The Town signed an intergovernmental agreement with Charleston County in August of 2012. The agreement included a provision for Charleston County planning staff to apply the Town's Zoning and Subdivision Regulation Ordinance. After Town Administrator Hal Mason arrived in early September, I appointed him to serve as Planning Director, but the Charleston County Planning Department continued to provide extensive staff support. In March, the Town hired Kristen Crane to serve as Planner. Much of the staff support continues to be provided by the Charleston County Planning Department, but I am gradually increasing the responsibilities of the Town's own planner. I anticipate that she will soon be responsible for all day-to-day activities.
Last fall, the Town began a complete review of the Zoning and Subdivision Regulation Ordinance. The Town's Planning Commission reviewed each chapter of the ordinance with the help of staff from the Charleston County Planning Department. The Town Administrator, as Planning Director, participated in all meetings. The Chairman of the Town's Land Use Committee, Leonard Blank, also participated in the meetings.
The revisions mostly involved updating the Town's ordinance consistent with the changes in Charleston County's ordinance that have occurred over the years. I think this approach makes sense, because for the most part, the Town's ordinance was based upon the Charleston County Zoning and Subdivision Ordinance from 2002. The Charleston County planning staff could point to changes in state law or various problems they had discovered over the years, requiring changes in their ordinance. Councilman Blank's role was to make sure that the Planning Commission was aware of any differences from the County ordinance that had been intentional on the part of the Town.
After the Planning Commission reviewed and revised several chapters, planning staff would put an ad in the James Island Messenger scheduling a public hearing for the next Town Council meeting. The ad must appear 15 days before the meeting for changes in zoning rules and 30 days before the meeting for changes in subdivision regulations. Those are requirements from state law. After the public hearing, Council would vote on an ordinance adopting the chapter at first reading. And then, at the next meeting, Council would approve the ordinance at its second and final reading.
Chapters 1, 2 and 3 came up at the November meeting of Town Council. No one spoke at the public hearing. There was a single ordinance adopting the "text amendments of Chapters 1, 2, and 3 .... which are attached hereto as exhibit "A" and made a part of this Ordinance by reference." Exhibit "A" included all three chapters as they would read after the ordinance passed. For the most part, this would be no different from the existing ordinance, but there were a variety of small changes included. The second and final reading was at the December meeting of Town Council.
Chapters 4, 5, and 6 came up at the April meeting of Town Council. No one spoke at the public hearing. Again, there was a single ordinance adopting "the text amendments" for all three chapters. It passed first reading unanimously. At the March meeting, some beekeepers came to speak in favor of allowing beekeeping in residential areas. This had been been included as a special exception in the recommendations from the Planning Commission, which had already passed first reading. The ordinance passed second reading unanimously.
Chapter 8 and 9 were much more controversial. Chapter 9, "Development Standards," includes tree regulations, including the definition of grand tree. Chapter 8, "Subdivision Regulations," makes reference to grand trees, and provides the definition as well. The Planning Commission forwarded their recommended changes for these chapters and ads were placed in the James Island Messenger announcing a public hearing at the Town Council meeting on June 20. The ordinance adopting chapter 8 states that it adopts the "text amendments" from exhibit "A" and the ordinance adopting chapter 9 includes the same language. Chapters 8 and 9 were provided as they would read if the respective ordinances passed. The Chapters recommended by the Planning Commission included no change in the definition of grand tree, leaving it unchanged as all oak species with diameter 24 inches or greater.
At the public hearing, a number of speakers called for changing the definition of grand tree to all trees other than pines with diameter 18 inches or greater. Only the day before, Councilman Kernodle had written an email to me and the rest of Council stating an intention to propose an amendment to that effect.
While Councilman Kernodle's plan to propose the amendment was new, the proposal was not. At the Planning Commission meeting in April, Commissioner Milliken had made this same proposal and it was included in the working draft for chapter 9. There had been no vote, because the Planning Commission works by consensus. However, there had been no consensus, since two members of the Planning Commission opposed changing the definition of grand tree. At the May meeting, the Planning Commission voted 4 to 1 to change the working draft and make no recommendation regarding grand trees to Town Council.
In response, Commissioner Milliken enlisted Save Harbor View Road and Nix 525 in a campaign to reverse the recommendations of the the Planning Commission and have Town Council directly amend the definition of grand tree. Save Harbor Road is an organization whose purpose has been to block the Harbor View Road improvements. Nix 526 aims to block the completion of 526. Commissioner Milliken, Commissioner Hardin, Councilwoman Berry, and Commissoner Milliken's wife, Susan Milliken, are all involved in the Save Harbor View Road organization.
I asked two members of Town Council what they thought about the proposed change in the tree ordinance. Of course, I spoke with them separately. Both said that they opposed a change in the definition of grand tree at this time. Councilman Blank had called for a joint workshop for the Planning Commission and Town Council to learn more about tree ordinances. The time was not specified, but sometime this Fall. Both members of Council thought that it was best to wait until after this workshop before changing the definition of grand tree. Given these assurances, I was not concerned about growing evidence that the Save Harbor View Road and the Nix 526 organizations would seek to have Town Council amend the definition of grand tree at the June 20 meeting of Council. There were three votes on Council opposed.
Can Town Council make amendments to recommendations from the Planning Commission? When the possibility first arose, Councilman Blank, Chairman of our Land Use Committee, said that he thought that Council would have to send the Chapters back to the Planning Commission. He was right. Hal Mason, the Town Administrator, said that the Planning Commission is only a recommending body and Town Council, as governing body, can amend what was recommended by the Planning Commission. He was right, too. However, the Town Administrator's view of the process was that the Town Council can make any change it chooses in the recommendation, go to first reading, and then at a subsequent meeting, pass its own version at second and final reading. That was mistaken. I asked him to check with the Municipal Association and the Charleston County Planning Department about this. They both agreed with his (mistaken) interpretation.
I found the situation absurd. Part of the problem was that entire chapters of the Zoning and Subdivision Regulation Ordinance were being sent to Town Council. Was it really true that by putting the entire chapter "on the table," Town Council could change any part of it? It makes a mockery of the requirement for a public hearing. In my view, the Planning Commission had really recommended a set of discrete changes in those chapters. It seemed inappropriate for Town Council to pass amendments to parts of the chapters that included no recommended change. Shouldn't we list all of the changes actually recommended and vote for them individually or as a group?
While I expressed all of these concerns to the Town Administrator, his view was that it was too late. By presenting Chapter 8 and Chapter 9 (and all of the chapters before) as a single document, it was open to Council to amend any part of those Chapters in any way. Of course, since the grand tree amendment being pushed by Commissioner Milliken and Save Harbor View Road could not pass with three votes opposed, I put my concerns on the back burner.
As the June 20 meeting approached, it became clear that Councilwoman Berry was pursuing an amendment. She never spoke to me directly, but she approached Councilman Blank and Councilman Mullinax, (separately, of course,) with a compromise. While the size of grand tree would remain 24 inches or greater in diameter, all trees other than pines would be protected. I heard about it from each of them (separately, of course.) I pointed out that all trees other than pines and sweet gum would make our ordinance in line with that of the City of Charleston. I explained that a sweet gum was a "gumball" tree, and that it has brittle wood and the spiky seed pods are difficult to deal with. I also shared my opposition to the Town protecting exotic and invasive trees, such as Chinese tallow trees. I explained that those are "popcorn" trees. However, I insisted that I would not vote to amend the definition of grand tree until after the Town had completed its review of other ordinances, the vacant parcels in the Town, and native trees of James Island. Still, I began to expect that an amendment to the definition of grand tree would pass on June 20, making it consistent with the City of Charleston's definition--all trees other than pines and sweet gum with diameter 24 inches or greater.
The campaign by Save Harbor View Road and Nix 526 intensified in the days leading up to the June 20 meeting of Town Council. The misinformation was rife. The "protected trees" in other jurisdictions were compared to the Town's grand tree ordinance. There was a "consensus" on the Planning Commission, but I bullied them to change. Supposedly, my wife helped in the bullying! It is rumored that I am being paid off by developers. Even the Post and Courier editorial page joined in, repeating the claims made by the activists without verification.
Interestingly, the Save Harbor View Road and Nix 526 groups combined their effort to change the grand tree definition with an effort to impose conditions on the Harborview Road Improvement project. The conditions they proposed were to extend the sidewalks and bike paths to the James Island Connector, to reduce the size of the center lane from 13 to 12 feet, and to provide barriers to protect animals crossing the road. As I explained earlier, these were "poison pill" conditions that would block, or at least postpone, approving the project.
I received 39 emails calling for both a change in the definition of grand tree and for these conditions to be added for approving the Harborview Road Improvement project. Councilman Kernodle's email cited the correspondence he had received to explain his proposal to amend both the definition of grand tree and to add the conditions to the municipal agreement with Charleston County and SCDOT. There were 19 emails from residents of the Town and 20 emails from others, including some from as far away as New York.
After receiving the email from Councilman Kernodle, I emailed Councilwoman Berry and asked her about this issue for the first time. I was curious as to what had happened with the "compromise" that I had heard about second hand. She explained that she supported all of Councilman Kernodle's proposals. Either I had misunderstood all the talk of compromise, or she was changing her position.
At the Town Council meeting of June 20th, perhaps 25 activists were there to support both the change in the definition of grand tree and the imposition of conditions on the Harbor View Road Improvement project. Councilman Kernodle proposed to amend the municipal agreement to impose additional conditions. Councilwoman Berry seconded the motion. It failed 3 to 2. I believe that Councilman Mullinax had intended to vote for the conditions and was surprised to discover that this would be the same as a "no" vote. After the amendment failed, the Harbor View Improvement Project passed 3 to 2. This is what I had expected, because there had been three votes in favor of approving the project going into the meeting.
Then the ordinance adopting the Planning Commission's recommended changes in Chapter 8 came up. While tree regulation is in Chapter 9, the definition of grand tree is repeated in Chapter 8. Councilman Kernodle made a motion to amend both Chapter 8 and Chapter 9 at the same time. I ruled that was out of order, because only Chapter 8 had been moved and seconded. Councilman Kernodle said that the Town Administrator had told him he could amend both Chapters at the same time. The Town Administrator said he didn't say that, because such a motion was impossible. (It seemed obvious to me that it was a minor mis-communication, but angry words in the meeting led to an unfortunate confrontation later.)
Councilman Kernodle then moved to amend Chapter 8 so that grand tree would be all trees other than pines with 18 inches or greater diameter. I moved to amend the amendment so that it would be all trees other than pines or sweet gum. That passed. I then moved to amend the amendment to remove Chinese tallow. That passed. I then moved to amend the amendment to remove Mimosa. That died for lack of a second. (I would have gone on to remove all of the trees I could remember from the state's list of exotic and invasive species.)
The amendment passed 3 to 2. I was surprised since it included the change in the definition of grand tree from 24 inches to 18 inches, and two other members of council told me they would not support that change. Councilman Blank and I voted against it. Chapter 8 then passed first reading also 3 to 2, with Councilman Blank and I opposed. Councilman Kernodle proposed to amend Chapter 9 so that grand tree is defined as all trees other than pines, sweet gum, or Chinese tallow with diameter 18 inches or greater. It passed 3 to 2, with Councilman Blank and I voting against. The chapter passed first reading, again, 3 to 2, with Councilman Blank and I opposed.
The next day, I contacted a staff member from the Charleston County Planning Department. I asked why Chapter 8 included the definition of grand tree rather than just referencing the definition in Chapter 9, which covers tree regulation. He agreed and said that fixing this is just an editorial change.
I also said that it seemed very wrong to me that our procedures had put an entire Chapter on the table for Council to amend after the public hearing. In my view, citizens should know what is being proposed before the public hearing. I asked how we could change our procedures to avoid this situation from happening in the future. To my surprise, he responded by citing a state law that prohibits changing the recommendation from the Planning Commission after the public hearing. Others from the Charleston County Planning Department looked at this, and we sent it to the Municipal Association for their view as well. They agreed that the amended versions of Chapter 8 and 9 needed to be sent back to the Planning Commission for their recommendation, and then a new public hearing must be held. After that, Town Council can hold first reading on the amended definition of grand tree and at a subsequent meeting, it can have the second and final vote. The Town Attorney wanted a copy of the draft minutes from the June 20 meeting before providing an official opinion. He provided his opinion consistent with the view of the Charleston County Planning Department and the Municipal Association on July 10th.
The Town Administrator notified the Planning Commission at their July 11 meeting that they must consider the definition of grand tree and provide a recommendation on the version of the amendment that passed Council at their next meeting, They can also propose an alternative definition of grand tree.
I support the compromise of defining grand tree as all trees other than pines and sweet gum with diameter 24 inch or greater. I support adding a separate sentence saying that no species on the state's list of exotic and invasive trees are included as protected trees, including grand trees. The recommendations for Chapter 9 already includes a definition of protected tree as all trees with diameter 8 inches or greater, bringing the Town's ordinance in line with that of Charleston County and much like that of the City of Charleston.
While I was surprised to see the change in definition of grand tree pass on June 20, that was just the first reading. Also, I had anticipated that there would be an effort to change the definition of grand tree after the workshop in the Fall. At some point, I knew I was going to have to ask all the citizens of James Island to contact their members of Council about this effort to micromanage every homeowner's yard. After June 20, I though it was going to be July 18. Now, because of this state law, it will be later. Please keep out an eye for further news.
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