Hair Salon inSullivan's Island, SC

SULLIVAN’S ISLAND — A plan to thin parts of the maritime forest here will face stricter scrutiny from state regulators after the S.C. Department of Health and Environmental Control said the cutting is extensive enough that it requires a permit.

The thinning is part of a lawsuit settlement reached in October 2020 between the town and some homeowners who live on the edge of the thicket. The plaintiffs wanted more management of the wild land, which has slowly accreted along most of Sullivan’s Island’s beach for decades. A staunch group of activists on the island, however, want the area mostly left alone.

So the town put together a plan based on the settlement for state and federal regulators to review. The Army Corps of Engineers already determined the work wouldn’t require one of its wetland disturbance permits. But DHEC said in a Dec. 20 letter that in a few parts of the forest, the cutting is significant enough that a state environmental permit is required.

Some parts of the land would be left mostly untouched. But in other areas, the plan calls for removal of several smaller trees.

Specifically, DHEC wrote that in parts of the 100-foot “transition zone” area that is closest to adjacent homes, 96 percent of the trees would be removed, based on a 2014 survey of the plants there.

In a portion of the accreted land area that stretches from the edge of island’s elementary school to Station 28½, 80 percent of the trees would be removed, DHEC wrote.

“This level of tree removal is significant; therefore, a Major Critical Area Permit … would be required if the Town pursues the activities described in the work plan,” the agency wrote.

Sullivan’s Island Town Council did not discuss the letter in its Dec. 21 meeting, when three members of the seven-person panel were absent. Town Administrator Andy Benke said he expects a discussion on the forest in January.

Jamie Hood, an attorney for the homeowners who sued the town and then settled, said in an email that the plaintiffs would keep working with Sullivan’s Island to make sure the plan is approved by the state.

“We will need to consider whether there are modifications to make to the current work plan or if the permit application should be submitted with the current work plan as is,” Hood wrote.

At the same time, a turnover in Town Council since the settlement was reached and pressure from a vocal group of activists on the island may ultimately serve to scuttle the work.

The council recently decided to hire an outside attorney, William Wilkins, to review the settlement. Wilkins, a former federal judge, wrote in a letter earlier this month that the agreement may be unenforceable, because it is too restrictive of the council’s powers to make policy for the town.

But to actually challenge the settlement, the council would have to vote on moving forward with a legal action.

By Brian Sherman for The Island Eye News

The South Carolina Department of Health and Environmental Control is “concerned” about how and how many trees would be removed from Sullivan’s Island’s Maritime Forest under a plan created for the town by consultant Thomas & Hutton. In a Dec. 20, 2021 letter, DHEC Beachfront Permitting Project Manager Matthew Slagel wrote that the plan would require a major critical area permit. The plan was developed after a divided Sullivan’s Island Town Council reached an agreement with homeowners who live near the Maritime Forest, apparently settling a lawsuit originally filed in July 2010 and permitting the removal of trees and other vegetation from the Forest. Under the plan, based on a 2014 survey of trees 6 inches in diameter and larger, in one section of the forest, 167 of 174 trees would be removed. In another section, only 16 of 79 trees would remain in place. “DHEC found that in certain areas, 96% of all trees would be removed.

Studies by three federal agencies, including NOAA and FEMA, show that the density and height of vegetation and trees are our most important protection from the No. 1 threat on the island: hurricane storm surge,” said Karen Byko, president of Sullivan’s Island for All, a nonprofit organization whose mission is to preserve the Sullivan’s Island Maritime Forest and accreted land in its natural state for the benefit, protection and enjoyment of all. In the Dec. 20 letter, Slagel also raised concerns about how trees and vegetation would be removed. “You have proposed to use a skid steer mower mounted to a small rubber-tired tractor or similar machinery within this area to cut at ground level and mulch in place trees and shrubs 3 inches and smaller. It is our opinion that utilizing machinery in the beach/ dune system will disturb and alter existing soils and topography, even if the trees and shrubs themselves are cut at ground level,” the letter said. Slagel also pointed out that the DHEC Bureau of Water Coastal Stormwater Permitting is working with Thomas & Hutton to obtain information about how changes in vegetation cover might affect stormwater runoff. According to a Sullivan’s Island for All press release, the DHEC letter “shows that this plan is environmentally unsound and goes far beyond vegetation thinning and trimming.” “As DHEC’s stormwater division noted, removing these thousands of trees and shrubs puts the island at much greater risk of flooding,” Byko said. “These trees work as nature’s stormwater pumps. Taking them away for better views puts every homeowner on the island at greater risk.” DHEC’s concerns are not the only thing holding up the implementation of plans to remove trees and other vegetation from the Forest. Of the four Council members who voted to approve the settlement agreement with nearby homeowners, only two remain in office: Greg Hammond and Kaye Smith. Tim Reese was defeated in the May 4 municipal election, and Chauncey Clark lost his bid to unseat Mayor Pat O’Neil.

The new Council, which apparently is considering its options in its effort to change the terms of the agreement, voted in September 2021 to ask the former Chief Judge of the U.S. Court of Appeals for the Fourth District William W. “Billy’ Wilkins to assess the agreement. Wilkins determined that the agreement is invalid “because its provisions improperly restrict the legislative/governmental powers of successor Town Councils, improperly divest the town of legislative/governmental powers and improperly restrict the proprietary functions of the town.”

SULLIVAN’S ISLAND, S.C. (WCSC) - The Sullivan’s Island Town Council has voted to weigh its legal options in the plan to cut the maritime forest. The town agreed to cut 150 acres of the maritime forest in a legal settlement last year.

The issues with the maritime forest have been ongoing for years, but stem from a conflict with homeowners arguing the forest hurts property values by blocking the view of the beach. They also allege the forest is overgrown and creates homes for pests.

However, local groups like “Sullivan’s Island for All” say the forest is a storm break, helps address flooding and provides a unique island habitat.

“The wildlife and the environmental ecosystem that’s out there is one of a kind, not only for Sullivan’s Island but probably for the entire country,” said Dan Krosse with Sullivan’s Island for All. “This is a national gem.”

Krosse says the settlement was reached with a previous iteration of the town council. Earlier this year, the island held a municipal election in which four of the seven council members were replaced. Krosse says that election was a referendum on the maritime forest settlement.

“Even though four new council members were elected here, the people who wrote the settlement said there’s nothing anyone can ever do, you can’t touch this settlement and we find that hard to believe,” Krosse said. “It just seems crazy to a lot of people.”

Krosse says there was very little public input on the settlement because meetings were shut down due to COVID-19 restrictions last year.

Sullivan’s Island for All sought outside legal advice from Land-Use and Environmental Lawyer Ross Appel. They say there are two legal mechanisms the town council take advantage of in an attempt void the settlement. Those mechanisms are a Declaratory Judgement Act and Rule 60 of the South Carolina Civil Procedure.

The town council chose to seek its own, outside legal counsel to get an idea of what options are available. Council members did not discuss the decision but did make it clear that this is just legal advice at this point and not necessarily an attempted to void the settlement.

Cyndy Ewing has been a Sullivan’s Island resident for 20 years. She says this decision is a win for the forest but adds it’s just one step in the movement to save it.

“This has obviously been a good thing,” Ewing said. “We are going to give full support to the town council members that voted for this and also try and woo the two council members who voted against it and let them understand what the science is.”

Copyright 2021 WCSC. All rights reserved.

SULLIVAN’S ISLAND, S.C. (WCBD) – A legal expert hired to review an agreement reached with the Town of Sullivan’s Island regarding the cutting of a maritime forest has deemed the agreement invalid, in his professional opinion.

William Wilkins has “five decades of legal experience, including but not limited to 25 years as a United States District Judge for the District of South Carolina and a United States Circuit Judge for the Fourth Circuit Court of Appeals.”

The settlement would allow the town to periodically thin portions of a maritime forest, which advocates say is necessary to maintain a view of the beach. Those in opposition worry about the biodiversity of the island.

Wilkins found that the settlement “is invalid because (A) its provisions constitute an improper restriction of the legislative/governmental powers of successor Town Councils, (B) its provisions constitute an improper delegation and/or divestment of the legislative/governmental powers of the Town, and (C) its provisions unfairly, unreasonably, or improperly restrict the proprietary functions of the town.”

He continued, saying “as a result, provisions of the settlement agreement are unenforceable in law or contract.”

Wilkins was careful to point out, however, that his opinion “is not, and should not be construed as, a guarantee of any legal outcome related to the issues presented; nor does it attempt to determine or comment on the wisdom of any non-legal political issues, such as policy decisions of the Town, or any past or present action by the Town.”

He also noted that it “should not be interpreted as a prohibition or restriction on the Town from taking such action as it determines to be ‘necessary for the health, safety, or general welfare of the Town’ and the public at-large to ‘further or effect’ the ‘Public Policies’ enumerated in the covenants set forth in the deed from the Lowcountry Open Land Trust.”

Wilkins went on to lay out what he sees as potential legal paths forward, which would result in “a judicial determination of the rights and obligations of the Town under the Settlement Agreement.”

Click here to read the opinion in full.

Just about any good story has an “other” side, and such is the case with Chauncey Clark’s recent commentary claiming that a group of Sullivan’s Island residents is stopping progress on the island by “debating yet again the settled accreted-land lawsuit.”

His claims that those of us who want to save the maritime forest are using division and fear as political tools deserve special examination since Mr. Clark is a candidate for mayor in the May 4 election.

As is often the case in Charleston, a bit of history is needed to understand the present. The debate Mr. Clark refers to is about the more than 190 acres of beachfront property the town transferred to the Lowcountry Land Trust for preservation.

The public ownership of such a valuable resource on a residential barrier island is unique to Sullivan’s Island because the military owned much of the island from the 1700s well into the 20th century, when it transferred ownership to the state, which then transferred it to the town.

Fast forward to 1991, when the town placed restrictions on the deed that required the property to be kept in its “natural state” except that the Town Council could authorize some cutting for views.

The controversy over the amount of cutting quickly arose, with an Oct. 13, 1994 article in The Post and Courier that describes the town as wrestling with the question. Another ran on Jan. 26, 1995, reporting: “Sullivan’s Island residents proved last week that they could reach a compromise on the issue of cutting vegetation in the town-owned dune property. … The compromise was a give-n-take with victories for both sides.”

Since that compromise, the cutters have continually demanded more, and the town has allowed more. But in 2010, two adjacent landowners sued to allow essentially unlimited cutting. The lower court ruled against them, but then the S.C. Supreme Court ordered additional review.

Two new Town Council members were elected, both of whom were less than transparent as to their views on the land-trust issue. Last year, three council members who are adjacent landowners joined with one a real estate agent to approve, on a 4-3 vote, a settlement of the case that allows for massive cutting. They refused citizen pleas to postpone a final vote until residents could register their view in the May 4 election.

The adjacent landowners have falsely argued that this settlement was necessary to prevent the Supreme Court from ultimately ordering the entire area in the land trust clear-cut and the town held liable for enormous damages for denying the adjacent landowners a view. But all the Supreme Court ordered was that the lower court conduct a trial to determine the intention of the town and the Lowcountry Land Trust in creating the trust.

Anyone with the slightest familiarity with the land trust’s creation knows the intent was for a natural area. There is overwhelming evidence to prove this, including newspaper articles, Town Council minutes, consultant reports and testimony. There is no evidence to support the plaintiffs’ position that the intent was to maintain the vegetation at the 3-foot level it was when the trust was created. The town would have won the lawsuit.

While Mr. Clark claims his opponents won’t compromise and follow democratic principles, these charges are true as to him. His crowning anti-democratic action was to include in the settlement agreement a provision that no future Town Council could alter the cutting regime without approval of the plaintiffs to the lawsuit — who want unlimited cutting.

Mr. Clark’s sweeping allegations simply are not supported by the facts.

Billy Want has been an environmental lawyer for more than 40 years, working for the U.S. Justice Department, in private practice and as a law professor. He is a resident of Sullivan’s Island.