Protect the Automatic Stay

 What is the Automatic Stay?

The Automatic Stay is an Administrative Procedures Act feature that temporarily prevents construction activities when a permit is challenged.  The “stay” allows the Administrative Law Court to assess the facts and law and determine whether the permit was properly authorized by the agency. The “stay” avoids irreparable harm to an affected party or place before that harm occurs. “Stays” are useful to businesses like landfills, hospitals and also local governments, homeowners associations, and individuals by ensuring that an agency decision is well-founded before permanent construction occurs.

What is the problem with the Automatic Stay?

There isn’t one. H. 3565 and S. 105 are solutions in search of a problem. There are current legal solutions for permit applicants wishing to remove the Automatic Stay. If a permit is being contested in the ALC, the applicant may make a motion to lift the Automatic Stay at any time. In doing so, permit holders are guaranteed a hearing within 30 days and a decision within 15 days of a subsequent hearing. The ALC can life the stay “for good cause shown or if no irreparable harm will occur.” As the law is currently written, it is not difficult to lift a stay.

What do these bills propose?

H.3565 and S.105 would limit the duration of the Automatic Stay to 30 days unless a citizen, coalition or group files for preliminary injunctive relief in the ALC. Furthermore, the bill provides the ALC the right to require the posting of a bond or other security to cover potentially significant costs and expenses of litigation and project delay. Costs associated with project delay are meant to be estimated in good faith by an affidavit.

What are the problems with these bills?

The burden of proof would move from the permit holder to the citizens. Elimination of the stay after 30 days would make it extremely difficult for citizens and legal counsel to compile cases, much less for the court to rule, before the applicant begins activities. Development activities or construction might inadvertently proceed before the ALC has had time to consider the facts, threatening public resources and the health and safety of citizens.

It would often bee too expensive for citizens to participate in the process. The state’s ALC already has some of the highest filing fees in the nation, and H. 3565 and S. 105 would impose an insurmountable financial burden on citizens. It is likely that some organizations and parties could file for preliminary injunctive relief in the ALC, but the bond requirement would make it increasingly difficult for many citizens to participate in the ALC process.

Why is the Automatic Stay important?

Stays provide affected citizens an opportunity to voice concern and be heard prior to a final DHEC permitting decision. The administrative process ensures the efficient resolution of disputes before irreparable harm occurs and allows dismissal of frivolous claims.

To prevent harm to an affected party or place, the ALC objectively reviews agency actions to assess whether these activities and permits are properly authorized. The ALC’s role is significantly diminished if construction is not halted or “stayed” during the court’s review.

The South Carolina Constitution guarantees citizens the right to due process of law, including an opportunity to be heard in a meaningful way before being negatively impacted by a permitting decision. This is not a state where we limit a citizen’s ability to challenge bureaucratic decisions.

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