Lynne Vicary, Kent Prause, and South Carolina Coastal Conservation League, Respondents,
Town of Awendaw, and EBC, LLC, Defendants, Of whom Town of Awendaw is the Appellant. Appellate Case No. 2014-002118
February 11, 2016
From Charleston County J. C. Nicholson, Jr., Circuit Court
Jackson Smith, of Nelson Mullins Riley & Scarborough,
LLP, of Charleston, for Appellant.
Jefferson Leath, Jr., of Leath Bouch & Seekings, LLP, of
Charleston; and James B. Holman, IV and Christopher K.
DeScherer, both of Southern Environmental Law Center, of
Charleston; all for Respondents.
Town of Awendaw (the Town) appeals the circuit court's
final order, arguing the court erred in finding (1) Lynne
Vicary, Kent Prause, and the South Carolina Coastal
Conservation League had standing; (2) the Town never received
a proper petition requesting the 2004 annexation; (3) the
Town falsely claimed it had a proper petition to annex the
United States Forest Service (the Forest Service) property;
(4) the Town was estopped from asserting a statute of
limitations defense; and (5) the statutory time period for
challenging the 2004 annexation was tolled. We reverse.
in 2004, the Town made a series of three land annexations,
starting with the annexation of a strip of the Francis Marion
National Forest (the National Forest) and culminating in
October 2009 with the annexation of a 359.51-acre tract (the
Nebo Tract). The Nebo Tract is encircled by the National
Forest and is owned by EBC, LLC.
Town attempted to create the required contiguity between its
own border and the Nebo Tract by annexing the ten-foot wide
and 1.25 mile long strip of the National Forest (the Ten-Foot
Strip). The Ten-Foot Strip is contiguous with the Nebo Church
Tract, which connects the Nebo Tract to the
Town annexed the three tracts (Nebo Tract, Nebo Church Tract,
and Ten-Foot Strip) purportedly using the 100% petition
method outlined in section 5-3-150(3) of the South Carolina
Code (2004). In early 2004, the Town requested the
Forest Service enable the Town to annex the Ten-Foot Strip in
order for the Town to also annex the Nebo Church Tract.
Despite the Town's admission that the Forest Service did
not provide them anything in writing expressing their desire
that the Ten-Foot Strip be annexed, the Town used a 1994
letter it received from a Forest Service representative
stating the agency had "no objection" to the
annexation of several strips of property described therein.
According to land surveyor Robert Frank, none of the strips
described in the 1994 letter were the Ten-Foot Strip at issue
in this case.
10, 2004, the Town passed an ordinance stating a "proper
petition h[ad] been filed" for annexation of the
Ten-Foot Strip and accepting the petition. The Town also
passed an ordinance that same day annexing the Nebo Church
2009, EBC requested the Town annex the Nebo Tract under the
100% petition method. On October 1, 2009, the Town passed an
ordinance accepting the petition and annexing the Nebo Tract.
The Town also enacted ordinances (1) rezoning the Nebo Tract
as "planned development, " (2) declaring its
Comprehensive Plan amended to allow the Nebo Tract as planned
development, and (3) approving a development agreement with
April 23, 2010, Lynne Vicary, Kent Prause, and the South
Carolina Coastal Conservation League (collectively,
Respondents) filed a second amended complaint against
the Town and EBC. Respondents alleged that by unlawfully
annexing the Nebo Tract and allowing for intensive
residential and commercial development of the property, the
Town has harmed and "will continue to harm one of the
most important ecological areas on the Atlantic coast,
including the [National Forest], a sensitive resource of
national significance that is owned and managed for the
benefit of the public." Respondents asserted the
Town's 2004 annexation of the Ten-Foot Strip was void
because the Town never received a petition requesting
annexation from the Forest Service, and therefore, the
subsequent annexations of the Nebo Tract and the Nebo Church
Tract failed because those tracts lacked contiguity with the
Town. Respondents requested the court declare the Nebo Tract
annexation ordinance void and issue a declaratory judgment
"adjudicating the invalidity of the annexation and all
accompanying ordinances regarding the Nebo Tract, including
the ordinance approving the Development Agreement, the
amendment of the Comprehensive Plan, and the purported
rezoning, and a permanent injunction enjoining acts in
furtherance of any of the illegally enacted ordinances and
requiring that the Nebo Tract be returned to the status
quo prior to the illegal annexation and rezoning . . .
December 22, 2010, the Town and EBC filed a motion for
partial summary judgment arguing Respondents lacked standing
and their challenge was barred by the statute of limitations.
The circuit court subsequently denied the motion. On
September 6, 2012, Respondents and EBC entered into a
settlement agreement wherein EBC dismissed its counterclaims
against Respondents and Respondents dismissed their claims
case proceeded to trial on April 16, 2014. Following trial,
the circuit court issued an order declaring (1) Respondents
had standing; (2) the action was timely filed; and (3) the
Town's annexation of the Ten-Foot Strip was void because
the Town never received a petition of annexation from the
Forest Service. The court declared "[b]ecause the
annexation of the Ten-Foot Strip was ultra vires of
the Town's authority, the Town's subsequent
annexations of ...