South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Richard Garcia et al. vs. SCDHEC et al.

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Richard Garcia and Mel Price

Respondent:
South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management, Albert Estee, Randy Cooper, Palm Development, and Dennis Samuelson
 
DOCKET NUMBER:
01-ALJ-07-0023-CC

APPEARANCES:
Andrew Gowder, Esquire, for Petitioners

Mary D. Shahid, Esquire, for the Department

Chris McG. Holmes, Esquire, for Respondent Estee

Randolph Cooper, Esquire, pro se and for Palm Development Corp.

Dennis Samuelson, pro se
 

ORDERS:

ORDER GRANTING RESPONDENTS' MOTION TO DISMISS

STATEMENT OF THE CASE

This matter came before the Administrative Law Judge Division on August 21 and 22, 2001 for a contested case hearing. The matter consisted of consolidated cases involving six (6) permits issued by South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management (OCRM) for the building of docks. The six (6) cases which were consolidated in Docket No. 01-ALJ-07-0023-CC are: Docket No. 01-ALJ-07-0023-CC (Permit OCRM-00-247-R); Docket No. 01-ALJ-07-0083-CC (Permit OCRM-00-037-R); Docket No. 01-ALJ-07-0082-CC (Permit OCRM-00-161-J); Docket No.01-ALJ-07-0189 (Permit OCRM-00-074-R); Docket No. 01-ALJ-07-0231-CC (OCRM-00-082-R); and Docket No. 01-ALJ-07-0024-CC (OCRM-00-096-R). At the conclusion of Petitioners' case the Department made a motion to dismiss on the ground that Petitioners had no standing to bring this case.

FACTUAL BACKGROUND

Petitioners are residents of Mt. Pleasant, South Carolina. Both have residences within the Dunes West subdivision. Both Petitioners have waterfront property on Toomer Creek with docks and boats. Respondents Estee, Cooper, Palm Development Corp. and Samuelson are property owners on the opposite side of Toomer creek. Among them, they own eight (8) parcels of property. There is a waterfront park separating their property from the creek. The owner of the park, the homeowners' association, has granted easements to the Respondents for the placement of six (6) boat docks from the park property out into the creek. (1) As a result, Respondent OCRM granted permits for the erection of six (6) docks on Toomer Creek finding that the necessary regulatory requirements had been met.

Petitioners objected to the construction of those docks and appealed the permits.

ANALYSIS

The Respondents argue that the present action should be dismissed because the Petitioners do not have standing to pursue the action. I agree.

The Administrative Law Judge Division may only hear those cases that present a legitimate justiciable controversy. In order to revoke a permit issued by OCRM, the Petitioners must have been adversely affected by the granting of the permit. S.C. Code Ann. §48-39-150 (Supp. 2000); 23A S.C. Code Ann. Regs. 30-6(B). Otherwise, the Petitioners would not have standing to bring an action.The Petitioners argue they have standing because they live there and use the creek. The Petitioners have alleged that there will be increased boat traffic on the creek and that there could be safety issues as to children playing in the park trying to get on to the docks. The also allege that navigation may be affected by docks or by erosion from the placement of the docks. In its most recent case on the issue, the South Carolina Supreme Court confirmed that, "...South Carolina case law has specifically recognized an injury to one's aesthetic and recreational interests in enjoying and observing wildlife is a judicially cognizable injury in fact." Sea Pines Ass'n, for the Protection of Wildlife, Inc., et al. vs. South Carolina Department of Natural Resources and Community Associates, Inc., Op. No.25326 (S.C.Sup.Ct. filed July 23, 2001)(Shearouse Adv.Sh. No.26 at 84, 90).

However, the Court went on to find that an interest is not enough. The agency action must cause an injury to that particular person. They applied the 3-prong test enunciated in Lujan v. Defenders of Wildlife, 112 S.Ct. 2130 (1992):

First, the plaintiff must have suffered an 'injury in fact' - an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not 'conjectural' or 'hypothetical'. Second, there must be a causal connection between the injury and the conduct complained of - the injury has to be "fairly...trace[able] to the challenged action of the defendant, and not ...th[e] result [of] the independent action of some third party not before the court." Third, it must be "likely", as opposed to merely 'speculative,' that the injury will be 'redressed by a favorable decision.'



Sea Pines at pp. 89-90 (citing Lujan, 112 S.Ct.at 2136).

In this case the Petitioners do not get past the first prong. There has been no evidence of any injury which is concrete or particularized. All of the objections are both general and hypothetical. There is no evidence that increased boat traffic would injure them in any way more than it would the general public. There has been no evidence that because of the docks they would have a more difficult time navigating the creek. There also has been nothing concrete as to how any erosion would cause injury to their navigation. It is wholly unclear how the Petitioners have any legally protected interest in the safety of the children in the park; that matter appears to involve only the homeowners' association and Park West residents who have access to the park. Therefore, there has been nothing shown as to how their recreational interests would be injured.

Much of the evidence presented in the hearing concerned whether an easement was a valid conveyance of property to meet the dock requirements of OCRM regulations. This challenge of this practice by OCRM does not give the Petitioners standing. "What may be perceived as another interest, [a] concern with assuring the Agency fulfills its governmental obligation to carry out the state's policy regarding property in the coastal zone, is not a property interest recognized as sufficiently individual to provide standing." Ogburn-Matthews vs. Loblolly Partners and DHEC, 332 S.C. 551, 565-66, 505 S.E.2d 598, 605 (1998)(citing Energy Research Foundation v.Waddell, 295 S.C. 100, 367 S.E. 2d 419 (1988)).

There is no basis on which to find these Petitioners have standing.







ORDER

THEREFORE, IT IS HEREBY ORDERED that the Respondents' Motion to Dismiss is GRANTED.

AND IT IS SO ORDERED.



____________________________________

CAROLYN C. MATTHEWS

Administrative Law Judge



August 27, 2001

Columbia, South Carolina

1. Although they own eight (8) separate pieces of property, one (1) dock is shared and serves two (2) lots.


Brown Bldg.

 

 

 

 

 

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