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Vicary v. Town of Awendaw

Supreme Court of South Carolina

December 19, 2018

Lynne Vicary, Kent Prause, and South Carolina Coastal Conservation League, Petitioners,
Town of Awendaw, and EBC, LLC, Defendants, Of whom Town of Awendaw is the Respondent. Appellate Case No. 2016-002150

          Heard October 17, 2018

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


          Christopher K. DeScherer, Catherine M. Wannamaker and James Blanding Holman, IV, all of Southern Environmental Law Center, of Charleston, and W. Jefferson Leath, Jr., of Leath Bouch & Seekings, LLP, of Charleston, for Petitioners.

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

          HEARN JUSTICE.

         The sole question before us is whether Petitioners Lynne Vicary, Kent Prause, and the South Carolina Coastal Conservation League possessed standing to contest Respondent Town of Awendaw's annexation of land within the Francis Marion National Forest (Ten-Foot Strip). Because the Town allegedly acted nefariously in using a decade-old letter as a petition for annexation, the circuit court found Petitioners had standing and reached the merits. The court of appeals reversed, finding Petitioners lacked standing. Vicary v. Town of Awendaw, 417 S.C. 631, 639, 790 S.E.2d 787, 791 (Ct. App. 2016). We now reverse, holding Petitioners have standing to challenge the annexation of the Ten-Foot Strip.


         The merits of this appeal concern three parcels of land, serving as links in a chain necessary to satisfy contiguity requirements of annexation. The first link, the Ten-Foot Strip, is a ten-foot wide, 1.25 mile-long parcel of land in the National Forest, which is managed by the United States Forest Service. The second link is property owned by the Mt. Nebo AME Church (Church Tract), and the third link is approximately 360 acres of unimproved real estate surrounded by the National Forest on three sides (Nebo Tract).

         In the fall of 2003, the Town sought to annex the Ten-Foot Strip, which required a petition signed by the Forest Service. The Town's representatives sent the Forest Service four letters from November 2003 through February 2004 in an effort to obtain its approval. Through verbal discussions, the Town learned the Forest Service was generally opposed to annexations because of their impact on the Forest Service's ability to conduct controlled fire burns. Additionally, the Forest Service indicated any petition would likely have to come from officials in Washington D.C., a process that could take several years. Thereafter, without receiving written authorization, the Town annexed the Ten-Foot Strip. In doing so, the Town relied on a 1994 letter from a Forest Service representative, stating it had "no objection" to annexing several strips of property within the same vicinity. However, the Town realized the letter may have not clearly related to the proposed annexation, as it noted in a 2003 letter to the Forest Service, "Although we did previously receive a letter from the forest department giving Awendaw the right of way, that documentation is unclear…We would like to clarify that you will allow the Town to annex the portion of your property that is necessary in order to annex Mt. Nebo AME Church [the Church Tract]."

         Despite the 1994 letter being a decade old and ostensibly not involving the same property, in May of 2004, the Town passed the ordinance, purportedly under the 100% petition method, claiming it had obtained a signed petition from the Forest Service. Relying on the annexed Ten-Foot Strip to satisfy contiguity, the Town passed another ordinance annexing the Church Tract after receiving a petition from church representatives.

         Five years later, EBC, LLC, the owner of the Nebo Tract, requested the Town annex its property pursuant to the 100% petition method. On October 1, 2009, the Town passed an ordinance annexing the property, and simultaneously rezoned it as a "planned development" to permit residential and commercial development. In annexing the property, the Town relied on the Church Tract and the Ten-Foot Strip to establish contiguity. Without either component, there would be no contiguity and annexation would be impossible.

         In November 2009, Petitioners filed a complaint against the Town and EBC, which they amended in April 2010, alleging, inter alia, the Town lacked authority to annex the Ten-Foot Strip because the Forest Service never submitted a petition for annexation. The Town and EBC moved for partial summary judgment, contending Petitioners lacked standing to challenge the annexation and regardless, the statute of limitations barred their claims. The circuit court denied partial summary judgment on both grounds, finding Petitioners had standing to challenge the Town's annexation of the Ten-Foot Strip under the public importance exception, the Declaratory Judgment Act, [1] and as taxpayers. The Town appealed to the court of appeals, which dismissed as not immediately appealable. Thereafter, the Town sought certiorari from this Court, which we denied on the same ground.

         In April 2014, the case proceeded to a bench trial. There, Robert Frank, a registered land surveyor, testified that the 1994 Forest Service letter referred to a different strip of land than the Ten-Foot Strip. In response, Bill Wallace, the Town's administrator, noted the Town had used the letter at least seven times prior to the 2004 annexation of the Ten-Foot Strip, and that he believed the letter incorporated it. Further, Wallace stated that no one representing the Forest Service had ever objected to those annexations. Kent Prause, one of the Petitioners who lived about three to four miles from the Nebo Tract, testified as to the potential future harm caused by developing the property. He noted the unique species of animals, as well as the overall use and enjoyment of the National ...

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