SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division (ALJD) upon Cynthia N. Tecklenburg's (Tecklenburg) Motion to Reconsider the April 4, 1997 Order issued in this matter. While the Order denied Eric Davidson and Robert Smiley a permit to construct a joint use private dock, the Order found no basis to deny the permit on the ground the dock would be an impediment to navigation nor on the ground the requested dock would be positioned in an environmentally damaging alignment. Tecklenburg seeks reconsideration of the Order citing the following as grounds for a different conclusion on the impediment to navigation issue: 1) the evidence demonstrated the creek was less than twenty-five (25) feet wide, 2) the creek is only sixteen feet wide at low tide, and 3) OCRM did not inspect the creek during low tide. Second, Tecklenburg seeks reconsideration of the Order citing the following as grounds for a different conclusion on the environmentally damaging alignment issue: 1) an OCRM witness stated floating docks would create environmental damage and 2) the decreasing size of the creek was not adequately considered by the OCRM staff.

Tecklenburg's motion does not persuade me to reconsider the original order. While an adjudicatory body must not act arbitrarily in reaching a decision on reconsideration, that decision is an exercise of discretion. Bennett v. City of Clemson, 293 S.C. 64, 358 S.E.2d 707 (1987). I do not find a persuasive reason to reconsider the original order.

The issues Tecklenburg raises for reconsideration were all raised at the hearing and decided against her. I have considered the evidence concerning the width of the creek and do not find a need to alter my conclusion stated in the April 4, 1997 Order. The evidence, while conflicting, is sufficient to persuade me the width of the creek is adequate for unimpeded navigation. Likewise, on the issue of the alleged environmentally damaging alignment of the structure, the evidence, taken as a whole, does not demonstrate a basis for finding an improper alignment. While conflicting statements on this issue are present, I am persuaded no significant biological impact results from the dock alignment.

Davidson did not file his Motion to Reconsider within the ten (10) days allowed for reconsiderations. See ALJD Rule 29C. Davidson asserts good cause exists for not meeting the ten (10) day deadline and asks for an extension by relying upon ALJD Rule 3B (for good cause shown an ALJ may enlarge the time to take any action not otherwise prohibited by law), ALJD Rule 52 (the South Carolina Rules of Civil Procedure may be applied to answer questions not resolved by the ALJD Rules), and SCRCP 6(b) (upon good cause shown, an act may be permitted even when the time has expired for completing the act).

I deny the request. First, Davidson's reliance upon ALJD Rule 3B is misplaced. That rule does not address the ability to extend an expired time period.

Second, since ALJD Rule 3B does not address the issue of extending an expired time period, it is true that ALJD Rule 52 allows reference to the SCRCP to address unresolved issues. Davidson's suggested reference to the SCRCP 6(b) does not aid his position. While SCRCP 6(b) allows some discretion in extending expired time periods, no such extension is allowed for time periods controlled by SCRCP 59. Rather, any action governed by SCRCP 59 may not be extended except to the extent allowed in rule 59. SCRCP 59(e) sets a ten (10) day limit just as does ALJD Rule 29C(1), and neither rule specifically allows an extension of the ten (10) day window. Both case law and commentators have applied a strict standard to the time period for seeking a reconsideration of a decision. See Norris v. Heyward, 312 S.C. 67, 439 S.E.2d 264 (1993) (under Rule 59(e), SCRCP, a motion to alter or amend the judgment must be served not later than 10 days after the receipt of written notice of the entry of the order); cf. Citizens and Southern Nat. Bank of South Carolina v. Easton, 310 S.C. 458, 427 S.E.2d 640 (1993) (the time limitation of "not later than 10 days after entry of judgment ..." found in SCRCP Rule 59(d) may not be extended); H. Lightsey and J. Flanagan, South Carolina Civil Procedure 391 (1985) (a 59(e) motion cannot be extended by the Court or by stipulation under SCRCP 6(b)).

Finally, and without regard to the legal limitations on the ability to grant an extension once the ten (10) day period has expired, here, Davidson has not demonstrated good cause why the motion was late. The motion relies upon a decision of the Coastal Zone Management Appellate Panel dated March 28, 1997. The ALJ Order appears to have been received by Davidson on April 5, 1997. With due diligence Davidson seemingly could have become aware of the Panel's decision and could have raised that decision in a timely filed motion for reconsideration. Accordingly, based upon all of the above, I decline to grant Davidson's untimely Motion To Reconsider.

Accordingly, Tecklenburg has failed to establish the justification and good cause necessary for a reconsideration and Davidson has failed to file a timely motion for reconsideration. Therefore, both Tecklenburg's and Davidson's Motions to Reconsider are denied.

AND IT IS SO ORDERED.

__________________________________

RAY N. STEVENS

Administrative Law Judge

This 12th day of May, 1997

Columbia, South Carolina