ORDERS:
ORDER
I. Statement of the Case
F. P. Barry, Jr. (Barry) obtained a contested case hearing due to the denial by the South Carolina
Department of Health and Environmental Control (DHEC) of Barry's application for a septic tank
permit for two lots identified as Lots 13 and 14, Ashley River Drive, Mateeba Estates, Dorchester
County, S.C., TMS No. 171-00-00-145 and TMS No. 171-00-00-69. Jurisdiction vests in the
Administrative Law Judge under S.C. Code Ann. § 44-1-50 and § 1-23-600(B) (Supp. 1996). As
a result of a hearing held on January 8, 1997, I find res judicata does not prevent Barry from
challenging the current denial of the permit, the permit is properly denied, and the denial does not
amount to a "taking" of Barry's property in violation of the Fifth Amendment of the United States
Constitution.
II. Issues
1. To what extent does res judicata prevent Barry from challenging the denial of the permit?
2. Does property located at Mateeba Estates, Dorchester County, S.C. at TMS No.
171-00-00-145 and TMS No. 171-00-00-69 qualify for septic tank permits?
3. Does the denial of a septic tank permit amount to a "taking" of Barry's property in violation of
the Fifth Amendment of the United States Constitution?
III. Analysis
A. Res Judicata
1. Positions of Parties:
DHEC argues it notified Barry on May 23, 1984 that lots 13 and 14 were being denied due to the
water table and inadequate soil conditions. Further, the notice of May 23, 1984 informed Barry
that the DHEC decision could be appealed to the DHEC Board. Finally, DHEC asserts that the
failure to appeal the May 23, 1984 decision prevents Barry from now attempting to relitigate the
same issue a second time. Barry asserts he should not be denied the right to argue the issue.
2. Findings of Fact:
I find, by a preponderance of the evidence, the following facts:
1. Barry and DHEC have been in contention since the early seventies over permits for lots 13 and
14.
2. Barry sought DHEC's approval of a septic tank on April 18, 1984 for lots 13 and 14.
3. DHEC responded to Barry on May 23, 1984 by refusing to approve the requests.
4. DHEC notified Barry that he could challenge the May 23, 1984 decision by requesting a
contested case hearing under the Administrative Procedures Act.
5. Barry did not challenge the May 23, 1984 decision by seeking a contested case hearing under
the Administrative Procedures Act.
6. In 1996 Barry submitted to DHEC an application for a septic tank permit and provided a plan
for an experimental septic tank system on lots 13 and 14.
7. Barry's proposed system is untried.
8. DHEC, while finding the system inadequate, admits that some aspects of the system have merit.
9. DHEC's normal policy is to examine any proposal made by an applicant.
3. Discussion
Even though DHEC in 1984 denied Barry's request for septic tank permits for lots 13 and 14, res
judicata does not preclude Barry from now arguing that DHEC's 1996 denial of permits for lots
13 and 14 is improper. Res judicata is based upon the well established purpose that the public
interest is served by having an end to litigation and that no one should be twice sued for the same
cause of action. First Nat. Bank of Greenville v. U.S. Fidelity & Guaranty Co., 207 S.C. 15, 35
S.E.2d 47 (1945). The purpose of res judicata is accomplished by preventing the parties from
relitigating in a second action any issues actually litigated or that might have been litigated in the
first action so long as the first and second actions are between the identical parties and the first
action culminated in a final judgment. Griggs v. Griggs, 214 S.C. 177, 51 S.E.2d 622 (1949).
Thus, there must exist a 1) a prior action, 2) resulting in a final judgment on the merits, 3) with
both actions between the identical parties. If these elements exist, the subsequent action cannot
relitigate any issues that were or might have been litigated in the previous action.
a. Elements Examined
The facts demonstrate the first portion of the res judicata test is satisfied here. A prior action has
taken place since, for res judicata purposes, a prior action includes disputes at an administrative
level. See Earls v. Aycock, 276 S.C. 471, 279 S.E.2d 614 (1981) (holding that the mere fact an
administrative agency rather than a judicial body rendered the previous decision does not prevent
the application of res judicata). Here, Barry sought DHEC's approval of a septic tank on April
18, 1984 for lots 13 and 14. DHEC refused the permits on May 23, 1984 and notified Barry that
he could challenge the decision in a contested case by requesting a hearing under the
Administrative Procedures Act.
While the decision of the administrative agency must be a "final judgment," a decision cannot be
denied the status of a final judgment by the party merely declining to challenge the decision. See 50 C.J.S. Judgments § 620 (1947) (a decision becomes final and subject to res judicata when a
decision goes unchallenged due to the failure of the party to exercise the right of appeal.) Barry
chose not to seek a contested case hearing after having the septic tank permit request denied.
Such an action by Barry gives rise to a final judgment for res judicata purposes.
Finally, the third element of "identical parties" is not disputed here. Barry and DHEC have been
in contention since the early seventies over permits for lot 13 and 14. In fact, all prior disputes
have been and the current dispute continues to be between the identical parties.
b. Issue Preclusion
Since the elements of the first portion of the res judicata test are present, the issue becomes
determining whether and to what extent the second portion of the test precludes issues sought to
be raised a second time. When stated in the traditional negative manner, Barry may not relitigate
any issues that were or might have been litigated in the previous action. Correspondingly, when
stated in an affirmative manner, litigation is proper for any issue or fact not involved in the prior
action. SeeTown of Sullivan's Island v. Felger, ___ S.C. ___, 457 S.E.2d 626 (Ct. App. 1995)
(holding res judicata did not prevent subsequent litigation of southern boundary since prior
litigation only involved northern boundary.). Thus, new issues, i.e. those not involved in the prior
action, are not precluded by res judicata. See Martin v. Sears, Roebuck & Co., 189 S.C. 48, 200
S.E. 87 (1938) (finding res judicata applied to question of whether installment payments were
properly made but not applicable to new issue of conversion of property.)
A new issue can arise when, subsequent to the first decision, new facts occur which alter the legal
rights or relations of the litigants. 50 C.J.S. Judgments § 712 (1947). For res judicata purposes,
the new facts to be considered cannot result from the production of new evidence capable of
having been discovered at the time of the prior hearing nor from the production of immaterial
facts, but rather the subsequent facts or events must be such that they create a new legal situation. Moseley v. Welch, 218 S.C. 242, 62 S.E.2d 313 (1950).
Barry is not now precluded from asserting a permit should be granted since facts not in existence
in 1984 are required to be addressed in the second dispute. A change in facts is a common basis
for denying the application of issue preclusion. For example, res judicata did not preclude
relitigation of a ditch's capacity to carry water since the capacity to carry water varied over time. Farmer's Reservoir & Irrigation Co. v. Fulton Irrigating Ditch Co., 120 P.2d 196 (Colo.
1941). Res judicatadid not bar relitigation of the title to property where physical changes
subsequent to the prior decision made the property part of a river bed. State v. R.E. Janes Gravel
Co. 175 S.W.2d 739 (Tex. 1943), modified on other grounds, 180 S.W.2d 144 (Tex. 1944). In
some instances the mere passage of time from the first decision to the second controversy may be
sufficient to demonstrate a change in circumstances so that a seemingly previously litigated issue
will not be precluded at the second hearing. International Shoe Mach. Corp. v. United Shoe
Mach. Corp., 315 F.2d 449 (1st Cir. 1963).
Here, the most significant change in the facts is that in 1996 Barry submitted for DHEC review an
experimental septic tank system. The mere fact the system is untried introduces a factual dispute
not litigated or even capable of litigation in the 1984 denial. This is not a septic tank system that is
frivolous, but, on the contrary, DHEC, while finding the system inadequate, admits that some
aspects of the system have merit. Additionally, DHEC's normal policy is to examine any
proposals made by an applicant. Under the facts of this case, the advances in technology are such
that the denial of a permit in 1984 does not control a decision on facts to be determined twelve
years later in 1996. Such is especially true where the new system is experimental. Accordingly,
Barry is not precluded from challenging DHEC's denial of the permit request.
4. Conclusions of Law
Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of
law:
1. Res judicata is based upon the purpose that the public interest is served by having an end to
litigation and that no one should be twice sued for the same cause of action. First Nat. Bank of
Greenville v. U.S. Fidelity & Guaranty Co., 207 S.C. 15, 35 S.E.2d 47 (1945).
2. The purpose of res judicata is accomplished by preventing the parties from relitigating in a
second action any issues actually litigated or that might have been litigated in the first action so
long as the first and second actions are between the identical parties and the first action
culminated in a final judgment. Griggs v. Griggs, 214 S.C. 177, 51 S.E.2d 622 (1949).
3. For res judicata purposes, a prior action includes hearings available at the administrative level. See Earls v. Aycock, 276 S.C. 471, 279 S.E.2d 614 (1981).
4. The fact that an agency decision does not result from a contested case hearing does not prevent
that decision from being a final judgment since the failure to pursue an available appeal renders,
the unappealed decision as a final decision. See 50 C.J.S. Judgments § 620 (1947).
5. Res judicata does not prevent the litigation of an issue or fact that was not involved in the prior
action. See Town of Sullivan's Island v. Felger, ___ S.C. ___, 457 S.E.2d 626 (Ct. App. 1995).
6. New issues, i.e., those not involved in the prior action, are not precluded by res judicata. SeeMartin v. Sears, Roebuck & Co., 189 S.C. 48, 200 S.E. 87 (1938).
7. A new issue can arise when, subsequent to the first decision, new facts occur which alter the
legal rights or relations of the litigants. 50 C.J.S. Judgments § 712 (1947).
8. For res judicata purposes, new facts cannot result from the production of new evidence that
was capable of having been discovered at the time of the prior hearing nor from the production of
immaterial facts, but rather the subsequent facts or events must be such that they create a new
legal situation. Moseley v. Welch, 218 S.C. 242, 62 S.E.2d 313 (1950).
9. A change in facts from the time of the prior decision is a common basis for denying the
application of the issue preclusion results of res judicata. See Farmer's Reservoir & Irrigation
Co. v. Fulton Irrigating Ditch Co., 120 P.2d 196 (Colo. 1941); State v. R.E. Janes Gravel Co.
175 S.W.2d 739 (Tex. 1943), modified on other grounds, 180 S.W.2d 144 (Tex. 1944).
10. Due to a change in material facts from 1984 to 1996, Barry is not precluded by res
judicatafrom litigating DHEC's denial of his request for a septic tank permit.
B. Septic Tank Permits
1. Positions of Parties:
DHEC argues no permit can be granted since the seasonal saturation depth is less than twelve
inches below the natural ground surface and the soil itself is slowly permeable, clayey subsoil.
Both elements of water table level and soil type, in DHEC's view, make the wetness of the soil
such that no septic tank permits may be issued for lots 13 and 14 of Barry's property. Barry
asserts the lots are sufficiently elevated to provide a proper location for septic tanks.
2. Findings of Fact:
I find, by a preponderance of the evidence, the following facts:
1. On November 29, 1995 Barry filed applications with DHEC to obtain septic tank permits for
lots 13 and 14 of property located at Mateeba Estates, Dorchester County, S.C.
2. On December 14, 1995, the Dorchester County Health Department evaluated the soil of lots 13
and 14 by soil borings and determined that the water table was within twelve inches of the soil
surface.
3. Dorchester County Health Department personnel notified Barry on April 25, 1996 that the
shallowness of the water table and the soil texture prevented either lot 13 or 14 from meeting the
minimum site requirements to allow a permit for a conventional sewage disposal system or an
experimental system.
4. On May 14, 1996, DHEC personnel inspected lots 13 and 14 and from soil borings determined
the "zone of seasonal saturation is less than twelve inches below the natural ground surface " and
that "slowly permeable, clayey subsoil was identified thirteen (13) to eighteen (18) inches below
the surface."
5. On May 29, 1996, DHEC notified Barry that lots 13 and 14 did not meet the minimum
requirements for a conventional or experimental septic tank system.
6. On July 25, 1996, additional DHEC personnel evaluated lots 13 and 14 by soil borings.
7. The July 25, 1996 soil borings demonstrated lots 13 and 14 contain fill material with depths of
a few inches to two feet with such material having inadequate permeability to support a drain field
for a septic tank.
8. The July 25, 1996 soil borings demonstrated soil wetness at shallow depths below the surface
of the ground on lots 13 and 14.
9. Barry conducted soil borings on lots 13 and 14 by the use of two drillings on October 17, 1996.
10. Barry's drilling number one was on lot 13 and found ground water at 29 inches.
11. Daily readings from drilling number one from October 18, 1996 until October 31, 1996 found
ground water at increasing depths with the ground water continuing to drop from 29 inches to
beyond 50 inches.
12. From October 31, 1996 until the last reading of January 7, 1997 the ground water in drilling
number one indicated no ground water present at 50 inches.
13. Barry's drilling number two was on lot 14 and found ground water at 40 inches.
14. Daily readings from drilling number two from October 18, 1996 until October 25, 1996 found
ground water at increasing depths with the ground water continuing to drop from 40 inches to
beyond 50 inches.
15. From October 25, 1996 until the last reading of January 7, 1997 the ground water in drilling
number two indicated no ground water present at 50 inches.
16. Barry's drilling number one found mottled clay between 16 inches and 48 inches.
17. Barry's drilling number two found mottled clay between 30 inches and 49 inches.
18. On lots 13 and 14, the seasonal high water table is within 12 inches of the soil's surface.
19. On lots 13 and 14, the soil texture is slowly permeable, clayey subsoil.
20. Lots 13 and 14 are not suitable for operation of a septic tank system whether conventional,
alternative, or experimental.
3. Discussion
The two features of seasonal high water table and soil texture are the controlling factors in this
application for a septic tank permit. In general, the regulations require that before a permit will be
granted, the site must meet standards set by DHEC for soil texture and maximum seasonal high
water table. 24A S.C. Code Regs. § 61-56 (V) (A)(1976). Further authority is granted to DHEC
to establish permit standards since DHEC "may, at its discretion, establish policies and standards
concerning all aspects of individual sewage treatment and disposal." 24A S.C. Code Regs. §
61-56 (XIII) (1976).
a. Seasonal High Water Table
Under the regulations, a conventional septic tank system requires that the maximum seasonal high
water table for the proposed site be at least twenty-nine inches (29") below the natural ground
level. 24A S.C. Code Regs. § 61-56 (V)(B) & (VII)(B)(1)(1976). Further, where a conventional
septic tank system is not feasible, DHEC may allow an alternative system for both the initial
treatment of sewage and the final treatment and disposal of sewage as long as the alternative
system is within standards established by DHEC. 24A S.C. Code Regs. § 61-56 (VI)(B)(1),(2) &
(VII)(C)(1),(2) (1976). For example, a modified conventional septic tank system may be allowed
if the maximum seasonal high water table for the proposed site is at least twenty-one inches (21")
below the natural ground level to accommodate the system. Finally, DHEC may allow
experimental systems under specified conditions.
1. Conclusion As To Seasonal High Water Table
The level of the seasonal high water table is disputed and conflicting evidence was presented to
establish where this level was for Barry's lots. However, considering the matter as a whole, the
most persuasive evidence establishes that the seasonal high water table is approximately 12 inches
below the ground surface.
2. Basis For Conclusion
DHEC found that the seasonal high water table is less than twelve inches below the natural
ground surface based upon soil boring on lots 13 and 14. These borings found the presence of
mottling in the soil at a level indicating the seasonal high water table is less than twelve inches
below the surface. Mottling is a "splotchiness" in color caused by the reaction of water, iron, and
other substances in the soil. Water may not be currently found at the depth of the mottling but the
presence of the mottling demonstrates that the water table level at some time has reached that
point. Thus, mottling is an indication of the seasonal high water table.
Barry, on the other hand, disputed the conclusion that the seasonal high water table is at the 12
inch level. While Barry's drillings on lots 13 and 14 show the lack of water at depths of 50 inches,
even Barry's drillings demonstrated mottling at depths that would raise some concerns for a
conventional 29 inch or an alternate 21 inch depth septic tank system. For instance, on lot 13
mottled clay is present in a range between 16 inches and 48 inches. Thus, the upper range of 16
inches on lot 13 is unacceptable. Further, Barry presented evidence that shows the soil for lots 13
and 14 is classified as Wahee soil. According to information relied upon by Barry's expert
witness, Wahee soil typically has a "seasonal high water table of 0.5 foot to 1.5 feet below the
surface." Thus, Barry's soil classification data supports DHEC's evidence that the water table is
approximately one foot below the surface. Finally, Barry's observation that the area has "ditching
and cuts" which reduce the presence of water is not controlling in this case. The evidence
demonstrates that ditching does not lower the seasonal high water table but rather reduces the
length of time that the water remains at the high level. Thus, considering all of the factors as a
whole, the seasonal high water table is approximately 12 inches below the surface and prohibits
the use of a septic tank system for lots 13 and 14 whether the system is conventional, alternative,
or experimental.
b. Soil Texture
DHEC determined the soil texture was "slowly permeable clayey subsoil ... thirteen (13) to
eighteen (18) inches below the surface." Further, DHEC found that fill materials had been placed
on the lots and that such materials varied from a few inches in depth to approximately two feet
with the "permeability of the fill material ... not adequate for a soil absorption system."
1. Conclusion As To Soil Texture
The texture of the soil is also a disputed issue. Again, however, considering the matter as a whole,
the most persuasive evidence establishes that the soil texture is not adequate for a septic tank
system.
2. Basis For Conclusion
DHEC supported its view of lack of permeability by physical inspection of the property on several
occasions and analyzing several soil borings from the two lots. DHEC's samples confirmed the
presence of fill material and poor absorption capacity of the soil. In a similar manner, Barry's soil
samples show clay detected at a depth beginning at 7 inches on lot 13 and at a depth beginning at
19 inches on lot 14. Again, Barry's expert witness' data shows that the lots have Wahee soil which
"is not suited to use as septic tank absorption fields because of ... slow permeability." Finally,
while I recognize there are functioning septic tanks operating on other lots in the neighborhood,
the evidence demonstrates that over the years some property owners have had problems with their
septic tanks. Further, the testimony shows that the presence of an operating septic tank on one
lot does not necessarily lead to the conclusion that the same system will operate on an adjacent
lot. Based upon all of the evidence, the soil texture of lots 13 and 14 is not adequate for a septic
tank soil absorption system, whether the system is conventional, alternative, or experimental.
4. Conclusions of Law
Based on the Findings of Fact and Discussion, I conclude the following as a matter of law:
1. DHEC is authorized to promulgate regulations relating to septic tanks. S.C. Code Ann.
§44-1-140 (11)(1976).
2. Promulgated regulations govern individual waste disposal systems and the issuance of septic
tank permits. 24A S.C. Code Regs. § 61-56 (1976).
3. A conventional septic tank system requires that the maximum seasonal high water table for the
proposed site be at least twenty-nine inches (29") below the natural ground level to accommodate
the system. 24A S.C. Code Regs. § 61-56 (V)(B) & (VII)(B)(1)(1976).
4. Where a conventional septic tank system is not feasible, DHEC is authorized to consider an
alternative system for both the initial treatment of sewage and the final treatment and disposal of
sewage as long as the alternative system is within standards established by DHEC. 24A S.C. Code
Regs. § 61-56 (VI)(B)(1),(2) & (VII)(C)(1),(2) (1976).
5. A modified conventional septic tank system requires that the maximum seasonal high water
table for the proposed site be at least twenty-one inches (21") below the natural ground level to
accommodate the system.
6. DHEC may establish, in its discretion, policies and standards concerning all aspects of
individual sewage treatment and disposal and may allow experimental systems within acceptable
standards. 24A S.C. Code Regs. § 61-56 (XIII) (1976).
7. Lots 13 and 14, Ashley River Drive, Mateeba Estates, Dorchester County, S.C., do not meet
the minimum site conditions for an individual sewage treatment and disposal system under S.C.
Code Regs. § 61-56 (V) whether the system is conventional, alternative, or experimental.
C. Taking Under The Fifth Amendment
1. Positions of Parties:
Barry asserts the inability to obtain a permit for a septic tank amounts to a taking of his property
without compensation in violation of the Fifth Amendment to the United States Constitution.
DHEC asserts the lack of a permit is not a taking of property but rather is the exercising of the
police power of the State for the public's welfare.
2. Findings of Fact:
I find, by a preponderance of the evidence, the following facts:
1. The improper absorption, filtration, and aerobic treatment by a private waste disposal system of
human waste effluents allows pollutants to contaminate drinking water, surface waters, and
spread disease-producing organisms.
2. Barry requested that DHEC issue a permit for a private waste disposal system.
3. Under DHEC's authority over public health, safety and welfare, DHEC reviewed the
application and denied the request.
3. Discussion
The State has an interest in establishing methods to assure the purity of the State's air and water
resources. S.C. Code Ann. § 48-1-20 (1976). DHEC, on behalf of the State, attempts to ensure
the purity of the State's water by controlling and preventing water pollution to protect the public
health, safety and welfare of the citizens. Harper v. Schooler, 250 S.C. 486, 189 S.E.2d 284
(1972). When DHEC performs its duties to control sewage disposal, DHEC exercises the police
power of the State. S.C. Dept. of Health and Environmental Control v. Armstrong, 293 S.C.
209, 359 S.E.2d 302(Ct. App. 1987). The proper performance of a police power does not fall
within the takings clause of the Fifth Amendment and does not require compensation to property
owners. S.C. State Highway Dept. v. Wilson, 254 S.C. 360, 175 S.E.2d 391 (1970); Carter v.
S.C. Coastal Council, 281 S.C. 201, 314 S.E.2d 327 (1984).
Here, DHEC is acting on a request for a private waste disposal system by Barry. The granting or
denying of Barry's request for a permit is a police power function to preserve the health, safety
and welfare of the public. Accordingly, no taking of property results.
4. Conclusions of Law
Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of
law:
1. The State has an interest in establishing methods to assure the purity of the State's air and water
resources. S.C. Code Ann. § 48-1-20 (1976).
2. DHEC, on behalf of the State, attempts to ensure the purity of the State's water by controlling
and preventing water pollution to protect the public health, safety and welfare of the citizens. Harper v. Schooler, 250 S.C. 486, 189 S.E.2d 284 (1972).
3. When DHEC performs its duties to control sewage disposal, DHEC exercises the police power
of the State. S.C. Dept. of Health and Environmental Control v. Armstrong, 293 S.C. 209, 314
S.E.2d 302 (Ct. App. 1987).
4. The proper performance of a police power does not fall within the takings clause of the Fifth
Amendment and does not require compensation to property owners. S.C. State Highway Dept.
v. Wilson, 254 S.C. 360, 175 S.E.2d 391 (1970); Carter v. S.C. Coastal Council, 281 S.C. 201,
314 S.E.2d 327 (1984).
5. Barry is not entitled to compensation for the taking of his property in violation of the Fifth
Amendment to the United States Constitution.
IV. Order
Based upon the Findings of Fact and Conclusions of Law, the following ORDER is issued:
Barry's application for a septic tank permit for two lots identified as Lots 13 and 14, Ashley River
Drive, Mateeba Estates, Dorchester County, S.C., TMS No. 171-00-00-145 and TMS No.
171-00-00-69 is denied.
AND IT IS SO ORDERED.
__________________________________
RAY N. STEVENS
Administrative Law Judge
This 31st day of January, 1997
Columbia, South Carolina |