PARTIES:
Petitioners:
Richard Street Partners, LLC, Thaddeus Segars, Frederick Cerrato, Steven Cerrato, Kenneth Oliver, Lot 4 Singleton Beach, LLC, Patrick Donnelly-Rockview, Richard and Robin Greco, Snowgoose Developers, LLC, and Wayzata Limited Partnership
Respondents:
South Carolina Department of Health and Environmental Control |
ORDERS:
ORDER
STATEMENT
OF THE CASE
This
matter is before the Administrative Law Court (ALC or Court) pursuant to a Motion
for a Writ of Mandamus filed by Petitioner on October 16, 2008 ordering the
South Carolina Department of Health and Environmental Control, Office of
Coastal Resource Management to approve the baseline at Singleton Beach, Hilton
Head, South Carolina pursuant to Section 48-39-10, et. Seq, Code of Law of the
State of S.C., 1976, as amended. Petitioner amended their motion on October
27, 2008, to a Writ of Mandamus, or in the Alternative a Writ of Procedendo.
On
October 28, 2008, Town of Hilton Head filed a Motion to Intervene on the
grounds that it would: be aggrieved or adversely affected by the final order in
this matter; its interests would not be represented by any party to the
dispute; and that permitting it to intervene will not unduly prolong the
proceedings or otherwise prejudice the rights of the existing parties.
A
hearing was held before me on November 5, 2008 in Charleston, South Carolina.
All parties were present and represented by Counsel.
ORDER
At
the hearing, the Parties stipulated and agreed to allow the Town of Hilton Head
to Intervene in the proceeding. It is hereby ORDERED that Town of
Hilton Head Island’s Motion to Intervene is GRANTED.
In
order to obtain a Writ of Mandamus requiring the performance of an act, the
Petitioner must show, “(1) a duty of the opposing party to perform the act, (2)
the ministerial nature of the act, (3) the applicant’s specific legal right for
which discharge of the duty is necessary, and (4) lack of any other legal
remedy.” Pressley v. Lancaster County, 343 S.C. 696, 705 (Ct. App.
2001). A ministerial duty is one which is, “absolute, certain, and imperative,
involving merely execution of a specific duty arising from fixed and designated
facts.” Faile v. S.C. Dep’t of Juvenile Justice, 350 S.C. 315, 330
(2002). The act of setting the baseline in this action is clearly discretionary
and not ministerial. Therefore, it is hereby ORDERED that Petitioner’s
Motion for Writ of Mandamus is DENIED.
A
Writ of Procedendo is available to force an agency to make a discretionary
ruling, or to proceed to judgment in an adjudication, even though clear legal
right and ministerial duties are not involved. 62B Am.Jur.2d Procedendo § 1 et seq. While this Court wields the power to issue such a Writ, it
is rarely done, and the facts of this case do not justify its issuance. Under S.C.
Code Ann. § 48-39-280(C), the agency must revise the baseline and setback
line not less than eight (8) years but not more than ten (10) years after
preceding revisions. In the present case, the preceding revisions were
completed in December 1999. Therefore, by statute, the South Carolina
Department of Health and Environmental Control, Office of Coastal Resource
Management has until December 2009 to complete the requested action. It is
hereby ORDERED that Petitioner’s Motion for a Writ of Procedendo is DENIED.
IT
IS SO ORDERED.
______________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
November 19, 2008
Columbia, South Carolina
|
