Reyes v. Dorchester Cnty. of S.C.

• Decision Date: 18 March 2022
• Docket Number: C. A. 2:21-CV-00520-DCN-MGB
• Court: U.S. District Court — District of South Carolina
• Parties: Criselda Reyes, Emmanuel Reyes, Plaintiffs, v. Dorchester County of South Carolina, Mike Goldston, Dorchester County Public Works Engineering Manager; Jason Carraher, Dorchester County Public Works Director; Jason L. Ward, Dorchester County Administrator; John Frampton, Dorchester County Attorney, Defendants.

Criselda Reyes, Emmanuel Reyes, Plaintiffs,
v.
Dorchester County of South Carolina, Mike Goldston, Dorchester County Public Works Engineering Manager; Jason Carraher, Dorchester County Public Works Director; Jason L. Ward, Dorchester County Administrator; John Frampton, Dorchester County Attorney, Defendants.

C. A. No. 2:21-CV-00520-DCN-MGB

United States District Court, D. South Carolina, Charleston Division

March 18, 2022

REPORT AND RECOMMENDATION

MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDCE

Plaintiffs Criselda Reyes and Emmanuel Reyes, appearing pro se, filed this action under 42 U.S.C. § 1983, regarding the alleged improper regulation of Plaintiffs' private property. (Dkt. No. 14.) Before the Court is Defendants' Motion to Dismiss. (Dkt. No. 23.) All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(e), DSC. For the reasons set forth below, the undersigned recommends Defendants' Motion be granted in part and denied in part.

BACKGROUND

This civil action arises out of the alleged improper regulation of Plaintiffs' private property, a single-family home (the “Premises”) located on Hillside Farms Subdivision in Dorchester County, South Carolina. (Dkt. No. 14 at 3.) Plaintiffs allege that Criselda Reyes has owned the home since December of 2019, and that she and “members of her family” have occupied the home since March of 2020. (Id.) Plaintiffs allege that they reviewed the “closing escrow documents with

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their closing attorney” in December of 2019, and that the “private backyard ditch” on their property was “NEVER ‘Recorded' or ‘Deeded' with a Stormwater Detention or Retention Pond aka ‘Stormwater Management Facility' for the Hillside Farms HOA subdivision community as ‘Public Use.'” (Id.)

According to Plaintiffs, they “started experiencing the overflowing stormwaters arising from the Premises' stormwater ditch” in March of 2020, and the “source of the overflow was blockage to one of the pipe systems previously approved by the County.” (Id.) “In May of 2020, Plaintiffs activated a FEMA flood insurance policy to protect their home from overflowing County and Hillside Farms subdivision stormwaters.” (Id. at 4.) In June of 2020, Plaintiffs installed artificial grass in their backyard “as a deterrent to the stormwaters retained in the ditch, ” but it did not successfully control the flooding. (Id.) Plaintiffs then “consulted with several experienced drainage and landscaping contractors for solutions to the stormwater encumbrance and stormwater intrusions.” (Id.) According to Plaintiffs, one of the contractors used a shovel to discover a “tennis ball-size hold on the bottom of the 4-ft knockout wall of precast concrete box, buried 2 feet in mud as the Root Cause [sic] of improper stormwater drainage and stormwater intrusions into the Premises.” (Id. at 5 (internal quotation marks omitted).)

Plaintiffs resolved the issue in August of 2020, when they

hired experienced South Carolina Department of Transportation drainage contractors who recommended proper stormwater maintenance by connecting the only two recorded 20-ft drainage easements using high-density polyethylene 20-ft long corrugated stormwater drainage (24” diameter) pipes to solve stormwater intrusions and protect the Premises This entire stormwater drainage maintenance improvement was documented and photographed thru [sic] its completion

(Id.)

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Plaintiffs allege that on September 1, 2020, they “witnessed and video recorded two unidentified individuals”^[1] who entered the back of the Premises after gaining access through neighboring properties. (Id.) Plaintiff alleges these individuals conducted an “unlawful search and surveillance on the Premises.” (Id.) In early September of 2020, Defendant Mike Goldston, Dorchester County Public Works Engineering Manager, sent Plaintiffs “Demand Letters, ” which stated that by filling in the “stormwater pond” on the Premises, Plaintiffs directly violated “Dorchester County Stormwater Management Program Ordinance #07-21.” (Id. at 5.) This Ordinance provides, in relevant part,

No person shall create or cause a blockage of an open channel or pipe system used to convey or transport stormwater runoff from one property to another separately owned property.

No person shall modify the topography of a property such that storm water runoff is diverted from its original path such as to cause it to be directed on an adjacent property.^[2]

(Id. at 4.)

Mr. Goldston also wrote in his Demand Letters that “fines up to one thousand dollars . . . per violation/day may be assessed for failure to restore the stormwater detention/retention pond on the Premises to its original condition in 48 hours.” (Id. at 5-6.) In September of 2020, Plaintiffs appealed Mr. Goldston's Notice of Violation in a letter to Defendants Jason L. Ward and John

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Frampton. (Id. at 6.) Mr. Ward is a Dorchester County Administrator and Mr. Frampton is a Dorchester County Attorney.

That same month, Mr. Ward sent Plaintiffs a “Response Demand Letter, ” stating that “the issuance of the Notice of Violation . . . was justified and appropriate.” (Id.) Plaintiffs then made several Freedom of Information Act (“FOIA”) requests “for related Stormwater Management Plan and documents” on the Premises, and Defendant Dorchester County responded that the documents were unavailable. (Id. at 6-7.) Plaintiffs allege that in October of 2020, they invited Defendants Goldston and Frampton to their house “in an attempt of finding common-sense solutions.” (Id. at 7.) Plaintiffs allege that at that meeting, Mr. Frampton “emphasized the pursuant [sic] of criminal charges unless ‘stormwater detention/retention pond' is fully restored in original condition.” (Id.) Plaintiffs allege Mr. Goldston sent them another Demand Letter reiterating the civil penalty charges for “each day you remain in violation” and stating the “County is willing to forgive the civil penalties as they accrue, if you complete restoration of the stormwater management facility as it existed and was approved for the subdivision within 30 days of the date of this letter.” (Id.)

Mr. Frampton sent Plaintiffs a Demand Letter in December of 2020 stating, inter alia,

Pursuant to Dorchester County's Stormwater Management Ordinance whether or not an easement exists is irrelevant to the issue of your client's alteration of an existing stormwater management facility which served this 16-lot subdivision. In fact, Dorchester County seldom if ever owns stormwater management facilities such as detention/retention ponds which serve subdivisions. Nonetheless, a property owner is not authorized to fill or alter such a stormwater management facility which serves the subdivision. . . . Civil penalties in the amount of $1000 per day will continue to accrue and will be collected according to law.

(Id. at 8.)

Plaintiffs made another FOIA request to Mr. Frampton in January of 2021, and he responded via email, “. . . there has been no condemnation on LOT 10 and therefore there are no

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documents responsive to your [FOIA] request. As I have repeatedly said, there has been no taking. Therefore, there are no documents.” (Id.) In March of 2021, Plaintiffs received another Notice of Violation from South Carolina Department of Health and Environmental Control (“DHEC”) which “email-copied” Mr. Goldston. (Id.) Plaintiffs allege that “the enforcement action undertaken by Dorchester County Public Works reveals an actual controversy related to the invasion of Plaintiffs' constitutionally protected property rights.” (Id.) Plaintiffs assert that in an affidavit by Mr. Gary F. Berenyi, dated October 30, 2019, Mr. Berenyi avers that the Final Subdivision Plat approved by the Dorchester County Planning Commission did not identify an easement or a retention pond located on Plaintiffs' property. (Id. at 8-9.) Plaintiffs have attached Mr. Berenyi's affidavit to their Amended Complaint as well as the referenced Plat. (Dkt. No. 14-1 at 1, 3-4.) Mr. Berenyi's affidavit was issued in connection to a difference case in state court. (Id. at 3.)

The Amended Complaint alleges § 1983 claims against Defendant Dorchester County for violation of Plaintiffs' Fourth Amendment rights: (1) for maintaining a policy that “its Ordinance Enforcement officers may effectuate warrantless entry onto the private property of citizens within Dorchester County”; and (2) for failing to train “its Ordinance Officials.” (Dkt. No. 14 at 9-11.) It also alleges § 1983 claims against Dorchester County for violation of Plaintiffs' Fourth, Fifth, and Fourteenth Amendment rights by enacting Ordinance #07-21, which Plaintiffs allege “is illegal, unconstitutional and without force of law.” (Id. at 13-14.) Plaintiffs allege the Ordinance seeks “to create retroactive penal regulation regarding private property in violation of prohibition against Ex Post Facto Laws” and constitutes a “Regulatory Taking.” (Id.)

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The Amended Complaint alleges § 1983 claims against Defendants Goldston, Carraher, Ward and Frampton for violation of Plaintiffs' Fourth, Fifth, and Fourteenth Amendment rights.^[3](Id. at 12-13.) Here, the Amended Complaint alleges that Mr. Goldston made an improper warrantless entry and search “with a colleague onto Plaintiffs' private property” in September of 2020. (Id. at 12.) The Amended Complaint alleges Defendants Carraher, Ward, and Frampton “are in full support of Mr. Goldston's actions constituted [sic] violation of Plaintiffs' rights under the Fourth and Fourteenth Amendments.” (Id.) The Amended Complaint further alleges that the individual Defendants violated Plaintiffs' Fifth and Fourteenth Amendment rights in that the “County's communications and demands from the Defendants, Dorchester County officials, constitute a public taking.” (Id. at 12-14.)

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