ORDERS:
ORDER
STATEMENT
OF THE CASE
In
the above-captioned matter, Petitioner filed a Motion for Relief from Judgment
or Order under SCRCP Rule 60(b)(5) seeking relief from the Consent Order of
Dismissal and Attached Settlement Agreement in reference to Administrative Law
Court (ALC or Court) Docket Number 98-ALJ-07-0196-CC. As indicative of its
docket number, this case was initiated in 1998, and it was originally before Judge
Alison R. Lee. A hearing on the instant motion was held on June 5, 2007, at
the South Carolina Administrative Law Court in Columbia, South Carolina. Based
upon the testimony and arguments presented, I find no compelling reason or
basis in law to vacate the November 25, 1998 Consent Order of Dismissal.
BACKGROUND
On
March 9, 1998, the South Carolina Department of Health and Environmental
Control, Bureau of Ocean and Coastal Resource Management (OCRM) issued a permit
to Petitioner Spring Island Company (Spring Island) “for the construction of
six private community docks on and adjacent to Chechessee Creek at Walkers
Landing” on Spring Island in Beaufort County, South Carolina. The permit,
#97-1G-278-P (Permit), was issued subject to special conditions. On April 1,
1998, Spring Island filed a request for a contested case hearing with the ALC
regarding the issuance of the Permit subject to the special conditions. On May
8, 1998, Judge Alison R. Lee, presiding Administrative Law Judge, granted a
Motion to Intervene as submitted by thirty-four individuals who owned real
property on Chechessee Creek in close proximity to the proposed area referenced
in the Permit. Thereafter, discovery was conducted in the matter; however,
before a hearing on the merits was scheduled, Spring Island, OCRM, and the Intervenors
submitted a Settlement Agreement to the Court to be attached to a Consent Order
of Dismissal (Consent Order). The Settlement Agreement provided, in part, the
following:
1. Spring
Island Company will be allowed to construct three community docks in the size
and dimensions described in the permit application.
2. Spring
Island will retain the use of the two existing structures on Chechessee Creek.
* * *
5. Spring
Island, its successors and assigns, agree to seek no further permits for
community docks along Chechessee Creek.
* * *
7. The
Interveners agree to withdraw their appeal as [sic] of this permit or future
single family docks described [herein] provided [the settlement agreement is]
adhered to by Spring Island.
* * *
9. This
Agreement shall be binding upon all of the parties, their heirs, successors and
assigns. This Agreement will be attached to a Consent Order of Dismissal and
filed with the Court. It shall be enforceable under the applicable law and
rules.
Based upon this
Settlement Agreement, as signed by counsel for OCRM, Spring Island, and
Intervenors, the Consent Order of Dismissal was filed on November 25, 1998.
The Settlement Agreement was attached to the Consent Order and incorporated as
Exhibit A.
On
February 28, 2007, Spring Island filed Petitioner’s Motion for Relief from
Judgment or Order (Motion) seeking relief from the 1998 Consent Order on the
ground that “it is no longer equitable that the judgment should have
prospective application.” Further, Spring Island contends that it has obtained
the consent of the Chechessee Creek Community Property Owners Association
(Chechessee Creek POA) for Spring Island to construct an additional community
dock on Chechessee Creek.
RELIEF
UNDER SCRCP 60(b)(5)
In
the instant matter, Spring Island seeks relief from the Consent Order under
SCRCP 60(b)(5), which provides that “the court may relieve a party . . . from a
final judgment, order, or proceeding” based upon enumerated grounds contained
in Rule 60(b)(1-5); see also ALC Rule 68 (“The South Carolina Rules of
Civil Procedure . . . may, where applicable, be applied in proceedings before
the Court to resolve questions not addressed by these rules.”). Specifically, SCRCP 60(b)(5) provides that a court may relieve a party from a
final judgment if “it is no longer equitable that the judgment should have
prospective application.” As such, this tribunal’s authority to affirm,
modify, or dissolve a prior order of the court is based in equity. Coleman
v. Dunlap, 306 S.C. 491, 494, 590 S.E.2d 15, 17 (1992) (“The power to open,
modify or vacate a judgment is possessed solely by the court that rendered the
judgment.”); Perry v. Heirs at Law of Gadsden, 357 S.C. 42, 48, 590
S.E.2d 502, 505 (Ct. App. 2003); see Evans v. Gunter, 294 S.C.
525, 529, 366 S.E.2d 44, 47 (Ct. App. 1988) (“Rule 60(b)(5) is based on the
historical power of a court of equity to modify its decree in light of
subsequent conditions.”); Saro v. Ocean Holiday Partnership, 314 S.C.
116, 121, 441 S.E.2d 835, 838 (Ct. App. 1994) (“The Rule 60(b)(5) motion . . .
addresses the right of the trial court to modify the final judgment entered on
the notes based on the historical power of a court of equity to modify its
decrees in light of subsequent conditions that make it inequitable that the
judgment should have prospective application.”); The Smith Companies of
Greenville, Inc. v. Hayes, 311 S.C. 358, 360, 428 S.E.2d 900, 902 (Ct. App.
1993) (“Rule 60(b)(5) permits relief from judgment if, among other things, it
is no longer equitable that the judgment should have prospective
application.”).
While
the previous order in this case was a consent order based upon the Settlement
Agreement, Rule 60(b) provides an avenue for litigants to seek modification of
a previous consent judgment. Lanier v. Lanier, 364 S.C. 211, 216, 612
S.E.2d 456, 459 (Ct. App. 2005) (“[As a] general rule, consent judgments are
subject to attack in particular circumstances, including for the reasons
specified in Rule 60(b).”); Id. (citing and quoting Raby Constr.,
L.L.P. v. Orr, 358 S.C. 10, 18 n. 3, 594 S.E.2d 478, 482 n.3 (2004)
(“[E]ven consent judgments are subject to attack under particular
circumstances.”)); 49 C.J.S. Judgments § 443 (1997) (“Although equity is
little disposed to overhaul judgments settled by consent or compromise, yet on
a showing of proper circumstances, such as fraud or mistake in the procurement
of the judgment, relief against it may be obtained in equity.”).
DISCUSSION
In
seeking relief under Rule 60(b), the party requesting relief from a prior order
of this court carries the burden of proof. Perry, 357 S.C. at 46, 590
S.E.2d at 504 ( “A party seeking to set aside a
judgment pursuant to Rule 60(b) has the burden of presenting evidence entitling
him to the requested relief.”); see also Bowers v.
Bowers, 304 S.C. 65, 67, 403 S.E.2d 127, 129 (1991). Further, “[w]hether
to grant or deny a motion under Rule 60(b) is within the sound discretion of
the trial judge.” Coleman, 306 S.C. at 494, 413 S.E. 2d at 17; Perry,
356 S.C. at 47, 590 S.E.2d at 504; Raby, 358 S.C. at 17, 594 S.E.2d at
482.
Relying
upon SCRCP 60(b)(5), Spring Island argues that it would be inequitable for this
tribunal to uphold the 1998 Consent Order and attached Settlement Agreement
because: 1) Spring Island has obtained the consent of the Chechessee Creek POA
to be relieved of the 1998 Consent Order so that Spring Island may be permitted
to seek a permit for the construction of an additional community dock on
Chechessee Creek, and 2) Spring
Island could not anticipate the need for an additional community dock on
Chechessee Creek when the parties in the original action agreed to and signed
the Settlement Agreement.
In
Spring Island’s motion, Spring Island contends that it obtained the consent of
the Chechessee Creek POA to be relieved of the 1998 Consent Order so that
Spring Island may be permitted to seek a permit for the construction of an
additional community dock on Chechessee Creek. This tribunal finds Chechessee
Creek POA’s acknowledgment of and seeming acquiescence to Spring Island’s
request for an additional community dock to be unavailing support for the
relief requested in Spring Island’s motion. As an initial matter, this
agreement between Chechessee Creek POA and Spring Island Property Owners
Association and Spring Island Club states that “[i]n consideration of your
agreement to support the application for approval [of an additional community
dock] . . . Spring Island Property Owners Association and the Spring Island
Club do hereby agree that no further requests will be made for docks to be built
at the Community Dock on Chechessee Creek at Walker Landing.” This language is
essentially identical to the language contained in the 1998 Consent Order in
which Spring Island agreed to refrain from applying for a permit for an
additional community dock. (“Spring Island, its successors and assigns, agree
to seek no further permits for community docks along Chechessee Creek.”). It
is not free from doubt that Spring Island would stand behind its assurances to
the Chechessee Creek POA to refrain from seeking additional permits for
community docks on Chechessee Creek in light of the present matter before this
tribunal.
That
aside, approximately eight members of the Chechessee Creek POA were in
attendance during the discussion of Spring Island’s request for an additional
community dock. Of the eight members in attendance during those discussions,
only three individuals appear to be original intervenors in the initial action
in 1998 – which leaves approximately thirty-one intervenors whose interests are
not represented or accounted for during the discussions with Spring Island. In
fact, testimony during the motion hearing revealed that Mr. Salley, an
intervenor in the initial action in 1998 and a party in the case at bar, was
unaware of Spring Island’s intentions until he received Petitioner’s motion on
or about February 28, 2007. As such, this
tribunal will not grant Petitioner the relief it has requested based upon an
agreement between Chechessee Creek POA and Spring Island as this agreement
neither reflects the consent of all individuals in the original action nor does
it provide this tribunal with any comfort that Spring Island will refrain from
seeking additional permits regarding community docks on Chechessee Creek.
As a
final ground for relief under SCRCP 60(b)(5), Petitioner argues that the need
for an additional community dock was not fully anticipated by Spring Island in
1998, and as a result, it would be inequitable for this tribunal to deny
Petitioner the relief requested. Additionally, Petitioner presented testimony
at the hearing which indicated that the construction of homes on Spring Island
has nearly doubled since the Consent Order was filed by the Court.
However, in 1997, Petitioner applied for a permit to construct six private
community docks on Chechessee Creek. As such, Petitioner’s original permit
application for the construction of six community docks clearly illustrates
that Petitioner anticipated its desire or need for additional community docks,
yet agreed to be bound by a decision to construct only three community docks on
Chechessee Creek. Although testimony at the hearing indicated that the construction
of homes on Spring Island has nearly doubled since the filing of the 1998 Consent
Order, evidence presented at the hearing, such as Spring Island’s Master Plan,
with designated lots, clearly shows that Spring Island is an exclusive and
fastidiously planned community. Hence, it is doubtful that Spring Island did
not fully anticipate the demand for community docks in this planned development
given the extensive planning and development of the island. Furthermore, a
boat ramp and staging dock located at Walker Landing on Chechessee Creek, as
well as a community dock on another waterfront area on Spring Island, provide
additional access to various waterways for all of the Spring Island residents.
The Consent Order does not apply to these other waterways, and Spring Island is
permitted to seek permits for additional community docks on these additional
waterways.
The
parties signed a Settlement Agreement in 1998, which in effect, resolved the
issues relating to the construction of community docks on Chechessee Creek by
Spring Island. The Settlement Agreement permitted Spring Island to construct
three, rather than six, community docks on Chechessee Creek while retaining the
use of two existing community dock structures in exchange for the Intervenors
withdrawing their administrative challenge. Moreover, the Settlement Agreement
provides that “Spring Island, its successors and assigns, agree to seek no
further permits for community docks along Chechessee Creek.” The parties
agreed to bind themselves and any heirs, successors, and assigns to this
Settlement Agreement, and it was attached to a Consent Order and filed with the
Court. Spring Island appears to be a sophisticated development company, and it
was represented by legal counsel in the course of reaching the settlement in
1998. As such, Spring Island should have been fully apprised of any
consequences arising from this Settlement Agreement in which it agreed to seek no
further permits, in perpetuity, for community docks along Chechessee Creek.
Therefore,
the 1998 Settlement Agreement to limit the number of community docks
constructed on Chechessee Creek by Spring Island remains pertinent, and the
terms of the agreement remain equitable. Accordingly, I find no inequity in
upholding the Settlement Agreement as filed with the Court and voluntarily entered
into by each party, and I find no compelling reason or basis in law to vacate this
agreement.
ORDER
For
the reasons set forth above,
IT
IS HEREBY ORDERED that Petitioner’s Motion is DENIED.
AND
IT IS SO ORDERED.
______________________________
JOHN D.
GEATHERS
Administrative
Law Judge
1205 Pendleton
Street, Suite 224
Columbia, South
Carolina 29201
July 12, 2007
Columbia, South Carolina
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