ORDERS:
ORDER MOTION FOR RECONSIDERATION
This matter is before me upon Respondent's Motion for Reconsideration of my Order dated
January 15, 1997 (incorporated herein by reference). The Order granted Petitioners application
for a bulkhead located fifteen feet out from the existing bulkhead instead of the five feet as
permitted by the Respondent.
Respondent seeks reconsideration of the Order citing the following issues as grounds for this
tribunal to consider in order to reach a different conclusion in this case: (1) that the only credible
evidence in the record supports a conclusion that a properly constructed wall located at five feet
would eliminate the erosion problem addressed by Mr. Pruitt's permit application; (2) that the
permit as issued by Respondent and subsequent construction will not solve Mr. Green's bulkhead
failure and erosion problem; (3) there is no evidence that construction of a wall in alignment with
the adjoining walls would halt erosion; (4) that the findings of fact in Paragraph 14 are not
supported by the evidence and the conclusion of law in Paragraph 8 regarding the environmental
impact from filling wetlands; (5) that allowing the wall to be built at fifteen feet increases the size
of Mr. Pruitt's lot; and (6) that the harm caused by the erosion can be corrected without filling the
wetlands and with the least environmental impact as permitted by Respondent.
An "...agency's power to rehear or reconsider a case is not an arbitrary one, and such power
should be exercised only when there is justification and good cause; i.e., newly discovered
evidence, fraud, surprise, mistake, inadvertence or change in conditions." Bennett v. City of
Clemson, 293 S.C. 64, 358 S.E.2d 707 (1987). The motion for reconsideration simply repeats
many of the issues and facts raised during the hearing of this matter. No new law or facts have
been cited to demonstrate that his tribunal overlooked any of the evidence presented in this case.
Regarding points (1), (2), and (3), the evidence clearly revealed that Mr. Pruitt's current wall was
properly constructed but that the erosion problem he is experiencing is in part from the improperly
constructed wall of Mr. Greene, an adjoining property owner. Allowing the wall to be built at
five feet does not prevent the possibility of continued erosion due in part to Mr. Greene's wall.
In Finding of Fact 17 it states, "No filter fabric was used on the Greenes' side of Pruitt's property.
The failure to use filter fabric caused the wall to bow out and allows soil to seep between the
timbers of the wall causing sink holes on the property. This in turn weakened the structure of the
concrete walkways leading to the house. The sink hole is located outside of the five foot mark
designated for the bulkhead as proposed by OCRM." In reading this finding of fact, it is not clear
whose property is being discussed. The damage occurring is to Mr. Pruitt's property. To the
extent this Finding of Fact is not clear, it is amended as follows:
17. No filter fabric was used on the Greenes' side of the wing wall which extends beyond
Pruitt's property. The failure to use filter fabric caused the this wall to bow out and allows
soil to seep between the timbers of the wall causing sink holes on Pruitt's property. This in
turn weakened the structure of the concrete walkways leading to Pruitt's house. The sink
hole on Pruitt's property is located outside of the five foot mark designated for the bulkhead
as proposed by OCRM.
Respondent's expert testified that the erosion problems resulted from the poor fit of the
connections from the wing walls, the lack of filter fabric, the sway in Greene's wall, and the
drainage from the property. The construction of a wall at five feet could solve the problem if
Pruitt obtained a reputable company to construct the wall, and if the company properly installed
the wing walls. The key was properly connecting the wing walls. In addition, construction of the
wall at fifteen feet would solve the problem. The benefit between construction at five feet and
fifteen feet is that there would be no corners and therefore no connections between the wing walls
and the bulkhead wall. Based upon the evidence, the inference that can be drawn is that
construction of the wall at five feet may not ultimately solve the erosion problem.
Respondent, in point 5, also asserts that allowing Pruitt to construct the bulkhead at fifteen feet
creates a bigger lot for Mr. Pruitt. 23A S.C. Code Regs. 30-12G prohibits the filling of wetlands
for the private residential gain, except to eliminate erosion. The exception has been met in this
case. However, at the hearing, there was no evidence on the effect of the extension on the
existing property lines. Further, there was no evidence that construction of the wall at fifteen feet
would require an increase in the size of the lot or a change in the deed description or ownership in
the property.
Finally, in points 4 and 6, Respondent states that the evidence supports a finding that the filling of
the wetlands required by building the wall fifteen feet has a detrimental effect on the environment
that outweighs the necessity of construction at fifteen feet. 23A S.C. Code Regs. 30-12 G.
provides that "filling in wetlands can always be expected to have adverse environmental
consequences; therefore, the Department discourages ... filling. There are cases, however, where
such unavoidable environmental effects are justified if legitimate public needs are to be met."
Permit applications for the filling of wetlands for the creation of residential lots strictly for private
gain will be denied, except for erosion control pursuant to Reg. 30-12C. 23A S.C. Code Regs.
30-12G.(2)(a).
In this case, the filling of the wetlands for the construction of a bulkhead is for erosion control.
The regulations on bulkheads states that "where feasible, bulkhead ... construction shall avoid
sharp angle turns that may collect debris or cause shoaling or flushing problems". 23A S.C. Code
Regs. 30-12C.(1)(c). The construction of the wall at fifteen feet is designed to avoid the angles
that would create problems with drainage, seepage or flushing.
23A S.C. Code Regs. 30-11 requires the Respondent to consider the extent to which the project
would have an adverse impact on the environment. The Respondent must weigh the impact.
When considering the filling of the wetland against the need to prevent erosion and construction
to avoid angles that cause problems with drainage, seepage and flushing, the evidence supports
the construction of the bulkhead at fifteen feet seaward of the existing bulkhead.
Respondent correctly notes that there is inconsistency between Finding of Fact 14 and Conclusion
of Law 8. Therefore, Finding of Fact 14 is amended to read:
14. There is evidence of some adverse environmental impact on waters or wildlife if the
non-vegetative mudflat it filled.
Other than the two amendments cited above, there is no justification and good cause for
reconsideration of the Order issued. Therefore, it is
ORDERED, that the Order and Decision issued on January 15, 1997 is amended as follows:
(1) Finding of Fact 14 is amended to read:
14. There is evidence of some adverse environmental impact on waters or wildlife if the
non-vegetative mudflat it filled.
(2) Finding of Fact 17 is amended to read:
17. No filter fabric was used on the Greenes' side of the wing wall which extends beyond
Pruitt's property. The failure to use filter fabric caused the this wall to bow out and allows
soil to seep between the timbers of the wall causing sink holes on Pruitt's property. This in
turn weakened the structure of the concrete walkways leading to Pruitt's house. The sink
hole on Pruitt's property is located outside of the five foot mark designated for the bulkhead
as proposed by OCRM.
IT IS FURTHER ORDERED, that Respondent's Motion for Reconsideration is DENIED.
AND IT IS SO ORDERED.
_____________________________
ALISON RENEE LEE
Administrative Law Judge
February 13, 1997
Columbia, South Carolina. |
