Two Charleston developments approved more than a decade ago might not be able to break ground after the city discovered the projects don't meet the latest drainage requirements.
The Brookfield subdivision on James Island earned final approval in 2007, and the Middleborough Villas, a condominium project in West Ashley's Shadowmoss neighborhood, was approved in 2008.
Those projects and many other planned developments like them in South Carolina have been able to hold onto their original entitlements for many years because of the 2004 Vested Rights Act, which ultimately allowed developments approved before the recession to be constructed up to 16 years later.
The very last automatic extension of those rights expired Dec. 31, giving local governments their first opportunity in nearly two decades to give older projects a second look — and to force them to comply with new regulations.
In the city of Charleston, quite a bit has changed since the recession, particularly in terms of the stormwater design requirements developers have to follow. Some changes involve requiring more land for drainage systems, so it's likely that older projects must be re-engineered, sending them back through the approval process.
Brookefield and Middleborough Villas are the first developments to come up since the entitlement period expired, but city attorney Chip McQueeney said the legal staff has been preparing for this scenario for some time.
On Tuesday, the city notified the developers via email they must demonstrate how their existing plans will adhere to the latest stormwater regulations. The move is expected to send both back to the drawing board.
Middleborough Villas, a 30-unit development on Deerfield Drive, is in a high-risk flood zone in the Church Creek drainage basin. Last year, the city approved an especially strict set of stormwater rules for the area.
Today, if developers use fill, they have to dig and leave holes on the land so it doesn’t lose its overall capacity to hold water. They also will have to use certain materials so water can soak into the soil. The Middleborough design doesn't include that strategy in its plans to use fill dirt for its foundation.
The developers, Adam Baslow and Donny Schaeffer of New Leaf Builders, declined to comment.
The Brookfield subdivision planned on Howle Avenue is also in a flood-prone area. Its road construction plans don't account for several new regulations that deal with runoff rates and access easements for maintenance, according to the notice. Representatives of the project didn't respond to requests for comment.
Many other previously approved developments will likely face similar scrutiny soon, and the city is prepared to defend its decisions, McQueeney said.
"There’s always the possibility of a lawsuit in the regulatory process," he added.
Patrick Arnold, executive director of the Charleston Home Builders Association, has concerns about the repercussions the change would have on developers.
"While the home building community shares concerns over flooding and infrastructure, we think extreme caution should be taken when handling property owners' vested rights," he said. "Often, very large investments are made into these projects that, if denied outright, could financially cripple businesses, employees and citizens associated with them."
Jason Crowley, communities and transportation program director for the Coastal Conservation League, said the nonprofit helped create the new Fix Flooding First coalition partly to push for bolder restrictions on developments in flood-prone areas.
"This is an opportunity to take a second look at older projects and not just rubber stamp them," he said, adding other local governments should follow Charleston's lead and make sure developments are planned with the latest climate conditions in mind.
Kinsey Holton, the city's stormwater program manager, said it's possible the Vested Rights Act allowed more than 100 developments with outdated stormwater designs to move toward construction over the past decade.
"Unfortunately, we've been having to hold our breath while this vesting period has been going, with these projects that don't meet our current requirements but have that legal right to proceed," he said. "Now, we're able to really enforce our requirements."
Mayor John Tecklenburg and City Council have pledged to make fixing flooding a top priority. The city created a new Stormwater Department this year to engineer drainage projects, maintain and improve older systems, and ensure new problems aren't created with new developments.
A new project that hadn't been previously approved also was notified that its stormwater design needs updating.
Mikasa, a major subdivision development proposed on Cainhoy, planned to use surrounding wetlands to absorb runoff, but it didn't provide enough details about how the system would function, and it didn't include an easement for the city to maintain it.
Given the maintenance complications the city already faces in older communities, Holton said the city can't afford to take on more.
"We need systems we can own and operate and make sure that they work per design," he said.
Unless the issues are resolved, the city won't recommend its approval if it goes before the Planning Commission.