By Dan McCue
Staff Writer

A bill sponsored by several state senators from Charleston has reignited the debate over government powers to condemn private land for public projects, but officials in Jasper County said it won’t slow the hotly contested plan to build a $500 million cargo container terminal on the Savannah River in Jasper County.

“In our view, the push for this change in the law is simply an overreaction to the U.S. Supreme Court’s recent decision regarding eminent domain,” said Jasper County Administrator Andrew P. Fulghum. “I don’t believe any new legislation will affect our plan to develop a marine terminal because our condemnation was filed well over a year ago.”

Fulghum said Jasper County’s attorneys continue to monitor the situation.

House Bill 4310 seeks to change the language of South Carolina’s existing law on eminent domain. Rather than allowing condemnation for “public purpose,” the legislation would change the language to “public use,” meaning that in order for a condemnation to withstand a legal challenge, the land would have to have a “fixed, definite and enforceable right of use by the public.”

The law stipulates that property must not be condemned for a private use, that the “public body” must own, operate and retain control over the condemned property, and a mere public purpose, such as economic development, does not constitute the requisite public use for a property to be condemned by eminent domain.

“If enacted, this bill will ensure that state and local governments consider the impact of their actions on all citizens before enacting statutes and ordinances,” said Rep. Converse A. Chellis III, R-Summerville, who represents District 94 in Charleston and Dorchester counties and is an ardent supporter of the bill.

But Fulghum sees a dark side to the legislation and suggests the additional restrictions in the proposed legislation could impact state operations negatively in the long run.

“For example, the proposed legislation would seem to preclude the state from condemning property for rail expansions, siting prisons and attracting business to the state, as the South Carolina State Ports Authority’s condemnation of land did in the case of BMW,” he said. “The problem in these cases, of course, is that the state does not operate any trains, could not allow unrestricted access to prisons and the SPA doesn’t make BMWs.”

Jasper County officials continue to await a verdict in the South Carolina Supreme Court lawsuit over who has the jurisdiction to build the container terminal, the county or the SPA.

Jasper County condemned the land because the Georgia Department of Transportation owns it and the U.S. Army Corps of Engineers uses it to store dredged spoil material.

Jasper County was successful in circuit court in 2003 regarding a challenge to its condemnation of the site, but the state Supreme Court later overturned the circuit court’s opinion, saying the lease arrangement did not pass the public-use test for eminent domain.

That decision lead to the filing of additional lawsuits in the case, which are currently all knotted at the court.

A number of groups are supporting the legislative measure in the hope that it will curb the number of entities that have the power to condemn.

“Right now, more than 60 entities in South Carolina have eminent domain powers, and there’s been discussion in the General Assembly to limit it to elected bodies and a few others, like the Department of Transportation and the South Carolina State Ports Authority,” said Howard Duvall, executive director of the South Carolina Municipal Association.

But, Chellis said, although the bill does bestow eminent domain powers on specified bodies, “it also provides for an avenue to the budget and control board, in some state cases, and also for local entities to go to their councils for local approval.”

South Carolina joins the growing list of states that are taking another look at the issue following the controversial June 2005 decision by the U.S. Supreme Court in Kelo v. City of New London. In that case, a Connecticut municipality was allowed to condemn 15 homes for an economic development project related to a nearby Pfizer pharmaceutical operation.

One hundred residential and commercial lots were purchased, in addition to the 15 homes that were condemned, to enact a city development plan that called for a resort hotel, a conference center, a state park, more than 100 new homes and various research, office and retail spaces.

Another bill before the state Legislature, sponsored by Sen. Dick Elliott, D-North Myrtle Beach, aims to clarify that the General Assembly interprets eminent domain laws by the state Supreme Court’s standard, not the federal court’s. The state court precedent contains stricter condemnation requirements.

In contrast to the High Court’s decision in Kelo, the state Supreme Court has enforced Article I, Section 13 of the South Carolina Constitution, noting the “restrictive view of the power of eminent domain expressed by the framers of our constitution and the courts of this state is indicative of a high regard for private property.”

Yet another bill, sponsored by 22 senators, seeks to create a committee to study the issue.

Dan McCue is a staff writer for the Business Journal. E-mail him at dmccue@charlestonbusiness.com.

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