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City Council Meeting. August 15

Major step to curb drug dealing
Some questions of principle in relation to re-zonings
Marc Knapp

As Councilmember Fishburne sensed as he perused the long agenda early in the evening, it was going to be a long one. It was! Yours truly and another were the only members of the public that stuck it to the end - at 9 pm.. The meeting would have ended earlier but for the persistence of Council member Bleecker. She tried to make a point about procedure. Her argument had merit but with the lateness of the hour and the accompanying weariness, Council was in no mood for detailed discussion. She yielded before the daggers in the eyes of other Council members ceased being metaphoric.

The most important issues before Council last night were the proposed anti - loitering ordinance and a down-zoning on John's Island. The latter brought a number of Island residents to the meeting. Unfortunately, most of them left before the item came up for discussion. It was close to the last on the agenda but many Islanders could not stay because of another important development-related meeting they needed to attend.

We can have an anti-loitering ordinance!
The need for an anti-loitering ordinance had been discussed at a number of meetings of Council this year. Like Councilmember Fishburne, we were under the impression that it was very difficult to introduce a workable ordinance. The City did have an anti- loitering ordinance, but like those in many other cities, it was not enforceable in the light of a Supreme Court decision. Either driven by a belief that it was possible to craft a workable ordinance, or despair over the rampant drug dealing in Charleston, Councilmember Fishburne wrote to the State Attorney General for an opinion. He got one, and it was very encouraging. It was given to the Mayor, and provided the basis for the draft ordinance presented to Council last night.

Attorney Generals Department gives favorable advice
Mayor Riley acknowledged that the proposed ordinance had been shaped on the advice from the Attorney General's Department, and also on the anti-loitering ordinance of the City of Milwaukee. He expressed hope that the ordinance would avoid the problems of the early ordinances, which were ruled to infringe on the constitutional rights of speech. He also noted that the Charleston ordinance was broader that that of the City of Milwaukee. It gave judges the right to impose restraints on criminals, or individuals waiting trial or on probation, as to the areas in which they could move. Police were to be given authority to arrest these individuals if they moved into an area from which they are prohibited by the judges. For example, if an individual is convicted of drug dealing on Line Street, the judge may impose a jurisdictional limit, that legally will bar him from being on Line Street. If he were found on Line Street, he would be charged under the new anti-loitering ordinance and liable for a fine or up to 30 days in jail.

City taken to task on earlier advice
A number of Council members strongly endorsed the proposed ordinance. Council was asked to look at the proposed ordinance, presumably to discuss it at the next meeting. Council member Fishburne, who can claim a large part of the credit for getting action on the new ordinance, suggested it could be more specific. And although he said he was not going to make an issue of how the City's legal department had misled him and others about the efficacy of an ordinance, he did so by repeating the charge a number of times.

Mr. Charleton De Saussure, the City Attorney was polite in his response but I am not sure he convincingly repudiated the charge. He did warn however that it still may not be plain sailing for the City and that a lot of litigation should be expected. The Attorney General's opinion was just that - another opinion. But it was an encouraging opinion. It also suggested that South Carolina might join the City of Charleston should any suit arise over the proposed ordinance.

Discussion on the ordinance wandered with Council member Tinkler noting the growing incidence of panhandling on the Peninsula. The City's legal department responded saying that it was presently studying the ordinance relating to panhandling with a view to tightening. Major Whetsell of the City police also commented on the problem of keeping criminals in jail. The majority of crimes were committed by folk that had served jail sentences for other crimes or that were out on probation or awaiting trial.

Down-zoning on Johns Island - an unusual problem?
The City started the process of rezoning 887 acres on John's Island. This is a group of contiguous properties, mainly on Plow Ground Road, that are presently zoned Rural Residential (RR1) and can be subdivided to allow 3.5 units per acre. What makes these properties unusual is that they are outside the County-defined Urban Growth Boundary (UGB). Nearly all of the properties outside the UGB do not allow such density in a subdivision. As Christoper Morgan of the City said last night, the surrounding properties are in the unincorporated area of the County and subdivision would allow only 1 unit per 7 acres. However these properties are also directly across the street from the Johns Island airport and associated industrial park, which is zoned Light Industrial.

An eye-sore?
It seems that the owners of the property have a contract to sell one of the tracts to a developer, who in turn will subdivide the approximately 330 acres into 1100 home sites. The present zoning would allow 3100 units if all three parcels were to be developed. This was anathema to Councilmember Bleecker and some other Johns Island residents. This would destroy the rural ambience of the area with a ghastly eye-sore. Besides, there was no infrastructure, nor was it likely to be provided.

Presumably with the prodding of the Councilmember, the City proposed to classify the properties as Conservation which in turn would impose a subdivision density of one residential unit per 1.5 acres. The first reading of the ordinance, to impose this classification, was before Council last night.

I have not seen the plan for the three hundred acre tract, but I personally don't feel the development is within character for the area, but I take serious exception with the City on the process. The matter was put on the agenda Thursday August 10, 2006. This was without proper notice. I also feel it was wrong to lump all three properties together since only one parcel was being developed. The owners and developers have been working on this project for seven months. The City had a problem when the developer came in to start the City permit process. Most of the due diligence and engineering has already been completed.

These parcels were all annexed into the City in 1990. These parcels were all zoned for 4 units per acre by the County prior to annexation . It would be doubtful if the City would have ventured very far from this zoning. I say this because I do not believe the RR-1 zoning existed when all of this occurred in 1990.

Legal subtleties lost on us
According to Councilmember Bleecker, and supported by city legal staff, it was necessary for Council to approve the First Reading for legal reasons that relate to the City's options and the contract between the property owners and the developer. A favorable vote supposedly would invoke the pending ordinance rule thereby putting a stop to any further progress on the development. I believe that the presence of the ordinance on the agenda would have accomplished the same thing, but by giving it first reading and sending it on to the Planning Commission, rather than deferring, will be a slam dunk for the Mayot and Council member Bleeker. After the Planning Commission, the ordinance goes back to Council for second and third readings. Indeed, some Council members expressed concern as to the Conservation zoning and indicated that a vote for the ordinance at the first reading did not imply continued support.

All the owners were opposed to the ordinance and complained that they received a phone call from the City on Thursday August 10, 2006, less than a week's notice, about the matter being added to the agenda.

The Bottom Line
Should the city get away with down zoning? There is no doubt in my mind that the owners and developers will be suing the City for an improper taking. It can be argued that the down-zoning and the consequent reduction in density of subdivision will represent a loss of value for the owners. They therefore could sue, regardless of whether the Planning Commission goes along with the Conservation classification.. I don't believe the City has a leg to stand on and we the tax payers could take it in the shorts for possibly over $25 million, I believe. I also believe that corporate counsel has been remiss in not advising Council of the ramifications of this action.

Mayor Riley supports re-zoning
Mayor Riley joined the fray and acknowledged that some of the property owners were his friends but he supported Councilmember Bleecker in what she was trying to do, and noted that the zoning that pertained to the properties had been in place before the creation of the UGB. Therein of course, lay the problem.

Can the Urban Growth Boundary survive?
The next questions might be as to whether the UGB will survive the assaults made on it, and the future of Johns Island. The major assault is the extension of I-526. The impact of this extension is going to be discussed at the County on Thursday when the consultant makes a presentation to the Transport and Greenbelt Advisory Boards. And then late last month there was the request for provision of sewage services for a 570 unit development within the City but outside the UGB. There is now the subdivision that we just referred to.

There is an agreement between the City and the County that the City will not annex properties outside the UGB. But two potential subdivisions, referred to above, exist on properties within the City boundaries and outside the UGB - one because it was in place before the creation of the UGB, the other, because the UGB was moved for a short period and the approval was given during this period. The City is under the wire, and sub-divisions have followed. Are there more to follow?

Rezoning should not follow annexation
The City was also taken to task about proposed re-zonings on Folly Road, slightly south of the existing Harris Teeter supermarket. The properties aggregated 1.5 acres. They had recently annexed into the City but the prior County zoning was Residential Office (RO). The Planning Commission recommended the retention of the Residential Office classification. But the ordinance last night proposed that the properties be classified General Office (GO). The owner of the property said there were no plans for changes and that he was looking only for a little more flexibility.

City staff said there was little difference between the two zoning categories, though as the owner suggested, there would be slightly more flexibility.

Mr. Joe Qualey, a likely Councilmember of the new Town of James Island spoke against the rezoning. He noted that Council was breaking its past practice of not changing zonings on annexed properties. He noted that rezoning was an unfair tool to induce Property owners to annex into the City as Mr. Frampton, the property owner, said he was promised the new zoning by the Mayor. Council member Shirley also made the same point. Mr. Qualey warned that although the present owner planned no change, the Council could not be sure that this would be the policy of subsequent owners. He feared that the new zoning could allow a building with a height out of proportion with its surrounds, ie, 55 feet for a property zoned GO. The matter was deferred.

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