South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Spring Island Co. vs. SCDHEC

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Spring Island Co.

Respondent:
South Carolina Department of Health and Environmental Control

Intervenors:
W.D. and Doris Blackmon, Curtis and Dorothy Smart, Grant and Margaret Goldenstar, Emily Ellis, Jeanette Crosby, Henry Walker, III, Floyd and Carolyn Hill, Cecil A. Burch, Dave and Eloise Beasley, Walter and Edith Nettles, William and Lucy Hall, James and Margie Taylor, D.E. and Debbie Pinckney, James O. Crosby, Perry and Yvette Hubbard, Reed and Mary Salley, Winter and Ruth Wright, Walter and Sarah Baxter, Marion and Judy Altman, and Tina Fripp

In Re: Docket No. 98-ALJ-07-0196-CC
 
DOCKET NUMBER:
07-ALJ-07-0100-IJ

APPEARANCES:
Leslie S. Riley, Esq.
Attorney for Petitioner

Sara P. Bazemore, Esq.
Van Whitehead, Esq.
Attorneys for Respondent

Reed S. Salley, Jr., pro se
Original Intervenor
 

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.”).[1] 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,[2] 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.[3] 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.[4] 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



[1] In fact, ALC Rule 29(D) contemplates the application of SCRCP 60(b) in a motion for reconsideration of a final decision of an administrative law judge. Because the instant matter concerns a consent order of dismissal based upon a settlement agreement reached by the parties, ALC Rule 29(D) is not squarely applicable.

[2] Although the record reflects that three of the original intervenors in the 1998 matter are also members of the Chechessee Creek POA, it is not clear if all other original intervenors are members of this organization as well.

[3]Spring Island concedes that all intervenors in the original action were not present at the Chechessee Creek POA meeting; however, Spring Island contends that it has served appropriate notice upon all parties to the original action.

[4]There were approximately eighty to ninety homes constructed on Spring Island when the parties signed the Settlement Agreement in 1998. Currently, there are approximately two hundred and ten homes constructed on Spring Island.


~/pdf/070100.pdf
PDF

Brown Bldg.

 

 

 

 

 

Copyright © 2024 South Carolina Administrative Law Court