ORDERS:
ORDER DENYING MOTION TO DISMISS
These cases came before the undersigned Administrative Law Judge for a motions hearing on
November 19, 1996. Counsel for the Respondents had previously, by letter, requested that these
cases be consolidated, and counsel for Petitioner consented to the consolidation by letter, and all
parties confirmed on the record at the hearing that the issues in these cases are identical and that
all parties consent to consolidation.
The motions under consideration include the Motion to Dismiss and the Motion for an Expedited
Hearing, both filed by the Respondents Bull Point LLC. The Motion for an Expedited Hearing has
been disposed of by scheduling the hearing in this matter, and this Court has issued its order of
November 19, 1996, setting a hearing date of December 19, 1996.
The Motion to Dismiss asserts that (1) Northern Beaufort County Committee lacks legal capacity
to maintain this action pursuant to Rule 17 of the South Carolina Rules of Civil Procedure; and
(2) the appeals are untimely and, accordingly, the court lacks subject matter jurisdiction inasmuch
as more than fifteen (15) days elapsed between the issuance of the individual septic tank permits
and the appeal herein. For the reasons stated below, the motion to dismiss is denied.
In a companion case, docketed as No. 96-ALJ-07-0117-CC, it was ruled that the Northern
Beaufort County Committee lacked capacity to pursue an appeal of a DHEC/OCRM permit and
certifications in connection with the Bull Point development. All parties stipulated that this Court
may take notice of all evidence from that companion case. However, at the hearing on November
19, 1996, the Petitioner submitted additional evidence related to the capacity issue, in the form of
an affidavit from Winifred T. Zara, Chairman of the Northern Beaufort County Committee
("NBCC"), and two attachments to said affidavit. The attachments consist of a letter from Mrs.
Maci B. Roberts, President and CEO of the Sheldon Community Enrichment Program (SCEP),
and a list of the membership of NBCC. The letter from Mrs. Roberts states that "NBCC is not a
sub-committee" of SCEP, as "all documentation necessary to complete the order of business to
facilitate this committee coming under the umbrella of SCEP, was not finalized."
Despite the ruling in the earlier companion case, this new evidence casts additional light on the
nature of the NBCC organization, and thus this Court is not inclined to dismiss this case on the
basis of lack of capacity at this time.
On the issue of the timeliness of these appeals, the parties stipulated to the dates on which each of
the contested permits was issued, and to the date on which each of these appeals was filed. Based
on these dates, it is clear that these appeals were filed more than fifteen (15) days after the permits
were issued. However, the governing rule in this case, DHEC Regulation R.61-72, Section
201.A., provides that these appeals "must be filed within 15 days . . . . following actual or
constructive notice of a final staff decision . . . ."
The burden of proving notice rests with the party asserting its existence. See 66 C.J.S. Notice§ 21
at 674 (1950); Mount Pleasant Waterworks and Sewer Commission v. South Carolina
Department of Health and Environmental Control, ALJ Division No. 96-ALJ-07-0287-CC
(Order, September 11, 1996). Respondents presented no evidence on the issue of notice. Counsel
for the Petitioner filed an affidavit stating that he received actual notice of the permits contested in
case No. 0273 on May 20, 1996, and that the Petition in that case was filed within 15 days, on
May 30, 1996. The affidavit also states that actual notice of the permits contested in case No.
0394 was received on August 27, 1996, at the earliest, and that the Petition in that case was filed
within 15 days, on September 10, 1996. No evidence was offered contradicting this affidavit, and
thus the evidence establishes that both of these appeals were filed within 15 days of actual notice.
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." Blacks Law Dictionary, 1062 (6th Ed. 1990); Mt.
Pleasant Waterworks, supra. Here, it is undisputed that DHEC did not issue public notice for any
of the contested septic tank permits. The issue, therefore, is whether there were circumstances
established by the Respondents which would cast upon the Petitioner a duty to learn of the
existence of these permits at a time earlier than Petitioner actually learned of same.
The Petitioner's affidavit establishes that NBCC and its attorney acted with due diligence in
obtaining copies of the permits, and thereafter filed these appeals in a timely manner. The
Respondents failed to present any evidence which could lead this Court to impute knowledge of
these permits at an earlier date.
Accordingly, the Motion to Dismiss is hereby DENIED.
AND IT IS SO ORDERED.
__________________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
________________, 1996 |
