Sc State Ports Authority v. Jasper County

• Decision Date: 03 April 2006
• Docket Number: No. 26132.,26132.
• Citation: 629 S.E.2d 624
• Parties: SOUTH CAROLINA STATE PORTS AUTHORITY, Petitioner, v. JASPER COUNTY, Respondent.
• Court: South Carolina Supreme Court

Page 624

629 S.E.2d 624

SOUTH CAROLINA STATE PORTS AUTHORITY, Petitioner, v. JASPER COUNTY, Respondent.

No. 26132.

Supreme Court of South Carolina.

Heard September 20, 2005.

Decided April 3, 2006.

Rehearing Denied May 25, 2006.

COPYRIGHT MATERIAL OMITTED

C. Mitchell Brown and Kevin A. Hall, both of Nelson Mullins Riley & Scarborough, L.L.P., of Columbia, for Petitioner.

A. Camden Lewis, Keith M. Babcock and Brady T. Thomas, all of Lewis, Babcock & Hawkins, of Columbia; and Marvin C. Jones, of Bogoslow Jones Stephens & Duffie, P.A., of Walterboro, for Respondent.

Justice BURNETT:

This case was filed in the original jurisdiction of the Court, pursuant to Rule 229(a), SCACR. The South Carolina State Ports Authority (SCSPA) seeks a declaratory judgment determining whether it has the exclusive authority to develop a port or terminal on the Savannah River. The SCSPA further seeks determination of whether it has a superior right over Jasper County (County) to condemn land on the Savannah River for port or terminal development, and thus a superior right to port or terminal development. The SCSPA does not have the exclusive authority to develop a port or terminal on the Savannah River. Further, County has the power and authority, which is consistent with the Constitution and general law of this State, to develop a county-owned public marine terminal. However, we find the SCSPA's eminent domain power is superior to County's power.

FACTUAL BACKGROUND

After several years of rejecting the idea of building a public marine terminal in County, the SCSPA informed County in early 2004 of its interest in 1,776 acres of land located along the Savannah River (Proposed Site) and that it intended to conduct studies and evaluations of the land as a necessary precursor to condemning the land for the purpose of a port.¹ In October 2004, Jasper County Council (Council) voted to establish its own ports authority as part of a plan to acquire the Proposed Site.

On January 7, 2005, Council adopted Resolution # 05-01, which authorized County to enter into development and management agreements with South Atlantic International Terminal, LLC (SAIT), a private company. Under Resolution # 05-01, County would own the land and the public marine terminal.² SAIT would assist County in developing and managing County's terminal, and SAIT would serve as Port Developer/Manager for County. On the same day, County had a first reading of County Ordinance # 05-02 which allowed County to enter into a loan agreement with SAIT for preliminary financing of a public marine terminal. Also on January 7, 2005, County offered to purchase the Proposed Site from the landowner, Georgia Department of Transportation (GDOT). County notified GDOT that it would commence condemnation proceedings if negotiations to purchase the land failed, and on January 19, 2005, County filed a Notice of Condemnation against GDOT.³

On January 18, 2005, the SCSPA's board of directors unanimously approved a resolution to undertake efforts to acquire the Proposed Site, including commencing a condemnation action. The board also approved the step of commencing this lawsuit. On the same day, the SCSPA requested permission, as required by S.C.Code Ann. § 28-2-70 (1991), from GDOT to enter the Proposed Site in anticipation of condemning the land. The SCSPA commenced this action in the Court's original jurisdiction on January 19, 2005, seeking declaratory judgments and injunctive relief.

ISSUES

I. Does the SCSPA's Enabling Act preempt County from developing a county-owned public marine terminal on the Savannah River?

II. If County is not preempted, does County have the power and authority to create a county-owned public marine terminal?

III. If County has the power and authority to create a county-owned public marine terminal, is that power consistent with the Constitution or the general law of the State?

LAW/ANALYSIS

Determining whether a local ordinance is valid is essentially a two-step process. Bugsy's, Inc. v. City of Myrtle Beach, 340 S.C. 87, 93, 530 S.E.2d 890, 893 (2000). The first step is to ascertain whether the county had the power to enact the ordinance. If the state has preempted a particular area of legislation, then the ordinance is invalid. If no such power existed, the ordinance is invalid and the inquiry ends. However, if the county had the power to enact the ordinance, then the Court ascertains whether the ordinance is inconsistent with the Constitution or general law of this state. Id. See also Hospitality Ass'n of South Carolina, Inc. v. County of Charleston, 320 S.C. 219, 224, 464 S.E.2d 113, 117 (1995).

I. Preemption

The SCSPA argues the General Assembly has preempted the field of developing and constructing harbors and seaports, including terminals, on the Savannah River, through its Enabling Act, S.C.Code Ann. §§ 54-3-110 through -1050 (1992 & Supp.2004). We disagree.

To preempt an entire field, an act must make manifest a legislative intent that no other enactment may touch upon the subject in any way. Town of Hilton Head Island v. Fine Liquors, Ltd., 302 S.C. 550, 552, 397 S.E.2d 662, 663 (1990).⁴ We have not expressly followed the same preemption analysis in deciding whether a state law preempts a local law as we have applied in deciding whether a federal law preempts a state law or regulation. Compare Fine Liquors, Ltd., 302 S.C. at 552-53, 397 S.E.2d at 663 with State v. 192 Coin-Operated Video Game Machines, 338 S.C. 176, 186, 525 S.E.2d 872, 877 (2000) (federal law may preempt a state law as follows: (1) Congress may explicitly define the extent to which it intends to preempt state law, (2) Congress may indicate an intent to occupy an entire field of regulation, or (3) federal law may preempt state law to the extent the state law actually conflicts with the federal law, such that compliance with both is impossible or the state law hinders the accomplishment of the federal law's purpose); accord Michigan Canners Freezers Ass'n v. Agricultural Marketing Bargaining, 467 U.S. 461, 469, 104 S.Ct. 2518, 2523, 81 L.Ed.2d 399 (1984). We find it appropriate to address the SCSPA's preemption arguments using the three categories previously recognized when discussing federal law preemption, any of which is a method by which the General Assembly's intent may be made manifest.⁵

The following provisions of the SCSPA's Enabling Act are at issue:

Through the [SCSPA], the State may engage in promoting, developing, constructing, equipping, maintaining, and operating the harbors or seaports within the State. S.C.Code Ann. § 54-3-110.

The [SCSPA] is created as an instrumentality of the State for the accomplishment of the following general purposes: . . . (8) To promote, develop, construct, equip, maintain and operate a harbor or harbors within this State on the Savannah River, and in furtherance thereof have all of the powers, purposes and authority given by law to the [SCSPA] in reference to the harbors and seaports of Charleston, Georgetown and Port Royal [see § 54-3-410]; and (9) In general to do and perform any act or function which may tend to or be useful toward the development and improvement of such harbors and seaports of this State and to the increase of water-borne commerce, foreign and domestic, through such harbors and seaports. Id. § 54-3-130.

[F]or the acquiring of property necessary for the development of a harbor or harbors within this State on the Savannah River, the [SCSPA] may purchase them by negotiation or may condemn them. The power of eminent domain shall apply not only to all property of private persons or corporations but also as to property already devoted to public use. Id. § 54-3-150.

A. Express Preemption

Express preemption occurs when the General Assembly declares in express terms its intention to preclude local action in a given area. See e.g. Wrenn Bail Bond Service, Inc., 335 S.C. at 28, 515 S.E.2d at 522. See also Michigan Canners Freezers Ass'n., 467 U.S. at 469, 104 S.Ct. 2518; 56 Am.Jur.2d Municipal Corporations § 392 (2000); 5 McQuillin Municipal Corporations § 15.18 (rev. 3d ed. 2004). The General Assembly has not expressly preempted the field of developing harbors, ports, and terminals on the Savannah River.

B. Implied Field Preemption

Under implied preemption, an ordinance is preempted when the state statutory scheme so thoroughly and pervasively covers the subject so as to occupy the field or when the subject mandates statewide uniformity. See Denene, Inc., 352 S.C. at 213, 574 S.E.2d at 199 ("[i]t would have been unnecessary for the legislature to refer to municipalities' authority to regulate the hours of operation of retail sales of beer and wine if the General Assembly intended to occupy the entire field"); McAbee v. Southern Ry. Co., 166 S.C. 166, 166, 164 S.E. 444, 445 (1932) ("the question [of] whether a conflict exists [between a statute and an ordinance] depends upon whether the state has occupied the whole field of prohibitory legislation with respect to the subject. If such is the case it is held that a conflict exists."). See also Michigan Canners Freezers Ass'n, 467 U.S. at 469, 467 U.S. 461; 56 Am.Jur.2d Municipal Corporations §§ 329, 392; 5 McQuillin Municipal Corporations § 15.18.

The SCSPA contends that the specific provisions in S.C.Code Ann. §§ 54-3-130 and -150 manifest a legislative intent to occupy the field. The SCSPA, relying on Barnhill, 333 S.C. at 486-87, 511 S.E.2d at 363-64, asserts that the statutory purpose of acquiring property and developing ports within the State on the Savannah River makes manifest a legislative intent that no other enactment may touch upon that subject. In Barnhill, the applicable statute provided that "the provisions of this chapter . . . shall govern the operating [sic], equipment, numbering and all other matters relating thereto whenever any vessel shall be operated on the waters of this State. . . ." Id. at 487 n. 2, 511 S.E.2d at 363 n. 2 (citing S.C.Code...