Cabiness v. Town of James Island

• Decision Date: 21 July 2011
• Docket Number: No. 26989.,26989.
• Citation: 393 S.C. 176,712 S.E.2d 416
• Court: South Carolina Supreme Court
• Parties: Laura CABINESS, John Langley, Robin Bellah, Mary Mason and The City of Charleston, a Municipal Corporation, Appellants,v.TOWN OF JAMES ISLAND, Mary Clark as Mayor, and the James Island Alliance for Self Government, Respondents.

393 S.C. 176

712 S.E.2d 416

Laura CABINESS, John Langley, Robin Bellah, Mary Mason and The City of Charleston, a Municipal Corporation, Appellants,

v.TOWN OF JAMES ISLAND, Mary Clark as Mayor, and the James Island Alliance for Self Government, Respondents.

No. 26989.

Supreme Court of South Carolina.

Heard Feb. 2, 2011.Decided June 20, 2011.Rehearing Denied July 21, 2011.

Adelaide S. Andrews and Susan J. Herdina, of Charleston, Charlton DeSaussure, Jr., of Haynsworth Sinkler Boyd, P.A., of Charleston, Frances I. Cantwell, of Regan & Cantwell, of Charleston, and Timothy A. Domin, of Clawson & Staubes, LLC, of Charleston, for Appellants.Bonum S. Wilson, IV, of Wilson and Heyward, LLC, of James Island, and Trent M. Kernodle and David A. Root, of Kernodle, Root & Coleman, of James Island, for Respondents.Attorney General Alan Wilson and Assistant Deputy Attorney General J. Emory Smith, Jr., of Columbia, Office of the Attorney General, for Amicus Curiae.Justice HEARN.

This appeal is the culmination of the Town of James Island's (Town) third attempt to incorporate into its own municipal body. The two previous attempts were invalidated by this Court in Glaze v. Grooms, 324 S.C. 249, 478 S.E.2d 841 (1996), and Kizer v. Clark, 360 S.C. 86, 600 S.E.2d 529 (2004). While our opinion today does not make the third time the proverbial charm for Town because we find its incorporation petition was not sufficient, we reach the other issues presented in this case in the interest of judicial economy to supply a sufficient framework for Town and other unincorporated areas to successfully petition for incorporation in the future.

FACTUAL/PROCEDURAL BACKGROUND

Town is located on an island just to the south of peninsular Charleston, South Carolina, with approximately 20,000 inhabitants. Over the years, the City of Charleston and the City of Folly Beach have annexed various portions of James Island, all done legally under the annexation statutes, resulting in various “pods” and “enclaves” of incorporated areas on the island. While Town does not now challenge the validity of these annexations, Charleston's ever-growing presence on the island was the impetus for Town's incorporation movement.

In Glaze, we invalidated Town's first attempt at incorporation on the ground that the boundaries of the proposed town were not contiguous. 324 S.C. at 254, 478 S.E.2d at 844. Because there was no statutory definition of contiguity in effect at the time, we supplied our own and found Town could not satisfy it. Specifically, we declined to permit Town to use waterways already annexed by Charleston and Folly Beach to establish contiguity between areas it sought to incorporate. Id. at 253–54, 478 S.E.2d at 844. In response to the definition of contiguity we announced in Glaze, the General Assembly amended the incorporation statutes to include the following provision:

Contiguity is not destroyed by an intervening marshland located in the tidal flow or an intervening publicly-owned waterway, whether or not the marshland located in the tidal flow or the publicly-owned waterway has been previously incorporated or annexed by another municipality. The incorporation of a marshland located in the tidal flow or a publicly-owned waterway does not preclude the marshland located in the tidal flow or the publicly-owned waterway from subsequently being used by any other municipality to established contiguity for purposes of an incorporation if the distance from the highland to highland of the area being incorporated is not greater than three-fourths of a mile.

S.C.Code Ann. § 5–1–30(A)(4) (2000). Town accordingly sought to incorporate again using this revised definition of contiguity. However, in Kizer we found this new definition was unconstitutional special legislation because it singled out incorporated areas seeking to use tidal marshes and waterways in conjunction with incorporation, and not freshwater marshes, parks, or highways, without a rational reason for doing so. 360 S.C. at 95, 600 S.E.2d at 533–34.

Following our decision in Kizer, the General Assembly again amended the incorporation statutes, this time through 2005 Act No. 77 (Act 77), to address the problems identified by this Court. The requirement for contiguity now reads: “ ‘Contiguous' means adjacent properties that share a continuous border. If a publicly-owned property intervenes between the two areas proposed to be incorporated together, which but for the intervening publicly-owned property would be adjacent and share a continuous border, the intervening publicly-owned property does not destroy contiguity.” S.C.Code Ann. § 5–1–30(A)(4) (Supp.2010). Publicly-owned property is “any federally-owned, state-owned, or county-owned land or water area.” Id. § 5–1–20(2).

With this new, broader definition of contiguity, Town again sought incorporation. It is this attempt at incorporation that is currently before the Court. The description of the proposed area to be incorporated contained in Town's Petition for Incorporation (Petition) submitted to the Secretary of State's (Secretary) office described Town's boundaries as the physical space commonly thought of as the island of James Island but

specifically excluding all property legally annexed into Folly Beach and Charleston, [and] specifically excluding those properties for which contiguity is not established pursuant to § 5–1–30( [A] )(4), as represented and listed by [Tax Map Sequence (TMS) ] numbers contained in Exhibit A, attached hereto by reference and made a part thereof.

The Petition contained a map identifying the properties to be included within Town's corporate limits. The list of TMS numbers attached to the Petition ¹ contained the following disclaimer:

The attached list of TMS Numbers identifies properties to be included in the proposed Town boundaries. Because this list was obtained from Charleston [C]ounty, it contains TMS Numbers which are not intended to be included; thus, TMS numbers for properties not to be included have been struck through or underscored by hand. [D]o not include those properties struck through or underscored in defining the proposed town's boundaries.This list of TMS numbers came from various sources, including Charleston County, Charleston, and Folly Beach. However, none of the over 9,200 TMS numbers included in that list were struck through or underscored. Additionally, the list and the proposed map of Town's boundaries had some inconsistencies: 144 properties on the TMS list were not marked on the map as being included in Town, and 117 properties identified on the map were not found in the TMS list. Furthermore, Charleston annexed 121 properties located on either the list or the map after Town filed its Petition and 116 during the time prior to Town's filing of the Petition but while it was organizing to do so. Due to the fluctuating state of the incorporated areas of James Island, Town re-checked and updated its data throughout the Petition process in an attempt to stay current.

After receiving the Petition, the Secretary's office forwarded Town's Petition to the Joint Legislative Committee on Municipal Incorporation (Committee). The Committee found the Petition sufficient and recommended that the Secretary certify a local special election to determine whether the incorporation should take place. On the eve of the election, Town sent an email to the Charleston County Board of Elections, which was organizing the special election, striking some twenty-four properties from the election roll because they were not contiguous.² Town did not inform the Secretary's office of this deletion. The voters were in favor of incorporation by a margin of three-to-one, and the Secretary's office issued a Certificate of Incorporation to Town. Appellants subsequently challenged the election in the circuit court in a timely manner.

Before the circuit court, Appellants first alleged that the most recent amendments to the incorporation statutes effected by Act 77 were unconstitutional special legislation. Additionally, Appellants argued that Town's Petition was insufficient and sought to incorporate property that is not contiguous. The court found for Town on all of Appellants' issues. This appeal followed.

ISSUES PRESENTED

I. Does Town's Petition satisfy the requirements of Section 5–1–24 of the South Carolina Code (Supp.2010)?

II. Are the incorporation statutes concerning contiguity and publicly-owned property unconstitutional special legislation?

III. Does the definition of contiguity supplied by section 5–1–30(A)(4) permit an area seeking to incorporate to use publicly-owned property already incorporated or annexed into an existing municipality to affirmatively establish contiguity?

LAW/ANALYSIS

I. Sufficiency of Petition

Appellants argue Town's Petition failed to comply with the requirements of section 5–1–24. We agree.

Section 5–1–24 lays out the content requirements for a petition for incorporation. It requires that the petition set out the corporate limits for the proposed municipality and the number of inhabitants residing therein. S.C.Code Ann. § 5–1–24(A)(1). The petition must then be signed by fifteen percent of the qualified electors who reside within those limits. Id. Finally, the petition must contain documentation concerning the minimum service standards set out in section 5–1–30. Id. § 5–1–24(A)(2). Appellants only challenge Town's compliance with the first requirement, arguing that Town did not set forth its proposed limits with sufficient specificity.

In its Petition, Town described the general metes and bounds of the island of James Island and then specifically excluded all property annexed by either Folly Beach or Charleston and property that is not contiguous under section 5–1–30(A)(4). Appellants point out that properties on the map and the TMS list included with the Petition were not identical, each containing properties not listed on the other as being included within Town's boundaries;...