City of Charleston resident Robin Hardin has retained an attorney to fight the Town of James Island. She wants to be a Town of James Island Planning Commissioner for the next ten months.
How did this happen?
When the Town was reincorporated for the fourth and final time, I believed that it was important to appoint a Planning Commission right away. In my view, it was essential that there be no disruption in planning services for the residents of our Town. But I also felt that it was my responsibility to have those planning services governed according to the Town's own Zoning and Subdivision Regulation Ordinance. Not some new ordinance, but rather the Ordinance that had applied just a year before. There is a process mandated by the South Carolina Code. To make our Ordinance apply again, it had to be recommended by the Town's Planning Commission. After that, we would have a public hearing and Town Council could pass the Ordinance again.
How could we get the Planning Commission up and running in a matter of weeks? The simple answer was to reappoint the Planning Commissioners who had been serving the Town just a year ago.
Unfortunately, many of them lived in the areas that had been left out of the fourth incorporation. Could they be reappointed anyway? I discussed the matter with Councilman Blank. We checked with the Charleston County Planning Department. They looked at the Town's Zoning and Subdivision Regulation Ordinance and the South Carolina Code governing planning commissions. Neither included a residency requirement.
I convinced myself that it was very much a good thing to reappoint former Planning Commissioners and members of the Board of Zoning of Appeals who lived in those areas that were no longer included in the Town. Why? Because one of my key goals--one of my key duties--was to return their neighborhoods to the Town. Having members of our Planning Commission and Board of Zoning Appeals in those neighborhoods could help the Town with future petition drives and annexation elections. And since they are going to be in the Town again anyway, they would be recommending regulations and making decisions that will soon apply to themselves and their neighbors.
Me? I nominated Ed Lohr to the Planning Commission, someone who is well qualified, lives in the Town, and who had not served on the James Island Planning Commission before. For the Board of Zoning Appeals, I nominated Jim Fralix. He lives in the Town and was returning to the Town's BZA where he had served just the year before.
But I strongly suggested that the new members of Council--Troy Mullinax, Mary Beth Berry, and Sam Kernodle--seriously consider veteran members of the Planning Commission, even if they lived outside the Town. I believe Councilman Blank was encouraging the same. I appreciate that Councilman Mullinax nominated Margarite Neal. Neal had served on the Planning Commission in the second and third incorporations, but lives in Riverland Terrace--a neighborhood we want back. I was talking up Liz Singleton, who was Chairman of the Planning Commission in the third incorporation, but lives in the Grimball Road area. Ernest Parks, from Sol Legare, was another former James Island Planning Commissioner who would have been an excellent choice.
I still remember when Susan Milliken, Garret Milliken, Councilwoman Berry, and Robin Hardin all appeared before me at Town Hall and broke the news. Councilwoman Berry, having been told that she could nominate someone who didn't live in the Town, was going to propose Robin Hardin. Of course, I knew that Robin Hardin lived in the City of Charleston. I knew that she lived in Fort Johnson Estates. I knew that she was very much involved in working with Susan Milliken, Garret Milliken, and Councilwoman Berry in their effort to block the Harbor View Road project.
What could I say? I had just suggested appointing people who didn't live in the Town. Of course, I had in mind someone with experience on the Town's Planning Commission who lived in an area that had been in the Town and that we hoped to return to the Town. While I am all in favor of cooperating with the City of Charleston, appointing people from the City of Charleston to our Planning Commission or Board of Zoning Appeals was not something I saw as having any value.
My view was that it was up to Councilwoman Berry. How does that work? I supported, and still support, allowing each member of Council to nominate someone to the Planning Commission and then have the rest of Council vote for them as a matter of courtesy. If Councilman Berry wanted to appoint a political ally who lives in the City of Charleston, then the answer is to elect someone else to Town Council. She is on Council now, and I thought that I, and the rest of Council, should let her have her preferred representative on the Planning Commission. (I am having second thoughts about this approach.)
After Hardin and Milliken started pushing stricter tree regulations, some citizens, including some of Hardin's neighbors in Fort Johnson Estates, complained. How can a citizen of the City of Charleston serve on the Town's Planning Commission? How can someone vote to impose stricter regulations on their neighbors' yards than apply to their own property?
I explained what we were told by the Charleston County Planning Department months ago and pointed out that Berry appointed Hardin. If they have a problem with Hardin, talk to Berry. But I also asked our former Town Administrator, Hal Mason, to look into it more. Some of the arguments from our citizens made a lot of sense to me. Is it really legal to appoint nonresidents to the Planning Commission?
The Town Administrator contacted the South Carolina Municipal Association, who sent a copy of an Attorney General's opinion. The opinion was from 2007. The City Council of Woodruff, South Carolina, passed an ordinance requiring that all members of their Planning Commission be residents of the City and own property in the City. The Planning Commission wrote the Attorney General complaining that the new rules cut short the terms of those Planning Commissioners who were not residents. Henry McMaster, the South Carolina Attorney General, said that requiring property ownership runs afoul of the U.S. Constitution, but there was no problem with cutting short the terms of Planning Commissioners who were not residents. He believed that the South Carolina Constitution implied a residency requirement even if it was not included in a city ordinance.
I thought it was clear as could be. I told Councilwoman Berry about it. I discussed it with Councilman Blank as well. He suggested we get a new Attorney General's opinion. I discussed this with the Town Attorney, Bo Wilson. Wilson said that there is no point is asking for a new opinion, because the existing opinion was so clear.
I procrastinated a bit. In truth, I didn't want to lose Margarite Neal from the Planning Commission. But in the end, I had sworn an oath of office to support the South Carolina Constitution. In my view, both Robin Hardin and Margarite Neal were not legal members of the Town's Planning Commission. I discussed the matter with the Town Attorney, who suggested that he explain the situation to Neal and Hardin, Surely, it would be obvious to them that the best course of action would be for them to resign.
Margarite Neal, who has been a loyal supporter of the Town, did the right thing and resigned. Town Council voted unanimously to appoint Bill Lyon, a resident of the Town, to fill the vacancy.
Robin Hardin, resident of the City of Charleston, has retained an attorney to fight the Town of James Island and the South Carolina Constitution.
A loyal supporter of the Town? Not a bit. Hardin is threatening the Town to hold onto an office where she doesn't belong. It is a disgrace.
And Councilwoman Berry? So far, she continues to support Robin Hardin.
Town Council voted 3 to 1 to ask the Planning Commission to make a recommendation regarding an amendment to the Town's Zoning and Subdivision Regulation Ordinance to impose a residency requirement and remove those who are not residents from the Planning Commission and Board of Zoning Appeals.
Who voted no? Councilwoman Berry.
The Planning Commission will make a recommendation one way or another. Because of the notification requirement, the public hearing on the amendment will likely be in January and there will be a first reading on an ordinance adopting the amendment. Second reading will be in February.
Will it pass? We will see. My guess is that the residency requirement will pass, but there will be an effort to let Robin Hardin serve out her term. Isn't a provision that removes people who are not residents of the Town a no-brainer? What happens when people move out of Town?
In my view, Robin Hardin is not on the James Island Planning Commission. As Attorney General McMaster explained in 2007, the South Carolina Constitution trumps any ordinance we might pass. What does that mean? To me, it means that her vote just doesn't count.
If Councilwman Berry refuses to make a nomination, I am more than willing to let her leave the position vacant. Waiting until after Councilman Berry must face the voters of the Town of James Island to make a new appointment to the Planning Commission is probably the least bad option.
I apologize for failing to completely research this matter when the Town was first formed.
When Councilwoman Berry, Susan and Garret Milliken and Robin Hardin came up to me to tell me Berry wanted us to appoint Hardin, I should have said that it was wrong. Rather than vote for Berry's nomination of Hardin as a matter of courtesy, I should have voted no.
I apologize. I am working to rectify the error. Please encourage the rest of Town Council to do the same.
