City, town state their cases

COLUMBIA -- They once, twice, three times formed a town of James Island, and for the third time the town finds itself before the South Carolina Supreme Court defending its incorporation against a legal challenge by the city of Charleston.

Will this third creation be the one that stands?

Town supporters say they want self- determination, an attentive local government and a way to prevent Charleston from annexing more of James Island, which is roughly divided between the city and the town.

The town comprises previously unincorporated parts of the island, so Charleston and the town currently govern different parts of the island, with boundary lines that weave throughout the area.

Charleston sees the town as an unnecessary layer of government that duplicates services and costs Charleston about $550,000 yearly in local-option sales tax revenue because the town gets a share of the money. Local-option money is primarily used for property tax relief.

On Wednesday morning, the state Supreme Court heard arguments from the city and the town in the latest case that could determine the town's right to exist in its current form.

The city is seeking to have the town's incorporation invalidated by the court, as previous incorporations were in 1996 and 2004. Each time the court dissolved the town, the General Assembly passed legislation to help town supporters incorporate anew.

The current case was heard on Groundhog Day, which some onlookers found humorous because in the movie "Groundhog Day," history keeps repeating itself.

The five state Supreme Court justices questioned lawyers Frances Cantwell, representing the city, and Trent Kernodle, representing the town, as they laid out their key points over the course of about half an hour. The justices already have the filings and lower court records to review.

The court did not rule Wednesday, and might not render a decision for some time.

The city argues that a state law that made the latest incorporation possible was unconstitutional, and the town's incorporation process was flawed.

The town is defending the state law, and argues that any errors in the incorporation were minor oversights that could be addressed without throwing out the incorporation.

"Substantial compliance is, I think, a key to this," Kernodle told the justices. "Mistakes can be made that do not ruin the whole."

In querying both sides, the justices focused on questions of how the town was incorporated and whether all the properties that make up the town are legally connected.

They largely passed over constitutional issues, but lawyers for the town and the city said the questions asked by the court don't always indicate the issues they will focus on when they rule.

Cantwell told the justices that this third town of James Island is no different from, and no more valid than, the previous two that the court ordered dissolved. She said that if the court finds the legislation that allowed the town to form constitutional, the town should still be invalidated because of flaws in the incorporation.

"So, you want them to start all over again?" asked Justice Kaye Hearn.

"Yes, ma'am," Cantwell replied.

A key issue is the town's use of the tailor-made state legislation, which allows towns to incorporate using county, state and federal property to connect properties. Properties must be connected, or contiguous, in order to be included in a town's incorporation, and the law allowed incorporators to act as if some government lands in between don't exist.

For example, a town could be formed from properties on opposite sides of the Francis Marion National Forest.

Cantwell said the town went a step beyond the law, connecting properties that touched the same government property, but would not touch each other if that property did not exist.

"I just think they overreached and did not follow the law," she told the court.

Kernodle said the law was applied correctly. He said the publicly owned properties act like "connective tissue" running through the town.

Outside the courthouse, Charleston Mayor Joe Riley said he is confident in the city's legal arguments, although James Island's incorporation was upheld by a lower court.

James Island Mayor Bill Woolsey said that if the incorporation were undone by the court, a new incorporation effort would start almost immediately.

Town timeline

DECEMBER 1992: By a 52 percent to 48 percent margin, voters in most of James Island's unincorporated area agree to form a new town. The city of Charleston files a lawsuit challenging the incorporation.

OCTOBER 1995: A circuit judge rules the town was incorporated illegally by crossing over marshes and waterways already claimed by the city, but he allows it to stay in business while the case is appealed.

NOV. 18, 1996: The state Supreme Court upholds the lower court and orders the town dissolved.

APRIL 2000: The General Assembly passes a bill that would let a new town of James Island cross over waterways and marshes already claimed by Charleston, addressing the legal problem with the first town. The movement to create a new town soon gathers momentum.

MAY 21, 2002: Voters choose to form a new town by a more than 2-1 margin. The vote creates the second town of James Island.

JULY 24, 2002: The city of Charleston sues.

FEB. 7, 2003: A circuit judge rules the law that allowed the second town to incorporate was unconstitutional special legislation that did not generally apply statewide.

JULY 26, 2004: The state Supreme Court upholds the lower court ruling, ending the second town.

JANUARY 2005: The town is dissolved. Charleston then moves to annex as many properties on James Island as possible, whose owners request to be annexed. Town supporters prepare for a third incorporation try, aided by state lawmakers who approve new incorporation regulations beneficial to the town.

JUNE 20, 2006: James Islanders living outside the Charleston city limits vote by a 3-to-1 margin to again form a town. Charleston sues.

NOV. 7, 2008: Circuit Judge J. Cordell Maddox Jr. rules in the town's favor, the first time an incorporation of the town has been upheld by a lower court. Charleston asks that the decision be reconsidered, and when Maddox affirms his decision, the city appeals to the state Supreme Court.

FEB. 2, 2011: The state Supreme Court hears arguments in the case, sets no timetable for reaching a decision.