SC Administrative Law Court Decisions

Three motions are pending. Thomas and Victoria Rogers (Rogers) moved to withdraw their challenge to OCRM's approval of Remleys Point's dock master plan. While that motion was pending, James M. Stelling (Stelling) filed a motion to intervene seeking to become a party to this action. Opposition to the intervention was raised by the South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management (OCRM) and by Remleys Associates, LLC (Remleys). Finally, the third pending motion is a Motion to Dismiss filed by OCRM and by Remleys asserting that the ALJD has no jurisdiction. OCRM and Remleys argue that a dismissal is required since the ALJD has no jurisdiction in this matter.

Given the decision reached here that the ALJD has no jurisdiction in this matter, the issues of whether the Rogers should be allowed to withdraw their challenge and whether Stelling should be allowed to intervene are not addressed. See State v. Funderburk, 259 S.C. 256, 261, 191 S.E.2d 520, 522 (1972) ("[t]he acts of a court with respect to a matter as to which it has no jurisdiction are void."); also see, e.g., First Palmetto Savings Bank, F.S.B. v. Patel, 344 S.C. 179, 186, 543 S.E.2d 241, 244 (Ct. App. 2001) ("Because we reverse on this issue, we need not reach First Palmetto's remaining arguments.")

In specific instances, the 1993 Refinements to the South Carolina Coastal Zone Management Program require that OCRM receive a conceptual dock master plan which addresses the shoreline of properties undergoing development. The landowner or developer must submit the conceptual dock master plan and explain the proposed uses of the adjacent State waters and marshes when the lands that are adjacent to the navigable coastal waters are being developed and when such development requires coastal zone consistency certification by OCRM. See South Carolina Coastal Zone Management Program Document, Chapter III(C)(VI)(D), at III-39. ⁽¹⁾ Thus, in the instant case, OCRM was required to obtain information from Remleys Point and then review that document consistent with the dictates governing conceptual dock master plans under the Management Program. After completing its review, OCRM approved the plan. ⁽²⁾

In this case, the Rogers as existing parties and Stelling as a potential party seek to challenge OCRM's approval of the conceptual dock master plan submitted by Remleys Point. The remedy pursued is a contested case hearing before the ALJD seeking to reverse OCRM's approval. ⁽³⁾

In a "'contested case' an adjudicatory hearing must be held to address issues raised by aggrieved parties." Stono River Environmental Protection Ass'n v. South Carolina Dept. of Health and Environmental Control, 305 S.C. 90, 406 S.E.2d 340 (1991). The adjudicatory hearing must be held before the Administrative Law Judge Division. See S.C. Code Ann. § 1-23-600(B) (Supp. 2000) ("An administrative law judge of the division shall preside over all hearings of contested cases as defined in Section 1-23-310 . . ."). Thus, the ALJD has jurisdiction in the current case if a contested case is presented.

A "contested case" is "a proceeding including but not restricted to, ratemaking, price fixing, and licensing, in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for a hearing." S.C. Code Ann. § 1-23-310(3) (Supp. 2000). A contested case does not arise unless the agency involved is required by law to determine the party's rights after a hearing is held. Triska v. Dep't of Health and Envtl. Control, 292 S.C. 190, 196, 355 S.E.2d 531, 534 (1987); see also Garris v. Governing Bd. of South Carolina Reinsurance Facility, 333 S.C. 432, 511 S.E.2d 48 (1998) ("No statute explicitly requires Facility to hold a hearing before revoking an agent's status as a designated agent; therefore, Garris's case is not a "contested case" as defined in the APA.").

Here, no provision of law requires that a hearing be held prior to OCRM deciding whether to approve or deny a conceptual dock master plan. Rather, the 1993 Refinements to the South Carolina Coastal Zone Management Program Document specifically provide that "[a]ppeals of decisions on conceptual Dock Master Plans are inappropriate inasmuch as the decision is advisory to the permitting section [and] [a]ppeals can only be taken once a decision on a permit is made by OCRM." Thus, an affirmative statement of prohibition prevents granting a hearing in which to challenge OCRM's review of a conceptual dock master plan. Rather, only when a dock permit is either granted or denied based upon the plan can a hearing be granted. Therefore, the lack of a required hearing at the dock master plan "submittal stage" prevents a contested case from arising. ⁽⁴⁾

Since no contested case is presented, no jurisdiction of the ALJD is invoked. Therefore, the Motion to Dismiss is granted, and the case is ended.

AND IT IS SO ORDERED

RAY N. STEVENS

Administrative Law Judge

Dated: October 23, 2001

Columbia, South Carolina

1. Having filed the conceptual dock master plan with OCRM, Remleys Point apparently found an obligation to do so. Likewise, since OCRM received the conceptual dock master plan and acted upon it, OCRM must also have concluded a conceptual dock master plan was required. Accordingly, this order operates on the premise that the underlying facts establish that a conceptual dock master plan was required of Remleys Point.

2. OCRM determined that the plan meets the Submittal Requirements and is approved. See OCRM letter of August 27, 2001 (there OCRM notifies Remleys Point that the "Dock Master Plan (revised 8-14-01) . . . meets Submittal Requirements, and it is approved."). The extent of the legal and practical significance of OCRM's "approval" of the dock master plan need not be fully explored in this order. Rather, the issue here is limited to jurisdiction.

3. The sole remedy sought is a request for a contested case. Thus, whether relief is available under any other remedy is not before me.

4. It is worth noting that an open question remains on whether S.C. Const., Art. I, § 22's opportunity-to-be-heard language can provide the basis for the "hearing required by law" needed for a contested case. See Ogburn-Matthews v. Loblolly Partners: Procedural Due Process And an Individual's Right To an Adjudicatory Hearing, 51 S.C. L. Rev. 699 South Carolina Law Review Summer 2000, Administrative Law, Pamela A. Baker (suggesting that while the issue is still unanswered, constitutional due process in general and Art. 1 § 22 in particular should be applied on a case-by-case basis to the facts of each situation in determining if a trial-type hearing under the APA should be imposed). However, that issue need not be answered here since Art I, § 22 is not applicable to the instant case. Rather, Art. I, § 22 provides that "No person shall be finally bound by a judicial or quasi-judicial decision of an administrative agency affecting private rights except on due notice and an opportunity to be heard." (Emphasis added). Here, no one is "finally bound" by OCRM's determination on the conceptual dock master plan since "the decision is advisory to the permitting section [and] [a]ppeals can only be taken once a decision on a permit is made by OCRM." Thus, a final binding decision is not reached until a permit is issued. Then an aggrieved party has "an opportunity to be heard" by challenging the conceptual dock master plan as part of a permitting decision in a contested case. See S.C. Code Ann. Regs. 30-6.A. ("Any person adversely affected by [OCRM's] . . . application decision has the right to file a request for a contested case hearing before an administrative law judge.").