SC Administrative Law Court Decisions

This matter is before the Administrative Law Court (“ALC”) on a motion to dismiss the above-captioned appeal, filed by Respondent, Nancy Union. The grounds for the motion are that this Court lacks jurisdiction because Petitioners’ request for review was not timely filed with the Board of Health and Environmental Control (“Board”) and, consequently, with this Court. For the reasons set forth below, I conclude that the motion to dismiss must be granted.

FACTUAL BACKGROUND

Respondent Union resides at 788 Clearview Drive, James Island, Charleston County, South Carolina. Union’s lot fronts on Charleston Harbor. In 1997, Respondent Union received a critical area permit from Respondent South Carolina Department of Health and Environmental Control’s Office of Ocean and Coastal Resource Management (“DHEC-OCRM” or “the Department”) to construct a private recreational dock. In June of 1998, Ms. Union applied for an amendment to add a roof over her existing pierhead. The amendment request was placed on public notice both by OCRM and the applicant. In response to the amendment request, Petitioners Fabri, Kent, Leone, and Schlenker, none of whom are adjacent property owners, wrote letters of objection but did not request written notification of the decision. The permit request was withdrawn before any decision was made.

Over nine years later, on June 28, 2007, Respondent Nancy Union applied again to the Department for a permit to add a roof and install a 8.5’ by 21’ jet float to her existing dock. Respondent Union placed a newspaper advertisement in the Post and Courier on June 29, 2007. On August 3, 2007, the Department issued its Public Notice of the application and mailed the notice to Union’s adjacent property owners. Pursuant to a request by the OCRM staff, Respondent Union placed another ad in the Post and Courier on August 14, 2007. None of the Petitioners wrote in to object to the proposal or to request written notification of the decision. On August 24, 2007, OCRM issued Critical Area Permit Number OCRM-07-190-M to Respondent Union. The Petitioners filed a request with the Clerk of the Board on June 6, 2008, almost ten months after notice of the decision was sent to the applicant. The Board declined to hear their appeal and Petitioners filed a Notice of Request for Contested Case Hearing on July 24, 2008. On August 22, 2008, Respondent Union filed a motion to dismiss this matter on the grounds that Petitioners’ appeal to the Board and, consequently, to the ALC, was untimely filed.

DISCUSSION

Respondent Union relies on the statutory procedure set forth in S.C. Code Ann. §44-1-60 in support of her motion. That section mandates that a request for final review of a DHEC staff decision must be filed with the Board within fifteen days of mailing of the decision to the applicant. It is undisputed that the Petitioners did not comply with the strict language of the statute; the Petitioners did not request in writing to be notified and did not file their request with the Board until more than nine months after the permit was mailed to the Unions.

S.C. Code Ann. §44-1-60 requires that an affected person file a request for review of a final decision with the DHEC Board no more than 15 days from the date notice of a Department decision is mailed to the applicant and any persons who have requested notification, in writing, of the decision. The language in the statute is clear that the time frame runs from the date of mailing, not receipt.

I conclude that the Court of Appeals’ opinion in South Carolina Coastal Cons. League v. SCDHEC et al., 2008 S.C.App. LEXIS 174, 36 (Ct. App. filed October 23, 2008), is dispositive of this matter. In Coastal Conservation League, DHEC received applications for permits from the S.C. State Ports Authority and the S.C. Department of Transportation for construction of a shipping container terminal in the area known as the former Charleston Naval Base. During the application process, the S.C. Coastal Conservation League (“the League”) submitted written objections to the proposals and participated in the public hearings held by the Department. While the League did submit written comments, they did not comply with the strict language of the statute and request written notification of a decision. Therefore, the Department did not send the League notice of the issuance of the permits and the League failed to file its requests with the DHEC Board within the 15-day time frame mandated by §44-1-60. The Administrative Law Court dismissed the contested case appeals on the grounds that the League failed to timely file their appeal. The Court of Appeals affirmed. “Clear and unambiguous statutes require no statutory construction and should be applied by the court according to their literal meaning. (citations omitted)” Id. The Court concluded that the clear language of the statute starts the fifteen day appeal period when notice of the department decision is mailed to the applicant and other interested persons who wish to be notified. “Applying Section 44-1-60(E), the time period for filing a request for final review begins to run from the date the DHEC staff decision is mailed to the applicant, not from the date actual notice is received.” S.C. Coastal Cons. League, Id.

“Compliance with statutory time periods for filing appeals is a prerequisite for an appellate entity to have jurisdiction to hear an appeal.” South Carolina Coastal Cons. League v. SCDHEC et al., 2008 S.C.App. LEXIS 174, 36 (Ct. App. filed October 23, 2008), citing Botany Bay Marina, Inc. v. Townsend, 296 S.C. 330, 334, 372 S.E.2d 584, 586-587 S.C. (1988), overruled on other grounds by Woodard v. Westvaco Corp., 319 S.C. 240, 460 S.E.2d 392 (1995). Therefore, I conclude as a matter of law that the Petitioners did not comply with the statutory requirements for perfecting their appeal to this Court and, therefore, this Court lacks jurisdiction.

Petitioners argue that they are interested persons entitled to notice. 23A S.C. Code Ann. Reg. 30-2(C) provides that “[t]he Department shall within thirty days of receiving either a Joint Public Notice of SCDHEC-OCRM permit application, notify in writing interested agencies, all adjoining landowners, local government units in which the land is located and other interested persons.” Petitioner claim they are “interested persons” and therefore were entitled to notice because of their history of objecting not only to Respondent’s prior application, but to several other proposed roofs in the area. However, §44-1-60’s requirements supersede those of any other notification and appeal provisions.[1] As a result of the enactment of §44-1-60, which by its own terms, creates a uniform notification and appeals process, the responsibility of requesting notification now falls on those parties who wish to be notified.

Petitioners assert that the doctrine of equitable tolling should confer jurisdiction on this Court. I disagree. “Equitable tolling is a doctrine rarely applied in South Carolina to stop the running of statutes of limitations.” Pelzer v. State, 662 S.E.2d 618, 620 (Ct. App. 2008), citing Hooper v. Ebenezer Senior Svcs. and Rehabilitation Ctr., 377 S.C. 217, 659 S.E.2d 219 (Ct. App. 2008). The doctrine is “typically available only if the claimant was prevented in some extraordinary way from exercising his or her rights, or, in other words, if the relevant facts present sufficiently rare and exceptional circumstances that would warrant application of the doctrine.” Id. at 620.

The Affidavits of Petitioners assert that they have a consistent history of objecting to roofs in this area and that the Respondents should have known of their objections and therefore directly provided them with notice. However, the evidence submitted in support of this contention constitutes inadmissible hearsay.[2] SCRE Rule 801 defines hearsay as a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” SCRCP Rule 11(c) requires that the affiant knows the facts to be true of his own knowledge. There is no rule of Civil Procedure directly addressing affidavits in support of or in response to a motion to dismiss; however, SCRCP Rule 56(e), governing motions for summary judgment, requires affidavits filed in support to “set forth such facts as would be admissible in evidence….” The Affidavits of Petitioners Kent and Leone contain hearsay statements and alleged verbal representations made by DHEC-OCRM staff members who are either unknown or no longer employed by the Department, in support of their contention that this Court should assert jurisdiction over this matter. Accordingly, the Petitioners have failed to provide any competent admissible evidence, which warrants the application of equitable estoppel to toll the 15 day statute of limitations.

There is nothing in the record to suggest that the Petitioners had a statutory or regulatory right to be notified of the Union’s application in 1998 and it is unclear why they were notified directly at that time, if not as a courtesy. Because this Court cannot conclude that they had a right to notice of the permit in 1998, the fact that they did receive notice in 1998 does not result in a conclusion that they were entitled to direct notice now.

S.C. Code Ann. §48-39-140 provides that “Public notice shall be given at least once by advertisement in state and local newspapers of general circulation in the area concerned.” 23A S.C. Code Ann. Reg. 30-2(B) sets forth the specific format in which to publish the newspaper notice. Here, Respondents complied with all of the statutory and regulatory notice requirements.

Even if the Petitioners were entitled to notice, the facts surrounding this case support a conclusion that Petitioners should be charged with constructive notice of the issuance of the dock permit. “It is well settled law in South Carolina that when a person has notice of facts as are sufficient to put him on inquiry, and those facts, if pursued with due diligence, would lead to knowledge of other facts, he must be presumed to have knowledge of the undisclosed facts.” Multimedia Publishing of South Carolina, Inc. v. J.R. Mullins et al., 314 S.C. 551, 555, 431 S.E.2d 569, 572 (1993). Had Petitioners requested to be notified of any applications for roofs, or had Petitioners seen the public notices, they would have easily been able to discover that Respondent Union had applied to the Department for a roof. They did not take any measures to remain apprised of any pending applications for roofs in the area. There is no evidence to suggest that the permitting of this roof violates any binding restriction, such as a restrictive covenant on the property.

ORDER

Based on the foregoing reasons, I conclude that the Petitioners failed to perfect their appeal to this Court and therefore I lack jurisdiction over this contested case.

THEREFORE, it is ORDERED that this case is dismissed.

AND IT IS SO ORDERED.