SC Administrative Law Court Decisions

I. Introduction

This matter is a Motion for Reconsideration and Motion to Amend filed by Petitioners and Intervenors-Petitioners (Petitioners). Petitioners request reconsideration of the ALJ's August 22, 2000 Order in the above-captioned case. The August 22, 2000 Order amended a community dock permit to remove a previous condition prohibiting other docks in the subdivision. Both motions are denied.

A. Requirements

A Motion for Reconsideration must satisfy the requirements for reconsideration. The Petitioners' motion fails to adequately set forth any of the grounds for which a motion for reconsideration can be granted under ALJD Rule 29(D) and Rule 60(B), SCRCP. Those grounds are as follows:

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

2. 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.

B. Grounds Considered

Notwithstanding the lack of a supportable basis requiring a reconsideration, in any event, I have carefully considered the Petitioners' stated grounds. I find the stated grounds do not warrant a reconsideration.

The third, fourth, sixth, seventh, eighth, tenth, eleventh, twelfth, fourteenth, sixteenth, seventeenth, and twentieth grounds challenge the evidentiary basis for several findings. The Administrative Law Judge Division is the fact finder in this matter for purposes of administrative and judicial review. See Lindsey v. S.C. Tax Comm'n, 302 S.C. 504, 397 S.E.2d 95 (1990). The weight and credibility assigned to evidence is within the province of the trier of fact. See South Carolina Cable Television Ass'n v. Southern Bell Telephone and Telegraph Co., 308 S.C. 216, 417 S.E.2d 586 (1992). Furthermore, a trial judge who observes a witness is in the better position to judge the witness's demeanor and veracity and to evaluate his testimony. See McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982); Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973); Mann v. Walker, 285 S.C. 194, 328 S.E.2d 659 (Ct. App. 1985); Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Ct. App. 1984). Nothing in the allegations for reconsideration support a basis for re-examining the evidence in an effort to arrive at new or different findings.

The first and sixteenth grounds allege that the August 22, 2000 Order allowed OCRM to dispense with the dock master planning requirements. As stated on page 10, paragraph 2, of the Order, the amendment of the community dock permit did not invoke the formal dock master planning policies of the Coastal Zone Management Program.

The second and seventeenth grounds allege that the August 22, 2000 Order ignores certain testimony. On the contrary, the ALJ carefully considered all of the evidence which was presented in the contested case hearing. ⁽¹⁾ If any issue raised by a party is not addressed in the August 22, 2000 Order, it is deemed denied. ALJD Rule 29(C).

The third and fourteenth grounds allege that the ALJ's finding that the 1995 permit condition was unreasonable was not supported by any established rule of law. On page 8 the Order finds persuasive OCRM's argument that a condition not directly associated with a permitted project is not reasonable to enforce. ⁽²⁾ Petitioners venture to state that the ALJ's acceptance of OCRM's argument constitutes engaging in the "executive branch equivalent of far-reaching judicial activism[.]" (Motion for Reconsideration, pages 8-9). On the contrary, the ALJ's acceptance of OCRM's argument is consistent with statutes which grant OCRM a considerable amount of discretion in evaluating applications for critical area permits and amendments to those permits. ⁽³⁾

In the absence of a specifically defined statutory or regulatory standard to determine a precise permitting issue, it is permissible to defer to the discretion of OCRM staff when it is determined that staff has not abused that discretion. In any event, even if the ALJ were not to defer to the discretion of OCRM staff, I would find insufficient evidence in the instant case to show that removing the 1995 permit condition is unreasonable under all of the surrounding circumstances.

Petitioners' argument that the ALJ's decision renders hundreds of Coastal Council and OCRM special permit conditions vulnerable to attack is unfounded. Despite the considerable amount of discretion granted to OCRM by the General Assembly, any abuse of that discretion is reviewable by the Administrative Law Judge Division pursuant to S.C. Code Ann. § 48-39-150 (Supp. 1999). Obviously, the ALJ found no abuse of discretion in this case; however, in other instances the ALJ has not hesitated to change the decision of OCRM. ⁽⁴⁾ See Burgess, et al. v. South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management, et al., 99-ALJ-07-0167-CC (March 30, 2000).

The fourth and twelfth grounds of Petitioners' motion allege that the ALJ's finding that the 1995 permit condition would expire in January, 2000 is contrary to law. This argument is adequately addressed on page 8 of the ALJ's Order. Further, Petitioners' assertion that roadway fill authorized under the permit had been completed when OCRM staff amended the permit is of no consequence. A plain, common-sense reading of S.C. Code Ann. § 48-39-150(F) (Supp. 1999) reveals that all work under the permit must be completed within the five year limitation.

The fifth ground alleges that the ALJ erroneously concluded that the permit amendment would allow for only 12 joint-use docks on lots fronting Mullet Creek. This argument is adequately addressed on pages 7 through 8 of the Order.

The eighth ground alleges that the detrimental reliance of property owners on representations by the developer makes the rule of Hill v. The Beach Co. inapplicable. Petitioners have submitted neither legal authority nor explanatory argument to support the proposition that a state agency can be bound by the representations of a private developer.

The ninth ground alleges that the Order ignores established case law approving opinion testimony by property owners in cases involving devaluation of property. While such opinion testimony is competent testimony, no authority requires the trier of fact to give such testimony any certain amount of weight. On the contrary, the weight to be given evidence is strictly within the province of the trier of fact. ⁽⁵⁾ The ALJ merely explained how it weighed the evidence on the issue of diminution in value. That explanation does not translate into ignoring the law governing the competency or admissibility of certain evidence.

The eleventh ground alleges that the Order includes an erroneous reference to Petitioner Charles Eade owning a dock. Petitioners assert that this reference is based on an error in the official transcript. While the ALJ has no reason to believe that there is an error in the official transcript, the last sentence of paragraph 1 of page 8 is changed pursuant to ALJD Rule 51, to read as follows:

At least one other property owner in the general area on Mullet Creek has a dock extending from his property.

The fifteenth ground alleges that the Order erroneously concludes that the permit amendment best minimizes the proliferation of docks. In the Order, the ALJ concluded that under all of the circumstances, the permit amendment best minimizes the proliferation of docks.

One of the circumstances was the dilemma that the contemplated failure of the developer to exercise due diligence to complete construction of the community dock prior to the statutorily imposed deadline would allow the permit and its accompanying conditions to expire. At the time OCRM amended the permit to remove the disputed condition, only a few months remained for completion of construction authorized under the permit. ⁽⁶⁾ OCRM appropriately considered the possibility that Big Landing might not exercise due diligence to complete all of the construction authorized under the permit. Richard Chinnis, OCRM's Director of Regulatory Programs, testified that representatives of the developer advised him that they were contemplating removal of the dock pilings. (Transcript, p. 210, l. 11 - 25). Petitioners assert that this testimony constituted "unreliable compound hearsay." (Motion, page 11). No objection, however, to this testimony was made at the hearing. Therefore, it is competent evidence and must be given whatever weight deemed appropriate by the trier of fact. ⁽⁷⁾ In fact, the very testimony Petitioners now attack as unreliable was elicited by Petitioners' counsel himself.

Mr. Chinnis' testimony was confirmed by testimony of the developer's consultant at the hearing. Wayne Beam testified that he communicated to OCRM that Big Landing was not going to proceed forward with the community dock permit without some sort of understanding about what OCRM was going to do with the amendment request. (Transcript, p. 118, l. 25 - p. 119, l. 4).

The sixteenth ground alleges that the only reasonable interpretation of the facts presented in this case is that the dock master planning requirements were satisfied by the 1995 special permit condition. On the contrary, in light of the inadequacy of the evidence presented on this point, to make such a conclusion would constitute mere speculation.

The seventeenth and nineteenth grounds allege that the Order "ignores . . . settled law indicating that recording [Big Landing's dock alignment proposal] in the local RMC office would have no legal import[.]" This argument is already adequately addressed in the last paragraph on page 9 of the Order. In any event, Petitioners' argument is based on the speculative assumption that the current owners of lots on Mullet Creek will never sell them to a subsequent purchaser. Petitioner has failed to submit any evidence or supporting authority for the proposition that, once recorded, the dock alignment proposal will not show up in the chain of title for these lots, such that subsequent purchasers will not have notice of the proposal.

The eighteenth ground alleges that the Order erroneously concludes that the binding nature of OCRM's adoption of the dock alignment proposal will manifest itself in OCRM's future permitting decisions. In the last paragraph on page 7 of the Order, the ALJ found that when OCRM receives future dock applications from lots fronting Mullet Creek, it will reject any proposals that are not consistent with Big Landing's dock alignment proposal. This finding was based on witness testimony which the ALJ, as the finder of fact, found to be credible. Despite Petitioners' argument that OCRM has the power to change this condition at any time, the ALJ is satisfied that OCRM will refrain from doing so, given the assurances made on the public record under oath by Mr. Richard Chinnis.

In summary, the ALJ is constrained by the record as presented by the parties. Petitioners had the burden of proving their allegation that the permit amendment is unreasonable and violates applicable regulations. See 2 Am. Jur. 2d Administrative Law § 360 (1994) (In administrative proceedings, the burden of proof is on the party asserting the affirmative of an issue.). Because Petitioners failed to persuasively establish their positions in the contested case hearing, the motion for reconsideration and motion to amend the August 22, 2000 Order must be denied.

Based on the foregoing, the Petitioners' motions are denied. Further, the Petitioners' request that they be allowed oral argument on the motions is denied as unnecessary.

The following portions of the August 22, 2000 Order are corrected pursuant to ALJD Rule 51 as follows:

1. Page 8, paragraph 1, last sentence:

At least one other property owner in the general area on Mullet Creek has a dock extending from his property.

2. Page 9, footnote 3:

Those owners who had already purchased lots from the developer were notified of the amendment request through the Big Landing Property Owners' Association. (Tr. p. 142, l. 9 - p. 143, l. 2). Additionally, the parties stipulated that OCRM issued public notice of its granting of the amendment on June 29, 1999.

AND IT IS SO ORDERED.

________________________________

RAY N. STEVENS

Administrative Law Judge

Dated: October 24, 2000

Columbia, South Carolina

1. The ALJ is constrained to only that evidence which is presented in the contested case hearing and cannot rule in favor of a party who has the burden of proof when that party has not presented adequate evidence to support his allegations. See 2 Am. Jur. 2d Administrative Law § 360 (1994) (In administrative proceedings, the burden of proof is on the party asserting the affirmative of an issue).

2. Petitioners assert that this argument was "never even made on the record[.]" (Motion for Reconsideration, page 9). On the contrary, during opening arguments in the contested case hearing, OCRM argued that a permit condition is not an appropriate mechanism to restrict land use of properties that are not part of the lot where the permitted construction is being conducted. (Transcript, p. 49, lines 2-7).

Petitioners also assert that the Order erroneously concludes that the 1995 permit condition was not directly associated with the permitted project. Petitioners misconstrue the meaning of "directly associated," which was explained in the Order to mean those conditions which concern the actual construction authorized under the permit, such as limitations on dimensions of the structure.

3. See S.C. Code Ann. § 48-39-50 (Supp. 1999) (giving DHEC/OCRM broad regulatory authority over the coastal zone and the authority to exercise all incidental powers necessary to carry out the provisions of the Coastal Zone Management Act); S.C. Code Ann. § 48-39-80 (Supp. 1999) (giving OCRM broad authority to develop the Coastal Zone Management Program and to certify a project's consistency with the Program).

4. In virtually every case, either the citizen loses and the agency wins or the agency loses and the citizen wins. For a losing citizen, the judge might seem to be a "rubber-stamp" incapable of exercising independent discretion; for a losing agency, the judge begins to resemble an arbitrary adjudicator exercising unbridled discretion. Neither view is accurate. Rather, my colleagues and I humbly seek to follow the comforting words of Mark Twain: "Always do right; this will gratify some people and astonish the rest."

5. See South Carolina Cable Television Ass'n v. Southern Bell Telephone and Telegraph Co., 308 S.C. 216, 417 S.E.2d 586 (1992).

6. Notably, the parties did not present sufficient evidence to indicate when construction of the community dock was later completed.

7. See Toyota of Florence, Inc. v. Lynch, 314 S.C. 257, 442 S.E.2d 611 (1994) ("Evidence received without objection is competent."); Cantrell v. Carruth, 250 S.C. 415, 158 S.E.2d 208 (1967) (testimony received without objection becomes competent and "its sufficiency must be left to the [finder of fact]."); Rouss v. King, 74 S.C. 251, 54 S.E. 615 (1906) (testimony based on hearsay will not be excluded from evidence to be weighed where no objection is raised as to its admission).