ORDERS:
FINAL ORDER AND DECISION
This matter is before me on an Order from the DHEC Board remanding this case so that I may rule on the Petitioner's
Motion for Reconsideration pursuant to Rule 60(b) of the South Carolina Rules of Civil Procedure (SCRCP). Petitioner
seeks to overturn my previous Final Decision upholding the grant of a permit for the poultry broiler facility of Respondent
Tony Carter. At the onset of this hearing, DHEC alleged that this Division does not have jurisdiction to determine this
matter because this case was not heard within 30 days, as required by ALJD Rule 29(D). This case, however, is heard on
remand from the DHEC Board, and as such, is not subject to the Rules of this Division governing contested case hearings.
Furthermore, as the Petitioner had filed an appeal of my original decision with the DHEC Board, the Board properly
remanded this case to the Division for reconsideration. Rule 60(b) "provides for relief from final judgment upon certain
grounds, however, it further provides leave not be obtained from any appellate court except during the time an appeal from
the judgment is actually before the appellate court." Madison v. Graffix Fabrix, Inc., 304 S.C. 321, 326, 404 S.E.2d 37, 40
(Ct. App. 1991). Additionally, the Board's order remanding this case to the Division "to rule on her motion for
reconsideration" did not set forth any time constraints. When a case is remanded to a lower court, that court acquires
jurisdiction to take any action consistent with the appellate court's ruling. Bunkum v. Manor Properties, 321 S.C. 95, 467
S.E.2d 758 (Ct. App. 1996). Therefore, this Division has proper jurisdiction to hear this matter.
When reviewing permit applications for agricultural facilities, the DHEC staff utilitizes the standards the Department set
forth in December 1994 in the Agricultural Facility Permitting Requirements of the Bureau of Water Pollution Control. These standards act as guidelines in determining whether or not to issue a permit. One of these factors that could have an
effect on site selection sets forth: "Distance from the lot line of the site on which the production unit is located (1000 ft.
standard)." Agricultural Facility Permitting Requirements of the Bureau of Water Pollution Control at 15. Relying on this
factor, the Petitioner seeks reconsideration of my original decision.
The Petitioner relies upon the testimony of a DHEC witness who stated at the original hearing: "The minimum distance from
the well is probably exceeded. I believe it's 300 feet from his nearest barn to your well. I'm not sure. It's over 100 feet to
your property line." Tr. at 221-222. Petitioner contends that if the facility is less than 1000 feet from her property line, that
Carter's permit must be denied. In support of that contention, she submitted the Board's Final Order in SC DHEC and
Raymond E. Wells v. Haley Farms, et al., in which the Board upheld the denial of a permit for an agricultural facility based
solely upon the "1000 foot standard." In that case, the Board denied the permit because the facility was less than 1000 feet
from the adjoining property line "in contravention of the Board's interpretation of the 'one thousand foot standard' setback
requirement...."
However, the Board's decision in Haley Farms was issued after I heard the case which is now before me. The construction
of a statute by the agency charged within its administration will be accorded the most respectful consideration and will not be
overruled absent compelling reasons. Captain's Quarters v. S.C. Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1992). Furthermore, the Board in Haley Farms set forth that since the facility was located less than 1000 feet from the adjoining
property line, the permit should not be granted because that distance was "in contravention of the Board's interpretation of
'one thousand foot standard' setback requirement. . . ." However, the Board did not explain what their interpretation of that
standard actually is. If the Board had established a policy that no permit should be granted for a facility that is located less
than 1000 feet from the adjoining property lines, then that policy would be entitled to the most respectful consideration. To
the contrary, the Agricultural Facility Permitting Requirements of the Bureau of Water Pollution Control set forth that the
1000 foot setback requirement is but one factor to be considered in determining whether or not to grant a permit for a
poultry broiler facility.
Additionally, the Petitioner did not object or bring the distance issue to the court's attention at the original hearing. Even
though the Petitioner was acting as her own attorney, pro se litigants are held to the same standards as licensed attorneys. A
party has the duty to monitor the progress of his case. Lack of familiarity with proceedings is unacceptable and the court
will not hold a layman to any lesser standard than is applied to an attorney. Goodson v. American Bankers Ins. Co., 295
S.C. 400, 402, 368 S.E.2d 687, 689 (Ct. App. 1988). Also, the asserted failure of an attorney to interpose available defenses
does not amount to the kind of mistake, surprise, inadvertence, and excusable neglect contemplated by Rule 60(b). Greenville Income Partners v. Holman, 308 S.C. 105, 107, 417 S.E.2d 107, 108 (Ct. App. 1992).
As to the Petitioner's request to supplement the record with additional evidence, I find that no new evidence was introduced
at this hearing that could not have been a part of the original record. A party seeking to introduce newly discovered
evidence must demonstrate that
(1) . . . the evidence is such as will probably change the result if a new trial is granted, (2) . . . it has been discovered since
the trial, (3) . . . it could not have been discovered before the trial, by the exercise of due diligence, (4) . . . it is material to
the issue, and (5) . . . it is not merely cumulative or impeaching.
Therefore, for the foregoing reasons,
IT IS ORDERED that the Petitioner's Motion for Reconsideration is denied.
AND IT IS SO ORDERED.
__________________________
Ralph King Anderson, III
Administrative Law Judge
October 26, 1999
Columbia, South Carolina |
