Two weeks ago, it was announced that the Beach Company had reached an agreement with the City of Charleston, settling the litigation over the proposed Sgt. Jasper development. Under the terms of that settlement, the Beach Company would receive conceptual approval for the new Sgt. Jasper proposal; this would include approval of the height, scale, and mass of the building. Beach would also end its lawsuit challenging the authority of the Board of Architectural Review, and a circuit court order in favor of the Beach Company would be rescinded. As a part of the settlement, the City of Charleston would receive a park at St. Mary’s Field for the benefit of neighborhood residents.
While this settlement thankfully brought an end to the pitched legal battle over the Sgt. Jasper’s design and construction, it predictably did not satisfy all neighborhood residents surrounding the new project site. Several neighborhood leaders have gone on record stating, in essence, that they received a raw deal when the City Council, mayor, and BAR all signed off on the settlement ending the litigation. This begs the question of who really should get to decide whether a particular project should be allowed to proceed in downtown Charleston.
The Sgt. Jasper dispute, at its most basic level, boiled down to this: The Beach Company had the legal right to construct new buildings under the applicable 3X zoning that applied to the Sgt. Jasper property. Despite this, a few neighborhood associations, some neighborhood residents, and a few preservation groups wanted to prevent the Beach Company from doing so. These groups tried to block the Beach Company at both the BAR and Planning Commission level. These avenues were foreclosed when a circuit court judge ruled that the BAR erroneously denied the Beach Company’s application and when City Council overwhelmingly rejected the Planning Commission’s unsolicited recommendation to change the height allowed by zoning on the site after the fact. Following City Council’s approval of the settlement by a vote of 12-to-1, and with the BAR also approving the settlement by a vote of 5-to-0, dissatisfied neighborhood residents are seething that they have apparently run out of options to block the development by either political or judicial means.
In a recent op-ed in The Post and Courier, Charlestowne Neighborhood Association President Virginia Bush expressed this frustration, noting that the order by Judge J. C. Nicholson provides a blueprint to developers on how to overcome neighborhood opposition to developments like the Sgt. Jasper. Towards that end, she advocates a change in the BAR ordinance which would give that board the power to deny a certificate of appropriateness to a building due to its height. As the court in the Sgt. Jasper appeal correctly ruled, the current city ordinance empowering the BAR does not give it that authority. To neighbors who do not want to see a tall, high-density project anywhere close to their neighborhood even though the zoning allows it, this poses problems.
When the mayor, City Council, BAR, Board of Zoning Appeals, and Circuit Court are all in agreement that a developer has the right to build a building of a certain size and height, no amount of neighborhood indignation or vitriol should be able to subvert the developer’s property rights. The fight over the Sgt. Jasper was so intense because in many ways it was a test case on how to stop further development on the peninsula. Neighborhood residents and preservation groups drew a line in the sand and tried several different strategies to have the project stopped.
The problem is that the Beach Company had both the resources and resolve to fight these tactics. Although the order in this case was withdrawn under the settlement, the legal reasoning utilized to prevail still stands. It articulates why a “not-in-my-backyard” mentality should never trump a well-established system of ordinances and administrative approvals. These rules are created to give property owners reliable and predictable treatment by city authorities with regard to the development of their property. They should never be subverted by a dissenting group of neighborhood residents, no matter how vocal or determined they may be.