ORDERS:
ORDER OF DISMISSAL
I.STATEMENT OF THE CASE
This matter arises out of the Office of Ocean and Coastal Resource Management’s
(“OCRM”) granting of a critical area permit to John Wieland Homes and Neighborhoods
of South Carolina (“John Wieland”). Critical Area Permit No. 2002-1D-524-P is for the
construction of a community boat ramp and dock to be built on Wagner Creek off of Ayres
Plantation Way, Dunes West, Mt. Pleasant, South Carolina. The purpose of the
community boat ramp and dock is to provide water access for the residents and guests of
the Dunes West community.
OCRM found the Permit Application to be consistent with applicable statutes and
regulations. Based on these findings, OCRM granted the Permit Application. The
Petitioner, Dorothy McTighe, is a landowner across Wagner Creek from the proposed
community boat ramp. Petitioner asserted in her Pretrial Brief that the Permit should have
been denied for the following reasons:
1.Increased boat traffic, adversely affecting navigation and congestion wholly
inappropriate given the nature of the creek impacted;
2.The creek is too shallow and narrow for such a great impact;
3.Increased pollution, shoaling, and silting;
4.Adverse affect [sic] on marine life in the creek;
5.The Respondent has property available which is much more suitable for the
project; and
6.Adverse affect [sic] on recreational activities such as swimming and fishing
in the creek.
II.DISCUSSION
The South Carolina Administrative Law Judge Division has jurisdiction over this
matter pursuant to S.C. Code Ann. § 1-23-600 (B) and § 48-39-10, et seq. As a statewide
administrative tribunal authorized to take evidence and determine contested case
hearings, the Administrative Law Judge Division is the fact finder in this matter for
purposes of administrative and judicial review. Lindsey v. South Carolina Tax Comm’n,
302 S.C. 504, 397 S.E.2d 95 (1990). The standard of proof in an administrative
proceeding is the preponderance of the evidence. Anonymousv. State Bd. of Med.
Exam'rs, 329 S.C. 371, 375, 496 S.E.2d 17, 19 (1998).
Petitioner, Dorothy McTighe, is the party asserting the error in this case, therefore,
must prove by a preponderance of the evidence that OCRM erred in issuing the Critical
Area Dock Permit to Respondent John Wieland.
A.Standing.
At the close of Petitioner’s case, Respondents made a joint motion for dismissal
based on the Petitioner’s lack of standing. “A party may appeal an administrative decision
if he has standing to sue.” O’Sullivan v. S.C. Dept. of Envt’l Control, Docket No. 01-ALJ-07-0491-CC (S.C. Admin. Law Judge Div. January 18, 2002) (quoting 6 Jacob A. Stein et
al., Administrative Law § 50.01, at 50-3 (Supp. 2000)). In order to revoke a permit issued
by OCRM, the Petitioner must have been adversely affected by the granting of the permit.
S.C. Code Ann. § 48-39-150(D) (Supp. 2002); 23(A) S.C. Code of Regs. 30-6 (Supp.
2002).
In analyzing questions of standing, the South Carolina Supreme Court has adopted
the three-prong test set forth by the United States Supreme Court in Lujan v. Defenders
of Wildlife, 504 U.S. 555 (1992). Under the Lujan test, a party must satisfy the following
requirements in order to establish standing:
First, the plaintiff must have suffered an “injury in fact” -- an
invasion of a legally protected interest which is (a) concrete
and particularized, ... and (b) “actual or imminent, not
‘conjectural’ or ‘hypothetical’” .... Second, there must be a
causal connection between the injury and the conduct
complained of -- the injury has to be “fairly ... trace[able] to the
challenged action of the defendant, and not ... th[e] result [of]
the independent action of some third party not before the
court.” ... Third, it must be “likely,” as opposed to merely
“speculative,” that the injury will be “redressed by a favorable
decision.”
Id. at 560-61; see also Sea Pines Ass’n for the Prot. of Wildlife, Inc. v. S.C. Dep’t
of Natural Res., 345 S.C. 594, 601, 550 S.E.2d 287, 291 (2001).
Petitioner did not appear at the trial of the case or offer any evidence herself. Two
witnesses appeared on the Petitioner’s behalf. Thomas McTighe, the Petitioner’s son, and
Edward Blanton, Petitioner’s next door neighbor, both testified. Neither witness testified
as to how the Petitioner would be impacted by the proposed dock. The only testimony
regarding the Petitioner was that she owned the property across the creek from where the
proposed dock was to be constructed. There was insufficient evidence to establish that
the Petitioner would be adversely affected by the proposed community dock / boat ramp.
Petitioner failed to prove that she had suffered an “injury in fact.”
Mr. Thomas McTighe testified as to his concerns with the proposed dock, however,
there was no mention of Petitioner Dorothy McTighe's concerns. Likewise, Mr. Blanton
testified as to how he might be impacted by the proposed dock. Neither witness testified
about the Petitioner’s interests.
Even considering the testimony put forth by the Petitioner’s witnesses as if they
were her own complaints, there is still insufficient evidence of a concrete and particularized
injury. Petitioner's objections were general in nature and fail to meet the test laid out in
Lujan.
B.Motion for Involuntary Dismissal.
At the close of Petitioner's case, Respondents moved, pursuant to Rule 41(b) of the
South Carolina Rules of Civil Procedure, for an involuntary dismissal of Petitioner’s case
on the grounds that Petitioner failed to meet her burden of proof on the relevant issues in
this case. “Under Rule 41 in a non-jury trial, the trial judge clearly may dismiss the action
even though the plaintiff may have established a prima facie case. Rule 41(b) allows the
judge as the trier of facts to weigh the evidence, determine the facts and render a judgment
against the plaintiff at the close of his case if justified.” Johnson v. J.P. Stevens & Co.,
Inc., 308 S.C. 116, 118, 417 S.E.2d 527, 529 (1992).
I hereby find that even if the Petitioner survived the Motion to Dismiss based on lack
of standing, the Respondents’ Motion for an Involuntary Dismissal should be granted.
Based upon the facts and the law, Petitioner failed to show that she is entitled to any relief.
The evidence did not establish that the proposed community dock and boat ramp would
be an impediment to navigation or that the creek was too shallow and narrow for the dock.
Furthermore, although Petitioner’s witnesses testified generally as to the effect the
construction of this dock would have on the environment of the creek, increased pollution
and shoaling, the effect on recreational activities, other available locations for the dock,
and potential safety issues, the testimony was general in nature and unsupported. After
weighing the evidence, I find that the Respondents’ Motion for Involuntary Dismissal
should be granted.
III.FINDINGS OF FACT
I find, by the preponderance of the evidence, the following facts
:
1.John Wieland Homes and Neighborhoods of South Carolina owns the
property where the community boat ramp and dock at issue are to be
constructed.
2.On October 5, 2002, John Wieland applied for a Critical Area Dock Permit
for the construction of a community boat ramp and staging dock on Wagner
Creek, Charleston County.
3.On March 18, 2003, OCRM granted Permit No. 2002-1D-524-P for the
construction of a community dock and boat ramp on and adjacent to Wagner
Creek at a location off of Ayres Plantation Way, Dunes West, Mt. Pleasant,
South Carolina.
4.Petitioner Dorothy McTighe appealed OCRM’s granting of the Critical Area
Dock Permit No. 2002-1D-524-P to John Wieland.
IV.CONCLUSIONS OF LAW
Based on the foregoing Findings of Fact and Discussion, I conclude the following
as a matter of law
:
1.The South Carolina Administrative Law Judge Division has jurisdiction over
this matter pursuant to S.C. Code Ann. § 1-23-600 (B) and § 48-39-10, et
seq.
2.As a statewide administrative tribunal authorized to take evidence and
determine contested case hearings, the Administrative Law Judge Division
is the fact finder in this matter for purposes of administrative and judicial
review. Lindsey v. South Carolina Tax Comm’n, 302 S.C. 504, 397 S.E.2d
95 (1990).
3.The standard of proof in an administrative proceeding is the preponderance
of the evidence. Anonymousv. State Bd. of Med. Exam'rs, 329 S.C. 371,
375, 496 S.E.2d 17, 19 (1998).
4.Besides statutory considerations, OCRM evaluates permit applications
based upon formalized regulations. S.C. Code Ann. §48-39-130 (B) (Supp.
2002).
5.“A party may appeal an administrative decision if he has standing to sue.”
O’Sullivan v. S.C. Dept. of Envt’l Control, Docket No. 01-ALJ-07-0491-CC
(S.C. Admin. Law Judge Div. January 18, 2002) (quoting 6 Jacob A. Stein
et al., Administrative Law § 50.01, at 50-3 (Supp. 2000)).
6.In order to revoke a permit issued by OCRM, the Petitioner must have been
adversely affected by the granting of the permit. S.C. Code Ann. § 48-39-150(D) (Supp. 2002); 23(A) S.C. Code of Regs. 30-6 (Supp. 2002).
7.In analyzing questions of standing, the South Carolina Supreme Court has
adopted the three-prong test set forth by the United States Supreme Court
in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
8.Under the Lujan test, a party must satisfy the following requirements in order
to establish standing:
First, the plaintiff must have suffered an “injury in fact” -- an
invasion of a legally protected interest which is (a) concrete
and particularized, ... and (b) “actual or imminent, not
‘conjectural’ or ‘hypothetical’” .... Second, there must be a
causal connection between the injury and the conduct
complained of -- the injury has to be “fairly ... trace[able] to the
challenged action of the defendant, and not ... th[e] result [of]
the independent action of some third party not before the
court.” ... Third, it must be “likely,” as opposed to merely
“speculative,” that the injury will be “redressed by a favorable
decision.”
Lujan, 504 U.S. at 560-61; see also Sea Pines Ass’n for the Prot. of Wildlife,
Inc. v. S.C. Dep’t of Natural Res., 345 S.C. 594, 601, 550 S.E.2d 287, 291
(2001).
9.There is insufficient evidence of a concrete and particularized injury in this
case. Petitioner's objections were general in nature and fail to meet the test
laid out in Lujan. Petitioner has failed to establish she has standing to
appeal this Permit.
10. “Under Rule 41 in a non-jury trial, the trial judge clearly may dismiss the
action even though the plaintiff may have established a prima facie case.
Rule 41(b) allows the judge as the trier of facts to weigh the evidence,
determine the facts and render a judgment against the plaintiff at the close
of his case if justified.” Johnson v. J.P. Stevens & Co., Inc., 308 S.C. 116,
118, 417 S.E.2d 527, 529 (1992).
11.The evidence did not establish that the proposed community dock and boat
ramp would be an impediment to navigation, that the creek was too shallow
and narrow for the dock, would adversely impact the environment of the
creek, would increase pollution and shoaling, would affect recreational
activities, or poses safety concerns.
V.ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that Respondents’ Motion to Dismiss based on lack of
standing is GRANTED;
IT IS FURTHER ORDERED that, even if Petitioner had established standing,
Respondents’ Motion for Involuntary Dismissal against Petitioner pursuant to Rule 41(b),
S.C.R.C.P., would be GRANTED;
IT IS FURTHER ORDERED that this case is DISMISSED with prejudice;
AND IT IS SO ORDERED.
________________________________
C. Dukes Scott
Administrative Law Judge
Columbia, South Carolina.
November 5, 2003. |
