MOUNT PLEASANT — A controversial after-midnight vote that allowed an apartment development to proceed, and settled a $6.2 million lawsuit facing the town one year ago, is facing fresh scrutiny from recently changed leadership.
It's not clear if the town would, or could, void the settlement and plunge Mount Pleasant back into litigation with developers of The Atlantic apartments, but Mayor Will Haynie and fellow opponents of the project have been exploring options.
This week, Town Council agreed to spend up to $25,000 on an outside attorney with no connection to the town or its officials.
“They may come back and say ‘You have that option’ (to reconsider the settlement) or ‘You have that obligation under the law’,” Haynie said Wednesday. “We tried last night not to raise those expectations.”
The settlement approved in July 2017 allows Middle Street Partners to build 224 apartments along the marsh edge off Ben Sawyer Boulevard, starting in March, 2019. The deal reduced the size of the development and ended a lawsuit over the town's refusal to approve earlier plans.
The Atlantic originally was to include 310 apartments, a parking garage and 14,000 feet of retail space. In the face of strong opposition from residents, it was scaled back to 246 apartments plus retail space. In March 2015, however, Town Council killed the plan by refusing to approve the project's impact statement. The lawsuit, and later the settlement, followed.
Most of those who voted to approve the deal are no longer in office.
The November election put the town's government firmly in the hands of candidates focused on restraining development. Haynie, who as a councilman voted against the settlement, defeated Mayor Linda Page, who had voted for it. Councilman Bob Brimmer, the only current council member who voted for the settlement, cast the lone vote Tuesday against hiring an outside attorney.
Councilman Gary Santos did not vote, because his son works for Middle Street Partners.
Opponents of the settlement dubbed the 2017 vote "the midnight massacre" and their claim that it wasn't handled correctly is now supported by an advisory opinion from the S.C. Attorney General's office.
“It’s still not clear what their end game is, to me," said Brandon Gaskins, a lawyer representing The Atlantic's developers. “We are very confident that if council tries to invalidate the settlement, they will be unsuccessful."
The Town Council decision to hire an outside law firm was not unexpected. The Save Shem Creek group had advocated the move, and several opponents of the apartment project urged council members to support Haynie before Tuesday night's vote.
“I’d like to stand up here and avow my undying support and admiration for our mayor, Will Haynie," said resident and Zoning Board of Appeals member Glyn Cowden. "I would stand with him for the rest of my life.”
The council previously sought an advisory opinion from the attorney general asking, among other things, whether the 2017 vote to approve the settlement might be invalid because of when the vote took place during the meeting. "To clarify, if the item is voted on at a later time in the meeting and not right after it was discussed, possibly following a separate executive session, is the decision by council valid?" asked the letter Haynie sent to the Attorney General's Office.
At the 2017 meeting, discussion of the settlement was moved from near the end of the agenda up toward the front — a motion made by Haynie, a councilman at the time, to accommodate the large crowd at the meeting. Hours later, well after the settlement was discussed in public without any action being taken, a vote came around 12:30 a.m., approving the settlement.
The resulting 15-page opinion — an indication of how the Attorney General's Office believes a court would rule, if the issue went to court — came back last month. While not directly addressing the validity of the settlement vote, Solicitor General Robert Cook wrote that "a court could certainly conclude the council played 'musical chairs' with the public."
Once the settlement issue was moved on the agenda, Cook wrote, the state's Freedom of Information Act "could be held to require" a two-thirds vote in order to consider the issue later in the meeting. The last item on the agenda was "council may take action upon reconvening from executive session," and that's when the vote took place.
“I’ve been asked all day, does this mean the vote was invalid?" Haynie said Wednesday. "I do not know.”
Haynie said hiring legal counsel is not necessarily a prelude to reversing the apartment settlement.
“I don’t know how that could be the end game because I don’t know if that’s legal," Haynie said. “We just want them to tell us, where do we stand right now?" he said.