SC Administrative Law Court Decisions

THE COURT: WE WILL OPEN THE RECORD AT THIS TIME. THIS IS THE CASE OF PROPERTY OWNERS IN THE HUNTER'S RIDGE SUBDIVISION VERSUS THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL AND THE SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION, 99-07-0587.

MR. BELLAMY, HOWELL V. BELLAMY, JUNIOR, FROM MYRTLE BEACH IS PRESENT REPRESENTING THE PETITIONER.

MR. BELLAMY: AND DOUGLAS ZAYICEK IS ALSO HERE.

THE COURT: MR. FINKLEA IS HERE FOR THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL, MS. MABRY AND MR. MOORE, JAKE MOORE, A MEMBER OF THE -- SHE'S A MEMBER OF THE RICHLAND BAR. HE'S A MEMBER OF THE LEXINGTON BAR -- HERE REPRESENTING THE DEPARTMENT OF TRANSPORTATION.

I BELIEVE THE PARTIES HAVE COME TO SOME CONCLUSION OF THE ISSUES BEFORE THE COURT THIS MORNING, AND I WILL LET THE PARTIES PLACE THAT ON THE RECORD AT THIS TIME.

MR. BELLAMY: I WILL START AND LET JAKE CORRECT WHATEVER HE WANTS TO ADD BY WAY OF CLARIFICATION. YOUR HONOR, AS YOU KNOW, THIS MATTER IS BEFORE YOU ON AN APPEAL FROM THE OWNERS OF HUNTER'S RIDGE SUBDIVISION WITH REGARD TO THE 401 WATER CERTIFICATION PERMIT. WE HAVE MET -- WE HAVE BEEN MEETING FOR SOME TIME IN AN EFFORT BECAUSE OUR CLIENT OWNS A SUBDIVISION THAT'S GOING TO BE DIRECTLY IMPACTED BY THE CAROLINA BAYS PARKWAY. AND ONE OF THE THINGS THAT WAS A CONCERN IN THIS APPEAL WAS THE EFFECT THAT THIS PARKWAY WAS GOING TO HAVE ON WATER QUALITY, SURFACE WATER, AND OTHER THINGS.

WE HAVE BEEN TALKING FOR SEVERAL DAYS, AND WE HAVE COME TO A SETTLEMENT TO RESOLVE THE MATTER. AND WE HAVE AGREED IN RETURN FOR MY CLIENT WITHDRAWING ITS APPEAL FROM THE PRESENT CERTIFICATION PROCESS BEFORE DHEC, THAT THE SOUTH CAROLINA HIGHWAY -- DEPARTMENT OF TRANSPORTATION WILL WITHIN A PERIOD OF TIME, WHICH JAKE AND I WILL ATTEMPT TO EXPLAIN TO THE COURT OR CONVEY TO THE COURT, WITHIN A PERIOD OF SOME -- WELL, LET ME EXPLAIN WHAT WE WILL DO.

OBVIOUSLY THEY HAVE AGREED TO COMMENCE IMMINENT DOMAIN PROCEEDINGS TO CONDEMN THE PROPERTY OVER WHICH MY CLIENT OR ANY OF ITS SUB-ENTITIES OWN OR HAVE CONTROL. WE WILL FURNISH THAT INFORMATION TO THEM, SPECIFIC ACREAGE AND MAPS, SO THEY WILL HAVE IT. THAT THEY WILL HAVE A PERIOD OF 60 DAYS FROM THE SETTLEMENT OF THIS RECORD TO GET THE PROPERTY APPRAISED IN ORDER TO COMPLY WITH THE SOUTH CAROLINA IMMINENT DOMAIN PROCEDURES ACT. IT WILL BE A STRAIGHT CONDEMNATION THEY ARE BRINGING. AND THEY WILL NAME OUR CLIENT AND OUR VARIOUS SUB-ENTITIES AND NO ONE ELSE AS I UNDERSTAND.

THE COURT: SO YOU WILL FURNISH TO THEM ALL THE INFORMATION THEY NEED.

MR. BELLAMY: WE WILL GIVE THEM WHATEVER MAPS OR DOCUMENTS THEY NEED. WE WILL DO THAT BY THE FIRST OF THE WEEK.

THE COURT: AND YOUR PEOPLE ARE GOING TO COOPERATE WITH THEM WITH ALLOWING SURVEYORS TO COME ON THE PROPERTY. THEY WON'T HAVE TO GO AND FILE ANY MOTIONS TO GET SURVEYORS ON THE PROPERTY AND APPRAISERS.

MR. BELLAMY: WE WILL MAKE THE PROPERTY AVAILABLE SO THEY CAN COME IN AND CONDUCT THE SURVEYS JUST UPON REASONABLE NOTICE SO THAT WE KNOW THAT THEY ARE COMING. THEY WILL UNDERTAKE TO DO THAT AND GET THAT APPRAISAL DONE WITHIN 60 DAYS. FOLLOWING THE APPRAISAL, WE WILL COME TO AN -- WE WILL ATTEMPT TO -- JUST LIKE UNDER THE ACT, WE WILL ATTEMPT TO MEET AND MAKE A DETERMINATION IF WE CAN AGREE ON WHAT JUST COMPENSATION IS FOR THE TAKE OR ANY DAMAGE TO THE REMAINDER THAT WE MAY CLAIM.

IF WE CAN'T AGREE, THEN THE HIGHWAY DEPARTMENT WILL IMMEDIATELY -- THE DEPARTMENT OF TRANSPORTATION WILL IMMEDIATELY INSTITUTE AN ACTION PURSUANT TO THE ACT TO CONDEMN THE PROPERTY IN QUESTION AS THOUGH IT'S A STRAIGHT CONDEMNATION FOR HIGHWAY TAKING.

THE COURT: HOW MANY PEOPLE DO YOU REPRESENT, MR. BELLAMY?

MR. BELLAMY: WE HAVE GONE OVER THAT. I REPRESENT THE DEVELOPER AND SOME OF THEIR SUBENTITIES. I DON'T REPRESENT INDIVIDUALS OR OTHER PEOPLE IN THIS SUBDIVISION, AND I'M NOT SPEAKING FOR THEM.

AND THEN, YOUR HONOR, WE WILL GO THROUGH A STRAIGHT CONDEMNATION PROCEEDING. WE WILL GO TO TRIAL IF WE CAN'T ULTIMATELY SETTLE IT. LET ME CHECK WITH DOUG. AND THEY WILL AS SOON AS THEY GET THE APPRAISAL COMPLETED, THEY WILL PROVIDE IT TO US. AND THEN WE WILL BE ENTITLED TO EXERCISE THE RIGHT OF DRAW DOWN AS PROVIDED FOR UNDER THE STATUTE.

THE COURT: ALL RIGHT.

MR. MOORE: YOUR HONOR, THERE ARE JUST A FEW OTHER THINGS. BASICALLY IT HAS BEEN REPRESENTED TO US THAT THE SUBCOMPANIES INCLUDE HOME LAND REAL ESTATE, HOME LAND CONSTRUCTION COMPANY, ROYAL OAKS CONSTRUCTION COMPANY, AND COVENANT CONSTRUCTION COMPANY. THERE MAY BE ANOTHER TRADE NAME OR ANOTHER COMPANY THAT'S A SUBCOMPANY. BUT AS OF TODAY, THOSE ARE THE SUBCOMPANIES WHICH WE UNDERSTAND MR. BELLAMY IS REPRESENTING.

BASICALLY IT HAS ALSO BEEN REPRESENTED TO US THAT THERE ARE NO RESIDENCES ON ANY OF THE PROPERTY OWNED BY HUNTER'S RIDGE OF MYRTLE BEACH OR ANY OF ITS SUBCOMPANIES. THERE IS ONE SLAB THAT'S IN THE GROUND. BUT THAT'S BASICALLY ALL THAT IS THERE AS FAR AS STRUCTURES ARE CONCERNED THAT WE HAVE BEEN TOLD.

YOUR HONOR, IT'S ALSO OUR UNDERSTANDING THAT WE HAVE NOT AGREED TO CONDEMN ANYBODY'S PROPERTY EXCEPT THE PROPERTY OF HUNTER'S RIDGE OF MYRTLE BEACH, INCORPORATED AND ITS SUBCOMPANIES. THERE ARE SOME HOMEOWNERS WHO HAVE GOT HOUSES OUT THERE. THERE ARE SOME OTHER CONTRACTORS WHO HAVE HOUSES OUT THERE. WE HAVE NOT AGREED TO CONDEMN ANY OF THAT. AND WE HAVE ONLY AGREED TO CONDEMN THAT PORTION OF THE HUNTER'S RIDGE OF MYRTLE BEACH PROPERTY WHICH IS IN THE PROPOSED CORRIDOR.

THE COURT: HOW ABOUT MITIGATION? I WANT YOU TO ADDRESS MITIGATION STUFF ALSO.

MR. BELLAMY: I WANT TO CLARIFY. WE ARE TALKING ABOUT ANY OF OUR PROPERTY THAT WOULD BE AFFECTED BY THE CONSTRUCTION OF THE ROAD.

MR. MOORE: WELL, BASICALLY WHAT WE ARE TALKING ABOUT IS WE ARE GOING TO CONDEMN THAT PORTION OF THE PROPERTY WHICH IS IN THE CORRIDOR, WHICH IS A SIGNIFICANT PORTION OF THEIR PROPERTY.

THE COURT: WHICH IS OWNED BY HIM OR HIS CLIENT.

MR. BELLAMY: MY CLIENTS.

MR. MOORE: YES, SIR. AND ANY OF THEIR PROPERTY THAT THEY HAVE OUTSIDE OF THE CORRIDOR --

THE COURT: WHICH MAY BE AFFECTED BY DRAINAGE EASEMENTS.

MR. MOORE: THEY HAVE A RIGHT TO CLAIM ANY --

THE COURT: THAT'S PART OF POTENTIAL DAMAGES ALSO.

MR. BELLAMY: THAT'S WHAT I'M CLARIFYING.

MR. MOORE: AND CERTAINLY WE MAINTAIN ALL LEGAL RIGHTS TO ARGUE WHETHER THEY ARE ENTITLED TO THAT OR WHETHER THEY HAVE ACTUALLY RECEIVED ANY TYPE OF DAMAGES. THEY ARE NOT WAIVING THEIR CLAIMS THAT THERE IS AN INVERSE CONDEMNATION OR IMPACTS TO NON-CORRIDOR PROPERTY. AND WE ARE NOT CONCEDING THAT THEY HAVE A RIGHT TO ANY DAMAGES FOR NON-CORRIDOR PROPERTY. ALL OF THOSE ISSUES RELATING TO THE NON-CORRIDOR OR NON-TAKING PROPERTY REMAIN FAIR GROUND AND FAIR PLAY IN THE LITIGATION THAT WOULD BE THE CONDEMNATION ACTION. AM I RIGHT?

MS. MABRY: I JUST WANT TO MAKE SURE CORRIDOR IS DEFINED.

MR. MOORE: THE CORRIDOR THAT WE'RE TAKING IS APPROXIMATELY 280 FEET WIDE, AND IT WILL RESULT IN THE TAKING OF A SIGNIFICANT PIECE.

MR. BELLAMY: THAT'S THE ACTUAL RIGHT OF WAY FOR THE ROAD.

MR. MOORE: RIGHT.

THE COURT: BUT OF COURSE, THE CORRIDOR CAN HAVE SOME MITIGATION OR CAN HAVE SOME EFFECT ON DRAINAGE ISSUES AND SO FORTH OUTSIDE OF THE CORRIDOR.

MR. MOORE: AND IF IT DOES, WE'RE GOING TO --

THE COURT: POTENTIAL EFFECTS.

MR. BELLAMY: WHATEVER EFFECT IT HAS.

MR. MOORE: WHATEVER EFFECT IT HAS, THEY HAVE A RIGHT TO LITIGATE. WE ARE GOING TO TAKE THAT PORTION OF LAND THAT'S LOCATED WITHIN THE CORRIDOR. AND THEY HAVE A RIGHT TO CLAIM WHATEVER DAMAGES THEY WANT TO CLAIM IN REGARD TO OUTSIDE THE TAKING PROPERTY. AND WE HAVE A RIGHT TO MAKE ALL LEGAL AND FACTUAL ARGUMENTS THAT THERE ARE NO SUCH DAMAGES. THAT'S ALL FAIR GROUND FOR LITIGATION.

YOUR HONOR, ITS ALSO AGREED THAT THIS CONDEMNATION IS BASICALLY TAKING PLACE AT THEIR REQUEST. AND THE REASON WHY WE DO THAT IS THAT THEY WAIVE ANY OBJECTION AS TO OUR RIGHT TO TAKE AND ALSO THEY WOULD WAIVE ANY NOTICES OR OTHER PROCEDURAL REQUIREMENTS IN REGARD TO OUR RIGHT TO TAKE THAT PORTION OF THE PROPERTY WE ARE IN FACT GOING TO GO AHEAD AND CONDEMN.

MR. BELLAMY: IN OTHER WORDS, WE ARE GIVING UP OUR PUBLIC PURPOSE ARGUMENT.

MR. MOORE: CERTAINLY. AND CERTAINLY THEY ARE ALSO WAIVING ANY OTHER PROCEDURAL REQUIREMENTS THAT WOULD SLOW THIS MATTER DOWN TO GETTING TO THE COURTROOM. THERE ARE --

THE COURT: THEY'RE GOING TO GO AHEAD AND GET THIS ON THE FAST TRACK.

MR. MOORE: YES, SIR.

MR. BELLAMY: WE BOTH WANT IT ON THE FAST TRACK. AND AS HIS HONOR POINTED OUT, WE WILL GIVE THEM ACCESS TO THE PROPERTY. WE WON'T REQUIRE THEM TO GO GET AN ORDER FROM A JUDGE TO GO OUT THERE AND APPRAISE IT.

THE COURT: THAT CAN CREATE SOME TIME CONSTRAINTS, PARTICULARLY IN CIRCUIT COURT WITH THEIR DOCKETS AND SUCH.

MR. MOORE: THE BASIC THRUST OF THE MATTER IS WE WILL DO AN APPRAISAL HOPEFULLY WITHIN 60 DAYS, AS CLOSE TO 60 DAYS AS POSSIBLE. AND WE ARE GOING TO BASICALLY DO IT WITHIN 60 DAYS. WE ARE GOING TO GET THEM THAT APPRAISAL. WE WILL GIVE THEM THE DRAW DOWN. IF WE CAN'T AGREE TO THE APPRAISAL, THEN WE WILL IMMEDIATELY FILE THE ACTION AND WE WILL BE IN COURT AND WE'LL COOPERATE WITH EACH OTHER IN REGARD TO SCHEDULING THE MATTER FOR TRIAL AS QUICKLY AS REASONABLY POSSIBLE.

YOUR HONOR, OUR UNDERSTANDING IS THAT THEY HAVE WITHDRAWN ALL OBJECTIONS TO THE 401 DHEC CERTIFICATION AND ALL OTHER STATE AND FEDERAL PERMITS OR CERTIFICATIONS AND THAT HUNTER'S RIDGE AND ITS SUBSIDIARIES AND OFFICERS AND AGENTS WILL TAKE NO FURTHER ACTION TO IMPEDE THE CONDEMNATION OF WHAT THEY HAVE ASKED US TO CONDEMN OR THE ACTUAL CONSTRUCTION OF THE PROJECT.

MR. BELLAMY: THAT'S CORRECT.

MR. MOORE: IT'S ALSO BEEN AGREED THAT THERE WILL BE ONE ACTION ONLY. IN OTHER WORDS, ASSUMING THAT ONE PIECE OF PROPERTY IS OWNED BY ONE SUBSIDIARY CORPORATION AND ANOTHER PIECE IS OWNED BY ANOTHER SUBSIDIARY COMPANY, IT WOULD BE SILLY TO HAVE SEVEN OR EIGHT DIFFERENT ACTIONS. THEY WILL ALL BE CONSOLIDATED FOR TRIAL IN ONE ACTION.

MR. BELLAMY: NO QUESTION ABOUT IT.

MR. MOORE: AND I BELIEVE THAT THIS ACTION, THIS APPEAL WOULD BASICALLY BE DISMISSED WITH PREJUDICE TODAY. AND DHEC WOULD BE FREE TO ISSUE THE 401 CERTIFICATION.

MS. MABRY: WITH ALL DUE HASTE.

THE COURT: AND WE HAVE MR. FINKLEA HERE. MR. FINKLEA, WHAT DO YOU HAVE TO SAY, SIR? MR. FINKLEA FROM DHEC.

MR. FINKLEA: THAT IS ENTIRELY SATISFACTORY TO THE DEPARTMENT FOR THE PETITIONERS TO WITHDRAW THEIR APPEAL AND FOR THE CERTIFICATION TO GO FORWARD.

THE COURT: AND HOW ABOUT THE ISSUANCE OF THE PERMIT. CAN YOU DO THAT WITH HASTE, AS MS. MABRY HAS REQUESTED?

MR. FINKLEA: WE'LL DO AS WELL AS WE CAN. WE UNDERSTAND THE URGENCY OF THE PROJECT. BUT WE ALSO HAVE A NUMBER OF OTHER PROJECTS THAT THE PROPONENTS TELL US ARE EQUALLY URGENT.

THE COURT: THANK YOU, SIR.

MR. BELLAMY: THANK YOU, YOUR HONOR.

THE COURT: OKAY. ANYTHING FURTHER FROM THE PARTIES AT THIS TIME?

MR. BELLAMY: NO, YOUR HONOR.

THE COURT: I FIND THAT THE PARTIES HAVE FREELY AND VOLUNTARILY ENTERED INTO THIS AGREEMENT; THAT THEIR REPRESENTATIVES ARE WITH THEM TODAY OR THE PARTIES ARE WITH THEM TODAY; THAT THE LAWYERS HAVE ENTERED INTO THIS ON BEHALF OF THE PARTIES. AND I FIND IT'S REASONABLE AND FAIR. AND I SO ORDER THE AGREEMENT TO BE MADE AN ORDER OF THIS COURT. AND THE ACTION IN THIS CASE IS WITHDRAWN WITH -- DISMISSED WITH PREJUDICE. THANK YOU ALL, GENTLEMEN.

(OFF THE RECORD.)

THE COURT: LET THE RECORD REFLECT THAT I HAVE HAD A CONFERENCE WITH MR. MOORE AND MR. BELLAMY UP HERE. AND THEY HAVE AGREED THAT THE TRANSCRIPT WILL BE SIGNED BY ME AS THE ORDER IN THIS RECORD. SO IT WILL BE TYPED UP, AND I WILL SIGN A COPY OF THE TRANSCRIPT, CERTIFY COPIES AND SEND THEM TO THE PARTIES IN THIS ACTION.

MR. MOORE: THANK YOU, YOUR HONOR.

(WHEREUPON, AT 9:50 A.M., THE PROCEEDINGS WERE CONCLUDED.)

AND IT IS SO ORDERED.

___________________________

Marvin F. Kittrell

Chief Administrative Law Judge

December 10, 1999

Columbia, South Carolina