League of Women Voters of Georgetown County v. Litchfield-by-the-Sea, LITCHFIELD-BY-THE-SEA and S

Citation409 S.E.2d 378,305 S.C. 424
Decision Date09 January 1991
Docket NumberNo. 23472,LITCHFIELD-BY-THE-SEA and S,23472
CourtUnited States State Supreme Court of South Carolina
PartiesLEAGUE OF WOMEN VOTERS OF GEORGETOWN COUNTY, Appellant, v.outh Carolina Coastal Council, Respondents. . Heard

James S. Chandler, Jr., Pawleys Island, for appellant.

C.C. Harness, III, of the South Carolina Coastal Council, Charleston, for respondent South Carolina Coastal Council.

Dwight F. Drake, of Nelson, Mullins, Riley & Scarborough, Columbia, for respondent Litchfield-by-the-Sea.

FINNEY, Justice:

Appellant League of Women Voters of Georgetown County (League) appeals a circuit court determination that this case is not subject to review pursuant to the Administrative Procedures Act (APA). S.C.Code Ann. §§ 1-23-310-400 (1986). We affirm in part, reverse in part and remand.

Respondent Litchfield-by-the-Sea (Litchfield) required a permit from the Department of Health and Environmental Control (DHEC) to construct a sanitary sewer system at Willbrook Plantation, a real estate development owned by Litchfield. In conjunction with its permit application, Litchfield needed certification from Respondent South Carolina Coastal Council (Council) that the project was consistent with the South Carolina Coastal Zone Management Program. S.C.Code Ann. § 48-39-80 (1987). On October 25, 1988, Council issued certification for Phase I of Willbrook Plantation.

Subsequently, League petitioned for a public hearing on Council's certification and requested suspension of certification pending such a hearing. Council denied the petition. Whereupon League filed an action in circuit court seeking review of Council's certification pursuant to the APA or, alternatively, pursuant to common law rules for writ of certiorari.

Council filed a Motion to Dismiss, moving to strike from the complaint and petition allegations that the action was filed pursuant to S.C.Code Ann. §§ 1-23-380 and 15-53-10, et seq., and paragraph 9, which alleged:

The Certification decision was also made upon unlawful procedure in violation of the requirements of the South Carolina Administrative Procedures Act, in that the Certification proceeding constitutes a "contested case" under the provision of said Act, but the Council failed to fulfill the requirements of Sections 1-23-320 and 1-23-350, Code of Laws of South Carolina.

The circuit court granted Council's motion to strike and permitted the action to proceed by way of certiorari. Citing Triska v. Dep't of Health and Environmental Control, 292 S.C. 190, 355 S.E.2d 531 (1987), the circuit judge concluded that certification by Council is not a "contested case" and, therefore, not reviewable pursuant to the APA.

League appealed, contending that the certification process constitutes a "contested case" and is governed by the APA. We disagree, but conclude on constitutional grounds that League is entitled to notice, the right to a hearing and judicial review.

This Court finds that under the statutes and regulations then prevailing, Council's certifying procedure was not a "contested case." Hence, the action under consideration was not within the purview of the APA, which defines a "contested case" as:

... [A] proceeding, including, but not restricted to ratemaking, price fixing, and licensing, in which the legal rights, duties or privileges of a party are required by law to be determined by an agency after an opportunity for a hearing. (Emphasis added.)

S.C.Code Ann. § 1-23-310(2) (1986).

In Triska, we affirmed the reinstatement of DHEC certification without a second adjudicatory hearing. In that case, a public hearing was held prior to the initial certification. Two and a half years later, the certification was challenged. Subsequently, DHEC rescinded certification and reopened the adjudicatory hearing. We determined that the period provided for filing an appeal had lapsed, that the review was not pursuant to the APA, and DHEC was without authority to revoke certification. This Court noted in Triska that there was "no requirement in South Carolina law or Federal law that there be an opportunity for a hearing in a certification, and therefore, a 'contested case' does not...

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6 cases
  • Ogburn-Matthews v. Loblolly Partners, 2876.
    • United States
    • Court of Appeals of South Carolina
    • 3 Agosto 1998
    ...hearing procedure a "contested case." 25A S.C.Code Ann. Regs. 61-101 (Supp.1997). Most recently, in League of Women Voters v. Litchfield-bythe-Sea, 305 S.C. 424, 409 S.E.2d 378 (1991), our supreme court held that the South Carolina Coastal Council's certification under the Program of a stat......
  • Garris v. GOV. BD. OF SC REINSURANCE, 24871.
    • United States
    • United States State Supreme Court of South Carolina
    • 29 Diciembre 1998
    ...is required by law to determine a party's rights after an opportunity for a hearing. League of Women Voters of Georgetown County v. Litchfield-by-the-Sea, 305 S.C. 424, 426, 409 S.E.2d 378, 380 (1991); Triska v. Dep't of Health and Envtl. Control, 292 S.C. 190, 196, 355 S.E.2d 531, 534 (198......
  • South Carolina Ambulatory Surgery Ctr. Ass'n v. The South Carolina Workers' Comp. Comm'n, 26875.
    • United States
    • United States State Supreme Court of South Carolina
    • 7 Septiembre 2010
    ...right to be heard emanating from article 1, section 22 as “due process rights.” See League of Women Voters of Georgetown County v. Litchfield-by-the-Sea, 305 S.C. 424, 426-27, 409 S.E.2d 378, 380 (1991) (overruled on specific grounds by Brown v. S.C. Dep't of Health and Envtl. Control, 348 ......
  • Yeargin v. South Carolina Dept. of Highways and Public Transp., 23951
    • United States
    • United States State Supreme Court of South Carolina
    • 8 Noviembre 1993
    ...hearings were not required under the APA prior to the imposition of the suspensions. League of Women Voters of Georgetown County v. Litchfield-by-the-Sea, 305 S.C. 424, 409 S.E.2d 378 (1991). Instead, respondent's rights were protected by the due process of law provided to him for the under......
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