We have just learned that the private citizen who filed a zoning appeal with the Town in February was denied their right to an appeal by the Town’s administration due to the fact that their appeal was filed more than 30 days after the zoning decision was made by the Town (September 24, 2014). However, we are not aware of any efforts by the Town to notify the public that this zoning decision was made. Here is where the situation stands:
1. October 2013 – An agreement was signed between the Town and a developer to provide public funding for a parking garage/office building by Shem Creek. The subject property actually has three separate base zoning districts on it. Two of them allow office buidlings, but the third, the Marine District, does not allow office space and has a 40-foot height limit.
2. December 2013 – The parking garage developer requests and receives a zoning change to allow a taller height limit and not be required to have usable space on the ground floor. These changes should allow the project to meet the parking requirements stipulated in the agreement with the Town.
3. December 10, 2013 Town Council meeting – In a separate discussion, Mayor Linda Page references the Shem Creek Marine District being in place which limits the heights and types of businesses located there which must be marine related or restaurants.
4. April 2014 – Town Council increases the building setback requirements along most of Coleman Blvd, which has adverse effects on the Shem Creek parking garage plans by making the buildable area of the property smaller.
5. June 2, 2014: In response to a question from a concerned citizen, a member of the Town’s planning staff writes this in an email response regarding the Shem Creek parking garage property: “The zoning boundaries, or zoning districts, remain unless a request to rezone is submitted and approved. Since this has not occurred, the zoning district boundaries have remained in place as they were when the property lines still existed.” This is consistent with two recorded plats from 2005 and 2009 that were signed by members of the Town's staff.
6. June 3, 2014 – The parking garage developer submits preliminary design plans to the Town staff showing the building’s encroachment into the Marine District despite the fact the zoning lines for the Marine District are clearly shown on the developer's own plans.
7. June 10, 2014 – At a Town Council meeting, the parking garage developer’s attorney complains to Town Council about the new setbacks approved in April and how the Council’s actions could lead to a “taking” of his client’s property … i.e., a legal threat against the Town.
8. June 25, 2014 -- Town staff agrees in a letter to the developer to allow the zoning encroachment shown on the design plans. The staff’s decision was based on “uncertainty” as to where the zoning lines are. How did we go from the June 2 email from the Town stating with certainty where the lines are to here? We do not know of any public notice that was given for this decision. Save Shem Creek Corp. does not dispute the zoning administrator’s authority to make this code interpretation and decision … however, we firmly disagree with it as any reasonable person would and believe the public should have the opportunity to appeal it and have it examined by the Board of Zoning Appeals.
9. September 24, 2014 – Town staff gives final design approval to the project with the Marine District zoning encroachment, and we are not aware of any public notice that was given for this decision.
10. December 2014 – The Town attorney meets with the attorney for Save Shem Creek Corp. to discuss the zoning encroachment issue. The Town’s attorney says the location of the zoning lines are “uncertain” because (1) he can’t find the legislation forming the basis of the zoning line’s location, and (2) although it seems obvious the zoning lines are drawn on the Town's official Zoning Map to follow the lot lines that existed on the property for years and years, they can’t be sure because the Town’s zoning map is not drawn exactly to scale!
11. January/February 2015 – Two zoning appeals are filed with the Town, one by Save Shem Creek Corp. and another by a private citizen, and the Town’s administration denied both. A reason given in both denials by the Town was the expiration of the 30-day window to file an appeal after the “appealing party received actual notice” of the decision being appealed.
There are many troublesome and lingering questions to consider: Did the Town ever give the public notice of this decision regarding the zoning line uncertainty that resulted in a de facto rezoning of property in the Shem Creek Marine District? If it didn’t give notice to start the clock on a 30-day window, how can it deny zoning appeals on the basis of time? If it did give notice, where was it posted? Why did the Town's staff seemingly go out of their way to find a way for this project to encroach into the Marine District, yet the same staff refuses to allow the public its opportunity to question this decision? With transparency being a focal point of this Town Council, why has no public explanation been given of this zoning decision involving a very controversial project that was set to receive public funds up until last month? And in the spirit of transparency, why would the Town not allow a zoning appeal to be heard by the public Board of Zoning Appeals so a seemingly dubious decision could be properly vetted? Did the Town’s staff feel pressured to go along with this decision after the word “taking” was used by the developer’s attorney at the Town Council meeting earlier in the month? Have the Mayor and Town Council members been fully informed on the details of this decision, or is the Town legal department just assuring them that there’s nothing to worry about? If the Mayor and Town Council members have been fully informed on the details of this decision, are they aware that they have the right to file a zoning appeal? Based on a 2009 opinion by the South Carolina Attorney General, any of (1) the Mayor, (2) a member of Town Council, or (3) Town Council as a whole may file a zoning appeal as an officer of the Town.