Johnston v. S.C. Dep't of Health & Envtl. Control

• Decision Date: 27 September 2022
• Docket Number: 22-ALJ-017-0194-CC
• Parties: James T. Johnston, III, Karen Johnston, Dotson Guice and Courtney Guice, Petitioners, v. South Carolina Department of Health and Environmental Control and Cedar Lane Development, LLC, Respondents.
• Court: South Carolina Administrative Law Court Decisions

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James T. Johnston, III, Karen Johnston, Dotson Guice and Courtney Guice, Petitioners, v. South Carolina Department of Health and Environmental Control and Cedar Lane Development, LLC, Respondents.

No. 22-ALJ-017-0194-CC

South Carolina Administrative Law Court Decisions

September 27, 2022

For Petitioners: Eric B. Laquiere, Esquire

For Respondent DHEC: Bradley David Churdar, Esquire Sallie Page Phelan, Esquire

For Respondent Cedar Lane Development, LLC: Robert Cody Lenhardt Jr., Esquire

ORDER GRANTING THE DEPARTMENT'S MOTION TO DISMISS

Robert L. Reibold, Administrative Law Judge

STATEMENT OF THE CASE

This matter is pending before the South Carolina Administrative Law Court (the ALC or the Court) following a request for a contested case hearing filed by James T. Johnston, III; Karen Johnston; Dotson Guice; and Courtney Guice (collectively, Petitioners) on June 8, 2022. See generally S.C. Code Ann. § 44-1-60 (2018 & Supp. 2021); S.C. Code Ann. § 1-23-600 (Supp. 2021). Petitioners challenge certain permitting actions taken by the South Carolina Department of Health and Environmental Control (DHEC or the Department). Specifically, Petitioners challenge DHECs decision to: (1) issue permit OCRM00712 (the Permit) to Cedar Lane Development, LLC (Cedar Lane) to allow the construction of a dock between Lots 17 and 18, Church Creek Landing Subdivision, Charleston, South Carolina, TMS numbers 355-00-00-003 and -04 and (2) decline to modify the permit after Petitioners requested a modification. This matter was assigned to the undersigned on June 9, 2022. On June 23, 2022, DHEC filed its agency information sheet and notices of appearance.

On June 28, 2022, the Court issued an order for prehearing statements. On July 8, 2022, DHEC filed a motion to dismiss, arguing "Petitioners did not properly invoke this Court's jurisdiction over their [r]equest for [a c]ontested [c]ase because they failed to exhaust their administrative remedies" by requesting review by the DHEC Board. See § 44-1-60; see also S.C. Code Ann. § 1-23-380 (Supp. 2021). DHEC additionally argues Petitioners' request for a contested case hearing is untimely because the request for a contested case hearing was made "almost four and a half years after the permitting decision." Petitioners filed a written response to the motion on July 25, 2022, contending (1) section 44-1-60 is procedural and not jurisdictional; (2) Petitioners "are adjoining landowners" and should have been given notice of the permitting, and thus, the time limit should be tolled pursuant to the discovery rule; (3) "[t]he dock being constructed . . . physically touches upon and interferes with . . . Petitioners' riparian rights"; "Petitioners first received notice of the existence of the dock permit on or about May 23, 2022[,] when construction of the dock began"; (4) immediately after discovering the construction, Petitioners contacted DHEC and had to institute these proceedings; (5) Petitioners "raised issues of false, incomplete, and inaccurate information contained in the permit application; as well as construction of the contemplated dock impeding rights of the public"; and (6) "there is no process spelled out by statute or regulation that defines" how Petitioners are supposed to challenge the conditions imposed by the dock permit. Cedar Lane did not file a response to DHEC's motion.

On July 26, 2022, the Court issued a notice of hearing on the motion to dismiss for September 1, 2022. Also on July 26, 2022, DHEC filed its prehearing statement. On July 27, 2022, Petitioners moved for an order of protection and extension of time to file its prehearing statement; DHEC and Cedar Lane consented, and Cedar Lane requested the same extension for its own prehearing statement. By order dated August 3, 2022, the Court granted the extension requests, and Petitioners filed their prehearing statement. Cedar Lane additionally filed its prehearing statement after the Court granted an additional extension.

A hearing on the motion to dismiss was held on September 1, 2022. Eric B. Laquiere, Esquire, appeared for Petitioners. Bradley David Churdar, Esquire, appeared for DHEC. Robert Cody Lenhardt, Jr., Esquire, declined to attend the hearing because the motion did not involve his client-Cedar Lane. Based on the reasons set forth below, the Court grants DHEC's motion to dismiss.

TIMELINE

The following sequence of events is undisputed:

1. On September 20, 2016, Cedar Lane filed a Joint Federal and State Application for Activities Affecting Waters of the United States or Critical Areas of the State of South Carolina with the Office of Ocean & Coastal Resource Management (OCRM), an office within DHEC. Cedar Lane sought a permit to construct a dock on Church Creek.

2. On September 24, 2016, Cedar Lane filed a public notice in the Post and Courier, notifying the public of its application for a dock permit.

3. On May 11, 2017, OCRM provided written notice to interested agencies, adjoining landowners, interested local governments, and other interested persons. Private notice was not sent to Petitioners because DHEC did not view them as adjoining landowners because they live across Church Creek.^[1] The plan depicting the proposed work was publicly available on DHEC's website.

4. On January 19, 2018, DHEC issued a critical area permit to Cedar Lane to construct the dock.

5. On May 23, 2022, shortly after construction began on the dock, Mrs. Guice contacted DHEC to express concerns over the dock's impact on the creek's navigability. That same day, DHEC sent Mr. Johnston a copy of the dock permit. DHEC personal stated she previously did not observe any "unauthorized activity occurring," but DHEC staff would reinspect the dock to ensure its compliance with its permit once construction was completed because the construction was "not far enough along . . . to determine . . . compliance status."

6. On or about May 24, 2022, Mr. Johnston expressed concerns to DHEC about the dock and requested an in-person inspection.

7. Shortly thereafter, DHEC staff agreed to an in-person inspection to be held on June 3, 2022-before construction was completed but after the dock contractors staked out the site. (Email from Chelsea Woodruff to Guice and others dated June 2, 2022 - filed as supporting document to Pet'rs' Opp'n to the Mot. to Dismiss).

8. Because of an issue with the dock contractor, that inspection was postponed until June 8, 2022. (Email from Chelsea Woodruff to Guice and others dated June 3, 2022 - filed as supporting document to Pet'rs' Opp'n to the Mot. to Dismiss).

9. According to DHEC's motion to dismiss and representations at the hearing on the motion to dismiss, representatives of DHEC appeared for the scheduled inspection on June 8, 2022, only to later learn that Petitioners had filed a request for a contested case hearing earlier that day.

10. At the motion hearing, counsel for Petitioners informed the Court that DHEC notified his clients in an email dated on or about June 2 or 3, 2022, that it would not revoke or modify the Permit. A copy of this email was not provided to the Court.

DISCUSSION

DHEC moves to dismiss this case. It argues the Court lacks jurisdiction because Petitioners failed to exhaust their administrative remedies and because the request for a contested case hearing is untimely. At the hearing, DHEC focused primarily on its argument that the case should be dismissed because Petitioners failed to exhaust their administrative remedies.

DHEC argues that Petitioners' objections to the Permit are governed by section 44-1-60 of the South Carolina Code and South Carolina Code of Regulation 30-2 (2011).^[2]

Section 44-1-60 provides in pertinent part that:

(A) All department decisions involving the issuance, denial renewal, suspension, or revocation of permits, licenses, or other actions of the department which may give rise to a contested case, except a decision to establish a baseline or setback line, must be made using the procedures set forth in this section. . . .

(B) The department staff shall comply with all requirements for public notice, receipt of public comments and public hearings before making a department decision. To the maximum extent possible, the department shall use a uniform system of public notice of permit applications, opportunity for public comment and public hearings.

(C) The initial decision involving the issuance, denial renewal, suspension, or revocation of permits, licenses, or other action of the department shall be a staff decision. . . . .

(E)(1) Notice of a department decision must be sent by certified mail, returned receipt requested to the applicant, permittee, licensee, and affected persons who have requested in writing to be notified. Affected persons may request in writing to be notified by regular mail or electronic mail in lieu of certified mail. Notice of staff decisions for which a department decision is not required pursuant to subsection (D) must be provided by mail, delivery, or other appropriate means to the applicant, permittee, licensee, and affected persons who have requested in writing to be notified.

(2) The staff decision becomes the final agency decision fifteen calendar days after notice of the staff decision has been mailed to the applicant, unless a written request for final review accompanied by a filing fee is filed with the department by the applicant, permittee, licensee, or affected person.

(3) The filing fee must be in the amount of one hundred dollars unless the department establishes a fee schedule by regulation after complying with the requirements of Article 1, Chapter 23, Title 1. This fee must be retained by the department in order to help defray the costs of the proceedings and legal expenses.

(F) No later than sixty calendar

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