SC Administrative Law Court Decisions

FACTUAL BACKGROUND

This case has a complicated procedural history. In October 2000, Respondents Evans and DHEC-OCRM entered into a consent order granting Evans' application to construct a dock on her property at 451 Channel Creek Court in Hobcaw Creek Plantation, Mt. Pleasant, South Carolina. The application as originally submitted contained a 4' x 430' walkway, leading to an 8' x 10' fixed pierhead, with a 6' x 12' floating dock. OCRM denied the permit on the basis that the lot was non-waterfront property, and that Evans' lot was not listed on a Dock Master Plan for the area as being eligible for a private dock.

When OCRM became aware that another dock permit had been issued under the same circumstances as Evans' proposed dock, it agreed to grant Evans' application as Permit No. OCRM-00-289-J. That agreement was contained in the Consent Order which I signed on October 19, 2000. [Docket No. 01-ALJ-07-479-CC] Mr. Crowder, who timely objected to the original permit application, did not move to intervene in that contested case. Since he was not a party, he was not notified of the Consent Order.

On April 18, 2001, Evans wrote to OCRM requesting an amendment to the permit application as granted in the Consent Order. She requested that: (1) the fixed pierhead be reduced from 8' x10' to 8' x 6' and (2) she be allowed to construct a Boat Lift. OCRM did not give public notice of the proposed amendment. On April 20, 2001, OCRM approved the reconfiguration of Evans' dock. Mr. Crowder did not receive notice of the amendment.

In the first week of June, 2001, Crowder noticed Evans' dock under construction and contacted OCRM. This was the first notice Crowder had that the permit had been granted.

OCRM enforcement staff visited the site and determined that the dock being constructed did not conform to the permit. The dock under construction was closer to Crowder's lot line than on the Amended Permit. OCRM thus issued a Cease and Desist Order to Evans on June 12, 2001.

On June 7, 2001, Crowder filed a Notice of Appeal of the Permit and Motion for Injunction against any further construction until the appeal could be heard. A hearing on

Crowder's Motion for a Temporary Injunction was heard by Judge C. Dukes Scott on July 11, 2001. Based on the fact that DHEC-OCRM had issued a letter directing Evans to cease and desist from conducting any further dock construction at the site, Judge Scott dismissed the case, holding that the request was moot. [Order of Dismissal 01-ALJ-07-0246-IJ, dated July 13, 2001]

On July 19, 2001, DHEC settled the enforcement action by imposing upon Evans a $100 fine for failure to comply with the Amended Permit as approved on April 20, 2001. OCRM then approved a second amendment to the Amended Permit to conform to the dock as it was being constructed, on the basis that the revisions were within the statutory and regulatory authority of OCRM. Mr. Crowder was not notified of this agreement.

When work began again on Evans' dock, Crowder filed a Motion for Temporary Restraining Order on July 23, 2001. Counsel for all parties argued that Motion before me at 2:00 P.M. on July 27, 2001.

CONCLUSIONS OF LAW:

I. Original Permit issued by Consent Order

Crowder's Motion to appeal the October 19, 2000 Consent Order granting the original permit is denied, because Crowder lacks standing to challenge that order. Crowder was notified when Evans appealed OCRM's denial of the permit application, and was informed that in order to protect his rights, he must make a motion to intervene. He chose not to intervene. A non-party is collaterally estopped from challenging a final order of the Administrative Law Judge Division. A consent order is treated as a final order. See Greenville Hospital System v. SCDHEC & Carolina Orthopaedic Surgery Center, Docket No. 00-ALJ-07-0599-CC (Order of Dismissal filed Feb. 8, 2001). "Moreover, to allow collateral attack of an Administrative Law Judge's final order by a nonparty that had notice of, and an opportunity to intervene in, a contested case proceeding would result in endless litigation and would result in the erosion of

the public trust in the integrity of rights acquired on the faith of the adjudicatory process. Cf. 47 Am.Jur.2d Judgments § 898 (1995)(purpose of rule prohibiting collateral attack on the judgment of a court). The efficiency of the administrative adjudicatory process would be greatly impaired if consent orders, signed by all admitted parties and the presiding judge, are not final, binding decisions." Id. at 3.

II. Amended Permit dated April 20, 2001

The 1976 South Carolina Code Annotated Section 48-39-140(C) provides for written notice of a permit application to all adjoining landowners, local government units, and other interested persons, and for public notice in state and local newspapers. OCRM may hold a public hearing on the permit, and affected parties have thirty days in which to file written comments. Regulation 30-4(H) of the Office of Ocean and Coastal Resource Management provides:

An amendment to a permit can be made without the requirements

of a new permit if the proposed change on (sic) the amendment does

not significantly increase the size or change the use of the permitted

project. Otherwise, the amendment proposal will require a fee equal

to the original permit application fee, a newspaper notice, and will

be placed on public notice by OCRM. [emphasis added]

OCRM contends that the amendment requested by Evans on April 18, 2001 did not increase the size of the dock and that the addition of a 12' x 12' boat lift did not change the use of the permitted project. Thus, OCRM contends that approval of those changes was a matter of agency discretion, and that no public notice was required.

With respect to Evans' request to reduce the size of her fixed pierhead, OCRM is correct. That diminution in size is clearly encompassed within R. 30-4(H), and no public notice of the amendment is required. However, with respect to the addition of a Boat Lift, the use of the permitted project was changed from in-water storage to dry storage, and the size of the entire structure was increased. Moreover, OCRM deals with Boat Lifts specifically in R. 30-12.A(s), and there has been no evidence presented that the proposed Boat Lift complies with that regulation. Therefore, I find that Reg. 30-4 (H) requires that the amended permit be issued only after meeting the requirements of a new permit.

IT IS THEREFORE ORDERED that Appellant's Motion for a Temporary Restraining Order be granted. Further, inasmuch as a hearing has been held on this matter with all parties present and represented by counsel, it is further ordered that the Temporary Restraining Order be converted to a Temporary Injunction.

IT IS FURTHER ORDERED that this Division shall retain jurisdiction of Docket Numbers 01-ALJ-07-0246-IJ and 01-ALJ-07-0303-IJ and will allow the consolidation of a future Petition for Administrative Review of the Denial or Reissuance of Amended Permit # OCRM 00-289-J, if after public notice is given, such a Petition is filed. Public notice must be given within thirty (30) days of the date of this order.

AND IT IS SO ORDERED.

______________________________

Carolyn C. Matthews

Administrative Law Judge

August 3, 2001

Columbia, South Carolina