It seemed like a simple enough question: What should the city of Charleston do to compensate for allowing part of the federally funded DeReef Park to be developed?
It has turned into anything but.
More than a year into litigation, the residents of Cannonborough and Elliottborough appear no closer to seeing any new park space, while the developer of The Gathering at Morris Square still is unsure when his losses will stop and he can put his homes back up for sale.
Even U.S. District Judge David Norton expressed frustration during a Tuesday hearing.
“The bottom line is, is this process ever going to end?” he said, adding that the government’s updates on the regulatory process might as well be written in Sanskrit.
The city struck a deal with developers to let them use part of DeReef Park for a private housing development, but because that park was created with a federal grant, the city needed to find other suitable park space as a replacement. Neighborhood residents objected to the city’s first plan to compensate with a new park more than a mile away.
The National Park Service agreed to reopen the replacement park issue, and things grew more complicated after a former praise house on DeReef Park was moved, triggering further review under Section 106 of the National Historic Preservation Act.
Dan Orvin is the attorney for The Gathering at Morris Square, the developer trying to build 33 homes on the former park. He said it’s impossible to put the praise house back on its original site. “Now it’s a mitigation issue.”
Orvin asked Norton to do what he could to speed a resolution that at least would lift the legal cloud from the development, and Norton said he was very sympathetic toward the developer’s plight.
“He’s getting screwed,” Norton said. “That’s not Sanskrit.”
But Norton said he is a referee, not a player, and is powerless to change a process outlined in the federal statute. “Do I start putting people in jail? Under what authority do I put people in jail?”
He agreed to set another hearing on May 2, one designed to give the city leverage in trying to get answers from federal agencies involved in the review. But there still might not be an alternative park site identified for another year.
That did not sit well with Daniel Lutz, an attorney for The Friends of DeReef Park, the neighborhood group challenging the park’s loss.
“We’re very concerned with the delay of what’s going on here,” he said. “Our concern is about the lack of park space in the neighborhood.”
Heather Templeton of the Friends’ group agreed. “Friends of DeReef Park is definitely frustrated, but our frustration is based on the lack of focus by the city to find a replacement park. ... We have yet to hear what the plan is to make things right.”
Lutz asked Norton to ensure a park site is selected before the federal government gives its blessing on the city’s conversion of DeReef Park.
Sara Porsia, an attorney with the U.S. Department of Justice’s Environment and Natural Resources Division, told Norton that officials did not anticipate the praise house would become an issue, “and this required us to jump through some procedural hoops.”
The developer acquired the property in early 2012 and had at least 11 homes in some stage of construction when the park issue erupted.
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. In 2003, however, 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.
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.
While the developer was not named in the lawsuit, it later joined in, claiming the issue had cost — and continues to cost — home sales.
Reach Robert Behre at 843-937-5771 or at twitter.com/RobertFBehre.