By Brian Sherman for The Island Eye News
Maybe there is something Sullivan’s Island’s current Council can do to avoid what could be wholesale cutting in the town’s Maritime Forest. According to Ross Appel, an attorney who specializes in land use and the environment, an agreement approved by members of the former Sullivan’s Island Council is not necessarily binding on the current Council. In October 2020, the town agreed to a mediated settlement that permitted some cutting in the forest after more than a decade of negotiations with Nathan and Ettaleah Bluestein and Theodore and Karen Albenesius.
Appel, a member of the Charleston City Council, was hired by Sullivan’s Island for All, a non-profit organization whose mission is “to preserve the Sullivan’s Island Maritime Forest and accreted land in its natural state for the benefit, protection and enjoyment of all.” Appel said he hasn’t yet studied “every angle on this entire matter,” but he did mention two specific issues that must be considered in this case: claims by proponents of the agreement that Council members could face personal liability for questioning the settlement and that the issue cannot be revisited by the current Council.
“The doctrine of legislative immunity in South Carolina is enormously broad. In their official capacity, there’s no way they could be held liable for their conduct in office. It falls so squarely within their job description and the normal function of government that to say that they are personally liable is highly unlikely,” Appel said. “That’s just done to scare people. It’s an effort to chill some of this conversation.” In the town’s May 4 election, the two incumbent Council members who supported the agreement, Tim Reese and Chauncey Clark – who ran for reelection and mayor against incumbent Pat O’Neil – were defeated, while the three newest Council members – Justin Novak, Gary Visser and Scott Millimet, all were opponents of the mediated settlement. Appel cited the Declaratory Judgement Act and Rule 60 of the South Carolina Rules of Civil Procedure as two avenues that could lead to a change in plans concerning cutting in the Maritime Forest. Under the former, he explained, a court can be asked to evaluate the agreement to determine if the new Council is bound by the decision of its predecessor. “Local governments are limited in their powers. One check is binding future Councils,” Appel said. “Legislatures cannot bind future legislatures’ hands on public policy. For example, with the federal government, Republicans own both houses and the presidency and jam everything through. But they can’t pass a law that says you can’t raise taxes forever.” He added that a judge would be able to determine if one section of the agreement violates that premise and leave the remainder of the settlement intact. Under Rule 60, he explained that in a civil procedure, a judge may “relook at orders that have been entered on various grounds.”
“Will a judge tear up the agreement? Appel asked. “That’s an open question. I have no opinion on that. There is an effort underway for Council members to look into this issue. The ball is in the Council’s court. Ultimately, it’s up to the town to decide what they want to do.”
Local residents want action
Judging by the public comments made at the Council’s Sept. 21 meeting, Sullivan’s Island residents are anxious to at least try to make changes in the mediated settlement. Each of the 10 people who addressed Council members urged them to take action. “It has been almost four months since we welcomed in our new Town Council, elected by a landslide with a clear mandate to do everything in your power to mitigate the destruction to the Maritime Forest contemplated by the lawsuit settlement passed by the last Town Council,” said Sullivan’s Island for All President Karen Byko. “We’re excited to be here tonight to report that despite past advice from those who wrote the settlement that it cannot be challenged, there actually is a legal path forward.” Susan Middaugh said the settlement “cedes control of a valuable common resource to a few private individuals, was negotiated behind closed doors and only made public three days before being voted in. Five of seven current Council members did not agree to this settlement; yet Council is still relying on legal advice from the same attorneys who negotiated the settlement in the first place.” “Council members owe it to the many island residents who voted last May based on this issue to immediately engage an outside attorney for independent advice on what you can do, not just what you can’t do,” she added.
Cindy Ewing agreed that transparency was an issue with the mediated settlement.
“The people of Sullivan’s Island have a right to know how we ended up with settling a lawsuit we were winning in the middle of a pandemic with less than 48 hours notice to citizens without a unanimous vote from Town Council – that manages only for views and breezes and not once mentions managing for our most costly and deadly threats: hurricanes, storm surges, flooding and sea level rise,” Eqing added. “Why wouldn’t the town of Sullivan’s Island want to review a legal settlement that was handled without transparency for the benefit of a tiny minority of residents who sued us to destroy the very thing that protects us from our worst nightmare?”