SC Administrative Law Court Decisions

This matter is before me upon Motions to Dismiss filed by the Respondents South Carolina Department of Health and Environmental Control ("Department") and Raymond E. Wells, Jr. ("Wells"). A hearing on the motion was held on June 17, 1997, at the Administrative Law Judge Division ("ALJD") offices, Columbia, South Carolina. For the reasons set forth below, the Motions to Dismiss are hereby denied.

The Respondent, Raymond E. Wells, Jr. ("Wells"), owns a tract of land adjacent to State Road 262 near Bloomville, Clarendon County, South Carolina, on which he seeks to construct and maintain a poultry operation consisting of four broiler houses. On May 7, 1996, Petitioner applied for a permit to construct the four broiler houses together with a wastewater treatment and collection system. As part of the application process, Wells asserts that he sent notice to all property owners within 1,000 feet of the proposed site, although this fact is in dispute. The Department issued a Permit to Construct, No. 18,135-AG, on July 23, 1996.

The Petitioners, Everette M. Haley and Anne H. Haley ("Petitioners"), own property across State Road 262 from Wells' tract. The Petitioners' residence is located on this property some 1,500 feet from the site of the proposed broiler facility. Adjacent to their residence, the Petitioners own and operate a tomato growing and packing facility known as Haley Farms. Haley Farms operates a packing house on the property which employs 250-300 persons during the growing season. During the 1997 growing season, the Petitioners are cultivating approximately 185 acres of tomatoes and 27 acres of cantaloupes.

On April 16, 1997, the Petitioners filed a request for a contested case hearing regarding the issuance of Wells' permit. Thereafter, both Wells and the Department filed Motions to Dismiss the case, alleging that the Division lacks subject matter jurisdiction to hear this matter because the case was not timely filed by the Petitioners.

Timeliness of Filing

Wells and the Department contend that the Petitioners failed to timely file their request for a contested case hearing and are now barred from bringing any action to challenge the permit. They base this assertion on the provisions of S.C. Code Regs. 61-72, §201A(Supp. 1996), which states that a petition for administrative review of a Department decision "must be filed within 15 days, or other period provided by law, following actual or constructive notice of a final staff decision on a licensing matter. . . ." The Department issued the permit on July 23, 1996, but the Petitioners did not file their request for a contested case hearing until April 16, 1997. Wells admits that he did not furnish a copy of the Department's notification form to the Petitioners. However, he argues that the Petitioners had notice that a permit would be applied for in April of 1996, when Wells and Mr. Haley had a conversation about the proposed facility, and that in any event the Petitioners had constructive notice of the issuance of the permit by approximately March 17, 1997, when construction on the site began. The Petitioners, on the other hand, contend that upon noticing the construction on the site, they acted with due diligence to obtain a copy of the permit; that despite their efforts, they did not receive notice of the permit until April 1, 1997, when they received a copy of the permit from the local Soil Conservation Office in Manning; and that their request for a hearing, filed on April 16, 1997, was timely.

The burden of proving notice rests with the party asserting its existence. See 66 C.J.S. Notice § 21 at 674 (1950). A motion to dismiss for lack of subject matter jurisdiction may be supported by, and a court may consider, affidavits or other evidence proving lack of jurisdiction. Woodard v. Westvaco Corp., ___ S.C. ___, 433 S.E.2d 890 (Ct. App. 1993), vacated on other grounds, ___ S.C. ___, 40 S.E.2d 392 (1995). Furthermore, if the facts which give rise to a jurisdictional issue are in dispute, the court must find the facts. Chew v. Newsome Chevrolet, Inc., 315 S.C. 102, 431 S.E.2d 631 (Ct. App. 1993).

In this case, the facts concerning whether the Petitioners received actual or constructive notice of the Department's decision to issue the permit prior to April 1, 1997, are in dispute. This tribunal, therefore, must look to the memoranda and supporting affidavits, as well as the testimony presented at the motion hearing, in order to determine whether this matter should be dismissed.

Wells applied for the construction permit in April 1996. As part of the application process, the Department required that notification of the permit application be sent to all property owners within 1000 feet of the proposed facility. Wells states that he complied with this request by sending a copy of the Department's "Public Notice of Intent to Construct" form to Mrs. E. L. Ridgeway, Sr. and Mrs. J. Goldman Ridgeway, the two property owners within the 1000-foot distance. Mrs. J. Goldman Ridgeway is now deceased. However, Petitioners submitted an affidavit from Mrs. E. L. Ridgeway, Sr. She stated that although she received a certified letter from Wells, the envelope contained only a typed cover letter and did not include the Department's form. The cover letter merely states that Wells is enclosing a copy of a form and does not state that he applied for a permit. See Exhibit 6 to Petitioners' Response to Motion to Dismiss. In addition, Mrs. Ridgeway stated that she no longer owned the farm property, but had transferred it to her children in 1995. Therefore, she gave the letter to her son, E. L. Ridgeway, Jr. ("Ridgeway"). She further asserted that she had told Wells, who leased some of the farm land from her, of the transfer and asked him to make out future rent checks to her children. Wells paid the rent for the land in January 1996 and January 1997 to the children.

After receiving the copy of the cover letter from his mother, Ridgeway asked the Petitioner Everette Haley ("Haley") if he had heard that Wells planned to construct chicken houses on the land between Ridgeway's and Haley's property. As a result of his conversation with Ridgeway, Haley initiated a conversation with Wells concerning the possible construction of the chicken facility on Wells' property in mid-April 1996. Wells asserts that he told Haley during that conversation that he had applied for the permit and planned to construct the chicken houses if DHEC approved them. Haley, on the other hand, states that Wells told him that he had entertained the idea of constructing chicken houses, but had abandoned the idea. Both parties agree that they discussed an alternate site for the facility and that Haley offered to help build an access road to the alternate site. Promptly after this conversation, Haley told Ridgeway that Wells had decided not to construct the facility. The construction permit was issued on July 23, 1996.

Haley heard nothing more about Wells' plans to construct the chicken houses until approximately March 17, 1997, when he observed land clearing activity at the proposed facility site. On that date, Haley attempted to call Mr. Neil Richardson at the soil conservation office for Clarendon County to determine whether any permit had been issued for the construction of the facility. Haley was unable to reach Mr. Richardson until the evening of March 17. On the following day, March 18, Haley and Ridgeway traveled to Mr. Richardson's office in Manning and asked to see a copy of the permit for Wells' chicken houses. The secretary at the office, Ms. Carolyn Haynes, showed them a file, which Haley and Ridgeway assert was the permitting file on Wells' son's existing chicken facility rather than the facility under construction. Haley then asked his attorney, John C. Land IV, to determine whether a permit had been issued for the facility. Between March 17 and April 1, 1997, Haley spoke with both Wells and his son about the proposed facility. On March 25, Haley informed both Wells and his son, in separate conversations, that he was concerned about the effect that a chicken facility would have on his tomato crop, and asked them to speak with a Dr. Jim Rushing with Clemson University about those concerns. On March 28, Haley spoke with Wells and offered to buy the property on which the facility was being constructed. Wells declined the offer.

On April 1, 1997, Haley obtained copies of the permit from both Mr. Land and Mr. Richardson. He filed a request for a contested case hearing with the Board of the Department on April 16, 1997.

The question for determination is whether the facts as set forth above were sufficient to charge the Petitioners with constructive notice of the Department's staff decision to issue the permit prior to April 1, 1997. See S.C. Code Regs. 61-72 §201A. It is undisputed that Petitioners did not receive actual notice of the issuance of the permit until that date.

Constructive notice is defined as "information or knowledge of a fact imputed by law to a person, because he could have discovered the fact by proper diligence, and his situation was such as to cast upon him the duty of inquiring into it." Black's Law Dictionary, 1062 (6th ed. 1990). Constructive notice is generally either imputed by a recording statute or presumed because a person has knowledge of certain facts which should reasonably lead him or her to knowledge of the ultimate fact. 66 C.J.S. Notice § 6 (1950). "When a person has notice of such facts as are sufficient to put him on inquiry, which, if pursued with due diligence, would lead to knowledge of other facts, he must be presumed to have knowledge of the undisclosed facts." Norris v. Greenville, S. & A. Ry. Co., 111 S.C. 322, 97 S.E. 848 (1919). However, a person put on inquiry by facts is to be allowed a reasonable time in which to make inquiry before being affected with notice. After a person has actually made due inquiry and such inquiry has proved futile, he is to be regarded as having acted bona fide and without notice of the fact. 66 C.J.S. Notice § 11 (1950).

Applying these legal principles to the facts of this case, I find that the rumors of the construction of the proposed facility, which were conveyed to Haley by Ridgeway in April of 1996, constituted information sufficient to require further inquiry on the subject. However, I further find that Haley fulfilled his duty of inquiry by promptly inquiring of Wells concerning the facility, and that Wells told Haley at that time that he would not build the chicken houses. Since Haley's inquiry at that time proved futile, he cannot be charged with constructive notice of the issuance of the permit as of April, 1996. The commencement of construction of the facility on or about March 17, 1997, was also information sufficient to put Haley on inquiry. I find that Haley again fulfilled his duty of inquiry by promptly calling Mr. Richardson and by going to the office to seek a copy of the permit. However, this inquiry again was futile, since Haley was unable to obtain a copy of the permit at that time. Haley acted with due diligence in turning the matter over to his attorney, who located a copy of the permit for him on April 1, 1997. Accordingly, I find that the Petitioners cannot be charged with notice of the Department's staff decision to issue the permit prior to April 1, 1997, and that the filing of the request for a contested case hearing on April 16, 1997, was timely. Therefore, this matter should not be dismissed for being untimely filed.

Due Process

The Respondents further contend that pursuant to Department guidelines, they were not required to furnish the Petitioners with notice of the permit application, since Petitioners' property is located more than 1,000 feet from the proposed facility. The Petitioners argue that the Department's guidelines and procedures for providing notice of agricultural permits are inadequate to protect the due process rights of parties who may be affected by the granting of the permit.

Pursuant to the Pollution Control Act, S.C. Code Ann. § 48-1-30 (1987), the Department is mandated to promulgate regulations to implement the Act, and to govern Department procedure with respect to meetings, hearings, filing of reports, the issuance of permits and all other matters relating to procedure. As of this date, no regulations detailing guidelines and procedures for agricultural facility permitting, and the waste disposal systems for those facilities, have been adopted by the General Assembly. Therefore, no specific regulations exist which govern the requirements, including notice requirements, of a permit to construct a broiler facility.⁽¹⁾ The Department, in deciding whether or not to issue an agricultural facility permit, employs a set of guidelines entitled "Agricultural Facility Permitting Requirements of the Bureau of Water Pollution Control," which were published in 1994. The Department uses the guidelines to determine that only those property owners who are within 1,000 feet of the facility are entitled to receive notice of the application for the construction permit. However, the 1994 guidelines issued to provide guidance for the issuance of agricultural facility permits are not promulgated regulations, and therefore do not have the force and effect of law. See Captain's Quarters Motor Inn, Inc. v. South Carolina Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1991). As a result, in an administrative proceeding challenging the issuance of a permit, an Administrative Law Judge must consider all relevant evidence and materials when deciding what procedures would provide "reasonable" notice and an opportunity to be heard.

Furthermore, regardless of whether a person is entitled to notice of the issuance of a permit pursuant to the Department's guidelines, superseding constitutional due process considerations may confer upon him the right to receive notice, have an opportunity to be heard, and obtain judicial review. Article 1, Section 22 of the South Carolina Constitution provides in pertinent part that "[n]o person shall be finally bound by a judicial or quasi-judicial decision of an administrative agency affecting private rights except on due notice and an opportunity to be heard. . . and he shall have in all instances the right to judicial review." In Stono River Environmental Protection Assoc. v. DHEC, 305 S.C. 90, 406 S.E.2d 340 (1991), the South Carolina Supreme Court, applying the above constitutional provision, held that "[a]dministrative agencies are required to meet minimum standards of due process," and that "constitutional due process provisions, apart from the APA, are sufficient to confer the rights to notice and an opportunity to be heard." Id. at 342. Based upon these principles, it is clear that, regardless of what the Department's guidelines provide, a citizen whose rights may be adversely affected by the actions of a state agency is still protected by the fundamental requirements of due process, and has a right to judicial review of his grievance. In this case, the Petitioners have alleged that their right to quiet enjoyment of their property, as well as their livelihood, has been affected by the Department's decision to grant this construction permit. Petitioners have not, until now, been given an opportunity for review of their grievances. I therefore find that Petitioners are entitled to a hearing before the Administrative Law Judge Division, and that dismissal of this case is inappropriate at this stage of the proceedings.

IT IS THEREFORE ORDERED THAT, for the reasons set forth above, the Respondents' Motions to Dismiss are denied. This matter shall proceed and a hearing will be held forthwith.

AND IT IS SO ORDERED.

_________________________________

Marvin F. Kittrell

Chief Judge

Columbia, South Carolina

August 19, 1997

1. The Department is now in the process of promulgating regulations governing the issuance of permits for agricultural facilities.