The Cape / Timbers
Scroll through our aerial photos to see the clear-cutting of The Cape & Timbers.
"Research over the years has told us time and time again that Kiawah’s most outstanding feature is its natural beauty." ~Designing With Nature 🌳🌲🦅
PreserveKiawah values thoughtful analysis, transparency and good faith open communication with the community.
See below for Brad Belt's, PreserveKiawah Board Member, letters to the community re: The Cape / Timbers.
Brad Belt's Rebuttal To Mayor's July 2022 Comments:
This is a belated follow-up to the Message from the Mayor of July 6 regarding The Cape, which was also published in the Island Connection this week. Actually, this is not just about The Cape - it raises critical issues about arbitrarily disparate treatment of property owners on Kiawah Island, with substantial economic implications. More on that below.
It’s clear that the Town would like this issue to go away. The problem is that every time the Town puts out something about it, its response raises even more questions. In this case, almost every sentence in the Mayor’s Message is, unfortunately, inaccurate, incomplete, misleading, irrelevant, or disingenuous. I won’t attribute these mistakes to the Mayor, but he is the one ultimately responsible for the content.
If you aren’t interested in slogging through the sentence by sentence rebuttal, and I trust that is the vast majority of readers, the important broader policy issues raised by the Town’s message that I do think should be of interest - you can jump to those toward the end, following the ******.
Let’s address the claims made in the Town’s communication.
First, it states that the Town has two legal opinions stating that East West Partners has not violated any standards related to development of The Cape. However, the community has raised several issues regarding development of The Cape, not just the lot coverage issue, but also regarding development of Timbers and clear-cutting on Lot 1. In additions, questions have been raised about whether Kiawah Partners and its agent, the ARB, have complied with the terms of the Development Agreement and Town ordinances, not just or even particularly East West Partners. Answers have yet to be provided with regard to many, many other issues raised - responses have been selective, at best. In any event, the Town should release the two legal opinions so everyone can see what it is they actually opine to and the basis of those opinions.
The communication then notes that primary issue related to the questions that have been raised about whether the maximum lot coverage permitted under the Development Agreement was exceeded depends on the definition of “highlands.” That’s mostly true, but it also includes what is “critical area” constitutes developable area per state regulations.
The message then asserts that 1) the ARB has “exclusive jurisdiction” to “interpret” highlands as used in ARB standards; 2) that ARB has “interpreted” highland to mean all areas above mean high water and that under this “interpretation” the maximum lot coverage is “within ARB’s 33% lot standard”; 3) that this “interpretation” is commonly used and that the SC Attorney General has “ruled” that highlands means the area above mean high water; 4) that the Town’s ordinance define highland as land above mean high-water mark; 5) and that the DHEC-OCRM beachfront jurisdictional lines are irrelevant and that the OCRM critical line “is simply not the same thing” as the OCRM baseline, because one deal with marshfront and the other beachfront.
Each one of these assertions is demonstrably false or incomplete.
1) the message asserts that the question is with regard to the definition of highland in the ARB standards. And, that the ARB has exclusive jurisdiction to interpret the definition. Uh, no and no. Highlands is a term that is used in several places in the Development Agreement, although not defined in that document. The developer/ARB - remember that they are legally one and the same - has zero unilateral “jurisdiction,” authority or discretion to define a term in the Development Agreement. You will not find that grant of authority anywhere in the Development Agreement. Just as the Town, which is the other party to the Development Agreement, does not have unilateral authority to define terms thereunder.
Even with regard to the Designing with Nature DWN) standards, the “Aesthetics” section of the Development Agreement only provides that the ARB has "sole and exclusive" jurisdiction with regard to those standards. As has been noted previously, a grant of jurisdiction does not equate to a grant of discretion. Ask any regulatory agency whether they are the same. But, if Town counsel is willing to opine that they are, I would be interested to see the judicial support for that proposition. Moreover, as noted previously, that “sole and exclusive” jurisdiction isn’t really true and can’t be so. For example, DWN specifically notes that any variance it grants from a standard in DWN may also require a variance from the Town. So much for “sole and exclusive.” But, is Town counsel opining otherwise - that the developer/ARB has sole and exclusive jurisdiction with regard to lot coverage, setbacks, building standards and variances therefrom? What to make of the numerous BZA hearings that have dealt with variances initially approved by the ARB??? Is Town counsel opining that, in fact, the BZA had and has no jurisdiction?
2) the message asserts that the “ARB has interpreted “highland” to mean all areas above mean high water. Under this interpretation, the development is within ARB’s 33% lot standard.” Put aside the fact that there is no basis in the documents for such interpretative authority. Where does one find that “interpretation” reflected in DWN or anywhere else? Not in DWN. Perhaps in ARB bylaws or previously published interpretive guidance - if that exists? What the ARB stated in its initial response to community questions is that maximum allowable lot coverage is based on "highland area which is inclusive of the area below the OCRM Baseline to Mean High Water Line.” As previously noted, there is no such language to be found in the DA, DWN or any other governing document. If I’ve missed it, please point me in the right direction and I will correct the record.
More problematic is the reference to “ARB’s 33% lot standard.” It is NOT the ARB’s standard. It is established in the Development Agreement, specifically in Exhibit 13.3. Which, by the way, is NOT covered by the “sole and exclusive” jurisdiction “Aesthetics” paragraph. Lot Standards are zoning regulations and covered by Town ordinances. Or, is Town counsel opining that the ARB has exclusive jurisdiction over the restrictions in Exhibit 13.3 or the Lot Standards set forth in the Town’s ordinances?
3) the Town blithely accepts the ARB’s “interpretation” and asserts that the SC Attorney General has “ruled” that “highland” means the area above the high water mark. First, the SCAG did not “rule” on anything - it is not a court. It expresses opinions, which do carry weight to the extent they are relevant to the facts and circumstances. Second, it did NOT conclude that highlands means only the area above the high water mark. The fairly superficial analysis (it’s less than a page) undertaken by the AG doesn’t support the position of Town counsel; indeed, it cuts the other way. The one case cited only deals with “tidelands” and not oceanfront property - it isn’t relevant to the facts in this case. The AG opinion concludes that only “it can be gleaned that “highland” would be a piece of property which is not a marshland, waterway, wetland, submerged land or tideland.” All true and unremarkable. But, nowhere does the AG opine that “highlands” is defined as the area above mean high water. To the contrary, and this is conveniently overlooked by Town counsel, the AG notes that “it can be inferred that highland property is that which is capable of development.” This conclusion directly contradicts the argument that the developer and the Town are making. The area below the OCRM baseline is NOT developable.
4) the message states that Section 17-101 defines “highland” as the “land above mean high-water mark.” That is accurate. But it is stunning that Town counsel conveniently omits other clearly relevant provisions. Critically, Section 12-374, in the Land Use ordinances, defines “highlands” as the “area above the OCRM critical line.” The question then is what is meant by the “critical line.” The Town message omits the other relevant part of Section 17-101 which defines critical line:
It is worth noting that Folly Beach also defines “high ground” as "the contiguous buildable portions of a lot located outside of DHEC-OCRM critical areas, wetlands, marsh, dune setbacks, and other resource protection areas.” Again, EXCLUSIVE of the area below the OCRM baseline and setback, not INCLUSIVE of it as the developer/ARB “interpret.” I would note that Town counsel is also Town counsel to Folly Beach. I would be curious whether he has advised Town Council for FB of his opinion that the SCAG “ruling” supersedes the FB ordinance?
This leads to 5) where the communication then disingenuously says that “some citizens” have claimed that “highland” is the land above the OCRM baseline and that this is a standard applied in “some contexts.” The Town completely ignores the fact that those “some contexts” include all of the recorded plats at issue. Surveys are the legally recorded documents that underpin hundreds of billions of dollars of real estate transactions. The developer attested to the accuracy of those surveys. Professional surveyors define highlands as above the non-developable critical area as determined by DHEC-OCRM - and they don’t simply “interpret” that. The delineation of “highlands” on recorded plats is to reflect the jurisdictional boundaries established by DHEC-OCRM. "Critical area lines" are defined as "the boundary between the upland and the tidelands and coastal water critical areas, and any activities seaward of the CAL require a permit.” DHEC-OCRM has confirmed that there that there is no distinction between the jurisdictional line along marshfront and oceanfront - they are both a critical area line, contrary to the unsupported assertion made by the developer and the Town. It is a single line along marshfront and the baseline and setback on oceanfront. The purpose of the jurisdictional lines established by the state agency is to protect critical areas - marshlands, tideland, and beach and dune systems from unpermitted development. Nothwithstanding that, the developer/ARB conveniently has its own “intepretation” that allows it to include undevelopable acreage in the lot coverage maximum calculation in order to justify much greater density on that acreage that actually is developable.
Finally, although not in the Message from the Mayor, the Development Resources page on the Town website states that the Town’s ordinances allow for 60% lot coverage for multifamily developments, and therefore The Cape development would have been approved in any event since the lot coverage of highlands area at The Cape is “just” 54%. This is perhaps the most disingenuous of all the claims coming from the Town on this matter. First, the lot coverage maximum of 33% is established in the Development Agreement between the parties. Second, if the Town wants to enforce its R-3 zoning standards for The Cape, that is certainly fine by me and I suspect it would be for most everyone. Why? Because the Town cherry-picked one standard. The other relevant restrictions for multifamily in R-3 - 2 stories, 40ft height limit, and a maximum of 4 dwelling units per building. So, if the Town is proposing a trade - allow The Cape to retain the current building and impervious cover footprint, but reduce the buildings from 4 stories to 2, building heights from 65ft to 40ft, and the maximum number of dwelling units from 20 to 4 - I think almost anyone on KI would take that trade. Well, other than those who might have purchased there.
Now I want to address why this matters beyond the issue of whether the lot coverage maximum was exceeded at The Cape (and Timbers).
I and many others who have looked at various issues related to development of Timbers, The Cape and Lot 1, believe that there are numerous instances in which the developer/ARB has acted in a manner contrary to or inconsistent with the terms of the Development Agreement, the plain language of the “objective standards” of DWN, and certain Town ordinances, and that the Town has failed to provide appropriate oversight and enforcement of the Development Agreement and ordinances. Having said that, as with regard to the lot coverage issue, reasonably competent counsel for the developer should be able to craft a colorable argument in favor of its client’s position. I would expect counsel to make some of the claims we now find in the communication from the Town. Not a winning argument or a better argument, but a colorable one. I would even suggest that counsel for East West might also argue that its client relied on the approvals and interpretations of the ARB, even though the ARB is conflicted and lacked the authority to do so.
But, the remarkable thing here is it isn’t the developer or developer’s counsel that is making these arguments. We haven’t seen any document from the developer providing the rationale for the actions it is had taken not any legal analysis or opinion from the developer’s. Rather, it is the Town's counsel that is consistently making the arguments on behalf of the developer, and twisting the Town into knots in doing so. We’ve seen that with regard to The Cape issues and also with regard to Sam’s Spit. I’ve never seen anything like it. I would like to think that competent counsel for the Town would be vigorously asserting and protecting the institutional prerogatives of the Town and the interests of its residents. If I were party to a contract and my lawyer asserted that the other party had the right to define or interpret all the terms in the agreement, he/she would no longer be my counsel. I would like to think that counsel for the Town would take the position that definitions in Town ordinances trump undefined terms in an agreement. That counsel would seek to carefully constraint any perceived discretionary authority by the other party. That the agreement would be construed in a manner to effect the policy goals of the Town and the community, such as protecting and preserving maritime forest and wildlife habitat (as provided in the Comprehensive Plan). But, in instance after instance, the Town and Town counsel appear to go out of the way to defend the actions of developer interest rather than those of constituents - and then get extraordinarily defensive about it. In his comments at the Town Council meeting, the Mayor complained about “accusations” and ruefully noted that KICA and PreserveKiawah have retained outside counsel. This is why...
The other major implication of the developer/ARB “interpretation” regarding “highlands” and “critical line”, acceded to by the Town, is that property owners are being treated disparately by the developer/ARB. Simply put, the developer/ARB arbitrarily creates potentially millions of dollars of economic benefit for oceanfront property owners relative to marshfront property owners; or, conversely arbitrarily constrains the economic value of marshfront property owners. The issue we’ve raised with regard to the flawed calculation of maximum lot coverage we have raised with regard to The Cape is the it allows much greater density of development that would otherwise be the case.
A simple example will illustrate the point. Jones owns 2 acres of beachfront property - 1 acre below the OCRM critical area line/baseline and 1 acre above. Smith owns 2 acres of marshland property - 1 acre of which is below the OCRM critical area line/critical line and 1 acre above. Both own the same amount of developable acreage - 1 acre. But according to the developer/ARB “interpretation", Jones is entitled to build TWICE the size house the is Smith. Smith is limited to a % of 1 acre, while the same % is applied to 2 acres for Jones. Is that fair? Does that make any sense as a matter of policy? Are marshfront property owners aware of their second class status compared to oceanfront property owners? Should the “interpretation” applied by the developer/ARB have been published and clearly explained to all property owners? We know that the owners of Timbers and The Cape have benefited substantially from this interpretation, and it would seem likely ability to build more dense developments on these parcels was reflected in the purchase price of the parcels. The developers incentive for its “interpretation” is manifestly clear - the benefit to the community is not.
This also raises the question of whether other developer/ARB standards have been consistently and uniformly applied to all property owners. On another thread, several property owners have expressed the view that developer/ARB decisions - imposed fines for cutting down a tree or limb or incurred costs to move a driveway or retaining wall - were arbitrary and capricious. It might be an interesting exercise to collect information from all property owners who have ever had to incur an additional cost or pay a fine to the developer/ARB to better ascertain whether standards have indeed been consistently and uniformly applied to all property owners. With the ARB controlled by the developer, there is no transparency and no accountability.
This isn’t just about The Cape….
Mr. Mahler posed a question re the maximum permitted lot coverage for Timbers and The Cape which I did not at the time answer. I will do so now, especially in light of the announcement from the Mayor earlier this week regarding development agreements. I will also touch upon a couple of other statements made in the communication, which is both encouraging and disappointing.
Mr. Mahler asked whether TOKI had responded to the issues I had addressed in some detail below. Well, TOKI has now responded, but certainly not substantively. The message from the Mayor states that “[r]egarding The Cape…the Town of Kiawah Island can attest that our development agreements have been consistently applied to the involved parties. To confirm the Town’s position on The Cape parcel, we additionally sought legal counsel, which supported our position that no violation of the development agreement took place.” That’s it.
Just to briefly recap this issue:
The question is whether the developer(s) exceeded the maximum permitted lot coverage at both Timbers and The Cape. It is acknowledged that lot coverage is based upon the highland area.
Highlands or high ground are referenced throughout the DA and DWN, but neither term is specifically defined in the definitions section of the DA. However, there are several references in which “highlands" is succeeded by “above the current OCRM critical line.” See, e.g., pages 203, 209, 235 and 289 of the 2013 Agreement. Not one reference with "below the critical line.” Not one reference with “inclusive of."
Highlands acreage is clearly delineated on the surveyed, recorded plats. It is the area above or EXCLUSIVE of the critical area as line as established by DHEC-OCRM - above the single critical line for marsh and tidelands and above the baseline and setback in beachfront areas. The developer attested to the accuracy of the recorded plat in an affidavit.
More importantly there is a definition of highlands in TOKI’s ordinances, which is the area above the critical line or EXCLUSIVE of the OCRM critical area. And, critical line is further defined as the jurisdictional boundary of the critical area determined by DHEC-OCRM, which includes the beach area from the MHWM to the setback line. See 17-101 and 12-374.
Notwithstanding the clear delineation of highlands on the recorded plats, the numerous references in the DA to highlands or high ground being above the critical line, and the clear definition of highlands and critical line in the Town’s own ordinances, TOKI simply accedes to the developer’s/ARB’s “interpretation” (the word used by TOKI in its earlier response to community questions) that highland is INCLUSIVE of the area below the DHEC-OCRM baseline to the MHWM. An “Interpretation” which has no foundation in the DA or DWN. An “interpretation” that is at odds with the surveyed, recorded plats. An “interpretation” that is directly contrary to the plain language of TOKI ordinances. Whether or not the developer/ARB has “interpreted” highlands the same way with other projects is wholly irrelevant to whether it is consistent with the DA and TOKI ordinances. It might better be characterized as an admission against interest.
As to the Mayor’s reference that the Town counsel supported TOKI’s position that no violation of the DA took place, it would be helpful for the community to have the benefit of counsel’s rationale for that conclusion. In my meeting with the counsel he simply asserted that there were unspecified “ambiguities”, stated that “ambiguities are always decided in the favor of the developer,” and made a vague reference to an attorney general opinion. It was subsequent to that meeting that several concerned members of the community undertook substantial additional research which led to the detailed submission below. It is not clear what is ambiguous about any of this other than that manufactured by the developer/ARB. Not surprisingly, we could find no basis in law, no court opinion in SC or any other jurisdiction, to support that “ambiguities are always decided in favor of the developer.” And, it turns out that the state AG opinion is irrelevant to the facts in this matter.
But, if there is an opinion of counsel that the delineation of highlands in the recorded plats is irrelevant to the analysis, that the Town’s ordinances are inapplicable, and that we missed something in the DA and DWN that supports the developer/ARB “interpretation”, that should be made publicly available.
The primary reason for going back over some of this detail is because of certain of the statements made in the Mayor’s message - particularly the very disappointing reference to “an abundance of misinformation.” Just a general assertion without any support provided. I’ve certainly put out an abundance of information, but I strive to provide verifiable facts and directly cite and quote relevant provisions of the various governing documents and agreements. That doesn’t mean I’ve always or ever gotten it right. While I do have a bit of experience in drafting statutes and regulations and navigating and negotiating complex agreements, I’m certainly not an expert, so-called or otherwise, in municipal governance, land-use regulation or many, many other disciplines.
Nevertheless, I would like to think that I’ve been at least as careful as the Town has been in putting out accurate information, but If I’ve made a mistake, I am happy to correct the record. If I’ve misstated a fact, inaccurately cited or quoted from a governing document, or there is important context that is not part of the public record, I will be more than happy to acknowledge that. I invite, indeed encourage, the Town to point out mistakes, misstatements or mischaracterizations. I expect that is true of most others on this forum who have invested considerable time and effort in understanding and educating the community about issues of fundamental importance to all of us.
The problem is that the Town itself (and this has also been somewhat true of KICA) has not been particularly forthcoming with information, or at least anything more than superficial conclusory statements. There has been an absence of real transparency. No substantive response to detailed inquiries. No actual explanation for the basis of certain actions or the absence of action. Important decisions are made in executive session outside the public eye (to be clear, state law does allow for closed meetings in certain instances, but closed meetings are not required). Town council and commission members meet with developer and ARB representatives but don’t respond to emails from their constituents. There have no open forums at which members of the Council, counsel and TOKI staff individually or collectively take questions from the community about important issues in order to address and allay very real community concerns.
The lack of transparency and explanation is problematic given the instances in which the Town or TOKI counsel seem to have acceded to at best questionable positions espoused by the developer/ARB or appear to have gone out of the way to accommodate developer interests. The dwelling unit cap in the DA is a prime example. The developer had asserted that the cap did not include Cassique and the Town went along with that “interpretation”. It wasn’t until community members raised questions about the calculation and pointed to the clear language of the development agreement that the developer and TOKI position changed - even though the underlying facts had not.
When questions were raised about the clear-cutting on Lot 1 for a construction staging area, we were told that TOKI issued a land disturbance permit even though it was not required to do so and notwithstanding the fact that the Town now says that it has not received any plans from the developer for Lot 1. TOKI put out a communication, that was quickly retracted, that it had approve concrete pouring at 4a at The Cape because the contractor asserted it was too hot to pour during the peak of the day. We are now seeing it in real time with regard to the developer's request for an extension of its development interests on Captain Sam’s Spit. A plain reading of TOKI ordinances, not to mention the Supreme Court decision, makes clear that there is no basis for an extension of development rights for the Spit. However, based on what transpired at the June Planning Commission meeting and the agenda for the one next week, it again appears that the Town is going out of its way to accede to the developer’s request.
If there are legitimate questions raised about actions taken, or the lack of action, and substantive answers aren’t provided, it invites speculation, it can breed distrust, and it can lead to a lack of confidence in our governing institutions. As a former public official myself, I can empathize with the questioning of motives. That isn’t healthy for the community writ large.
But, perhaps that is all in the past. I indicated that I thought the Mayor’s communication was also encouraging. I do believe that the Mayor is sincere and well-intended; that he wants to do the right thing for the community. Hiring well-respected outside counsel, which many members of the community have been urging, is positive step. The Town can certainly use help with its communications, although I hope that not all communication will be filtered through an outside firm; that Town officials will look for opportunities to engage directly with their constituents. I expect everyone welcomes the commitment to transparency and providing “accurate and whole information” going forward. The words have been spoken; hopefully actions will match them.
There are many challenges facing the broader Kiawah Island community. It’s not just the ongoing, pending and planned development activities. Just the in the past day numerous questions have been raised about access to the Island and its implications for safety, traffic and amenity usage. To responsibly and comprehensively address matters such as that and the impact of further development will have on and around Kiawah Island will require the collective input and effort of the entire community.
More importantly, I hope everyone has a safe and enjoyable Independence Day holiday!
In my initial post regarding the ARB’s response to 40+ pages of community questions, I focused on the Introduction section pointing out numerous instances in which statements or assertions made regarding the authority or discretion of the developer and/or ARB are inconsistent with or contravened by with the terms of the Development Agreement (DA), Designing with Nature (DWN) or Town ordinances. In part II, I addressed in some detail the extent to which the maximum lot coverage restriction was exceeded at both Timbers and The Cape. In this post, I will touch upon other issues raised in the ARB response. What is revealed is not only a continued misstatement and mischaracterization of authority and discretion, but, more importantly, a rather blatant position that the developer and ARB are entitled to, or at least apply, completely different standards to projects undertaken by the developer itself or its commercial business partners that have been applied to other property owners on Kiawah Island.
Focusing first on this latter point, I think a couple of the statements made in the ARB response are remarkably telling.
On page 2, in reference to the developer’s future plans with regard to the Beachwalker parcels, it states that “[t]he ARB will review any future application consistent with the submission requirements” of the developer. Not the requirements or restrictions of the DA, DWN or Town ordinances, but those of the developer.
With regard to the clear-cutting of trees on Lot 1 for construction staging for The Cape project on a parcel owned by another party, it states the “[c]learing on Parcel 13 Lot 1 for staging and parking was approved by the Developer for an internal area within their property.” Put aside for a moment that DWN explicitly states that no site clearing may begin until a Building Permit is issued by the ARB, and that will only be issued after final approval of a site plan, and that there is no concept of a standalone “clearing plan” in DWN. What the ARB is asserting on behalf of the developer is that the developer can itself approve clear-cutting on property that it owns. Does the same apply to other property owners?
On page 4, in attempting to justify clear-cutting The Cape and massing buildings along the OCRM setback line, the response states that “rather than aligning multiple buildings along a single row, which would have been allowed as of right, the determination was made to organize the the six residential and one amenity buildings in an organic pattern…” So, the ARB/developer is saying that the property owner has the right to site buildings wherever it/he/she deems appropriate? And that the ARB will simply go along with that? The developer and any other property owner is entitled is to build the number of dwelling units that the zoning classification for the parcel allows. And, that number is, as is made clear in the Town’s ordinances, a maximum, not a guarantee. The maximum dwelling unit entitlement is subject to all the various restrictions and requirements embodied in the DA, DWN, applicable Town ordinances, and relevant state or federal law - setback requirements, building and lot coverage maximums, stormwater management, tree removal and replacement guidelines, and so on.
Consider the implications of the position that the developer/ARB is espousing - that it has the right to determine the placement of buildings on a lot; that it can dictate the removal of trees for its own commercial purposes. Does that mean that every property owner on Kiawah has the same right to site buildings on a parcel as they deem appropriate? If they own property along the river or a marsh area, they can choose to site a home along the critical line and remove all trees on the marsh or river side that block views or impinge on the building envelope? And, the ARB will have to accede to that because it is the property owner’s right? If a property owner owns an undeveloped lot, does that mean they can “approve” clearing trees on that lot to provide staging for construction for a home on another lot, presumably for financial consideration? Based on conversations with a couple of architects who have together designed dozens of homes on Kiawah over the years, that’s not how it has played out in dealing with the ARB. There are numerous instances in which the ARB has required buildings or impervious surfaces to be moved or modified to save trees or to require additional trees or shrubs to be planted in order to screen views to neighboring homes.
Recall that the General Covenants and DWN by their terms apply to all property owners. The DA applies to the developer, subsequent owners, and successors and assigns. There is no special carve-out for the developer with regard to self-developed projects or those of commercial development partners. Notwithstanding that, the developer/ARB appear to have operated by a separate set of rules to those applied to all other property owners. Query whether other property owners individually or collectively might have a cause for redress for fines paid or costs incurred as a result of ARB decisions if the standards were not applied uniformly and consistently to all property owners?
There are a few other aspects of the ARB response that warrant further discussion.
With regard to the clear-cutting and removal of almost all of the vegetation at The Cape parcel (and at the Timbers parcel), the ARB response asserts that “clearing at The Cape was based on tree removal needed for the building envelopes and infrastructure elements given the configuration…” So, where the developer wanted to site buildings dictated tree and vegetation removal. Yet, the Design Guidelines in DWN provide for a very different approach - “Architects and Landscape Architects should incorporate the existing natural vegetation into their plans and add to in such a way so as to produce a feeling of “modest cultivation” that “blurs the lines” between man-made elements and the natural environment. Ideally, property lines should disappear with the use of continuous landscaping.”
It also ignores the express requirement in DWN that “natural buffers, especially along lot edges shall be preserved and enhanced. Trees, shrubs, and other understory vegetation should remain dense from ground level up to 10 feet and remain intact within 5 feet of the property line.” The required natural buffers were NOT preserved at The Cape - the lot was cleared all the way to the property line along most of the parcel, in clear violation of the DWN requirements.
The ARB response also asserts that “[t]emporal loss of existing trees is not part of ARB guidelines for tree replacement consideration, which instead focuses on quantity of new trees and their location…” So, apparently the ARB is not concerned with the preservation of trees, but simply the quantity of new trees to replace existing trees? That is expressly contrary to the Landscape Guidelines in DWN which states:
“Kiawah Island’s natural setting offers a unique environment that must be recognized and preserved as a framework for development. The Island’s special natural environment is ecologically fragile and is difficult to replace once disturbed. The Guidelines are intended to indicate the seriousness with which we approach alteration of Kiawah’s vegetation.”
“Significant trees and areas of understory growth are essential, natural and aesthetic resources. The play a critical role in purifying air and water, providing wildlife habitat, enhancing natural drainage and controlling erosion. These trees and shrubs contribute to the quality of life on Kiawah Island and are an inseparable part of its historical legacy. Consequently, the ARB is most concerned with trees and shrubs and has established these Guidelines to assure their preservation.”
Is there any aspect of the Timbers and The Cape developments which is consistent with guidelines and requirements of DWN? It seems clear that what has happened with both Timbers and The Cape is that the stated purpose and intent expressed in DWN was ignored or overridden to accommodate commercial interests. Protecting and preserving the Island’s ecologically fragile natural environment went by the wayside. Nearly 10 acres of maritime forest in both parcels, including all trees along the seaward property line, were removed because the developers wanted to maximize density and position buildings to optimize views from dwelling units. With regard to The Cape, the materials presented by the design firm to TOKI expressly highlighted the unobstructed views East and West, especially for Building 6.
Finally, the ARB response claims that “[b]uilding placement, massing, and exterior colors and materials that blend with the natural surroundings are all employed in nestling The Cape into its site.” This may well be the most outlandish claim made by the ARB in its response. Nestled into the site??? Building 6, the tallest, most massive residential building on Kiawah Island, is sited on the corner of the highlands portion of the lot, just a few feet from the OCRM setback line and the Beachwalker Park boardwalk. It is prominently visible from the Sandcastle. From Cassique. From Seabrook. From the Kiawah River. It dominates the view from Sam’s Spit. It will forever be the mote in God’s eye on Kiawah Island.
In my previous post I pointed out how I believe the ARB had misstated and mischaracterized its and the developer’s authority and discretion under the DA and other relevant laws and governing documents. The exercise of discretion which is not legally or contractually permitted is not benign. It has had, and continues to have, profound adverse consequences for Kiawah island - for residents, wildlife, and our fragile ecosystem. In this post, I’m going to focus on a single manifestation of that, which is the substantial and impermissible over-development of The Cape and Timbers parcels, along with the potential for the same thing to occur on Sam’s Spit.
Date: Mon, Jun 6, 2022 at 10:27 AM
We waited almost 40 days for this? A broad swath of the community submitted more than 40 pages of questions regarding a wide range of issues related to development of The Cape, Timbers, Lot 1, ARB authority and discretion (or lack thereof), developer adherence to the Development Agreement (DA) (or lack thereof), and TOKI’s obligation to review and enforce compliance with the terms of the DA, among other things. In “response,” what we got from the ARB is four pages of obfuscation, dissembling and misdirection.
TOKI’s response is, well, profoundly disappointing - summarily acceding to every specious argument espoused by the ARB and failing to transparently and substantively address the concerns raised by the community about both its owns and the developer/ARB actions.
There is a lot to unpack here. So, let’s just start at the beginning of the ARB communication - and systematically work through it. Given that there is so much ground to cover, I will do so in separate posts. In this first post, I will only touch upon some of the claims and assertions made in the Introduction section of the ARB “answers.”
For those who don’t have the time or inclination to slog through the detailed explanations below, here is the headline: The ARB repeatedly misstates and mischaracterizes it's and the developer’s authority and discretion pursuant to state law, common law, TOKI ordinances, the General Covenants, and the DA. And, it makes numerous claims and assertions that are simply factually incorrect, inconsistent with its own governing documents, and contrary to the terms of the DA.
Now the detail. We’re first gently reminded that the General Covenants grant KP certain rights. That is true and we should respect those rights - as far as they go. And, therein lies the rub. At inception the original developer exercised almost king-like powers, but that is no longer the case. The General Covenants precede the incorporation of TOKI, the DA between the developer and TOKI, and the empowerment of KICA. It is TOKI which is responsible for zoning matters, which include permitted uses, density of use, what types of buildings and other structures can be constructed, where those structures can be located, and compatibility with neighboring uses, buffers, flood control, etc. Zoning regulations stem from a municipalities’ “police” powers to protect the health, safety, and general welfare of its citizens. These are governmental functions and powers. When the developer empowered KICA and required homeowners to pay assessments to cover expenses previously incurred solely by the developer it also assumed a fiduciary duty with regard to the operation of the Association. If the developer acts in its own self-interest to the detriment of other homeowners, it may breach that duty. Finally, when the developer entered into the Development Agreement with TOKI, it agreed to be contractually bound by the benefits and burdens thereof. This is all simply to drive home the point that neither the developer nor ARB have unfettered discretion per the General Covenants or otherwise with regard to all development matters on Kiawah Island.
Perhaps we can offer a gentle reminder, in turn, to KP about the General Covenants. First, that the rights, restrictions, affirmative obligations and conditions therein apply to ALL property on Kiawah Island - including that owned by KP and commercial business partners. Second, that the General Covenants confer rights on other parties, as well. For example, in the event of a violation or breach of any of the covenants by ANY owner, owners of lots “in the neighborhood” may bring an action in law or equity to compel compliance or prevent a violation or breach. And, KICA has the right to proceed at law or equity to compel compliance or prevent a violation or breach. KICA also has the right whenever any structure is built in violation of the covenants to “summarily abate or remove the same at the expense of the owner…” By the way, any person entitled to file a legal action for violation of the covenants shall be entitled to recover attorney’s fees. Just to note….
Next, and we’re still in the first paragraph of the Introduction, it notes that the developer has delegated two of its rights to the ARB - “aesthetic review of all property improvements and graphic control.” Aesthetics related matters are, indeed, typically the province of architectural review boards or committees, albeit usually under the control of HOAs. But to be clear, “aesthetics” generally relate to matters such as building style, paint color, signage, plantings, and the like. Aesthetics are NOT building standards, permitted uses, density of use, and the like. Again, these are municipal functions embodied in zoning ordinances.
ARB then asserts that submissions are evaluated “autonomously.” That is a legal fiction. The ARB is a creation of, and wholly controlled by, KP, as is acknowledged. To the extent that the ARB is an agent of KP, the actions of the agent are attributable to the principal. Any assertion of autonomy is further undermined by the fact that one of the ARB board members is KP’s principal paid advocate and lobbyist in pursuing KP development interests before TOKI and KICA. Another ARB board member is KP’s designated representative on KICA. These are clear conflicts of interest. I especially feel for the ARB staff - how are they supposed to “autonomously” evaluate a proposal from KP or one its commercial business partners given that KP pays their salaries? A rhetorical question, of course...
Then, ARB claims that the “values and intent” of Designing with Nature (DWN) are relied upon in evaluating submissions. Whose and what “values”? What is the intention? Is it being “committed to protecting and enhancing” KI’s “natural beauty," as claimed in the cover letter to DWN? Is it “preserving a unique and ecologically sensitive community” and that “homes should generally be unobtrusive” as stated in the Design Objectives section of DWN? Is it is that “Kiawah Island’s natural setting offer a unique environment that must be recognized and preserved,” or that the “Island’s special natural environment is ecologically fragile and is difficult to replace once it has been disturbed” or that the ARB “is most concerned with with trees and shrubs and has established these Guidelines to assure their preservation,” as stated in the Landscape Guidelines section of DWN? If these statements are supposed to reflect the values, intention, purpose, or objectives of DWN, have any of them been met with regard to Timbers, The Cape, or what is being proposed for Sam’s Spit? Again, a rhetorical question...
But, that is really beside the point. The DWN standards and guidelines are not some aspirational set of values and intentions that the ARB looks to for “decision guidance” at its whim and caprice. They are supposed to be "objective standards" as specifically provided for in Article II of the General Covenants. Objective standards applicable to the development of all property on Kiawah Island. Objective standards that are defined and measurable. Objective standards that are applied consistently and uniformly, not arbitrarily and capriciously. Critically, DWN is explicitly part of the DA, and KP and the ARB are contractually bound to adhere to those standards.
The second paragraph is where the misdirection and dissembling really gets started…
The memo states that no variances to the standards and guidelines were granted during the course of The Cape review process. Okay. I’ve never raised the question of whether variances were granted; perhaps others did in the 40+ pages of questions. The point is not whether variances were granted - its that the ARB ignored or failed to adhere to several of the standards set forth in DWN, including those where the ARB was explicitly required to abide by the standard. Not whether or not variances were granted. I won’t repeat them here, but will simply note that most have not been addressed in the ARB response. Then the claim is made that the ARB has “discretion” to grant variances from “any specified standard…where there is a reasonable basis for doing so" (the latter clause underlined for emphasis, I guess). Apparently to support this proposition, it notes that the ARB has “sole and exclusive jurisdiction with regard to the standards…set forth…in DWN.”
First, ARB and the developer are conflating two distinct concepts - discretion and jurisdiction. They are categorically NOT one and the same. Conferring jurisdiction does not equate to having unfettered discretion with regard to matters within that jurisdiction. There is no general grant of discretion to the ARB in the General Covenants, DA or DWN. Discretion only exists where it is specifically provided for in DA and standards. The statement that the ARB has discretion to grant variances from any specified standard where there is a reasonable basis for doing so appears to be simply made up out of thin air. It has no foundation or basis in the DA or DWN. There is a "Variances” section of DWN. What it actually says is that with regard to "rules on setbacks" determined by the developer - that’s it - “slight variances may be permitted by the ARB to save prominent trees, minimize disruption to unusual topographical features, to accommodate an irregularly shaped lot, or when the ARB determines in its sole discretion that otherwise appropriate to the site.” So, pursuant to its own document, the ARB has sole discretion to make slight variances to setbacks. That’s the extent of the ARB’s variance authority and discretion in DWN.
The second, and more important, point is that notwithstanding the “sole and exclusive” language in the “Aesthetics” paragraph of the DA, ARB does not and can not have "sole and exclusive" authority or discretion with regard to standards in TOKI zoning ordinances. That is specifically acknowledged in the Variances section of DWN, which notes that any variance granted by the ARB may also require a variance from TOKI (BZA). As discussed above, zoning regulations derive from a municipalities’ police power to protect the health, safety and welfare of its citizens. To the extent that the developer or ARB purport to exert jurisdiction and exercise authority with regard to such governmental functions, that may constitute “state action.” Yet, in paragraph 3 of the DA, the developer specifically seeks to disclaim that its conduct constitutes “state action” for any purpose. KP cannot have it both ways. To the extent that KP and ARB want to claim “sole and exclusive” jurisdiction over certain standards, it can only be with regard to “aesthetic” standards and guidelines that don’t implicate safety, health and general welfare concerns. The flip side is that TOKI cannot abdicate its responsibility to enforce zoning ordinances or delegate any decisional authority with regard to zoning matters to a wholly unaccountable third-party.
The last paragraph of the Introduction is an odd one. It states that “the development of parcels intended for multi-family residential projects presents design challenges not faced by single family residential parcels.” That may be true, but what is the point? The implication seems to be ARB has the discretion to apply a different set of standards to multi-family developments. Indeed, that’s basically what KP’s representative on the KICA board stated during a board meeting. But, what is that based on? Where are separate review and decisional criterial for multi-family developments published? Not in the DA. Not in DWN. In fact, there is section on Multi-Family Homes in DWN, and it’s quite brief. What it says is “[T]he design requirements shall be similar in intent to those for single-family homes. Emphasis should be placed on architectural compatibility with neighboring properties and the Island as a whole.” That’s it. 28 pages of standards and guidelines precede it. Another 32 on process follow it. No separate review criteria to be found for multi-family developments. All of the 32 pages of review process following are the same for all development projects.
Of course, there are different structure, density and lot standards for different zoning classifications, but those are embodied in TOKI’s zoning ordinances and the DA. For example, the maximum lot coverage for multi-family developments on larger lots is 33% of the highland acreage, which is less than for single family residences. I will address this issue in much more detail in the next post. To preview that, based on extensive research by a couple of dozen homeowners who are in expert in, among other things, real estate development, land use regulation, and municipal law, the evidence is compelling that The Cape and Timbers developments violated TOKI ordinances and the DA, and there is a very real risk that the same could occur on Sam’s Spit.
Below are questions I’ve sent to the Town in follow-up to Tuesday’s Town Council meeting and the Mayor’s request that community members submit questions regarding the issues discussed at the Council meeting. There have been several excellent questions raised on the listserve subsequent to the meeting last week, and I encourage the authors to send those; I’m sure there are others, as well. I’m told that the Town will send out a communication tomorrow requesting the community to send its questions, with a deadline later this month.
A couple of observations about the meeting last week.
The most obvious one is that the manner in which the Town initially handled issues that have been raised about various aspects of The Cape project (along with clearing on Parcel 13B), was, to put it very mildly, disappointing. And, not a good look for the Town. First, was the communication from the Town describing issues related to the clear-cutting of the parcel as a “discrepancy” and seeming to suggest that the ARB has unfettered discretion to do as it pleases. Worse was the carefully staged show clearly orchestrated to lead to the conclusion that “there is nothing to see here. Let’s move on.” This isn’t and never was just about whether or not 50 trees should have been transplanted on the site. Good questions have been raised about that, but, while not unimportant, it isn’t the most important issue in the grand scheme of things.
To his credit, the Mayor stepped up and recognized that the scripted proceeding was not only not going to allay community concerns, but would likely exacerbate them. He encouraged the ARB, represented by staff and board members, to respond to the concerns expressed by the community - in part, at the hearing, and then more fully for the public record. Now, we’ll have to wait to see how this plays out and if there is full transparency and accountability.
The second observation is that I felt and feel badly for the ARB staff - and to the extent that questions I raised at the hearing might have put them in an awkward spot. My limited interactions with the staff at the ARB, whether as a homeowner or on behalf of the POA board, have been constructive and they have been very responsive. But, the staff is in an impossible position. We cannot and should not expect them to enforce applicable covenant restrictions against the clear interests of their bosses and business partners. They don’t have to be directed - it is clear what those interests are. Fining for violations would actually be non-sensical - impose and collect a fine from the developer that would go right back to the developer. This is just to drive home the point that I’ve made before that there is no legal separation between the developer and the ARB. Any action of the ARB is an action of the developer. Thus, any failure by the ARB to follow the objective standards contained the Development Agreement and Designing with Nature, absent explicit discretion to do otherwise, constitutes a breach of the Development Agreement. That also applies to successors and assigns.
Finally, with regard to the questions below, I think the most critical pertain to the clear-cutting of Parcel 13B to carve out a staging area for contractors working on The Cape project and the 25% building cover limitation. With regard to the former, when I asked at the hearing whether final plan approvals and building permits for development of that parcel had been obtained, as is explicitly required before site clearing can begin, the developer’s representative indicated only that there had been a conceptual plan approved. I would note that, as a result of clear cutting a handful of acres on Parcel 13B, you can now see the Timbers building through the forest from Cassique, which was not the case previously. Filtered, but visible.
And, with regard to the maximum building coverage of the lot for The Cape parcel, I reached out to someone who measures these kinds of things, who using the scale provide,d estimated the 6 buildings and club and pool alone comprised almost 1/3 of the high ground area, not including roads, walkways and parking lots. All of which would suggest that the 25% maximum may well be exceeded. I invite anyone else who may be expert in such matters to review the site plans and offer their own conclusions.
Let me note at the outset that this is not just about was has happened at The Cape parcel, but also what is already happening on Lot 1 across Sea Pines Ln from The Cape parcel, and what we should all expect to happen on the Beachwalker tract if the developers request to consolidate and upzone those parcels were to be approved.
A few of the key questions that hopefully will be addressed by the ARB and the Town at Tuesday’s council meeting:
A Tree and Topographic Survey was required to be prepared in advance of development of the parcel. This provides the location, genus, and species of all oak trees over 3” caliper and other trees over 6” caliper. How many such trees were identified on the survey - dozens, hundreds, more?
Of those trees identified, how many did the ARB authorize to be cut down? Did the required Dimensioned Site Plan indicate all trees to be removed and preserved, as required? I would note that all oak trees 24” caliper or greater “must be preserved unless the ARB determines there is no reasonable design solution that would save the tree(s)”. Did the ARB actually make that determination with regard to all the large trees removed outside the building footprints?
The conceptual site plan shared with the Council9see below) and approved by the Town Planning Director in August 2019, which doesn’t have the specific detail required by the Dimensioned Site Plan, appears to show that ~50 feet of forest was supposed to be preserved along Sea Pines, and four groupings of oak were to be preserved around the site. Were all such trees identified on the conceptual site plan actually preserved? A significant portion of the maritime forest to be preserved along Sea Pine Ln appears to have been taken down for the sales center.
In addition, the conceptual site plan specifically notes that 50 oak trees were supposed to be saved and transplanted? Did that occur? It certainly doesn’t appear that has been the case.
If you walk around the property, one will note that numerous limbs that would extend across the property have been cut from several trees outside the property line. Cutting limbs over a certain size also requires ARB approval. Did the ARB approve cutting limbs on trees in an adjacent property which would have had no impact on the building footprint?
Bigger picture question... The amendment to the Development Agreement allowing for, among other things, greater building density, specified that the total building cover, which includes roads and walkways, is a maximum of 25% of the highlands acreage on the parcel (just over 6 acres) - less than the 33% otherwise allowed by the DA standards. If the total impervious footprint is just a quarter of the parcel, why couldn’t/shouldn’t a greater portion of the existing treescape and natural vegetation be retained? That is supposed to be purpose of limiting the amount of building cover. Was it simply to lower site preparation and construction costs? Or, just to ensure that there would be unobstructed views of the ocean and Kiawah River, as actually trumpeted in the marketing materials for The Cape?
Also, just looking at the conceptual site plan below, it certainly doesn’t appear that the hard surfaces comprise just 25% of the parcel - looks like significantly more than that, but others may be a better judge of that. Has the Town assessed that?
I encourage anyone interested to look at the high-res image of the site before clearing on the DHEC website - https://gis.dhec.sc.gov/shoreline/ . You will get a better sense of the density of the forest before it was cut down. And, if you overlay it with the site plan, what becomes clear is that many trees are well outside the building envelopes. That is especially true along the Kiawah River side - which is why there is now a completely unobstructed view of the 65’ buildings from Cassique.
With regard to what has been characterized as a “discrepancy” in the Town’s communication that was noticed some time last fall. What is the nature of the “discrepancy”? Who noted it and what action was taken at the time? Was site clearing stopped? Was the Town notified at that time?
Was a Notice of Violation sent to the developer and/or contractor? Was a fine levied? If not, is it reasonable for other property owners to assume that they will not be subject to fines if they cut down trees, remove limbs or otherwise fail to comply with the Designing With Nature standards?
With regard to Tree Replacement, will the developer be required to meet the minimum standards specified, that is, one tree 3” caliper or greater for every 1000sf? The highlands portion is ~270,000sf, so 270 new trees (noting that palmettos count as just 1/3 of a tree)? For every oak tree 24” caliper or greater that is removed, the standards indicate that the ARB may require the developer to plant trees with a sum of calipers equal to or greater than those removed. Is the ARB requiring such mitigation? If not, why not?
Now, switching across Sea Pine Ln to Parcel 13B. A significant portion of that lot has now been clear cut. Again, no tree can be removed anywhere without the express approval of the ARB, and only then subject to the processes outlined in the Development Agreement and Designing With Nature standards. Has a Tree Survey been done of that lot? Has a Dimensioned Site Plan been prepared and approved? Has a Tree/Understory Protection Plan been prepared and approved? Has a site plan been reviewed and approved by the Town or KICA?
A KICA official indicated to me that they had been told by the ARB that lot had been cleared as a staging area for construction equipment for The Cape development. Wait, what? Clear cutting more sensitive maritime forest in order to make it easier to develop a separate property owned by another party? That makes no sense. And, I can’t find anything anywhere in the Development Agreement or Designing with Nature standards that would allow or permit such action. So, that can’t be right, so one would have to assume that all the required processes for development of Lot 1, including removing any trees therefrom, have been faithfully followed.
There has been considerable discussion of the need for greater transparency with regard to governance and development issues on Kiawah Island. We would all have a better understanding what has happened with The Cape development, and what appears to be happening on Lot 1, if the various documents and approvals that are required pursuant to the Development Agreement, Designing with Nature, and the Town’s ordinances are made publicly available. These materials have been requested through TOKI and KICA. These include:
Topographical and Tree Survey
Dimensioned Site Plan
Completed Preliminary Review Form
Tree/Understory Protection Plan
Schematic Landscape Plan
Completed Final Review Plan
Minutes of ARB meetings at which action was taken with regard to these parcels
Finally, the Development Agreement requires the Town to at least annually review compliance with the Development Agreement and the developer to “demonstrate good faith compliance” with the Agreement. When was the last review undertaken? What was the nature of the developers demonstration of good faith? Has a review been undertaken since the “discrepancy” at The Cape last fall? How was in addressed in the context of the required review and demonstration? Given what has happened and is happening, it would seem appropriate to undertake a full audit of compliance with all aspects of the Agreement.
Hopefully, the meeting on Tuesday will provide answers to many of these questions, and allay community concerns that there has been a double standard with regard to application and enforcement of the terms of the Development Agreement and Designing with Nature standards. And, that the community can be assured that any development of Lot 1 or the Beachwalker parcels will meet such guidelines. Specifically, and quoting from Designing with Nature:
“The Island’s special natural environment is ecologically fragile and is difficult to replace once it has been disturbed…Significant trees and understory growth are essential, natural, aesthetic resources. They play a critical role in purifying air and water, providing wildlife habitat, enhancing natural drainage, and controlling erosion. These trees and shrubs contribute to the quality of life on Kiawah and are an inseparable part of its historical legacy. Consequently, the ARB is most concerned with trees and shrubs and has established these Guidelines to assure their preservation"
Date: Thu, Mar 31, 2022 at 11:21 AM
Following my overly lengthy submission on the topic of clear-cutting of The Cape parcel, referencing the relevant provisions of the Island’s governing documents, and the subsequent notice by the Town regarding next weeks Council meeting, a few people had reached out with some follow-up questions and comments. It was my intent to not comment further until after the Council meeting, as there is more information that needs to be surfaced, a point that I will come back to in a moment.
But, in advance of the meeting, I will offer a couple of observations with regard to the very good questions raised by Erin Slater and others. There have also been some questions posed, that I suspect the author or authors know the answer to, but are simply tweaking folks…
The key point I want to reiterate is that the primary issue on upon which I focused is simply this - in clear-cutting The Cape parcel, did the developer, it’s agents, and/or successors and assigns violate the terms of the Development Agreement? Not whether the Town should have agreed to a prior amendment to the DA to allow greater building density and height on the parcel (I can’t fathom why that was done, but wasn’t here at the time). Not whether clear-cutting a maritime forest on a barrier island is a good or bad thing as a matter of policy (of course its not, which is reflected in the general covenants, in the DA, in Designing with Nature, in the Town’s Comprehensive Plan, in various marketing materials, and so on).
The second key point I want to reiterate is that the developer, its agents, and its successors and assigns are bound by the terms of the Development Agreement entered into with the Town - all of the covenants, restrictions and objective standards contained therein. The developer does not have the unilateral right to change density, building height, setback, use and numerous other standards and requirements. All of the covenants, restrictions, and objective standards are for the benefit and burden of both parties; and, expressly to protect all property owners. If there is a material breach of the DA, the Town is obligated to provide notice to the developer of the breach and provide the developer a reasonable period of time to CURE the breach. Not mitigate. Mitigation is a concept found only in the tree replacement standards. If the breach is not cured, then the Town may unilaterally terminate or modify the DA.
The third key point I will reiterate is that there are objective standards pertaining to landscaping elements applicable to all developable properties. While I guess the developer and/or ARB CAN do whatever they want to, that is not what the DA allows. The developer and its agent, the ARB, cannot simply ignore or waive the objective standards provided for the in the DA, which incorporates the Designing with Nature standards that all property owners are required to abide by. Doing so constitutes a breach of the DA. Yes, the developer and its agent have reserved discretion with regard to application of some of the standards, but not all or even most of them. To the extent that discretion is not explicitly provided for, as it is in certain provisions, it does not exist. In my earlier submission, I pointed to several provisions where there is discretion explicitly provided, and other provisions which state that the ARB SHALL act in a certain manner. To repeat, neither the developer nor the ARB has general discretion is waive or ignore the standards applicable to development of all properties on KI, whether single family, multi-family, or commercial.
Finally, to address a couple of what I think are red herring or distraction arguments. First, property rights. I’m a believer in such rights. But, come on. In buying on Kiawah, we all volitionally signed on to literally dozens of restrictions on our property rights - those embedded in the general covenants, the KICA covenants, Town ordinances, and, in some cases, regime ordinances. Those restrictions, covenants, easements, right of ways, and so pertain to building height, setback, colors, materials, signage, use and including landscaping. One such very explicit restriction is that the removal of any tree or even limb of certain size or area of understory growth is prohibited unless prior approved by the ARB. Second, over course trees will have to be removed within the approved building footprint or for roads, driveways and walkways. But not outside those areas. Mitigation comes into play with regard to trees that have to be removed because of the building footprint (see DWN page 16, 1a and 1b), not outside of those area. And, the standards specifically provide that natural buffers within five feet of the property line are to be preserved.
So, back to the Council meeting next week. I would encourage everyone to attend in person or stream it if possible. Hopefully, some further answers can be provided to the many good questions raised. What we do know is that The Cape parcel was clear-cut, clearly contrary to the stated purpose and intent of the Designing with Nature standards and the Town’s Comprehensive Plan, and arguably contrary to the letter of the Development Agreement. What we don’t know is whether the ARB specially approved removal of all of the trees, or whether certain trees were designated for preservation and cut down anyway. We don’t know what factors or criterial the ARB relied upon in making any decisions about approving the site development and landscaping plans. We don’t know what the ARB had originally required in terms of tree replacement for trees that had to be removed that were within the building footprint. Answers to all of these questions should be provided by the extensive documentation that is required to accompany any development.
That is why we requested the Town (and KICA, which is represented on the ARB board), as part of its requirement to review the Development Agreement and ensure compliance with it to request from the ARB and make publicly available several critically important documents. These include the Tree and Topographical Suvey (which must identify every oak over 3” caliper and every tree over 6” caliper), the Dimensioned Site Plan (in which all trees to be preserved and removed must be indicated), the Tree/Understory Protection Plan, the Schematic Landscape Plan, the Preliminary and Final Review Forms approved by the ARB, and minutes of meetings at which development of the parcel was discussed.
These documents should tell us what happened at The Cape. It would also be appropriate for the Town to undertake a full audit of compliance with the Development Agreement. If it is determined that there was a material breach of the agreement, the Town should vigorously enforce its rights thereunder. And, collectively we need to ensure that what happened at The Cape doesn’t happen again, whether on Lot 1 of Parcel 13 or on the Beachwalker parcels.
A brief break from the agony and ecstasy that is March Madness to focus on a different kind of madness - the kind that actually makes one mad - as in upset, angered, vexed….
One is reminded of the adage that a picture paints a thousand words, and that is certainly the case with the image captured by Mr. Hitselberger below. What was not long ago several acres of maritime forest and wildlife habitat is no more. As searing as the image is, look up at the top of the picture and try to envision the same scar on the island a half mile up Beachwalker Drive. If the developer is able to combine and upzone the parcels between the general store and the KICA administrative building, that is a very real prospect. And, what is disheartening from 2500’ is even more so at ground level. I encourage all those who are interested to view the site - especially from the Beachwalker Park boardwalk, where now you can see structure of a 65’ building looming over and just a few feet from the boardwalk.
Henceforth, whether you are enjoying a stroll along Sam’s Spit, kayaking on Kiawah River, or playing the back nine at Cassique, what will dominate the viewscape are several 65’ buildings towering above the dunes, unobstructed by mature oaks and pines. All because The Cape parcel was clear cut, and very intentionally so - in order to lower construction costs, increase the mass of buildings and dwelling units that could be built on the site, and create unobstructed views east and west for buyers of The Cape units. Ironically, the rendering of the completed project on The Cape website shows mature trees retained throughout the property and a dense treescape and vegetative buffer surrounding it. So much for truth in advertising...
But, we’ve been told, many times over, that development on Kiawah is all about building in harmony with our natural environment, preserving and protecting sensitive areas and wildlife habitats. Indeed, in RiverView, a newer and fairly dense development with about the same footprint as The Cape (and the Beachwalker parcels), there is a significant natural vegetative border around the community and dozens of mature oaks, pines, and magnolias were required to be retained throughout the property. In a couple of instances, houses had to be moved forward or back on a lot to avoid having to remove large oaks. Given that, how is it possible that eradicating several acres of pristine maritime forest was allowed? How was the decision made? Who made it? Several community leaders I’ve spoken to about this simply expressed an air of resignation about it - that the developer makes the decisions and the ARB is controlled by the developer. Yes and yes. But, but, but….
Here’s the thing. The developer entered into a contractual development agreement with the Town, which binds both parties. While it may, in many respects, be an overly one-sided agreement, it is still a two way street. While the developer is entitled to the benefits of the agreement, even if the community doesn’t like some of those “benefits”, it is equally bound by its burdens. The developer and the ARB, which, to be clear, are inseparable, have broad discretion under the development agreement, but that discretion is NOT unfettered. The developer cannot unilaterally decide to change zoning classifications, ignore setback requirements, increase the height and density of buildings, and so on, standards that are specified in the term of the agreement.
The question is, can the developer (and ARB) do whatever it wants to with regard to habitat and landscaping matters? I believe the answer is quite clearly, no. I went back through all the governing documents, i.e., the General Covenants, the Development Agreement, and Designing with Nature Standards and Guidelines, focused more narrowly on this issue. To be clear, I haven’t closely parsed every single exhibit and footnote in the several hundred pages of documents, and haven’t seen any relevant ARB documents, e.g., meeting minutes, preliminary and final plans, tree surveys, tree replacement plans, etc., so I would invite others to chime in with more detail and I would be pleased to correct the record if anything contained herein is factually inaccurate or even incomplete.
Having said that, I will jump to the conclusion and then systematically walk through how I got there. Based on what I believe to be a fair reading of all the relevant provisions of the various governing documents, it seems incontrovertible that clear-cutting of The Cape parcel is contrary to at least the spirit, purpose and intent of the Development Agreement, and the Designing with Nature Standards and Guidelines, which are part of the Development Agreement. More importantly, there is a very real question as to whether the actions of the developer and/or ARB in permitting or allowing clear-cutting of The Cape parcel violates the letter of the agreement - that is, does it constitute a material breach of the development agreement? This is ultimately the most critical issue, for if that is the case, and the breach isn’t cured - is clear-cutting several acres of maritime forest “curable”? - then the Town has the unilateral right to terminate the agreement. At the very least, the clear-cutting of The Cape parcel calls into question the validity of any representation by the developer that it will adhere to the standards with regard to development of the Beachwalker parcel and has any real interest in protecting our natural resources. Particularly given that the developer’s representative who presented the proposed Beachwalker parcels development plan is a member of the ARB board which had to had approved The Cape development plan.
For those who are interested in such matters, further below are excerpts from relevant provisions of the various documents that establish the basis for the conclusions above, along with further questions and commentary. For those of you who have better things to do with your time - I hope that is everyone - here is the abbreviated version:
The Development Agreement is a contractual agreement between TOKI and the developer and its terms are binding on both parties. As the ARB is the creation of, and controlled by, the developer, it is also bound by the terms of the Agreement. Its actions are effectively those of the developer.
Application and enforcement of the objective standards and guidelines set forth in the Agreement, which includes the Designing with Nature standards and guidelines, is for the benefit of both parties - and, expressly for the benefit of all property owners.
Development plans require the preliminary and final approval of the ARB. That includes a Tree Survey - of every tree - and plans to mitigate or replace trees that are removed. Nothing goes forward without the express approval of the ARB.
The Development Agreement and Designing with Nature generally require the protection and preservation of trees and sensitive environmental areas, and specifically require retaining natural vegetative borders along lot perimeters. The developer/ARB don’t have the authority to ignore the standards and guidelines or waive them simply for their own commercial purposes.
Notwithstanding the above, several acres of ecologically sensitive maritime forest was eradicated. The Cape parcel was clear-cut, including to the property lines.
Again, this is parsed in much greater detail below. The question is what should or can be done at this juncture given the damage that has been done?
As a starting point, pursuant to Section 24 of the Development Agreement (referenced below), the Town should undertake a comprehensive review of compliance with the Agreement, with a particular focus on what has transpired with regard to The Cape project. No a cursory review, but a full audit. That review, along with all relevant records (such as ARB meeting minutes) should be made publicly available; indeed, members of the community should be solicited as to whether they may have information regarding other instances of potential non-compliance with building, lot and landscaping requirements.
If there is a determination that the Agreement was materially breached, then the Town should promptly provide notice to the developer of the breach. The developer would ostensibly have the opportunity cure the breach within a reasonable period of time. Difficult to figure out how it would “cure” clear-cutting The Cape. If not so cured, then the Town could move to unilaterally terminate the Agreement, while affording the developer to rebut the basis therefor or to come up some other mitigation or otherwise renegotiated the Development Agreement, in which case everything would be on the table.
You can’t undo the damage done at The Cape - but perhaps mitigation would entail retaining the similar size maritime forest that is the Beachwalker parcels. Just for consideration…..
So, now the dense slog through the document “forest”…..
Relevant Section of the General Covenants
The lead paragraph in Article II, which is entitled “Covenants, Restrictions and Affirmative Obligations Applicable to All Properties in Kiawah Island” is relevant to this analysis:
“The primary purpose of these covenants and restrictions and the foremost consideration in the
origin of same has been the creation of a community which is aesthetically pleasing and functionally
convenient. The establishment of objective standards relating to design, size and location of dwellings
and other structures makes it impossible to take full advantage of the individual characteristics of each
parcel of property and of technological advances and environmental values. For this reason such
standards are not established by these covenants. In order to implement the purposes of these
covenants, the Company shall establish and amend from time to time objective standards and
guidelines which shall be in addition to these covenants."
As noted in Designing with Nature, this is the portion of the General Covenants that provides the basis for the creation of the ARB and establishment of building and landscape standards and requirements. The key point here is that the standards and guidelines now embodied in Designing with Nature are supposed to be objective, not subjective, standards - that is, definable and measurable and not subject to the whim and caprice of any party.
Relevant Sections of the Development Agreement
Section 13.B.1(c) specifies that the ARB shall apply the specific building standards and various lot requirements, including setbacks, but may adjust the lot standards if it determines “exceptional circumstances” exist.
What constitutes such exceptional circumstances isn’t specified. The question is whether the requirements have been modified pursuant to this authority, and, if so, what were the factors and findings that led to the ARB not applying the standards as otherwise required? Is there a paper trail?
Section 13.B.1(f) which references “buffers” provides that the ARB shall prescribe and may adjust subject to other provisions natural vegetative buffers between residential and non-residential lands and that the buffer shall be a landscaped or naturally vegetated area not less than 30’ wide or other non-wooded area not less than 50’ wide.
Well, at The Cape, there certainly is no longer a naturally vegetative buffer, 30’ or otherwise, along at least portions of the perimeter of the parcel. There is now NO vegetative barrier alongside the Beachwalker Park boardwalk. And, given the proximity of the 65’ building adjacent to it, there isn’t now any room for such a buffer.
Section 13.B.1(g) - Tree Replacement Guidelines - specifies that the Guidelines shall be applied; however they may be adjusted, modified and updated by the ARB with the approval of the Town.
The question is whether the Tree Replacement Guidelines have ever been so revised, either generally, or in a specific instance, with the Town’s approval? I’ve posed that question to the Town, but have not yet received a response.
Section 13.B.1(f), benignly titled “Aesthetics”, is critical in that this section basically spells out the authority of the ARB. It provides that the ARB shall have “sole and exclusive” jurisdiction with regard to the standards and guidelines in Designing with Nature and granting variances from the Building Development Standards. It also prohibits the Town from establishing an architectural review body during the term of the Agreement which replaces or duplicates the jurisdiction of the ARB. It also provides for KICA to appoint a member of the ARB and indicates that “when” the developer decides to turn over control of the ARB to KICA, it shall cooperate with an “orderly and staged” transition.
One question is whether KICA, through it’s ARB representative, has been apprised of all decisions made by the ARB, including particularly with regard to all preliminary and final plans for the development of The Cape parcel??? Another question is while the Town is precluded from establishing it’s own ARB at least with respect to property covered by the Agreement, is the same true for KICA? I haven’t parsed that particular question.
The last key portion of the Development Agreement that I will reference here is Section 24 - Periodic Review. It provides that the Planning Director shall review the Agreement at least every 12 months and that the developer shall demonstrate good faith compliance with the terms of the Agreement.
So, the question is, when was the last such review of the Agreement? What is involved in that review? Is there a written assessment? When was the last time that the developer “demonstrate(d)” good faith compliance and in what manner was that demonstration made? Did the Town specifically conclude that development of The Cape, including clear-cutting the maritime forest, was compliant with the Agreement? This is all vitally important, because if it is determined by the Town that there has been a material breach of the Agreement, and that breach isn’t cured, then the Town can unilaterally terminate the Agreement. Thus, if it were determined that the terms of the Agreement did not allow for clear-cutting of The Cape parcel, then it would be difficult to also conclude that such a breach could be cured; indeed it exemplifies “irreparable” damage.
I would note that the 2nd Amendment to the Development Agreement essentially allowed what would become The Cape project to go forward. Among other things, it allowed for much greater building density on the parcel than would have otherwise been allowed. I wasn’t here then, but for the life of me, I can’t fathom why the Town agreed to the changes in the 2nd Amendment. Perhaps someone else can shed light on that. In any event, I didn’t see anything that changes the Designing with Nature standards and guidelines.
Relevant Sections of Designing with Nature Standards and Guidelines
From the preface to the Guidelines (signed by current KICA Board Member and developer representative Amanda Mole):
"Environmentally sensitive design can best be achieved through a careful, well-thought-out response to
the configuration of your homesite, the Lowcountry climate, existing vegetation, and topography of
the building site. Research over the years has told us time and time again that Kiawah’s most
outstanding feature is its natural beauty. The Architectural Review Board is committed to protecting
and enhancing this precious asset.”
The ARB is supposed to protect Kiawah’s most precious asset...
From Purpose of the Standards and Guidelines:
"The standards are intended to protect the property values of all owners throughout the Island, and the
review procedures are intended to provide a systematic review for all construction
requiring Architectural Review Board approval."
Explicit acknowledgement that the application and enforcement of the guidelines is for the benefit of all property owners, not just the developer.
From Landscape Guidelines
"Kiawah Island’s natural setting offers a unique environment that must be recognized and preserved
as a framework for development. The Island’s special natural environment is ecologically
fragile and is difficult to replace once it has been disturbed. The Guidelines are intended
to indicate the seriousness with which we approach alteration of Kiawah’s vegetation.
These Landscape Guidelines are intended to protect the property values of all owners
throughout the Island, as Kiawah’s most outstanding feature is its natural beauty.”
Again, acknowledgement of the critical importance of protecting the natural environment and that the Guidelines are for the benefit of all property owners. Intriguing question - does this suggest that property owners may have a private right of action to ensure appropriate application and enforcement of the standards and guidelines?
"Significant trees and areas of understory growth are essential, natural,
and aesthetic resources. They play a critical role in purifying air and water, providing
wildlife habitat, enhancing natural drainage, and controlling erosion. These trees and
shrubs contribute to the quality of life on Kiawah and are an inseparable part of its
historical legacy. Consequently, the Architectural Review Board is most concerned with
trees and shrubs and has established these Guidelines to assure their preservation.
So, the Guidelines are supposed to “assure” preservation of significant trees, which are critical to the health and vitality of our ecosystem.
"The following are a few general guidelines that must be followed regarding existing vegetation:
a. The removal of any tree or any area of understory growth without the notification of,
and permission being granted by, the Architectural Review Board is prohibited.
A certified arborist must be used for, and ARB approval obtained prior to, the removal
of limbs that are 6” or greater in diameter.
b. Tree removal required to develop the property (i.e., the building footprint and paved
area) may require planting of additional trees as mitigation at the ARB’s discretion.
See the Tree Replacement Guidelines.
c. The removal of trees on lots or parcels that have already been developed is discour-
aged by the ARB. Any such removal without the ARB’s approval is prohibited.
d. Pruning in Sensitive Areas: Lagoon edges, marsh edges, maritime forest, and
beachfront areas, contain some of the most sensitive vegetation on the Island. Natural
drainage patterns, erosion control, and wildlife habitat may be easily upset by
thoughtless overpruning. In addition, certain areas adjacent to marsh edges may be
subject to further restrictions imposed in connection with the Storm Water
Management Act. Therefore, the pruning in these areas is prohibited without the
ARB’s approval. In all cases where such pruning is allowed, it shall be kept to a
minimum and conform to existing natural patterns of growth. Pruning should occur
after the home has been framed and views are established. Lagoon pruning is
reviewed by the KICA Lakes Management department and the ARB.
e. View corridors may be established from time to time by deed, plat, or other written
agreement. Tree removals and pruning within these corridors is permitted following
ARB review and approval.
f. Natural buffers, especially along lot edges, shall be preserved and enhanced.
Trees, shrubs, and other understory vegetation should remain dense from ground level
up to 10 feet and remain intact within 5 feet of the property line.
Violations of the above guidelines may result in substantial fines and mitigation requirements.
If vegetative mitigation does not thrive after 9 months from installation, replacement
Key points - every tree proposed to be removed requires the express approval of the ARB. And, natural buffers along lot lines shall be preserved and enhanced. It appears that there is no discretion on this point, which begs the critical question as to how and why such buffers at The Cape are gone?
From Tree Replacement Guidelines:
"All applications for tree removal and replacement
received by the Kiawah Island Architectural Review Board (ARB) are subject to the
a. All specimen oak trees on any residential lot of 3” caliper or greater at dbh and all
other trees of 6” caliper or greater dbh, shall be entered on a Tree Survey and
submitted to the ARB with site plans.
b. The minimum tree requirements for a developed lot is equal to one (1) tree (3” or
greater in caliper dbh) per 1,000 square feet of gross lot area (palmetto trees only
count as a third of a tree). Popcorn (Tallow) trees may not be included in the count
of existing trees on the undeveloped lot, as they are an invasive species and shall be
removed during development of the lot.
c. Should any such oak or other specimen tree fall within the building envelope
approved by the ARB, then the ARB, in its discretion, may require mitigating
replacement by way of oaks or other trees of at least 6 (six) inches caliper dbh. The
replacement tree preferred shall be native species such as oak, magnolia, palmetto, or
hickory. Depending upon the number of trees removed and the landscaping planned
by the owner, the requirement of replacement trees may be waived or, in the ARB’s
discretion, plant material and shrubbery may be substituted where visually
appropriate. All oak trees of 24” or greater caliper dbh must be preserved unless the
ARB determines there is no reasonable design solution that would save the tree(s).
For every oak tree with a caliper of 24” or greater dbh that is removed, the property
owner may be required to plant trees for which the sum of calipers that is
equal to or greater than the sum of caliper dbh of the trees removed. Mitigation trees
shall measure a minimum of 6 inches in caliper dbh.
d. Oak trees greater than 6” dbh that are removed outside the building envelope may
require mitigation in the ARB’s discretion should the ARB permit such removal.
e. If replacement trees will not “fit” on a lot in the ARB’s discretion, the ARB may require
location of same in a common, open, or park area of Kiawah.
f. In exercising its discretion respecting these Tree Replacement Guidelines, the ARB shall
take into consideration, among other things, the number and species of trees removed,
any hardship to the property owner, the remaining foliage, trees, shrubbery, and other
plant species as may exist on a lot and/or as may be proposed to be added by the owner
as a part of the landscaping plan, the size, shape, and topography of the lot, the size,
species, and value of proposed replacement tree, the neighborhood characteristic including
its general topography, foliage, and natural tree canopy, and other relevant factors.”
Curious whether the complete tree survey was done for Parcel 13 and how many of the oaks that were taken down will be replaced with same? And, it is difficult to discern how the factors that the ARB is supposed to consider in exercising any discretion with regard to tree replacement are applicalble to The Cape project - certainly not “hardship” of the property owner...
Regarding Multi-Family Homes
"The design requirements for multi-family housing shall be similar in intent to those for single-family
homes. Emphasis should be placed on architectural compatibility with neighboring
properties and the Island as a whole.”
There really isn’t anything else stated regarding multi-family properties - all of the design guidelines and requirements pertaining to single family residences apply to multi-family properties. The other notable aspect of this is the emphasis on architectural compatibility with neighboring properties. 50ft buildings with 10-12 dwelling units each on the Beachwalker parcels would in no way be compatible with the neighboring properties in Inlet Cove and RiverView.
The Designing with Nature Standards and Guidelines include another ~2 dozen pages on review process and construction guidelines that I won’t re-cite. What is noteworthy is those 2 dozen pages on process requirements are those that apply to property owners, architects, and contractors. Nothing dealing with the ARB’s own processes, e.g., timeframes for review, decisional criteria, what can be decided by staff and what needs to be approved by the board, etc. Indeed, while I assume it exists, there is very little information about ARB operations and governance on the ARB website. No charter, no by-laws. No information as to how Board members are selected and the length of their terms. One individual is labeled as a homeowner representative. What does the mean? How does that person represent homeowner interests? Has there been any engagement with homeowners about ARB review of projects like The Cape? I would note that the ARB site does provide agendas, well, the barest form of an agenda, but no supporting documentation and no minutes of meetings. An ARB meeting in March 2020 does list as an agenda item final approval of The Cape project, but nothing else. No information about what was discussed and decided, and no supporting documentation. I was informed that supposedly East-West partners clear-cut the parcel without the ARB’s approval or knowledge - or that certain trees were supposed to have been transplanted, but were not. And, that the ARB will now be requiring “mitigation”. Color me skeptical of that narrative…..
Thoughtful Analysis - Transparency - Open Communication