Sullivan’s Island Town Council May Not Be Bound To Maritime Forest Agreement

By Brian Sherman for Island Eye News

The town of Sullivan’s Island should be able to change the terms of an agreement reached in 2020 that apparently settled a lawsuit originally filed in July 2010 and permitted the removal of trees and other vegetation from the island’s Maritime Forest.

At least that’s the opinion of an attorney hired by the Sullivan’s Island Town Council “to determine the town’s rights and obligations under the terms of the settlement agreement.” At its Sept. 29 meeting, the Council voted by a 4-2 margin to ask William W. “Billy” Wilkins of the law firm Nexsen Pruet to take another look at the agreement, which was approved by the Council in October 2020 and amended in April 2021.

Not long after, on May 4, Sullivan’s Island voters chose three new Council members – Justin Novak, Gary Visser and Scott Millimet.

“Needless to say, I read it with interest,” said Mayor Pat O’Neil, who, along with Novak, Millimet and Bachman Smith, supported the measure to hire Wilkins at the Sept. 29 meeting. “We contracted with him to come up with this work product, which he has done. We have no plans for him to do anything else.”

Greg Hammond and Kaye Smith, who were members of the Council that approved the settlement agreement, voted against hiring Wilkins. Gary Visser was not at the meeting. O’Neil said he did not know how much Wilkins, who has served as chief judge of the U.S. Court of Appeals for the Fourth District and U.S. District judge for the District of South Carolina, will be paid for his work.

“After carefully examining the settlement agreement, relevant exhibits and the applicable law, it is my opinion that the settlement agreement is invalid because its provisions improperly restrict the legislative/governmental powers of successor Town Councils, improperly divest the town of legislative/governmental powers and improperly restrict the proprietary functions of the town,” Wilkins wrote. “If the contract involves the legislative functions or governmental powers of the municipal corporation, the contract is not binding on successor boards or Councils.”

Wilkins’ opinion, dated Nov. 30, 2021, pointed out that the settlement agreement in invalid because:

• It improperly restricts the powers of the current Town Council;

• It delegates the legislative and governmental powers of the town;

• It restricts the proprietary functions of the town;

• Parts of it are not enforceable;

• The provisions of the agreement that are not enforceable can’t be separated from the entire agreement.

In Wilkins’ opinion, the town’s options include asking the Charleston County Court of Common Pleas to determine the validity and enforceability of the settlement agreement or asking the court vacate the settlement agreement. 

Leave a Reply

Your email address will not be published.