if permits for proposed projects in the
state's coastal zone interfere with the areas of critical concern, or GAPCs. When a project overlaps
with, is adjacent to or significantly affects a GAPC, the Department will carefully evaluate the
project and its accompanying negative impacts based on the criteria listed as the "priority uses"
which are specific to each type of GAPC. The project is prohibited if it would permanently disrupt
the GAPC's "priority uses." Furthermore, the project is strongly discouraged or the permit
conditioned if the project would interrupt, disturb or otherwise significantly impact the "priority
uses" of the specified area. Id. at IV-2. As new GAPCs are designated in this state, the Department
will specify the "priority uses" for each new area. Id. at IV-3. This determination is made by the
Department on a case-by-case basis with reference to the "priority uses" for that particular GAPC.
S.C. Code Regs. 30-11(C)(3) (Supp. 1997).
Therefore, consideration of the impact that noise will have on the Forest is proper in the
context of the issuance of a land disturbance permit. However, the land disturbance at issue in this
"new case" is the very same land disturbance which was litigated in the case currently on appeal to
the Board. In the Hadstate contested case hearing held before this Court on the storm water permit,
the issue of noise and its impact on the Forest was raised by the Petitioner. However, this Court
precluded that issue from litigation because no facts warranted the consideration of the issue. This
Court held that it was not in the discretion of the Department to consider the appropriateness of the
land use or the amount of noise the use would create. The area was not categorized as a GAPC at
that time. Had the GAPC classification existed during the original permitting period, it would have
been in the Department's discretion to measure the effects of noise pursuant to the Coastal Program.
Res Judicata
The Respondent Interstate argues that this case should be dismissed pursuant to the principles
of res judicata and collateral estoppel. If the Hadstate case had reached a final disposition pursuant
to the APA, the arguments of this "new" case could possibly be considered in a "new" contested case
despite the fact that this case was previously litigated.
The doctrine of res judicata is based upon the well-established rule that the public interest
is served by having an end to litigation and that no one should be sued twice for the same cause of
action. First National Bank of Greenville v. U.S. Fidelity & Guaranty Co., 207 S.C. 15, S.E.2d 47
(1945). It prevents the parties from relitigating in a second action any issue actually litigated or that
might have been litigated in the first action so long as the first and second actions are between the
identical parties and the first action culminated in a final judgment. Griggs v. Griggs, 214 S.C. 177,
51 S.E.2d 622 (1949). Administrative res judicata is comparable to the doctrine of judicial res
judicata and precludes not only the relitigation of the same issues in an administrative hearing but
also in a subsequent judicial proceeding. 5 Jacob A. Stein, Glenn A. Mitchell & Basil J. Mezines,
Administrative Law § 40.01 (Supp. 1996); see also Earls v. Aycock, 276 S.C. 471, 279 S.E.2d 614
(1981) (holding that the mere fact an administrative agency rather than a judicial body rendered the
previous decision does not prevent the application of res judicata).
In order for the doctrine of res judicata to apply, there must exist: 1) a prior action; 2)
resulting in a final judgment on the merits; 3) with both actions between the identical parties or their
privies. If these three elements exist, the subsequent action cannot relitigate any issues that were or
might have been litigated in the previous action. Barry v. South Carolina Department of Health and
Environmental Control, No. 96-ALJ-07-0294-CC, 1997 WL 435937 (S.C. ALJD Jan. 31, 1997).
Similarly, under the doctrine of collateral estoppel, a showing must be made that the issue sought
to be precluded in a subsequent action was an issue actually litigated and directly determined in the
prior action, and that the matter or fact directly in issue was necessary to support the first judgment.
Beall v. Doe, 281 S.C. 363, 315 S.E.2d 186 (Ct. App. 1984). The doctrines of res judicata and
collateral estoppel are to an extent interchangeable.
The first prong of the res judicata test, the existence of a prior action, is satisfied in this case.
The parties appeared before this Court and participated in a hearing in which the petitioners
challenged the Department's issuance of the storm water permit. Furthermore, as set forth above,
administrative proceedings are deemed to be prior actions for purposes of res judicata.
The third portion of the res judicata test sets forth that both actions must be between identical
parties or their privies. "Privies" are those who have an interest in any action or thing and includes
those who acquire an interest in the subject-matter after the rendition of a judgment. Black's Law
Dictionary 1196 (6th ed. 1990). Those interested persons who appealed the OCRM decision that
the noise from the speedway would not affect the Forest after its reclassification as a GAPC qualify
as "privies" and therefore satisfy the third part of the res judicata test.
A closer examination must be made as to the second prong of the res judicata test to
determine if it could be met. Respondent Interstate argues that a final judgment on the merits was
rendered when this Court issued its order upholding the storm water permit on December 3, 1996,
and that therefore the reclassification is not an issue because the permit cannot be reconsidered.
Ultimately, I agree with the Respondent that a final decision was rendered on December 3, 1996, but
find that the reclassification may have bearing on this case. Section 1-23-610(A) of the S.C. Code
provides "[f]or quasi-judicial review of any final decision of an administrative law judge of cases
involving departments governed by a board or commission authorized to exercise the sovereignty
of the State a petition by an aggrieved party must be filed . . . " (Supp. 1997) (emphasis added).
Also, throughout the Rules of Procedure for the Administrative Law Judge Division, reference is
made to the Division's "final decisions" following contested case hearings. See ALJD Rules 29-30.
This Court recognizes that it issued a final decision on December 3, 1996, and that review of that
decision by the Board is still pending.
However, it is a widely accepted principle within the rules of res judicata and collateral
estoppel that the discovery of new relevant conditions, facts or evidence can affect prior judgments.
"Where, after the rendition of a judgment, subsequent events occur, creating a new legal situation
or altering the legal rights or relations of the litigants, the judgment may thereby be precluded from
operating as an estoppel. In such case, the earlier adjudication is not permitted to bar a new action
to vindicate rights subsequently acquired, even if the same property is the subject matter of both
actions." 46 Am. Jur. 2d Judgments § 567 (1994). The new facts to be considered cannot result
from the production of new evidence capable of having been discovered at the time of the prior
hearing nor from the production of immaterial facts. Barry v. South Carolina Department of Health
and Environmental Control, No. 96-ALJ-07-0294-CC, 1997 WL 435937 (S.C. ALJD Jan 31, 1997);
see Mosely v. Welch, 62 S.E.2d 313, 218 S.C. 242 (S.C. 1950). In order that the newly introduced
evidence be material, there must be a rational connection to a proposition in issue. 31A C.J.S.
Evidence § 202 (1996).
The petitioners seek review of the effects of noise from the proposed speedway on the nearby
GAPC -- the Beidler Forest. The parties are not in dispute that the Forest was categorized as a
GAPC after the Court's final judgment upholding the issuance of the storm water permit. The
classification of the Forest as a GAPC creates a new legal situation or right in that the OCRM would
have been able to measure the effects of noise on the Forest during the initial permitting process as
noise is an accompanying characteristic of racetracks. Since the issue did not exist, evidence
concerning that issue was not discoverable at the contested case hearing. Therefore, the doctrines
of res judicata and collateral estoppel would not necessarily prevent the introduction of evidence of
the impact of sound on the Forest should it be determined that this case is a "new" case.
Conclusion
In its Motion to Reopen Contested Case Record filed on December 11, 1997, the Department
stated that "[t]he petitioners have sought review by the DHEC Board of the decision of Judge
Anderson in 95-ALJ-0762-CC, but that review has been held in abeyance while OCRM reconsidered
the land disturbance permit . . . " Under the DHEC regulations, the Board and Department are two
separate entities. The Board is defined as "the Board of Health and Environmental Control" while
the Department is defined as "the Department of Health and Environmental Control, including the
staff of the Department." S.C. Code Regs. 61-72(101) (C) and (E) (Supp. 1997). As jurisdiction
of this action vested in the Board upon Petitioner's request for review, a remand to this Court cannot
take place absent express action of the Board.
The Administrative Procedures Act (APA) is controlling in this matter. The APA provides,
in part, that "[i]f, before the date set for hearing, application is made to the [Board] for leave to
present additional evidence, and it is shown to the satisfaction of the [Board] that the additional
evidence is material and that there were good reasons for failure to present it in the proceeding before
the [ALJD], the [Board] may order that the additional evidence be taken before the [ALJD] upon
conditions determined by the [Board]." S.C. Code Ann. §1-23-380(4) (Supp. 1997). That provision
is dispositive in this case. Additionally, though the Department's regulations are not dispositive,
those regulations are persuasive. The Department's regulations set forth circumstances under which
the Board can remand a case as provided for under S.C. Code Ann. § 1-23-610(D) (Supp. 1997).
Section 804 of S.C. Code Regs. 61-72 states that "[t]he Board shall not consider new or additional
evidence during its review except upon good cause shown and provided that there is an opportunity
for cross-examination and rebuttal by all parties. Furthermore, in general, once a case is remanded
from the appellate body to the adjudicatory body, the appeal ends along with the appellate
jurisdiction. See 5 C.J.S. Appeal and Error § 861 (1993). Therefore, a remand by the Board will
allow the ALJ to treat this issue as a trial de novo, should the Board decide that the new evidence is
germane.
Since this case has not reached a final disposition, the Board has the option of first
determining if there is any new evidence and then whether that evidence establishes "good cause"
to remand this case. The Petitioners must show that their new evidence exists and that it warrants
the remand of this case for the presentation of that evidence. The Petitioners have established that
a new issue exists in this case. However, it remains unclear to this Court whether any newly
discovered evidence exists to support a finding that noise will impact the Forest. The only "new
evidence" presented in this case is the determination by the SCA&H that the noise resulting from
the operation of Interstate Speedway will not adversely affect the Forest. Moreover, only a portion
of the Forest is potentially eligible for the National Register of Historical Places. The Board could
make a determination that there is insufficient evidence to support a finding that a proper nexus
exists between the racetrack and the Forest to cause noise to be an issue in this matter, as the record
indicates that the two properties are almost three miles apart. There is currently no "new" evidence
before this Court that the Speedway will adversely affect the Forest. Nevertheless, it is for the Board
to determine if there is new evidence in light of this new issue that establishes "good cause" to
remand this case.
III. ORDER
For the foregoing reasons, this Court finds that it does not have jurisdiction to hear this
matter.
AND IT IS SO ORDERED.
Ralph King Anderson, III
Administrative Law Judge
May 29, 1998
Columbia, South Carolina
1. Lisa M. Hadstate v. S.C. Department of Health and Environmental Control, Office of Ocean and Coastal
Resource Management, and Interstate Speedway, (Hadstate) Docket No. 95-ALJ-07-0762-CC.
2. National Audubon Society, Inc. and William D. Hill, Jr. v. South Carolina Department of Health and
Environmental Control and Interstate Speedway, Docket No. 96-ALJ-07-0435-CC
3. Even though this Court gave the matter now before it a new case number, the issuance of a new case number
is certainly not dispositive of the fact that this is a new issue. |