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Standing in a forest: Residents can sue town over contested annexation.

Byline: David Donovan

The spindly strip of land running through the Francis Marion National Forest that's at the heart of a wrangle between environmentalists and one coastal South Carolina town is skinny enough that one could jump right over it in a running leap. But it's wide enough to stand on, and the South Carolina Supreme Court has ruled that a group of concerned residents challenging the town's move to annex it are entitled to legal standing in their dispute as well.

The Town of Awendaw annexed the strip, 1.25 miles long but just ten feet wide, in 2004. The otherwise curious addition was merely a means to an end, however. Under state law, towns can annex only land that touches its existing territory. But that territory might itself be just a recently acquired tentacle, outstretching like an arm snatching a prizein this case, a parcel owned by a church, and then 360 acres of unimproved real estate surrounded by the forest on three sides. The town later annexed that land too, and zoned it for development.

The strip is managed by the U.S. Forest Service, and the town had asked the USFS to petition for an annexation. When that wasn't forthcoming, it annexed the strip anyway, relying on a 1994 letter from a USFS representative, stating it had "no objection" to annexing several strips of property nearby, though not the one in question. The town says it could annex the land because 100 percent of the owners (the only owner, in this case) had petitioned for an annexation, known as the "100 percent method" of obtaining authority.

Two local residents challenged the annexations, alleging that the town lacked authority because the USFS never actually filed a petition. Charleston Circuit Court Judge J.C. Nicholson agreed and deemed the annexations void, but the Court of Appeals reversed, finding that the plaintiffs lacked legal standing. The appeals court held that under state law, if a town annexes land using the 100 percent method, the only parties with standing to challenge it are the state, and private parties suffering from an actual infringement of their own rights.

But in a unanimous Dec. 19 opinion, the Supreme Court reversed and sent the case back to the Court of Appeals, where the town will now have to battle Nicholson's ruling on the merits. Justice Kaye Hearn, writing for the court, distinguished the court's past rulings on the 100 percent method, saying that the limitations on legal standing would apply only when there is no allegation of "nefarious conduct" by the annexing body.

"We do not believe the General Assembly intended to preclude standing where there is a credible allegation that the annexing body engaged in deceitful conduct," Hearn wrote. "The contrary view would eviscerate [the law's] requirements for a valid annexation and would allow an annexing body to shield itself from outside challenges by simply claiming it is employing the 100% method when it is not actually doing so."

The justices agreed with Nicholson that the town essentially attempted to annex the land using a "0 percent method," which is not permitted under state law.

The court ruled that a party that can demonstrate that the annexing body engaged in nefarious conduct in purportedly complying with the law has standing to challenge an annexation, although it noted that the party's burden to demonstrate deceitful conduct in order to have standing would be high in light of the presumption of validity bestowed upon annexations.

The court also agreed that the petitioners would also have had standing under the public importance exception, which confers standing to a party when an issue is of such public importance as to require its resolution for future guidance.

"While this Court has previously declined to utilize the public importance exception in a zoning and annexation dispute, the unique facts present here compel a contrary decision," Hearn wrote.

Christopher DeScherer, Catherine Wannamaker and Blan Holman of the Southern Environmental Law Center in Charleston and W. Jefferson Leath of Leath Bouch & Seekings in Charleston represented the petitioners.

DeScherer characterized the decision as a victory for voters throughout the state and said that it restores accountability in government.

"It upholds the ability of citizens to go to court and to challenge government action where there's a legitimate allegation of deceitful conduct on the part of the government, and I think that's a very important principle and helps to protect citizens throughout the state," DeScherer said.

Jack Smith of Nelson Mullins Riley & Scarborough in Charleston represented the town. Smith said the town was declining to comment on the ruling.

The eight-page decision is Vicary v. Town of Awendaw (Lawyers Weekly No. 010-108-18). The full text of the opinion is available online at

Follow David Donovan on Twitter @SCLWDonovan

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Title Annotation:Town of Awendaw
Author:Donovan, David
Publication:South Carolina Lawyers Weekly
Date:Jan 2, 2019
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