December 15, 2021
Letter from the Mayor and Town Council to the Community Regarding Unsupported Allegations of Lack of Transparency and Possible Conflicts of Interest
To our fellow citizens of Kiawah, The Town Council was saddened and concerned to receive a letter from the Kiawah Island Community Association dated December 9, 2021, that included unsupported allegations of lack of transparency and possible conflicts of interest on a matter related to Annexation Petition and Zoning submitted by Haulover Creek Development Company, LLC, (an affiliate of the Goodwin Family Holdings (owner of the Kiawah Island Golf Resort) and Riverstone Properties.) In the letter, KICA implies that Town Council members lacked transparency and failed to disclose conflicts of interest in addressing the Annexation Petition.
We feel it’s essential you understand the facts.
I. Allegation of a lack of transparency.
Most local and county government officials hold pre-application meetings with prospective developers looking to do business within the community. In fact, those requirements are part of many local ordinances. The Town of Kiawah officials (Council, Planning Commission, and Staff) held several pre-application meetings with the applicants to discuss the Annexation and Zoning process, familiarize ourselves with the project, and offer feedback. No decisions were made during that process. Furthur an annexation petition can legally only become public once an applicant submits an official application to the Town. The Applicant submitted the application on September 2, 2021, and the Town released the Mayor’s communication to the community on September 3.
Second, the Town Council mandated more public participation in the annexation process than is required by South Carolina law or the Town’s ordinances. Where all landowners (100 percent) petition to be annexed to the Town, no public hearings are required under South Carolina’s annexation law. S.C. Code Section 5-3-150(3). Rather, under South Carolina law and the Town’s ordinance, Annexation is complete upon passage of an ordinance, requiring two votes by Council.
Even though it was not required, Town Council wanted to provide the public with ample opportunity to comment on the proposed Annexation and participate in the process of the Town’s consideration of the Annexation. While it may have seemed like an aggressive timeline to the community, it was intentionally set with buffers for delays in the process as needed to incorporate community input and changes as necessary. The original timeline initiated by Town Council incorporated a Planning Commission review of the Annexation Petition and Zoning the day following Town’s Council’s first reading. The Planning Commission held a public workshop, adding an extra layer of public participation not required under State law or the Town’s zoning ordinance. In addition, since the Annexation request included a Planned Development application, it would have undergone additional levels of review, including staff-level review, planning commission review, and a public hearing before the final reading of the Annexation Ordinance.
Town Council built-in additional time before scheduling its final vote on the Annexation Ordinance to allow for the Planning Commission review. Finally, the Town set up a public portal to receive comments. Comments were obtained through our Andell West Online Public Comment Portal, and comments were made available to the public on September 20 and can be viewed here. The assertion of the lack of transparency is not correct. The Town followed the annexation process as dictated by State law and added an open process for community involvement. However, the Applicant withdrew its original Annexation Petition, which has stopped the process.
II. Allegation of conflict of interest.
The other allegation leveled by KICA, with no evidence, is that a possible conflict of interest existed between Town Council and the Developer.
We feel it’s essential you understand the facts.
To be clear, the South Carolina Annexation Law prohibits council members who own property, or stock in a corporation owning property, in the area proposed to be annexed are not eligible to vote on the ordinance.
NO member of the Town Council owns any of the property proposed to be annexed or has an interest in the entities that do own that property. NO member of the Town Council has any other conflict of interest. If any member of the KICA board or community has evidence showing that some undisclosed conflict exists, the Town encourages them to go through the proper channels and file a complaint with the South Carolina Ethics Commission, which governs the ethical behavior of elected officials.
The Town Attorney takes these accusations very seriously and has written a letter to the KICA Board asking them to provide any evidence that supports any allegation of a conflict of interest or even an appearance of impropriety involving the Town Council or any Town employee or representative. If KICA has no evidence that a conflict of interest exists, we asked KICA to clarify its update in its weekly communication email to the Kiawah members to indicate that it has no evidence that a conflict exists.
KICA and the group it has chosen to support have shown a fundamental misunderstanding of several aspects of zoning law. Petitioners often request that annexed property be zoned in a particular manner upon Annexation. State law does not provide a method for zoning property at the time of Annexation, so this is left up to the local government. Many local governments explicitly allow petitioners to request a specific zoning classification in annexation proposals. Such requests enhance transparency in that all parties are aware of the petitioner’s intent. Zoning is a legislative function and cannot be delegated or contracted away by the governing body. Because territorial jurisdiction over the property is not obtained until it is annexed, some zoning ordinances assign an interim zoning district designation in the annexation ordinance. The designation is confirmed through the full zoning amendment procedures specified in S.C. Code Section 6-29-760.
It should be pointed out that the South Carolina Supreme Court decided 21 years ago that the zoning process and the referendum process set out in S.C. Code Section 5-17-10, are “incompatible and hopelessly inconsistent.” I’On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 526 S.E.2d 716 (2000). We will leave it up to the South Carolina Supreme Court to explain why:
The Legislature has recognized by its enactment of detailed procedures in Title 6 [governing zoning] that haphazard or thoughtless decisions are the antithesis of meaningful zoning. We agree with Developer that the Legislature has not condoned—and we should not approve—a process by which voters could circumvent this deliberative process by deciding zoning matters in an initiative and referendum process. Such a system ultimately could nullify a carefully established zoning system or master plan developed after debate among many interested persons and entities, resulting in arbitrary decisions and patchwork zoning with little rhyme or reason.
Town Council believes in a fair process for individuals that are interested in presenting suggestions, comments, or other thoughts. Public comment is vital to the function of Town governance, and the Town encourages a wide variety of input for fair representation during decision making, which enables educated leadership and a better decision-making process.
As previously stated in the Town’s September 16 communication, Town Council has heard and respects the community’s concerns regarding the Andell West Annexation Petition and Planned Development application from Haulover Creek Development Company, LLC.
Town Council Strategic Planning Retreat
Even though the referendum procedure is not an appropriate path for zoning amendments, the Town Council has decided to closely review its zoning and annexation procedures. As a part of the Mayor’s report at the December Town Council meeting, Mayor Labriola announced the dates for the upcoming January retreat and Town Council’s intent to review the zoning and annexation process, which was distributed to the community last week provided here. The annual retreat will be held in three workshops listed below:
- Tuesday, January 11, 2022 – 11 a.m. to 1 p.m. (Zoning and Annexation)
- Thursday, January 13, 2022 – 1 p.m. to 4 p.m.
- Friday, January 14, 2022 – 9 a.m. to noon
This retreat is for Town Council and senior staff to evaluate plans from the prior year, review current projects, develop objectives for 2022, and discuss long-term strategic planning to support the mission and goals of the Town. At the January 11 workshop, Council will review what took place in the context of South Carolina Annexation Laws and the Town’s Zoning Ordinance and explore if any changes are necessary to enhance the review and approval process. Since State Statute dictates South Carolina Annexation Laws, we must be mindful of what we can and cannot do regarding timelines and expectations from the community and Developer.
More information will be provided to the community when the agendas have been finalized. The retreat will be open to the public to attend in person or watch via live stream. After the workshop, there will be ample time for public engagement and input regarding any potential changes to the current process. If you are not signed up for the Town’s email list, please email firstname.lastname@example.org to be added.
We encourage all residents to look for this information and feel free to share their thoughts and perspectives on any of the agenda items with the Town Administrator, Stephanie Tillerson, at email@example.com.
Town of Kiawah Island Town Council