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Vicary v. Town of Awendaw

Court of Appeals of South Carolina

August 3, 2016

Lynne Vicary, Kent Prause, and South Carolina Coastal Conservation League, Respondents,
v.
Town of Awendaw, and EBC, LLC, Defendants, Of whom Town of Awendaw is the Appellant. Appellate Case No. 2014-002118

          Heard February 11, 2016

         Appeal From Charleston County J. C. Nicholson, Jr., Circuit Court Judge.

          Newman Jackson Smith, of Nelson Mullins Riley & Scarborough, LLP, of Charleston, for Appellant.

          W. 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.

          LOCKEMY, C.J.

         The 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.

         FACTS/PROCEDURAL BACKGROUND

         Beginning 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.

         The 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[1], which connects the Nebo Tract to the Ten-Foot Strip.

         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).[2] 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.

         On May 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 Tract.

         In 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 EBC.

         On April 23, 2010, Lynne Vicary, Kent Prause, and the South Carolina Coastal Conservation League (collectively, Respondents)[3] 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 . . . ."

         On 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 against EBC.

         The 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 ...


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