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Widening Highway 41 would take family land in Phillips, but owners could go unpaid

Ada Bennett Highway 41.jpg

Ada Bennett waits for an opening in traffic to cross S.C. Highway 41 to get to her cousin's house on the other side on Wednesday, Sept. 2, 2020, in the north Mount Pleasant area. Bennett and her family have lived in the Phillips community along Highway 41 for generations. Grace Beahm Alford/Staff

MOUNT PLEASANT — If Charleston County follows through with a plan to widen S.C. Highway 41 through the historic Phillips community, it will buy portions of dozens of properties along the roadway, but some of the owners might never see a penny.

That's because many properties in Phillips are heirs' property — land that lacks a clear title after being handed down informally, without a will, through generations.

Many properties there were purchased just after the Civil War by formerly enslaved Black residents, whose descendants live there today.

When the government needs land for a road project, it has to pay the landowners, but no one can collect that money if it's not clear who the landowners are. Instead, the government takes the land, deposits the payment in court, and the process falls onto the owners of heirs' property to clear up the title before time runs out.

“It’s very complicated, and it’s expensive," said Ada Bennett, whose great-grandfather bought land in Phillips in the 1880s.

Her extended family began working on clearing the title long before Charleston County finished evaluating different options for traffic relief on Highway 41. They aren't done yet.

Bennett's family property sits on both sides of the two-lane road, which was paved long after Bennett's ancestors bought the land. The county plan would widen Highway 41 to five lanes with a multi-use path along the side.

The Bennett property has about 30 partial owners — a low number, for an heirs' property — and several manufactured homes occupied by relatives.

Manufactured homes are common in African American settlement communities throughout the Charleston area because, with unclear land ownership, it's all but impossible to build a house or get a mortgage on heirs' land. 

Charleston County and the state Department of Transportation said they pay fair amounts when land is needed for roads and seek to negotiate rather than force a sale through condemnation. But when it comes to heirs' property, both said it's a matter for lawyers.

“We want to fairly compensate all the property owners," said Richard Turner, with Charleston County's Transportation Department. "When you get into heirs’ property there are potentially a lot of owners, which complicates the process."

Historically, heirs' property owners have faced negative outcomes.

“Generally, the money never makes its way to the owners," said attorney Josh Walden, chief of operations at the Center for Heirs' Property Preservation in Charleston. “I think you can safely say that in instances of multi-generational heirs' property — which is most of the heirs’ property in Phillips — it’s a monumental challenge."

Resolving ownership of an heirs' property is not something the government can do. Family members need to trace the bloodline back to the last owner who died without a will and identify every descendant who followed, potentially over more than 100 years. Heirs are sometimes scattered across multiple states or lost touch. 

Last year, a 14-acre heirs' property was sold along U.S. Highway 17 in Mount Pleasant to become the home of a new tennis club. The sellers were 144 descendants of Cain Bryan, who bought the land in 1875.

Lawyer John Dodds III represented the heirs, and at an event celebrating the sale last year credited them with keeping good records, mostly in family Bibles.

"We'd meet and there would be 30 or 40 people, representing various wings of the family," he recalled, hinting at how complicated it was to resolve the title.

The long family histories of ownership in Phillips have created a community where all the residents seem to know each other, and many are related. Bennett, a 1981 Wando High School graduate and retired Postal Service letter carrier, has a sister and three cousins living in the community.

"Over the years you develop a love for the place because your roots are here," she said. "Why can't they take into consideration that we've been here since the 1800s?"

Jonathan Ford's great-grandfather bought 10 acres of land in Phillips in the 1870s, and over nearly 150 years it's been handed down to heirs. Ford said years have been spent trying to clear up the deed to one piece of property.

"For a couple of years it's been with the lawyer, and they haven't gotten it straight yet," he said. "It's not as easy as they (Charleston County) are trying to present it."

Ford and many Phillips residents don't want to talk about compensation for their land. They want to convince Charleston County Council to reject the chosen road-widening plan, known as Alternative 1, that would make Highway 41 a five-lane route through the community. That effort in support of Phillips has been gaining allies.

Richard habersham.jpg

Richard Habersham, Phillips community leader, gathers with several area groups on Thursday September 3, 2020, in the north Mount Pleasant area to discuss strategies for convincing Charleston County Council to scrap a plan to widen Highway 41 to a five lane road through the community. The Historic Charleston Foundation, Center for Heirs' Property Preservation, Southern Environmental Law Center, Charleston Preservation Society, Charleston Moves and the Coastal Conservation League were at the meeting. Grace Beahm Alford/Staff

The Coastal Conservation League, Center for Heirs' Property Preservation, Charleston Preservation Society, Historic Charleston Foundation, Charleston Moves and Southern Environmental Law Center all sent directors or representatives to a Phillips community meeting Thursday to strategize in advance of a County Council meeting Tuesday.

"All of our focus from here out is on County Council," said Phillips resident Jonathan Smalls.

Katie Zimmerman, executive director of Charleston Moves, said the county's Alternative 1 is a poor plan for solving a transportation problem.

"From our perspective, it's not just protecting Phillips — Alternative 1 fails," she said.

The county thinks otherwise. From the county's perspective, Alternative 1 would cost less and improve traffic more than the county's second-choice plan, which Phillips residents favor.

Charleston County project manager Cal Oyer told community members at an August 11 meeting that when all the factors were considered, widening the road through Phillips proved to be the better of the two options.

At the same meeting in Phillips, Shannon Meder with HDR Consulting said the decision between the two road plans “came down to the wire,” but routing traffic through the subdivisions would impact more wetlands.

The county has repeatedly said no homes will be lost to the road project — a claim that's been met with skepticism by many Phillips residents.

"Be fair with us," said Bennett. "If this was Dunes West, Park West, Planters Pointe, they would be raising holy hell."

Ada Bennett home.jpg

Ada Bennett worries how safe it would be for her twin children Ashley and Ashton Bennett to catch a school bus on S.C. Highway 41 if the road is widened to five lanes under Charleston County's current plans. Grace Beahm Alford/Staff

The runner-up road plan, known as Alternative 7A, would widen parts of Highway 41 to five lanes but bypass Phillips by sending traffic through parts of Dunes West and Park West, on Bessemer Road and Park West Boulevard. But there were threats made. 

In 2018, after Charleston County concluded that a version of that plan, Alternative 7, would provide the most traffic relief, the general manager of Dunes West promised “a long, long series of lawsuits,” and Mount Pleasant Town Council voted to oppose it.

The county subsequently conducted more studies and concluded that Alternative 1 would work best after all.

That plan is currently in a crucial public comment phase that ends Sept. 11. To see the details and make a comment online, go to hwy41sc.com.

"Charleston County has not made a decision on this," Rhett Reidenbach, president of the civil engineering firm Revere Group, said during a presentation to Mount Pleasant Town Council on Sept. 1 on Charleston County's behalf. 

Reidenbach said the Alternative 1 plan will require a 75-foot right of way along Highway 41, which would require buying land from 84 properties, 71 of which are in Phillips.

Highway 41 at Dunes West Boulevard Alternative 1

Charleston County's online presentation of the Alternative 1 plan for S.C. Highway 41 includes this rendering of what the highway's intersection at Dunes West Boulevard could look like. Provided

The county has assured Phillips residents that no one will have to move, although some homes might need to be relocated away from the widened road.

Bennett, who lives close to the existing road, can't imagine how that would work. She lives in a mobile home with an addition and brick siding that's been hurricane-strapped to a foundation, and doesn't think moving it would be possible.

For 23 years Bennett delivered mail in the surrounding area, and watched the neighboring subdivisions that are now home to thousands take shape.

"It started out small, but I never realized it would be this big," she said, referring to what is now Dunes West and Park West.

Phillips residents and their allies, as well as residents of some small subdivisions along the highway, hope to sway Charleston County Council, which is scheduled to meet at 6:30 p.m. Tuesday at 4045 Bridge View Drive in North Charleston. The meeting, which comes three days before the public comment period on the road project ends, will be live-streamed on charlestoncounty.org.

There's no vote scheduled on Highway 41 at the meeting, but the council has an important voice in the road-planning process and would ultimately have to approve construction contracts. The Corps of Engineers will also have a role in approving the plan, once the project moves into federal permitting and review.

Reach David Slade at 843-937-5552. Follow him on Twitter @DSladeNews.

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