By Gregg Bragg, The Island Connection Staff Writer
In December 2014, after hearing the case for an unprecedented third time, the South Carolina Supreme Court ruled Kiawah Partners could not build a revetment needed to advance development on Captain Sam’s Spit, a 150 acre strip of land at the edge of Kiawah Island. Approval of the revetment would have paved the way for construction of up to fifty houses across 30 plus acres of high ground nestled amongst the over 150 acre sand spit. The case was sent back to the Administrative Law Court. Kiawah Partners subsequently rewrote its application and was granted permission by DHEC to build a steel wall in support of a road into the Spit.
The appeal process and SCSC directive put Kiawah Partners back in front of Chief Administrative Law Judge Ralph King Anderson III. His decision, as reported in the Post and Courier on Monday Nov. 9, “would clear the way for Kiawah Partners to build a half-mile long, in-ground steel sheet pile wall along the roadway to support it. It’s an abrupt turn of events in one of a series of lawsuits now underway for the controversial 50-home development.”
“Kiawah Partners is pleased that the (law court) granted its motion to lift the automatic stay,” Bill Hindman, spokesman for the developer, said in a press release.
The ruling would have allowed construction to begin immediately. Left with only days to respond, conservationists, including the South Carolina Coastal Conservation League with the assistance of the South Carolina Environmental Law Project, were already in motion.
“The Supreme Court has protected the Spit through several rulings over the years, recognizing that a pristine barrier island and critically important public trust resource providing habitat to a variety of rare, threatened, and endangered species is not something to be sacrificed for the sole benefit of a private developer,” Katie Zimmerman, SCCCL Program Director, said. “Therefore, our attorneys at SCELP have asked the Supreme Court to grant ‘extraordinary relief’ and impose a stay upon the Administrative Law Judge’s order until the issues are properly and fully heard and decided. The Supreme Court has ordered both sides to provide supporting arguments. Those were due yesterday [Nov. 10]. So we are now waiting to hear what the Supreme Court will decide. It should be a quick decision.”
Margaret Sands, a project manager with SCELP, told The Island Connection “We were successful in filing our reply to the developer’s Response to the Petition for Extraordinary Relief which we filed last week. We are hopeful for a swift decision from the Supreme Court given the urgency of this matter.”
One explanation for all the immediacy associated with Anderson’s ruling became apparent only indirectly. James Bailey, COO of the Kiawah Island Community Association, confirmed the interpretation of covenants which allow Kiawah Partners to “automatically convey” infrastructure to the community association upon completion. KICA then becomes responsible for maintenance, paying for any necessary repairs out of the pool of funds collected from Kiawah residents. According to Bailey, Kiawah Partner’s ability to automatically convey the Spit or any other property to KICA, expires on January 1, 2016.
As of press time, an email to KICA Board Chair Dave Schoenholz was not returned. However, the consequences seem clear. Without quick action, Kiawah Partners, or the homeowners in the proposed Captain Sams Development area, would be responsible for maintenance and repairs. Requests by past KICA Boards to form a separate sub-association from the Spit were declined by the developer at the time. Simultaneously, the tenuous nature of the Spit comes into stark relief in the face of recent weather. October flooding, for example, resulted in 12 feet of dune loss directly adjacent to the proposed road site on the Spit, leaving only a 6 foot margin. Another example, reported by both The Post & Courier and The Island Connection, was the loss of a bulldozer and dump truck during the re-nourishment project at the western tip of the Spit and the eastern tip of Seabrook. Both vehicles were eventually extricated.
The alternative to quick judicial action is that Kiawah Partners asks the KICA Board for permission to convey property/infrastructure to the community. The Board currently consists of one Kiawah Partners representative and six resident representatives who are elected by the community. Kiawah Partners has publicly pitched the Spit project with the promise that 80 percent or more of the Spit would be turned into a conservation easement.