The Town of James Island was first incorporated in late 1992. It was formed entirely on James Island. The Town was made up of several highland areas divided by creeks and saltwater marsh. The City of Charleston had incorporated nearly all of the creeks and saltwater marsh on James Island by that time. The City challenged the formation of the Town on the basis that its jurisdictional claim over these marshes and creeks formed a barrier such that the various parts of the Town were not contiguous. There was no question about the efficient provision of services to marshes and creeks. Nor was there any notion that the various bridges and causeways connecting the highlands, all of which were state roads, would be inadequate to allow for the efficient provision of services in a Town made up of multiple highlands divided by creeks and marsh.
The Town's view was that the contiguity requirements imposed by the state for annexation were never intended to allow one municipality to block the formation of a municipality in a neighboring community by annexing its marshes and creeks. Any rationale for contiguity based upon efficient provision of services would not apply.
The Supreme Court disagreed. The first Town was voided. The Supreme Court's view was that if the City of Charleston had not annexed the marshes and creeks, there would have been no problem with forming a Town. The Town would have annexed the marshes and creeks, including them and the highlands creating a contiguous whole. The Court let stand the City of Charleston's strategy of annexing creeks and marshes to block the formation of a neighboring municipality.
However, the Town was correct about the intention of the Legislature as was shown a few years later when incorporation law was changed. With the new law, annexation of creeks and saltwater marsh were not allowed to provide a barrier to incorporation. The City of Charleston's strategy to block a neighboring community from forming a municipality would not be allowed to succeed. The elected leadership of our State recognized the injustice of rewarding such a strategy. The fact that salt marshes and creeks are not relevant to the efficient provision of services was plain and so not a concern. Nor would allowing incorporation across already incorporated salt water marshes or creeks allow a municipality to be formed to include some property in another county miles away.
The second Town of James Island was formed in 2002. It did not recklessly ignore the requirement of contiguity. It applied the rules passed by the Legislature that allowed for contiguity across salt water creeks and marsh even if they had been incorporated by another municipality. The City of Charleston challenged the law, claiming it was unconstitutional special legislation. The Supreme Court agreed, arguing that there was no rational basis for limiting the contiguity exception to salt marshes and creeks. What about fresh water creeks or mountain ranges? The second Town was voided.
Almost immediately, the elected leaders of our State corrected this problem found by the Supreme Court in the previous law. They allowed contiguity across all county, state, and federal property even if already incorporated in another municipality. The third Town was formed, not recklessly ignoring contiguity, but rather applying the rules for incorporation passed by our elected representatives.
However, there were some places where the City of Charleston had put together a line of private properties that created a barrier to contiguity. These narrow strips of properties created less of a barrier to the efficient provision of services than the natural barriers created by the marshes. I believe that those putting together the incorporation effort in 2005 thought that if parts of the Town were ruled non-contiguous, then those areas would be removed from the Town by the Court. What would it hurt to try? (No one asked me about the wisdom of that strategy.)
The third Town was formed in 2006. The City of Charleston challenged the incorporation law claiming that it was unconstitutional to have different contiguity rules for incorporation than for annexation. The Supreme Court rejected the City's constitutional challenge recognizing the authority of the Legislature. However, while the circuit court had agreed that the state and county roads connecting the various parts of the Town were public property and could be used for contiguity, the Supreme Court determined that parts of the Town were not contiguous. Rather than merely removing those parts of the Town that it determined were not contiguous, it ruled the Town void.
The Town considered seeking another revision of incorporation law, but instead chose to use the 2005 law that the Supreme Court had ruled constitutional. This time we were very careful to leave out anything that might be challenged as not contiguous. Because incorporation law allows incorporation across already incorporated public property, a key concern was private marsh that had been incorporated by the City of Charleston. While that had never been challenged before, would the City challenge it now? Better safe than sorry, when in doubt, leave it out. The Town had learned that the South Carolina Supreme Court would impose the death penalty for incorporating anything it later determined was not contiguous.
This approach was successful in avoiding a court challenge to our 2012 incorporation. Mayor Riley explained that his lawyers said that a challenge was unlikely to succeed, so he gave up. However, approximately 1/3 of the people who had been in the Town in 2011 were not included.
The City of Charleston claimed that much of the north area of the Town was not contiguous in 2011 and the Supreme Court agreed. Would there be any challenge to an effort to annex the areas in what had been the southern portion of the Town in 2011? The City of Charleston had not challenged contiguity there and the Supreme Court had not ruled that those parts were not contiguous. The Town annexed six parcels. The City asked the Attorney General to challenge all of them. The Attorney General ended up challenging four. The Town consented to the Attorney General's challenge. The City had no standing and dropped it suit. The Town annexed several neighborhoods in 2014.
Notice that instead of the Town being dissolved as had occurred in 1997, 2004, and 2011, the result was that the Town signed a consent order with the State and regained a number of neighborhoods. This is much better than what would have happened if we had tried to add all of those areas during incorporation and they were later ruled non-contiguous.
Based upon the Attorney General's challenges, we have a better idea of what we can and cannot do under current annexation law. That is why the Town has emphasized the need for a change in annexation law.
If you go to Centerville and look north from the Town across the marshes of Ellis Creek, about 500 feet away is the Central Park community, a largely unincorporated area that was in the Town in 2011. Contiguous unincorporated properties in that community extend to just north of Central Park Road and over to Fleming Road. Then there is a break in contiguity. The City of Charleston annexed a couple of properties that created a 117 foot barrier before the next unincorporated area. The area across that break was in the Town in 2011. Close by, there is an additional 19 foot break that is the driveway "pole" on a "flag" lot. Then, going north, the northern portion of the Central Park community transitions into Woodland Shores. This large contiguous unincorporated area was in the Town until 2011. In the middle of Woodland Shores, there is another break. This time, it is 210 feet. Past that break, there is more contiguous unincorporated area going all the way into Riverland Terrace up to the northern border of James Island at the Wappoo Cut. All of that area was in the Town in 2011.
Yes, the Wappoo Cut is distant from the current boundary of the Town near Ellis Creek, but the breaks in contiguity in the unincorporated area between are very narrow. The largest break is across the marsh at Ellis Creek and no one is providing any services to the creek and marsh. The other breaks are trivial. They are generally two properties wide.
On the south end of Town, Greencrest is currently our southern most neighborhood. It is south of Fort Johnson Road and on the east side of Folly. Nano farms is at the very south end of the Town's current border. Across Folly Road are commercial areas that have been annexed to the City of Charleston. Less than 900 feet from the existing boundary of the Town, just behind the businesses on Folly Road, is the Grimball Community. Contiguous unincorporated area extends south to Battery Island and east to Bur Clair and the Scott Hill Community (Grimball Extension Rd.) All of this was in the Town in 2011. There is a 73 foot break between that area and the Secessionville area running up Fort Lamar Road. That was in the Town in 2011. There is a 127 foot break between Battery Island and Sol Legare, also in the Town in 2011. Riverfront is separated from Sol Legare by another 500 feet break across Folly Road. The shopping center to the west is in the City of Folly Beach and the apartments to the east are in the City of Charleston. But just off Folly Road there are large communities of unincorporated area on both sides that were in the Town in 2011.
The only significant break in contiguity is between unincorporated Riverfront and unincorporated Oak Island, both in the Town in 2011. There is nearly a mile of marsh and creek beyond Riverfront before reaching what was the southernmost portion of the Town in 2011. Oak Island is unusual in that it is entirely surrounded by salt marsh and creeks annexed to the City of Folly Beach rather than the City of Charleston. Oak Island is quite distant from Folly Island, though a bit closer than it is to Sol Legare and Riverfront. It is very close to the Folly Beach neighborhood of Little Oak Island, and the City of Folly Beach has actually annexed areas north of Oak Island on Sol Legare.
House Bill 4076 would make it possible for the Town to skip over these breaks in contiguity--breaks in contiguity in the James Island Public Service District now and what would be breaks in the contiguity of the Town. The bill would not allow the Town of James Island or any other municipality to annex some individual parcel in Orangeburg County. The intention of the bill is that if a municipality was incorporated to include a majority of the voters of a public service district, then those remaining in the unincorporated portion of the public service district may vote to annex to the municipality. Unless an area is in the same public service district as a municipality, the law will not apply. In particular, neither the Town nor any other municipality in our area is in the same public service district as any parcel in Orangeburg County. For the Town, we are only in the same public service district as unincorporated areas on James Island.
I have sometimes heard it claimed that the courts have determined that contiguity is required for annexation. In fact, the courts have clearly ruled that annexation (and incorporation) law is a matter of the Legislature's discretion which therefore can require contiguity or not as it sees fit. There is nothing in the South Carolina Constitution that mandates contiguity. What the South Carolina Constitution does require is that any legislation regarding local governments--such as municipalities and public service districts--be general. A law that expressly allowed only the Town of James Island to annex the unincorporated areas of the James Island Public Service District would be unconstitutional special legislation.
House Bill 4076 applies to all municipalities and special purpose districts in the State that meet certain conditions. The key condition is that the voters of the municipality have a dominant position in the politics of the special purpose district. The rational purpose for the condition is to create balance and a broader community of interest by allowing those in the unincorporated area to annex to the municipality and so vote in municipal elections just as those in the municipality can vote in public service district elections. This issue is irrelevant for those municipalities that have agreed to remove their residents from a district upon annexation, since they can no longer vote in elections for the governing body of the special purpose district and so influence its policies. Similarly, it is not relevant when the governing board of the special purpose district is appointed by County Council (or the State Legislative delegation) rather than elected.
House Bill 4076 solves a problem that can exist anywhere in the State where one municipality has followed a strategy of piecemeal annexation to create breaks in the contiguity of a special purpose district, and another municipality has been formed in remaining portion of the public service district and it is sufficiently large to dominate the elected governing body of the special purpose district. However, this does not imply that all requirements for contiguity are out the window.
If the Legislation passes, and the JIPSD Commissioners request an election, and the majority of voters in the unincorporated area of the JIPSD vote in favor of annexation, then the Town will return to approximately its same size as in 2011. This will include slightly less than half of the population on James Island and approximately half of the highland area. This is as opposed to the status quo where the Town includes about 30% of the population and 20% of the highland area, the unincorporated area includes about 20% of the population and 30% of the highland area and the City of Charleston about half of both. The City has jurisdiction over nearly all of the salt marsh on James Island, though the City of Folly Beach has a good bit of marsh between Folly Island and James Island.
I don't believe that the City of Charleston has standing to challenge Town annexation. However, if there is a legal challenge to annexations under this bill, the Town will determine whether we are likely to prevail. If we defend our annexations in court and lose, then we will be exactly where we are today. Failure to annex does not result in closing down the Town. It took two times to get the incorporation legislation right and another time to find out how to apply it. I would hope that we would get the annexation legislation right the first time, but James Islanders can be persistent.
If this process does wind its way to an election, and those in the unincorporated area of James Island vote against returning to the Town, then I believe the Town should accept their decision. My commitment is to give those who were in the Town in 2011 (and 2004 and 1997) an opportunity to return to the Town. If the voters reject that opportunity, then it will be time for the Town to move on.
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