ORDERS:
ORDER DENYING MOTION FOR RECONSIDERATION OR TO ALTER OR AMEND ORDER
This matter is before me pursuant to the motion of the Petitioners for reconsideration of the Final Decision and Order dated August 4,
2000. This Order directed OCRM to process the application of Hospital Land Partners ("HLP") for a stormwater management permit
and coastal zone consistency certification. In addition, HLP was ordered to submit a revised stormwater management plan for
OCRM's evaluation. This revised plan was to incorporate the following five items that would bring the project into consistency with
the Coastal Zone Management Program Document:
1) Provide for a buffer around the wetlands on the HLP property
and the adjacent tract, which is adjacent to the southern property
line of the HLP property.
2) Redirect the storm water runoff at several locations into the
wetlands.
3) Require replanting of vegetation to replace the vegetation that
was cleared. This was to re-establish the natural screen between
the wetland and the upland area.
4) Purchase credits in an off-site mitigation bank, in order to
mitigate for the difference in the amount of wetlands that were
delineated in 1991 and the current amount.
5) Formally preserve all of the wetlands and buffers in the area
with a standard deed restriction.
After considering the positions of the parties, I conclude that the Motion for Reconsideration should be denied.
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 the Petitioners' reasons for the reconsideration fit the required criteria listed in the five enumerated
provisions of ALJD Rule 29(D). Thus, the reasons given by the Petitioners set the controlling parameters for deciding the Motions
for Reconsideration.
B. Grounds for Reconsideration Considered
The Petitioners raise the following grounds for reconsideration:
1) OCRM is without authority to abandon the previous condition on the 404 permit.
2) The buffers must average 50 feet pursuant to Chapter III, Section XIV (B)(1)(e) of the Coastal Zone Management Program
Document.
3) Offsite mitigation will be considered only if onsite mitigation is not possible.
4) The project is not consistent with the Coastal Zone Management Program.
5) Nothing in S.C. Code Ann. § 1-23-500 prevents the Administrative Law Judge Division from considering the theories of
property law which preclude alteration of the Property's status as a dedicated buffer.
6) Even if the Administrative Law Judge Division lacks authority to fully decide the property law issues, the issues should be
considered when assessing whether this project is consistent with the Coastal Zone Management Program.
7) The Decision and Order is inconsistent with regard to property law issues.
8) The circumstances of this appeal have denied the moving parties an opportunity to be heard in a meaningful manner at a
meaningful time.
9) The Court's deference to OCRM, and its willingness to uphold the OCRM certification with the scant evidence presented in this
case, is inconsistent with the rigorous review undertaken by the South Carolina Supreme Court and South Carolina Court of
Appeals when considering OCRM and DHEC decisions.
Each ground is examined in light of ALJD Rule 29(D).
C. Criteria of ALJD Rule 29(D) Applied to Grounds
"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, the Petitioners do not assert that the decision was reached as the result of a party's mistake, inadvertence, surprise, or excusable
neglect. No suggestion can be found in the Motion 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), the Petitioners do not assert 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.
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. (1986 & Supp. 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 Petitioners must recognize that the five enumerated provisions of ALJD Rule 29(D) and Rule 60, SCRCP 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 Motion must be denied.
D. Issues Preserved on Appeal
Pursuant to ALJD Rule 29(C), all issues raised but not addressed are deemed denied.
ORDER
Based upon the Motion filed and the law as applied to that Motion,
IT IS HEREBY ORDERED that the Motion for Reconsideration filed by the Petitioners is denied.
AND IT IS SO ORDERED.
________________________________
C. Dukes Scott
Administrative Law Judge
September 14, 2000
Columbia, South Carolina |
