SC Administrative Law Court Decisions

I. Introduction

On March 3, 2000, an Order and Final Decision was issued in this matter directing the South Carolina Department of Health and Environmental Control, Bureau of Ocean and Coastal Resource Management (OCRM) to issue a permit to Felix C. Lowe and John Vann (Lowe and Vann). The permit will allow Lowe and Vann to construct a private joint-use dock on the May River in Beaufort County.

Brenda Fronczak and Gary Fronczak (Fronczaks), neighbors of Lowe and Vann, participated as parties in this case and received a copy of the Order on March 5, 2000. Both OCRM and the Fronczaks filed separate Motions for Reconsideration with both motions filed on March 15, 2000. On March 28, 2000, Lowe and Vann filed their opposition to the motions. Finally, on April 3, 2000, an Order was issued notifying the parties that the motions were under review and that a subsequent written order would be issued at a later date deciding the matter.

After considering the positions raised, I conclude the Motions For Reconsideration must be denied.

II. Analysis

A. Criteria for Reconsideration

A Motion for Reconsideration will not be granted unless the requirements are satisfied. See Bennett v. City of Clemson, 293 S.C. 64, 358 S.E.2d 707 (1987). The requirements are established by ALJD Rule 29(D) and Rule 60(B), SCRCP. The required grounds are as follows:

1. mistake, inadvertence, surprise, or excusable neglect;

• newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);

3. fraud, misrepresentation, or other misconduct of an adverse party;

4. the judgment is void; or

5. the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application.

Thus, the question here is whether OCRM's and the Fronczaks' reasons for the reconsideration fit the required criteria listed in the five enumerated provisions of ALJD Rule 29(D). Thus, the reasons given by OCRM and the Fronczaks set the controlling parameters for deciding the Motions for Reconsideration.

B. Grounds for Reconsideration Considered

1. Grounds Categorized

While some overlap occurs, the grounds raised by OCRM and the Fronczaks essentially fall into four categories. The four categories are:

1) the Order fails to correctly find and determine all operable facts,⁽¹⁾

2) the Order is based upon a lack of proper consideration of all pertinent facts found,⁽²⁾

3) the issues decided by the Order are wrongly decided,⁽³⁾ and

4) the Order fails to rule on all of the issues raised.⁽⁴⁾

Each category is examined in light of ALJD Rule 29(D).

2. Criteria of ALJD Rule 29(D) Applied to Categories

"The movant in a Rule 60(b) motion has the burden of presenting evidence proving the facts essential to entitle him to relief." Bowers v. Bowers, 304 S.C. 65, 403 S.E.2d 127, 129 (Ct. App. 1991). Here, the motions under review do not establish any of the criteria needed to grant the reconsideration.

Here, no one asserts the decision was reached as the result of a party's mistake, inadvertence, surprise, or excusable neglect. Indeed, this case was well argued by extremely capable counsel and no suggestion can be found in the Motions for Reconsideration that mistake, inadvertence, surprise, or excusable neglect is attributable to any party. Thus, no basis exists for granting a reconsideration under ALJD Rule 29(D) and SCRCP 60(b)(1).

Further, as to 60(b)(2), no one asserts that the decision should be changed on the basis that newly discovered evidence has now come to light and that consideration of that evidence will require a different decision. Similarly, 60(b)(3) is not implicated since not a hint of an allegation can be found that the decision results from fraud, misrepresentation, or other misconduct of an adverse party. Quite the contrary, this case was well presented and all parties dealt with the controversy is a fair manner.

Additionally, as to 60(b)(4), clearly no basis exists to find the judgment is void since generally a judgment is void only when the decision is rendered by an adjudicator having no jurisdiction to render such a decision. Thomas & Howard Co. Inc. v T.W. Graham and Co., 318 S.C. 286, 457 S.E.2d 340 (1995). Here, jurisdiction is well established. See S.C. Code Ann. §§ 48-39-150 (Supp.1999), 1-23-310 et seq. (Supp.1986 and 1999).

Finally, nothing in the motions satisfy 60(b)(5). No support exists showing that the judgment has been satisfied, released, or discharged, or that a prior judgment upon which the current judgment is based has been reversed or otherwise vacated, or that it is no longer equitable that the judgment should have prospective application.

The parties must recognize that the five enumerated provisions of ALJD Rule 29(D) and SCRCP 60 establish specific criteria, none of which authorizes a party to reargue positions previously denied in the original order. See 2 AmJur 2d, Administrative Law § 393 ("A rehearing petition may not be used . . . to reargue issues determined by the challenged opinion."). Since none of the criteria are met, the Motions must be denied.

3. Issues Preserved On Appeal

Finally, even though under ALJD Rule 29(C) all issues raised but not addressed are deemed denied, to assure the moving parties that all issues raised have been ruled upon and thus preserved for appeal, the following is presented.

First, as to the dock size, the evidence does not present a persuasive demonstration that the joint dock will be too large. Rather, the dimensions are "reasonable to the intended use." See 30-12(2)(c).

Second, the Fronczaks' Motion argues that the Order fails to rule on the assertion that OCRM has a longstanding administrative position to deny crossing extended property lines of others if the parties have not sought a dock within their own property lines. Further, the Fronczaks argue that the Order should have relied upon such a position and should have found that Vann and Lowe did not seek a permit within their own property lines. I disagree that such a position should result in denying the Vann and Lowe permit.

Here, the evidence establishes that OCRM considers whether the permit for a joint dock will result in the crossing of an extended property line of a neighbor who is not a party to the joint dock. Further, the evidence establishes that crossing such an extended property line is a negative consideration from OCRM's point of view. However, crossing such an extended property line is only one of many factors and by itself is not a controlling factor. In this case, as discussed in the original order, the crossing of a neighbor's extended property line is not sufficient to deny the permit requested.

Third, neither the photos in evidence nor any persuasive testimony is sufficient to establish that a navigable creek is within the extended property lines of Vann and Lowe. Rather, the evidence confirms that tidal waters ebb and flow within the Vann and Lowe property lines but no persuasive evidence identifies a navigable creek.

Fourth, granting the permit does not allow improper access to deep water. Just the opposite is true in that the permit is consistent with the statutory authority allowing such docks.

Fifth, the Fronczaks' Motion argues that the Order fails to address the view that for lots that would not qualify on their own merits, OCRM has a longstanding administrative position to deny crossing extended property line of others. I disagree.

OCRM is by law required to consider all factors relevant to a permit. In the absence of specific statutory or regulatory language (none being shown here) OCRM cannot impose a single test as a means for denying a permit that crosses an extended property line. Thus, such a single position, whether long standing or not, is not controlling and is not a basis for denying the permit here.

Finally, the Fronczaks' Motion argues that the Order does not address the Fronczaks' loss of privacy and increased noise. On the contrary, the Order does address this position and finds from all of the evidence the degree of noise and loss of privacy is not so great as to warrant denying the permit. Such is especially so given the significant distance from the joint dock to the home of the Fronczaks as well as the Fronczaks' dock.

IV. Order

Based upon the Motions filed and the law as applied to those Motions it is hereby ordered:

The Motions for Reconsideration filed by the South Carolina Department of Health and Environmental Control, Bureau of Ocean and Coastal Resource Management, and by Brenda Fronczak and Gary Fronczak are denied.

AND IT IS SO ORDERED.

_________________________________

RAY N. STEVENS

Administrative Law Judge

Dated: June 20, 2000

Columbia, South Carolina

1. The Fronzack's Motion (p.3) appears to argue that no finding is made that the Fronczaks relied upon the extended property lines of their plat, that Lowe and Vann did not verify that their properties had deep water, that no fact finding is made on whether Lowe and Vann can reach a navigable creek within 1000 feet, and no fact finding is made on whether Lowe and Vann had other reasonable access to water.

2. Specifically, the Fronzacks' Motion (p. 4) argues that the Order failed to consider the Fronczaks' investment in improvements and the Fronczaks' reliance upon the extended property lines position of OCRM; that the Order failed to consider the loss of privacy, loss of enjoyment, adverse noise from two families and guests sharing a dock; that the Order failed to consider that no such structure has ever been allowed to cross extended property lines in Beaufort County; and (p. 6) that the Order ignored the long term effects of violating OCRM's policies of not allowing the crossing of extended property lines.

3. Both OCRM and Fronczak argue this position. For instance, the Fronczaks' Motion (p. 3) argues that the crossing of the Fronczak property line is not within the intent of the regulation since to do so expands the potential for docks, (p. 7) that the crossing of the Fronczaks property line is wrong since the Vann property line is not common to the Fronczaks property line and the regulation only allows crossing the extended property lines of the two common owners, (p. 8) that allowing crossing extended property lines will cause a proliferation of docks, (p. 4) that finding that a dock will not interfere with daily living is pure speculation since no testimony was given to that effect, (p. 4) that the dock will be 200 feet from the Fronczaks property and is not 500 feet from the Fronczaks' home as the court held, that (p. 5) that the Court made specific distance findings when the evidence did not present an accurate survey by Lowe and Vann, (p. 5) that no probative evidence supports the finding that the structure will pass over areas that are relatively flat even though Lowe and Vann did not produce evidence of channels, (p. 5) that no basis for holding the construction will not reduce value of Fronczaks' property since no dock in Beaufort County has ever been allowed to cross property lines, and (p. 6) that the Fronczaks have a view easement due to common scheme of development. Bowman v. Echols, 270 S.C. 676, 244 S.E.2d 308 (1978).

Likewise, OCRM argues the Order was wrongly decided in favor of Lowe and Vann. OCRM argues on reconsideration (p. 2) that Regs. 30-12(A)(2)(p) does not make it more acceptable to cross the extended property lines of a property owner who is not a party to the joint use dock, but instead the seeking of a joint use dock means only that the joint users can cross their own extended property lines. Additionally, OCRM asserts Regs. 30-11(C)(1) is violated by allowing the crossing of what OCRM believes is a navigable creek. OCRM believes the facts show a navigable creek since Rocky Browder allegedly testified there is a change in grade and the photos show a change in grade. Further, (p. 2) OCRM argues it has no duty to prove a change in grade. Rather, Lowe and Vann have duty to show there is not a change in grade and no evidence leads to the conclusion that there is no change in grade.

4. In particular, the Fronczaks' Motion argues (p. 2) that the Order failed to address the assertion that the dock will be too large since the size and extension of a dock or pier must be limited to what is reasonable to the intended use. See 30-12(2)(c). Further, the Fronczaks' Motion (p. 2) argues that the Order fails to rule on the assertion that OCRM has a longstanding administrative position to deny crossing extended property line of others if the parties have not sought a dock within their own property lines. If addressed, the Fronczaks argue that the Order should have found that Vann and Lowe did not seek a permit within their own property lines, the photos in evidence show a navigable creek within the extended property lines, and granting a permit outside their property creates new rights by allowing improper access to deep water. In addition, the Fronczaks' Motion (p. 2, 3 &7) argues that the Order fails to address the view that OCRM has a longstanding administrative position to deny crossing extended property line of others for lots that would not qualify on their own merits. Finally, the Fronczaks' Motion argues that the Order does not address Fronczaks' loss of privacy and increased noise.