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Cruise ships

Some still call for a controlling City Ordinance
Don’t think so!

Warwick Jones

The resolution that City Council approved two months ago should have put the cruise ship issue to bed. Council, unanimously, gave the nod to the Union Pier Plan of the SC Ports Authority (SPA), and cruise ship visits to Charleston. Letters from the SPA were attached to the resolution acknowledging its commitment. If the SPA wanted to increase the number of visits, the size of the ships or the number of passengers, it would first seek approval from the City. It agreed to allow only one ship to berth at a time, an average of no more than 2 visits a week, and a maximum passenger complement of 3500 a vessel.

This was not enough for some citizens, or for the Coastal Conservation League (CCL) and the Preservation Society. They argued and continue to argue that the City has the power to control the activities of the SPA, or at least place limits on the number and size of cruise ships that tie up at Charleston. They said that the letters from the SPA were no guarantee of its commitment. A binding agreement or an ordinance was necessary.

The opponents of cruise ships also claim the ships pollute the waterways and atmosphere, contribute to traffic jams on the Peninsula, bring a lower class of tourist to Charleston and make little positive impact on the local economy. The large ships, when docked, also detracted from the City’s silhouette. Overall cruise ships do nothing to enhance the quality of life of those on the Peninsula, they argue.

It is encouraging that citizens strongly react when they perceive the quality of life, or the historic ambience of the Peninsula is threatened. And we make the observation, that in an indirect way, it is the success of citizens, the preservation groups and the City in maintaining the historic ambience that draws visitors to Charleston. If Charleston had allowed itself to be redeveloped over the years, its attraction would have been diminished. We probably would not have tourist issues, or specifically, a cruise ship issue. However, we draw the line at the personal attacks, the half-truths and the suppositions; tactics recently used in opposition.

While we align ourselves with many objectives of these citizens and groups, we have to take issue with some of the claims. The first is that the City has the power to regulate the cruise ships and can create an ordinance. For some sinister reason, the Mayor refuses to acknowledge this, it is argued. Could it be that if he assumed such power, the SPA would ditch the whole Union Pier Plan to the detriment of the City and City revenues, the cynics say?

At a meeting of the Historic Ansonborough Neighborhood Association (HANA) some 6 weeks ago, a professor from the Charleston School of Law made the claim that the City had the power to control cruise ships and cited the case creating the precedent. No documentation relating to the court case was given to members. Notwithstanding, most of the 30 or so members in attendance were swayed and voted to request the City move to control the industry. Some were breathing fire and law suits. Considering HANA’s letters to the P&C and The Mercury, they continue to do so.

We checked with the City about the case referenced by the Professor. It was well known to legal staff and irrelevant to the present issue, they said. The court decision related to construction and did not define use (Click Download file to see the official summary of the case). The City sued the SPA in 1992 over a building the SPA planned to construct. The building did not conform to the City zoning requirements and the Court determined that it should. The Court also stated that the SPA was subject to local zoning in relation to building size and shape and specifically referred to S.C Code Ann. 6-7-830 that regulates the uses of structures.

We searched this reference and found that it and a lot of accompanying ordinances were repealed in 1994 and replaced with new legislation. The new legislation (6-29-319 et seq) probably was not significantly different to that it replaced.

It is interesting that no reference was made by the Professor to State law which seems to be the most important in limiting the power of the City to control SPA operations. Title 50 of the South Carolina Code of Laws defines the authority over watercraft while Title 54 outlines charge the state has given the SPA over port matters - it is a state, not a city function. An extract for Title 50 follows.

SECTION 50-21-30. Watercraft laws and ordinances; application for special rules and regulations.

(1) The provisions of Title 50 and other applicable laws of this State shall govern the operation, equipment, titling, numbering, and all other matters relating thereto for watercraft and water devices using or held for use on the waters of this State; but nothing in this chapter may be construed to prevent the adoption of any ordinance or local law relating to operation and equipment of watercraft; provided, that the ordinances or local laws shall be operative only so long as and to the extent that they are identical to provisions of this chapter, amendments thereto, or regulations issued thereunder.

(2) Any subdivision of this State may, at any time, but only after three days' public notice make formal application to the department for special rules and regulations with reference to the operation of vessels on any waters within its territorial limits and shall set forth therein the reasons which make such special rules and regulations necessary or appropriate.

(3) The department is hereby authorized to make special rules and regulations with reference to the operation of vessels on waters within the territorial limits of this State.

This clearly gives the State the authority to regulate water craft on state controlled waters and the authority cannot be assigned to the City unless the laws are identical to those of the State. (This redundancy allows a city to prosecute in local courts rather than through a State court). Relevant parts of Title 54 specifically dealing with the SPA can be seen by pressing Download file.

Some have argued that any attempt by the City to regulate cruise ships would also fall foul of Federal law, in particular the right to travel, and interstate trade. We think this is tenuous and the argument convoluted. Apart from being way over the author’s head, it is also moot in the light of the State law, and the ownership of the land on which the port stands.

CCL and others have pointed to other port cities in the US that control cruise ship visits. If they can do it, why can’t Charleston? The answer is simple. These cities own the land on which the ports are constructed. In the case of San Francisco, and perhaps other cities, the Mayor and council appoint the officers of the port authorities. In the case of Charleston, the state controlled SPA owns the land. The City can only zone the land, and appropriately it is zoned Industrial. The zoning defines the activities or use. But it can’t be used to micro manage the use – the number of cruise ships, freighters, or tankers a day, or the volume of cargo that is off loaded.

Finally, we ask why Mayor Riley would choose not to exercise control over cruise ships if the law clearly allowed it. The Mayor is no shrinking violet when it comes to exercising power. Just ask the opinion of James Island residents.

We can’t address all of the other issues that continue to be raised over cruise ships, but note that those relating to pollution of the waterways have become strangely muted. This may reflect a better understanding of federal and international laws that the cruise ships have to follow or that the allegations of illegal dumping were based on innuendo and half-truths from the start.

As for traffic, it is bad on the Peninsula most of the time in daylight hours, and particularly bad in peak hours. Cruise ships when in port can lead to congestion on Washington and East Bay Streets. But in our experience, there has been no discernible deterioration on East Bay Street when ships are in port. Some will say we have just been lucky, and that is possible. But whatever congestion there is should be relieved when the new passenger terminal is built a few blocks to the north of the present terminal, and a new parking lot created with an entrance and exit further north.

The whole Union Pier redevelopment project, which presumably will encompass hotels, condominiums, commercial and retail (and parks) is currently under review. The traffic this generates could be overwhelming. The SPA and the City are working on the development of new roads and street realignments to lessen the volumes on East Bay and Washington Streets.

The Mayor has created a Task Force following on the “Delicate Balance” Forum of the Historic Charleston Foundation and the City, to watch over these potentially disruptive developments.

For the record, we support the Union Pier Plan and recognize that it is still in the conceptual stage. Managing the development though will indeed be a “delicate balance”.