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. |