DeReef Park lawsuit gathering parties

Leroy Burnell/Staff Last June, DeReef Park was an active construction site, with about a dozen homes taking shape. Today, some of those homes are finished but unoccupied, and there appears to be little new work going on.

The knotty legal wrangling over Charleston’s DeReef Park and new housing might not untangle anytime soon.

The parties to the pending federal lawsuit have grown and include the city of Charleston, the National Park Service, the S.C. Department of Parks, Recreation and Tourism, the state’s Land and Water Conservation Fund, a neighborhood group calling itself “The Friends of DeReef Park,” and The Gathering at Morris Square, a development company trying to build 33 homes on the former park.

The most recent legal filings include a counterclaim by The Gathering against the Friends’ group. It says the ongoing dispute has slowed that work, causing financial losses for the developer.

Today, about 10 homes around the narrow, curving DeReef Court have been built, but only a few appear to be occupied. The road, like the park, is named for a successful pair of black brothers who lived nearby in the 19th century.

The developer acquired the property in early 2012 and had at least 11 homes in some stage of construction last June. It appears no new homes have been started since, and one concrete block foundation sits in the ground with no signs of pending work.

The federal lawsuit began in late 2013, when the Friends alleged that the federal, state and city governments failed to follow the law when they allowed the redevelopment of the approximately 1-acre city park near Morris and Smith streets.

The city acquired this property with a 1981 federal grant, a condition of which limited its future use to recreation. But in 2003, City Council allowed DeReef Park and an undeveloped tract across Morris Street be converted into a dense mix of new homes and a few smaller urban parks.

The city originally thought that covenant could be transferred to the site’s newly created park spaces — including a park that’s about a third of an acre in The Gathering — but it later realized that the city would need to convert that covenant to another park site.

In 2008, the city, state and federal government agreed that Gadsdenboro Park — being built a mile away between Concord and Washington streets — would be the replacement park, but last year, the National Park Service backed off its approval of that, saying it could find no records of any environmental assessment behind the conversion.

The National Park Service’s filing said the agency would like to redo its process and ensure that there is public notice and a chance for community involvement, but it’s unclear when that review might begin. The case is pending before U.S. District Judge David Norton, but no hearing has been set.

Developer Chris Phillips said in June that the lawsuit was not affecting the project, but lawyers for The Gathering at Morris Square later sought to join the suit because it has been damaged by the uncertainty.

Its counterclaim says that the development has lost — and will continue to lose — prospective buyers, adding, “The value of its real property has wrongly been diminished in the eyes of third parties.”

But lawyers for The Friends of DeReef Park have asked that the court dismiss that counterclaim, calling it “a clear example of a strategic lawsuit against public participation — a ‘SLAPP’ suit.”

Billy Want, a constitutional law professor at the Charleston School of Law, said the counterclaim does appear to fit the description of a SLAPP suit because the Friends are only attempting to assert their constitutional right to speech and judicial process.

Want said such suits are brought “to intimidate or silence critics by burdening them with litigation costs,” and the Friends have added the Georgetown University’s Institute for Public Representation to their legal team, which originally included the Southern Environmental Law Center.

About 30 states have passed anti-SLAPP legislation, usually making it more costly for those whose lawsuits are deemed to be without merit and brought only to silence the public, Want said. South Carolina is not among them.

Meanwhile, none of the lawsuit’s participants are talking — at least not publicly.

Representatives with the Friends, the city of Charleston, the Gathering and the Park Service all declined to comment for this story, citing the pending case.

Reach Robert Behre at 937-5771.