Date: July 14, 2022 at 3:25 PM
Subject: Re: [iKiawah] Sam Spit -- The Controversy Continues!
To: IKiawah <firstname.lastname@example.org>
The discussion regarding Sam’s Spit has gotten very “in the weeds” on the precise wording and applicability of municipal ordinances and state statutes. I want to take a step back and take a look at the bigger picture as to how we’ve come to this place. The more time I spend on this, the more I find the Town’s actions to be odd and deeply unsettling - especially over the past month.
Just a brief bit of history. The original Preliminary Subdivision Plat was approved in 2015 pursuant to the Town’s subdivision ordinances. Two things are particularly noteworthy.
First, there were a number of conditions imposed by the Planning Commission at that time before a final subdivision plat, which would be a recorded document, would be approved. Eight years later, none of those conditions have been satisfied. Second, subdivision regulations provided for a 3 year approval period and single six month extension. At that time, the applicant did not question the applicability of the 3 year approval period, nor did the Town. All of this took place 10 years after the state Vested Rights Act was enacted, which is relevant given the arguments Town counsel is now advancing.
Jump to 2017. At that time, the developer submitted a request for an annual extension, now based on the Town’s vested rights ordinance, 12-194. It was the developer’s view that 12-194 was the applicable ordinance, even though no support was provided for deeming the preliminary subdivision plat as a “site specific development plans”. The Town now states on the TOKI website that the Town “rejected” the extension request. There is no record in the Planning Commission meeting minutes of a denial of the extension request. What I understand is that the Planning Director may have “rejected” the request. The Town now appears to be saying that was an error.
Regardless, and this is critical, if the developer believed that the “rejection” was in error, the Town’s ordinances provides for a 30-day period to appeal the decision to Charleston County court. The developer did not appeal and its failure to do so should have extinguished any further its extension rights it might otherwise have had beyond the initial approval period - whether 2 or 3 years.
Nonetheless, we come to 2018, and the Town blithely accepts and approves a one-year extension. Nothing mentioned about a Town error or the failure of the developer to timely pursue its appeal rights the prior year. And, both the developer and Town now seem to be on the same page - that the applicable ordinance was 12-194 - even though there still was still no explanation provided anywhere in the record as to how a preliminary subdivision plat had morphed into a “site specific development plan.” Another critical point here - 12-194 provides for an initial 2 year approval period followed by a maximum additional 5 years (in one year increments, if sought).
Fast forward to one month ago - and this is where it begins to get Through the Looking Glass weird. Another annual extension request shows up on the Planning Commission June calendar, even though 7 years had now lapsed since the original preliminary approval. Nonetheless, the agenda materials included a highlighted subparagraph of 12-194 indicating that the Town was required to approve the extension. A few of us started looking at this and asking questions, as it did not appear that the developer was entitled to a further extension, nor could one be granted. And, at a sparsely attended Planning Commission, the newer members of the Commission were asking the same questions. So what happened? Commission member Joanne Hennessy noted that even if 12-194 applied, which was questionable, the developer already had the benefit of the 7 years allowed under the ordinance and she moved to deny the extension as moot. The Planning Director quickly jumped in and said that the Commission didn’t have to make a decision then and could wait for further “clarification.” The pending extension request was then tabled.
What is also noteworthy about this meeting is that it wasn’t noteworthy up until that point. There were only a handful of attendees in the room (I was one of them). From the Town, only the Planning Director and the Town Council liaison were there.
Contrast that to last week. First, there was an executive session scheduled at the Town Council meeting about the requested extension, even though the Planning Commission was the decision-making body. Then another executive session scheduled at the Planning Commission meeting. Attendees at this meeting include 3 Council members, Town counsel and the Town Administrator. I’ve skimmed through two years of Planning Commission meetings and didn’t find any other regular meeting of the Commission that had that show of force from Town leadership.
As had been noted elsewhere, at the meeting itself, there was absolutely no discussion of the whys and wherefores of the extension during the public portion of the meeting. No case put forward by the developer or any developer representative as to why it felt it was entitled to an extension. The chair dismissed the request of PreserveKiawah to discuss the legal analysis against extension that had been sent to Town Counsel the day before. We learned in real-time that the analysis provided by PreserveKiawah counsel had been withheld from Planning Commission members until 30 minutes before the meeting.
Then, early the next day, there was a clearly pre-baked update to the Development Resources page of the Town’s website addressing the Planning Commission’s approval. Below is one portion - a self-asked question:
"Why did the Planning Commission approve an annual extension for the land known as Captain Sam’s Spit?
On July 6, The Planning Commission approved an annual extension request for the approved preliminary subdivision plat for lands of KDP II, LLC & Kiawah Resort Associates, LP. – Cape Charles (Captain Sam’s Spit). This extension request for the subject approved preliminary plat now grants a one-year extension which expires on July 6, 2023."
Does that strike you as an answer?
It’s actually not clear what the update is or supposed to be? It can’t be an explanation for why 4 members voted yes to approve an extension - because there was no reason given. Unless someone was taking notes in executive session and the 4 members explained that was the basis for their informed decision. Apart from other reasons to question that, it can’t be correct because deliberation and decision-making are required by state law to take place in public, not behind closed doors.
Is it an opinion of counsel? If so, what is counsel opining to - that an extension was required? That it wasn’t required, but could be approved if the Commission thought that an extension was in the best interests of the community? Or that it wasn’t actually required but should be approved? Because, why? The developer asked nicely? Because the Town arguably made a mistake 5 years ago and wanted to make amends to the developer? Because the Town counsel said the Town would be sued by the developer with potentially millions in economic damages if the extension wasn’t approved?
What it clearly is - a reverse engineered, legally specious, and logically inconsistent effort to justify a predetermined outcome. Out of whole cloth a new argument is advanced that even though the developer had pursued an extension under 12-194, which would have provided for a maximum of 5 years of extensions, 12-194 is no longer applicable and is superseded in its entirety by the state Vested Rights Act, which provides for at least 5 annual extensions. Which Act was adopted 17 years ago - and this is the first time its come up? No longer is it that the Planning Commission was required to approve, as previously asserted by both the developer and the Town, but now could if it wanted to. Which it did. So there. Never a position advanced, at least in any public setting, by the developer itself, but advanced sua sponte by the Town counsel to the benefit of the developer.
You can't make this stuff up - I really am beginning to feel like Alice falling down the White Rabbit’s hole.
It is patently obvious from the totality of circumstances that the Town went all in to ensure that the extension was approved - even though an extension was not required and the better argument is that it wasn’t allowed under the Town’s own ordinances. Indeed, at every turn involving the Sam’s Spit preliminary subdivision plat saga, the Town appears to have bent over backward to accommodate the interests of the developer.
Given a clearly justifiable basis (actually bases) for not approving the extension, given the overwhelming public opposition to development of Sam’s Spit, and given the SC Supreme Court decision, the question is why? Look above - you won’t find the answer there….