Rail plan for Noisette, Clemson site won't work

Now that recent legislative skirmishes over port rail lines have ended, it's time to take a hard look at the idea of building intermodal rail facilities and rail lines on the Noisette and Clemson properties at the northern end of the old Navy Base. This idea is simply unworkable because of numerous legal impediments.

This spring, legislative leadership introduced a budget proviso and amendment to the ports authority restructuring bill that sought to force rail access through the northern end of the old Navy base. Meanwhile, the Department of Commerce and its Division of Public Railways offered up recommendations in the State Rail Plan 2008 Update to pursue options that included developing the Noisette and Clemson sites into rail facilities served by northern access.

Developing these sites as rail facilities and forcing northern access is the wrong choice for a number of reasons, including the following legal impediments:

• The Rail Plan Update rightfully questions the availability of the Clemson and Noisette properties.

The Noisette property is privately owned by the Noisette Co. and its affiliates and six other, unrelated property owners, and it is subject to various private party leases. Only by using the power of eminent domain could the state force the conversion of these private properties into intermodal rail facilities. Under well-established state law, property taken by the power of eminent domain must be owned and controlled by the condemning authority.

So if the state condemns this land, only the state could legally own and operate the intermodal rail facilities, thus eliminating any possibility of public-private partnerships, which can limit taxpayer investment and enhance operational efficiency.

The Clemson property faces similar use limitations since the City of North Charleston retains the legal right to repurchase this property at nominal value if it is not developed into a Clemson campus.

• The Noisette property also contains historic properties protected by legal deed restrictions placed on the property by the U.S. government.

These architectural and archaeological preservation covenants require subsequent owners to preserve any properties that are eligible for listing on the National Register of Historic Places. The area being considered for intermodal rail facilities has two separate districts and some 40 buildings eligible for listing, as well as two historic districts which have already been listed. Even a state's condemnation power cannot overcome these federal legal restrictions.

• The Environmental Impact Statement (EIS) conducted by the U.S. Army Corps of Engineers before permitting the new Navy Base port facilities and access road would most certainly be reopened.

The EIS was completed under the assumption that no new rail facilities would be constructed on the base and that the Ports Authority would honor its agreement with the City of North Charleston to access rail only from the southern end of the base. If the state plans to build rail lines and intermodal facilities on the northern end of the base to serve the new port terminal, then the Corps would be forced to reopen the EIS to address the different transportation impacts and the new impacts on historic resources.

Substantial re-opening of the EIS could delay construction of the new port terminal.

• The legal obstacles to converting the Clemson and Noisette properties into intermodal rail facilities do not even factor in the high costs of acquiring the land.

Condemnation requires paying the landowner the full value of the land taken as well as any diminution in the value of the landowner's land that is not taken.

Additionally, access to the City of North Charleston's new Riverfront Park and Naval Base Memorial would be destroyed by locating intermodal rail facilities on the Noisette property.

• Furthermore, rail access from the northern end of the base to an intermodal rail facility on the Noisette and Clemson properties could result in as many as 14 trains a day using a single rail track through North Charleston neighborhoods and tying up traffic on at least five major streets. These conflicts would undoubtedly lead to increased infrastructure costs and adverse neighborhood impacts.

The state's recent commitment to modernizing our ports with new intermodal rail facilities is encouraging, but the state must proceed cautiously as it makes decisions that will affect our local communities and our state's economy for generations.

As suggested in the state's own rail study, serious issues weigh against pursuing the Noisette and Clemson properties for the location of intermodal rail facilities.

Fortunately, other good options are available and should be seriously considered by state policy makers.

Ben A. Hagood Jr. is a former member of the South Carolina House of Representatives and a lawyer representing Noisette Co., LLC and Shipyard Creek Associates, LLC.