The James Island Planning Commission and Residency Requirements

Should a resident of the City of Charleston serve as a member of the Town of James Island's Planning Commission?

Robin Hardin was appointed to the James Island Planning Commission, but she lives in the City of Charleston.   Several citizens of the Town complained, "Why should we have someone on our Planning Commission who doesn't even live in the Town?"

The short answer is that Councilwoman Mary Beth Berry nominated her, and Town Council voted to appoint her.  There is nothing currently in the Town's Zoning and Subdivision Regulation Ordinance about a residency requirement, and the section of the South Carolina Code governing planning commissions includes nothing about a residency requirement either.

However, these laws are both subordinate to the South Carolina Constitution.  The South Carolina Constitution Article XVII Section 1 states in part, “No person shall be elected or appointed to any office in this State unless he possess the qualifications of an elector.”  And Article II Section 5 states, “Municipal electors shall possess the qualifications prescribed in this Constitution, but each such elector must have resided in the municipality in which he offers to vote for thirty days preceding the election.”  

Henry McMaster, when he was South Carolina Attorney General in 2007, provided an opinion to another municipality regarding its Planning Commission that included, "with regard to the residency requirement, we believe such a requirement is implied by the South Carolina Constitution even if City Council did not provide for it in the ordinance."

Bo Wilson, the Town's Attorney, wrote Robin Hardin, providing the Attorney General's opinion and suggesting she resign.   She did not respond to the Town Attorney but included in an email to the Town's Planner, Kristen Crane, a statement that she did not intend to resign adding "I am not an elected official and reside and vote on James Island."

Unfortunately, the South Carolina Constitution refers to appointed as well as elected officials, and the requirement is to reside in the municipality, not on the same island as the municipality.

While no citizen complained about her,  there was a second appointment of a nonresident to the Town's Planning Commission.   Margarite Neal was on the Planning Commission for the second and third incorporations of the Town.   She lives in Riverland Terrace, which was in the Town and we hope will one day return to the Town.   Like Robin Hardin, Margarite Neal was appointed to the James Island Planning Commission soon after the Town was incorporated for the fourth time.

When the Town Attorney suggested she resign to comply with the South Carolina Constitution, Margarite Neal did.   I greatly appreciate her long service on the Town's Planning Commission, will miss her experience and expertise, and hope that she and the rest of Riverland Terrance will soon rejoin the Town so that she is again eligible to serve.   I am very sad that we have lost a voice of reason and common sense on our Planning Commission.   If you see her, please thank her.   She has been a loyal supporter of our Town and did the right thing.

The custom in the Town of James Island is for the Mayor and each member of Council to nominate a single member of the Planning Commission.   Since Councilman Mullinax had nominated Margarite Neal, I asked that he nominate someone to fill the rest of her term.   He told me that he will nominate Bill Lyon at the November 21 meeting.   Bill has long been active in the Lighthouse Point Civic Club and represented Lighthouse Point on the James Island Neighborhood Council.   Bill Lyon resides in the Town of James Island.   I anticipate that Council will vote to appoint Bill Lyon.

To make sure that future Town Councils avoid unconstitutional appointments to the Planning Commission and Board of Zoning Appeals, I have prepared a resolution for Town Council to be considered at the November 21 meeting.    The resolution directs the Planning Commission to recommend an amendment to the Town's Zoning and Subdivision Regulation Ordinance specifying that members of the Planning Commission and Board of Zoning Appeals reside in the Town and removing those who do not live in the Town.   (Normally, that would apply to members who move out of the Town, but it would also apply to any unconstitutional appointments made in error.)   The Planning Commission will have thirty days to make a recommendation, and so, I anticipate that Council will be voting on an ordinance at the December meeting, with second and final reading in January.

However, as Henry McMaster pointed out in 2007, the amendment to the Town's Ordinances is not really necessary.   I believe Robin Hardin's appointment was unconstitutional and so void.    I have asked the Chairman of the Planning Commission, David Bevon, to record all votes.     As long as at least three legally-appointed Commissioners are in attendance, there will be a quorum for official Planning Commission business.

I contacted Councilwoman Berry about nominating a Commissioner to fill the vacancy.    Councilwoman Berry is supporting Robin Hardin's effort to remain in office, though she supports a Town Ordinance to clarify the issue.    We will see where Councilman Berry comes down on the question of removing Commissioners who do not reside in the Town.    I see no pressing need to have Councilwoman Berry nominate someone to fill the vacancy.  

What do you think?   Should the Town keep a resident of the City of Charleston on the Planning Commission?    Feel free to call or write Town Council.   Here is our contact information.  You can also come to our Town Council meeting next Thursday, November 21 at 7:00 PM.   Don't forget to sign in to make a public comment.