ORDERS:
ORDER GRANTING MOTION TO DISMISS
STATEMENT OF THE CASE
This matter came before the Administrative Law Judge Division on October 16, 2001, for a contested case hearing. The
matter arose from the Petitioner's objection to the issuance of Permit No. 2001-1E-193-P to the Town of Mount Pleasant
(Town) from the South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource
Management (OCRM). At the conclusion of Petitioner's case the Department made a motion to dismiss on the ground that
the Petitioner has no standing to bring this case.
FACTUAL BACKGROUND
The Petitioner is a resident of Sullivan's Island, South Carolina. His residence is across the Intracoastal Waterway from the
Pitt Street Bridge Boardwalk in Mount Pleasant. On April 6, 2001, the Town applied to OCRM for a permit requesting
approval for construction of an extension of 300' of boardwalk on existing pier caps remaining from the former Pitt Street
Bridge. OCRM issued a permit with special and general conditions allowing the boardwalk extension to be built. (1) The
permit was issued on June 7, 2001. On July 9, 2001, the Petitioner submitted an appeal of the permit. The Petitioner
expresses concern about the wildlife present in the area. He is concerned that marine and marsh wildlife will be damaged
by an extension. Further, he is concerned about the dangers presented by the boardwalk. He claims that persons use the
boardwalk in a dangerous manner and that it is unsafe to add more boardwalk on to the pilings.
ANALYSIS
The Respondents argue that the present action should be dismissed because the Petitioner does 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 Petitioner 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 Petitioner would not have
standing to bring an action.He believes he has standing because of a concern that wildlife may be affected. He is especially concerned for the birds that
gather on the pilings. He believes the birds would have fewer places to perch since the pilings would not be standing
uninhabited in the marsh. Secondly, the Petitioner argues he has standing because he lives within view of the boardwalk
and that it causes him great distress to watch the people on the existing boardwalk acting in an unsafe manner. Also, it
causes him concern to imagine the boardwalk extension being built on the existing pilings which he believes are unsafe.
Thirdly, he alleges that he has standing to challenge the fact that the permit was issued on an erroneous application.
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 Petitioner does 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 wildlife would be harmed.
There has been no evidence that because of the extension the number of birds to watch would be diminished.
It is wholly unclear how the Petitioner has any legally protected interest in the safety of the persons on the boardwalk. That
matter appears to be an issue the Petitioner may bring to the Town's police force, but would not give him standing to
challenge a permit allowing a boardwalk extension. Therefore, there has been nothing shown as to how a legally protected
interest would be injured. Further, this issue would fail the third prong of the Lujan test. Safety concerns of the behavior of
the users of the boardwalk would not be redressed by the revocation of this permit. The revocation of this permit would not
change the behavior of the people frequenting the existing boardwalk.
Some of the evidence presented by the Petitioner in the hearing concerned whether the permit was issued based on an
erroneous application submitted by the Town. This challenge does not give the Petitioner 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 this Petitioner has standing.
ORDER
THEREFORE, IT IS HEREBY ORDERED that Respondent OCRM's Motion to Dismiss is GRANTED.
AND IT IS SO ORDERED.
____________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
November 19, 2001
Columbia, South Carolina
1. The conditions are not at issue in this matter. |
