ORDERS:
ORDER DENYING MOTION FOR INJUNCTIVE RELIEF
BACKGROUND
On
December 7, 2007, Petitioner requested authority from the South Carolina
Department of Health and Environmental Control (Department) to place beach-compatible
sand against the foundations of the reconfigured 18th green, 17th tee boxes and the cart path of the Links Golf Course, which is located at the Wild
Dunes Resort in Isles of Palms, South Carolina. Specifically, Petitioner
requested a “maintenance and repair authorization” or, in the alternative, a
general permit for the proposed project. Included with Petitioner’s request
was a completed General Permit Application.
In
a letter dated December 12, 2007, the Department informed Petitioner that its
proposed project did not meet the definition of “normal maintenance and repair”
and that the proposed project was not exempt from the Department’s normal
permitting requirements. The Department also informed Petitioner that it would
begin processing Petitioner’s General Permit Application.
On
December 18, 2007, pursuant to S.C. Code Ann. § 44-1-60(E) (Supp. 2006),
Petitioner filed a request for an Expedited Final Review Conference with the
Department’s Board regarding the Department’s December 12th decision.
According to Petitioner, on the following day, the Clerk of the Department’s
Board informed Petitioner’s counsel that the Board would not take up the issue
of whether or not to conduct a final review conference for the December 12th decision until February, 2008.
On December 20, 2007, Petitioner filed a request for a
contested case hearing with the Administrative Law Court (ALC or Court) to
review the Department’s decision that Petitioner’s proposed project is not
authorized by law absent a permit. Petitioner also filed a Motion for
Injunctive Relief to stay enforcement by the Department of its decision. On
December 21, 2007, this Court held a conference call with the parties regarding
Petitioner’s Motion for Injunctive Relief.
DISCUSSION
“The sole purpose
of a temporary injunction is to preserve the status quo and thus avoid possible
irreparable injury to a party pending litigation.” Zabinski v. Bright Acres
Assocs., 346 S.C. 580, 601, 553 S.E.2d 110, 121 (2001). Here, Petitioner
seeks to enjoin the Department from instituting an enforcement action in the future.
Petitioner’s actions appear quite reasonable. The Department intends to issue
a permit to allow Petitioner to perform the very activities Petitioner seeks to
do as soon as it can legally issue the permit. That date appears to be
December 29, 2007. However, this weekend, storms could potentially damage
the cart path to the extent that the path would be destroyed thus requiring an
entirely new permit to reconstruct the path. In terms of a temporary
injunction action, Petitioner is thus seeking an Order allowing it to add fill
upon the path and thus preserve the status quo until the permit is issued.
Nevertheless,
there is no enforcement action pending against the Petitioner. If indeed an
enforcement action was initiated, there appears to be no reason for a
sanction. Nonetheless, that issue is not ripe for review. Colleton County
Taxpayers Ass'n v. School Dist. of Colleton County, 371 S.C. 224, 638
S.E.2d 685 (2006) (“[A]n issue that is contingent, hypothetical, or abstract is
not ripe for judicial review.”).
Moreover,
I find no statutory authorization to approve the filling of a critical area to
protect a private property interest. S.C. Code Ann. § 48-39-290(A) (Supp.
2006) provides that a party can construct or reconstruct a golf course seaward
of the baseline. However, a permit must nevertheless be obtained for that
activity. S.C. Code Ann. § 48-39-290(A) (Supp. 2006). Furthermore,
“[s]andscraping or sandbagging is not allowed as protection for golf courses.”
23A S.C. Code Ann. Regs. 30-13(Q)(1) (Supp. 2006). Certain maintenance is
allowed to be performed without a permit pursuant to S.C. Code Ann. §
48-39-130(D) (Supp. 2006). That section lists several activities which do not
require a permit. One of the activities listed is the “[n]ormal maintenance or
repair to any pier or walkway, provided that such maintenance or repair shall
not involve dredge or fill.” See S.C. Code Ann. § 48-39-130(D)(8)
(Supp. 2006). “Filling” is defined in S.C. Code Ann. § 48-39-10(P) (Supp.
2006) as “either the displacement of saline waters by the depositing into
critical areas of soil, sand, gravel, shells or other material or the
artificial alteration of water levels or water currents by physical structure,
drainage ditches or otherwise.”
ORDER
IT
IS THEREFORE ORDERED that the Petitioner’s Motion for Injunctive Relief is DENIED.
AND
IT IS SO ORDERED.
______________________________
Ralph King Anderson, III
Administrative Law Judge
December 21, 2007
Columbia, South Carolina
|
