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Vicary v. Town of Awendaw

Court of Appeals of South Carolina

May 1, 2019

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

          Submitted January 4, 2019

          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.

         This case comes before this court on remand after our supreme court's decision in Vicary v. Town of Awendaw, 425 S.C. 350, 822 S.E.2d 600 (2018), with instructions to address the Town of Awendaw's arguments that the circuit court erred in finding: (1) the Town never received a proper petition requesting the annexation of land within the Francis Marion National Forest (Ten-Foot Strip); (2) the Town falsely claimed it had a proper petition to annex the Ten-Foot Strip; (3) the Town was estopped from asserting a statute of limitations defense; and (4) the statutory time period for challenging the annexation was tolled. We affirm the circuit court.


         The merits of this appeal concern three parcels of land the Town seeks to use as links in a chain necessary to satisfy contiguity requirements for 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 an ordinance, purportedly under the 100% petition method, claiming it had obtained a signed annexation 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, Lynne Vicary, Kent Prause, and the South Carolina Coastal Conservation League (Respondents) 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 Respondents 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 Respondents 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 subsequently appealed to this court, which dismissed the appeal as not immediately appealable. Thereafter, the Town sought certiorari from the supreme court, which denied certiorari on the same ground.

         In April 2014, the case proceeded to a bench trial. There, Robert Frank, a registered land surveyor, testified 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 Respondents 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 Forest, which nearby development could threaten. Additionally, development potentially threatened the Forest Service's ability to conduct prescribed fire burnings necessary to maintain the health of the forest.

         The circuit court found Respondents had standing to challenge the annexation, and the statute of limitations did not bar their claims. Reaching the merits, the court concluded the Town's 2004 annexation of the Ten-Foot Strip was void ab initio because it never received a petition from the Forest Service. As a result, the ...

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