The Republican Primary for Senate Seat 41 on June 14

Many of us on James Island are in South Carolina Senate District 41.  The boundary is Fort Johnson Road.  South of that boundary is Senator Chip Campsen's District 43.  North of that boundary is Senator Paul Thurmond's district 41.

Senator Thurmond is not running for reelection.   There are four candidates seeking to replace him--all Republicans.   No Democrat has filed, so whoever wins the Republican Primary on June 14 will be unopposed in November.

I am sorry to see Senator Thurmond go.   Like Representative Peter McCoy, he has always been very supportive of the Town's legislative goals in Columbia.   In particular, he supported our effort to amend the annexation laws so that the former residents of the Town would have an opportunity to join the Town.   He supported our effort to reunite the Town.

County Councilman Joe Qualey was running in the Republican primary.   I endorsed him.   He served on James Island Town Council from 2002 to 2004 and from 2006 to 2010.    In 2010, he was elected to County Council.  He strongly supported our effort at incorporation in 2012 and has supported the Town on County Council since.   I can't say that I always agree with him on every issue, but I was confident that he would support the Town's interests in the South Carolina Senate.  

Last week, County Councilman Qualey withdrew from the race, leaving four candidates--Charleston County Assistant Prosecutor Culver Kidd, Former Charleston City Councilman Tim Mallard, Roy Maybank, and Sandy Senn.

I have spoken with three of the four remaining candidates:    Kidd, Maybank, and Senn.   I also went to the candidate forum sponsored by the Charleston County Republican Party in West Ashley and saw all of them answer questions about the issues.

When I spoke to the candidates, I focused on legislative issues that I think are important to the Town.  Obviously, there are many issues that are important to South Carolina and the Lowcountry.   Like all voters, I will have to weigh those issues as well as issues important to the Town.

Still, I would like to share what I consider the key issues facing the Town of James Island in Columbia.

1.   Will our next Senator help pass the legislation needed to reunite the Town?

The Town is working with Representative McCoy to pass House Bill 4203 .   Once it passes in the House, it needs to pass the Senate and be signed by the Governor.

This bill will clarify the definition of contiguity so that if a municipality is within the same special purpose district as a parcel of property and would be contiguous with that property but for a break in the contiguity of the special purpose district, then it will be contiguous to the municipality for purposes of annexation.

The Town of James Island is entirely within the James Island Public Service District.   Those who were in the Town in 2011, assuming they didn't annex into the City of Charleston, remain within the James Island Public Service District.  Those who are not in the Town now, however, are separated from the rest of the Town by areas annexed by the City of Charleston.  These areas annexed to the City of Charleston have been removed from the James Island Public Service District, creating a break in the contiguity of the James Island Public Service District.  If it were not for this break in contiguity in the James Island Public Service District, some of the properties in those areas would be contiguous with the Town.

Once the legislation passes, we can organize a petition drive.   If 25% of the registered voters in those areas that were in the Town sign a petition to join the Town again, then there will be an election.  If the majority of voters in those areas favor returning to the Town, then the Town will be reunited.

This definition of contiguity would only apply if residents of the municipality are eligible to vote for the governing board of the special purpose district.   This is because a key rationale of allowing this rule for contiguity is to allow those within a special purpose district to vote for the municipal governing body (Mayor and Town Council) since the residents of the municipality can already vote for the governing board of the special purpose district.   There are few if any other places in South Carolina where a municipality is entirely within a special purpose district that has an elected governing board.   This makes passing the Legislation easier.

I believe that our new Senator should help.  This is my key priority.   I promised to give everyone who was in the Town of James Island a chance to vote to return to the Town.

2.   Will our next Senator help fix the crazy implication of the millage cap for new municipalities?

Local governments in South Carolina can only increase their operating property tax millage by a percentage amount equal to the population growth rate plus the inflation rate.   So, if the municipality had a millage of 20, and the population growth rate were 3% and the inflation rate were 2%, then it could increase its millage by 5%.  That would be from 20 to 21 mills.

This rule creates a puzzle for new municipalities.  If the operating millage rate is zero, then if the population growth were 3% and the inflation rate were 2%, then the millage could increase by 5%.  But 5% of zero is still zero.    The millage cap appears to imply that new municipalities can never have an operating property tax millage.

There are a number of exceptions in the law, but three of them are for a bond millage, a millage for lease-purchase payments for real property, and a millage for a reserve.    The Town of James Island has a millage for lease-purchase payments for real property and for a reserve.   We can use those funds for capital improvements, but not for operations.    For example, we can pay for our new Town Hall, but we could not pay to expand the Island Sheriff's Patrol or, more importantly, pay for solid waste collection services by contract.

It is possible that if the Town changed its millage to an operating millage, we could use the funds to pay for a contract for solid waste collection and no one would complain. (I wouldn't bet on that.) Or, it is possible that the Town would be sued (likely,) and that the Court would rule that the Legislature did not intend to never allow new municipalities to collect an operating millage (Quite possible.)  Or, the Court could rule that the letter of the law prohibits an operating millage and the Town must give all the money back.   Since the Town would have already spent the money on services, that would be a very serious problem.

I have proposed to the JIPSD that they reduce the millage they collect in our Town and provide us services by contract.    Just this year, I proposed that they reduce the millage they charge in the Town so that their taxes no longer cover the cost of solid waste collection in the Town.   If the JIPSD agreed, I would ask Council to adopt an operating millage for garbage service equal to the reduction in the JIPSD millage, so that the total millage for Town taxpayers would be the same.   The Town would then pay the JIPSD for solid waste collection services by contract.

Because the Town would provide a LOST credit against the Town property tax, there would be a substantial tax cut for property owners in the Town.   The residents of the Town would continue to get the same solid waste collection service and the JIPSD would continue to get the money needed to cover the costs of providing the service, but property taxpayers in the Town would pay less.

Here is the problem.   A town property tax to pay for solid waste collection would be an operating millage.   Our current operating millage is zero.   We would need to increase it to approximately 20 mills (replacing our current millage for lease purchase payments and reserve with an operating millage.)    Is an increase from an operating millage of zero to 20 a violation of the millage cap?

If the JIPSD were to agree with this proposal, I would seek a declaratory judgement by a Court that the Town could substitute its operating millage for part of the JIPSD operating millage.  Unfortunately, this would take time and an appeal would take longer.  And, of course, it would involve paying ample fees to attorneys.

That the change would leave the total millage the same would be a key argument.  The fact that a LOST tax credit would reduce the total amount actually paid by the taxpayer would also be relevant.   Did the Legislature really intend that the millage cap be a barrier to a property tax cut?

Rather than force the Town to go through some expensive legal process, I think that it is the responsibility of the Legislature to clarify this crazy formula that implies that new municipalities can never have an operating millage.

I believe that our new Senator should be willing to help.

3.   Will our new Senator help clarify whether the Local Option Sales Tax law requires a refundable property tax credit?

When I became Mayor in 2010, I asked the Municipal Association of South Carolina about the Local Option Sales Tax.   They explained that municipalities with no property tax are not obligated to provide credits against a property tax liability that does not exist.  They pointed out that there are many municipalities with no property tax and they just use the money to pay for services.

However, I supported reducing property taxes--not as a legal obligation, but as a Town policy.   The people in the Town pay property taxes for fire and solid waste services to the JIPSD and our property taxes aren't low.   The millage we pay is lower than what is imposed by the City of Charleston, but higher than what is charged by the City of Folly Beach.

After witnessing first hand the mess created by trying to mail out "refund" checks, I decided to come up with a better plan and began to work on some way to provide tax credits on the property tax bill.  To me, the obvious place to provide the credit is with the JIPSD millage because they are collecting property taxes and providing services that other municipalities, like the City of Charleston and the City of Folly Beach, fund with their property tax revenue.

Now, most municipalities provide a property tax credit on the tax bill.  That means that taxpayers pay less property tax, the municipalities receive less property tax revenue and the money from the Local Option Sales Tax is used to pay for services that would have be paid for by revenue from the property tax.   (The municipalities with no property tax don't provide any tax credits and just spend the money on services.)

So, in 2013, I asked the JIPSD if they would provide a credit against their tax millage.  They said no.   For 2014, I suggested that the JIPSD stop collecting a millage in the Town and let us buy fire and solid waste services from them by contract.   The Town would collect a millage and we would provide a property tax credit against our own millage.   The JIPSD said no.   For 2015, I proposed that the JIPSD collect a lower millage in the Town and let the Town purchase solid waste collection from them by contract.  The Town would collect a millage, leaving the total millage unchanged.

The response was a class action suit against the Town seeking to force us to write refund checks.   It was just a coincidence that the JIPSD lawyer filed the suit and the two representatives of the class were former JIPSD Commissioners.... right.

We are defending against that suit.  The Town's position is that the plaintiffs are claiming that the property tax credit required by the LOST statute is refundable, which means that if the credit is greater than the amount of the property tax liability, the excess credit must be paid out to the taxpayer.   In South Carolina income tax law there are many tax credits, but only a handful of them are refundable.   Those few all specifically state that they are refundable and there is a provision of the law that states that a credit is not refundable unless required by law.   However, that rule specifically applies to any tax administered by the South Carolina Department of Revenue (SCDOR.)   Property taxes are administered by County Auditors and Treasurers.   There are a variety of property tax credits authorized in South Carolina law.   None of them are described as refundable.   Are they not refundable like nearly all the income tax credits?  Or are they refundable?  That is the question.  Too bad the Legislature never bothered to say.

While there are only a few income tax credits that are refundable, SCDOR routinely provides refunds for most taxpayers because of income tax withholding.  This makes it relatively easy to provide for a refundable income tax credit.  Local governments do not usually provide refunds to property taxpayers, but rather just send out bills and receive payments.  Property tax refunds occur when there was some error and a taxpayer was billed and paid too much.   Most property taxpayers do not routinely receive property tax refunds.  If the Legislature makes a property tax credit refundable, it would be imposing an obligation on local governments to develop a special administrative apparatus to provide refunds.

I believe that the South Carolina Legislature should clarify that unless specifically stated, no tax credits authorized under South Carolina law are refundable, not solely those that are administrated by SCDOR.   Further, the Legislature shouldn't make any property tax credit refundable because it imposes an unreasonable burden on local governments.

Of course, we are currently battling this out in court.

In response to the suit, the Town has adopted a property tax millage and we are meeting the requirements of the law by providing a credit against that millage.    In my view, the only remaining issue in the suit is about the LOST funds the Town received in 2012, 2013, and 2014 before we adopted a millage and began providing credits.   Does the Town have to mail out refunds to everyone who would have had to pay property taxes to the Town if we had a property tax during those years?  Clarifying the law now would not directly fix what happened in the past.

But I think the Legislature should clarify this matter going forward, and not just for the Town of James Island, but also for the 40 municipalities in South Carolina with low or no millage.

I believe that our new Senator should be willing to help.  

4. Will our new Senator help clarify the status of municipalities that incorporate within a special purpose district?

The South Carolina Code has detailed procedures governing the relationship between a municipality and a special purpose district when the municipality annexes part of the special purpose district.    These procedures protect the interests of both the residents within the municipality and those residents of the special purpose that remain outside the municipality.   However, South Carolina law is silent on what happens when a municipality is incorporated either partly or wholly within a special purpose district.

This is a deficiency within the law, and I think the Legislature should fill the hole.  The most obvious fix would be for the same rules to apply whether some or all of a municipality was incorporated within a special purpose district or else it has annexed a portion of the special purpose district.

All of the Town of James Island is within the James Island Public Service District.  Most of it was incorporated within the district but some parts have been annexed.   If we are able to reunite the Town, it will still be true that most of the Town will have been incorporated within the JIPSD, but about 1/3 of the residents will have been annexed.

The rules for the areas that the Town annexed are clear.  The Town has the right to provide any or all the services provided by the JIPSD either directly or by contract with the JIPSD.   Whether or not the annexed areas remain within the JIPSD is a matter for negotiation.  The amount that the Town must pay for services by contract is subject to negotiation.   The statute requires that the County Auditor and Treasurer make the needed changes in the property tax bills and states that the JIPSD and the Town cannot both collect taxes for the same services.  The reduction in taxes collected by the JIPSD for some service it currently provides in the Town would also be something that would be negotiated.

Given the JIPSD's attitude about working with the Town, how could we ever hope to negotiate an agreement?  

Fortunately, the statute mandates binding arbitration.    I think it is entirely reasonable that the JIPSD stop collecting taxes within the Town for the provision of solid waste services and allow the Town to pay for that service by contract.   I think it is fair for the Town to pay the amount that the JIPSD would have collected from those taxes.  The Town would be paying on behalf of those in the Town a fair share of the total cost of providing the service in the district.  The Town, of course, would have to collect its own millage to cover the cost, but that would leave the total millage unchanged.   And with the LOST tax credit, the people in the Town would pay less.   The Town would insist that our residents remain within the JIPSD, so that we could continue to vote for JIPSD Commissioners.  That would be fair and  reasonable because the JIPSD would still directly collect taxes for fire services from the residents of the Town and also would impose sewer fees.   The residents of the Town should have representation on the Commission when those decisions are made.

The current statute does not allow the JIPSD to continue its practice of stonewalling.   Well, at least not regarding the areas that the Town has annexed.  But the law is unclear regarding areas that were originally incorporated--most of the Town.

The Town could seek a declaratory judgement or simply follow the procedure that applies with annexation for both the annexed and the originally incorporated portions of the Town.   But I think the SC Legislature should clarify the matter.  Why isn't there some procedure for resolving conflicts between a special purpose district and a municipality that was incorporated either wholly or partly within the special purpose district?

I believe that our new Senator should be willing to help.

Where do the candidates stand on these issues?

Proposed Amendment to the Town's Tree Ordinance

The Town's staff proposed to the Planning Commission that the provisions of the Town's Zoning Ordinance regarding protected trees be applied to major residential subdivisions.  Trees with DBA (diameter at breast height) of eight inches or greater are already protected with new commercial, multifamily, or institutional development.   This change will apply these rules to new major residential subdivisions.   While few major subdivisions are likely in the future, there have been two over the last four years.   The Preserve at Dills Bluff is already in construction and  the"Bootleggers" is moving forward.    The rule change would not apply to those major subdivisions, but it will apply to any future major subdivisions.

The basic rule is that 20 trees greater than 8 inches per acre must be left on a site.  However, the larger the tree, the more credit provided, so it is more accurate to state that 160 inches DBA per acre must be left on the site.   If there are  too few large trees on the site, then new trees must be planted.  That requirement is 40 inches DBA per acre.   These rules already apply to most new development.  The change is that it will now apply to newly developed major residential subdivisions.  

The Town's Planning Commission has recommended this change to Town Council.

In my opinion, the provisions of the Town's tree ordinance should apply to major residential subdivisions in a way consistent with commercial, multi-family, or institutional development.

Town staff has also proposed that the Planning Director be authorized to allow the removal of protected trees greater than 8 inches DBA if necessary for the reasonable use of the property.   Removal of any "Grand Tree," with DBA greater than 24 inches, would still require approval by the Town's Board of Zoning Appeals.  The Town's Planning Commission has recommended this change to Town Council.

In my opinion, the Town's Board of Zoning Appeals should focus on "Grand Trees" which are special, and leave the merely average "protected trees" to the Town's Planning Director.

Town staff proposed that the Planning Director be authorized to determine the necessary mitigation for protected and grand trees that are removed.   The Town's Board of Zoning Appeals retains the sole authority to permit the removal of any grand tree, but details regarding the mitigation plan are left to the Planning Director.  The Town's Planning Commission recommended this change to Town Council.

In my opinion, experience has shown that flexibility is needed in calibrating mitigation plans because such plans involve specific locations and particular trees that we hope will not only survive but flourish.  The Planning Director can work with a property owner to determine an effective and fair mitigation plan.

Town staff proposed that the Town's Tree fund be used for beautification generally.  The Planning Commission recommended against that proposal and instead limited those funds to be used solely for the planting or maintenance of trees.    In other words, the Planning Commission recommends  that the Town Council spend no monies on shrubs or flowers, but only on trees.  The Planning Commission's proposal did slightly add to the discretion allowed to Town Council.  The funds may be used to  maintain existing trees rather than solely plant new ones.

In my opinion, the Town of James Island has many trees, and while we may well have reason to use Town funds to plant new ones from time to time, planting shrubs and even annuals may sometimes be a better use of the Town's limited funds.  However, allowing the Town to use those funds to maintain existing trees rather than just plant new ones is an important and desirable change.

Town Hall Location

The Town is putting together a site for the new Town Hall.   The total site will be just over two acres and will be made up of two parcels in the Town and part of a third parcel that is under City of Charleston jurisdiction.

All three parcels are near the corner of Dills Bluff and Camp Road, very close to the current location of Town Hall.

Two long vacant parcels are located on Dills Bluff Road.   The first, 1122 Dills Bluff, is next door to First Baptist Church's Landmark Center.   The second, 1126 Dills Bluff, is next door to the first parcel and ends at Hillman Drive.   Together, these two parcels are 1.47 acres, making up 72% of the total site.   Most of the Town Hall site will be under Town jurisdiction.

It is our intention for Town Hall to front on Dills Bluff Road and for the driveway to be there as well.

The other parcel is on Camp Road, and it also next door the the Landmark Center of First Baptist Church.   The address is 1109 Camp Road.   There is a house on the property, but working with the owner, the Town subdivided off the house leaving 1.37 acres.   The Town is seeking slightly more than 1/2 acre of the rear portion of that parcel to add to our other two parcels.   That parcel is under City of Charleston jurisdiction.   This will make up 28% of the total site.   It will make up the rear of the site.  

The Town has been working with City of Charleston planning about subdivision and rezoning of the back portion of  site.   I have spoken with Mayor Tecklenburg and City Councilwoman Kathleen Wilson.  Both are committed to working with the Town on this matter.

I don't see adding this parcel to the other two as a problem.

Developer Meetings Regarding the Lively

The Lively is a proposed apartment complex on Folly Road.   The current zoning on the site allows for 120 apartments, but the developers are seeking a rezoning to allow 340 apartments.   The developer has scheduled four meetings.  One was already held.  The second is tonight.

Here is the link.

COMMUNITY MEETINGS TOPICS

April 26 at 7pm    James Island Elementary     Project
May 12 at 7pm     James Island Elementary    Stormwater
May 24 at 7pm     James Island Elementary    Traffic
June 2 at 7pm      James Island Elementary    Architecture

Somewhat more important will be the meeting of the Charleston County Planning Commission which will make a recommendation to County Council on the rezoning.   That meeting has not been scheduled yet.

Even more important will be the meeting where County Council considers the proposed rezoning.   There will be a public hearing.  This is where concerns about this rezoning and the added congestion it will cause on Folly Road will be heard.

If County Council votes against the rezoning, then only a much scaled down version of the development would be possible--approximately 120 apartments.   More likely there would be nothing right away but sooner or later something entirely different--one of the many commercial uses permitted on the parcel given its current  zoning.   Permanently leaving it as woods or having it developed as single family residences would be highly unlikely.