News | August 4, 2016

Court: Citizens have no right to contest deceptive land grab

A South Carolina court decision appears to have stripped the ability of citizens to challenge some annexations—even when the town flouted the law and acted deceptively—reversing a lower court decision that upheld that right.

The South Carolina Court of Appeals ruled Wednesday that two residents from the Town of Awendaw, along with the South Carolina Coastal Conservation League, or CCL, did not have the legal standing to challenge the town’s 2009 annexation of a 360-acre parcel of land. A lower court had agreed that the town did not properly annex the parcel, called the “Nebo tract”, because the questionable method it used to expand its borders to touch that property did not follow the law.

The town annexed a strip of the Francis Marion National Forest 10 feet wide and a little more than a mile long to connect its current border to a parcel of private property. But in annexing that strip, the town wrongly claimed the forest service asked for the land to be annexed, a necessity under the state’s annexation laws. In reality, the forest service did not ask that the land be taken.

The town has used that method before to cut through the national forest to connect to other parcels, but this case involved only the Nebo tract.

A lower court said that tactic of cutting through the forest wasn’t allowed, and therefore the Nebo tract annexation wasn’t valid. The appeals court reversed that decision, not on the merits of the case but by saying citizens did not have a right to challenge the improper annexation.

The appeals court decision “is disappointing and surprising,” said Dana Beach, executive director of CCL. “The court has ruled that, even where local government officials engage in serious deception regarding annexations, no person harmed by a town’s actions can challenge this type of annexation at all, even if it harms the community. That’s a deeply troubling erosion of citizens’ right to justice.”

The town annexed the Nebo tract to assist the landowners who proposed a higher-density development than would have been allowed by the county. Once it annexed the Nebo tract, the town also attempted to rezone it to allow for intensive commercial and residential development.

“A development like the one proposed would have made forest management impossible,” said Chris DeScherer, an SELC attorney who, along with Charleston lawyer Jeff Leath, represented the plaintiffs. “The intense commercial and residential development proposed was only a possibility because of the unlawful annexation tactics the town employed.”

DeScherer said the recent court decision did not delve into the illegal annexation itself, but instead said citizens have no right to challenge it.

“It’s important to note the court did not dispute our argument that Awendaw had annexed the Nebo tract improperly,” he said. “That was the case when the town first took the land, and it remains the case now.”

CCL said it is considering its legal options “to further protect the Francis Marion National Forest, a true treasure for all of South Carolina.”

Read the Post & Courier coverage of the decision here.