A town check for $2,285,000 to be used for condemnation of the OK Tire property was issued four days before Town Council voted to pursue acquisition of the property. That gives the appearance of an illegal, secret decision by council to use its power of eminent domain to buy the land, said Jay Bender, attorney for the South Carolina Press Association.
"It certainly appears that the town made a decision secretly to acquire that land. It appears to have happened in secret, which would be illegal," Bender said.
Town Attorney Allen Young requested the check in an Oct. 3 memo to Charlie Potts, director of administrative services. The check was issued Oct. 5. Town Council voted Oct. 9 to condemn the land for a public park if its offer of $2,285,000 was rejected. On Oct. 10, Young issued a statement that the town was condemning the land.
Attorney Mark Mason, whose 1.07 acres on the northern side of Shem Creek is being condemned, obtained a copy of the memo through the state Freedom of Information Act. "Obviously, a decision was made in secret before the vote," Mason said.
Young disputed Bender's and Mason's interpretations of the sequence of events. Regarding his Oct. 3 memo, Young said, "I was lining up my ducks in case council decided to move in that direction."
Had the OK Tire property not been condemned, the money would have been returned, he said.
"It was an internal matter," Young said. He said that he was acting within his authority when he requested the check. "There's nothing nefarious about this process. It wasn't secretive. It wasn't a plot," he said.
The Oct. 3 memo from Young to Potts states: "These funds will be posted with the Clerk (of Court) as part of a condemnation action to be filed relative to property known as the OK Tire Property." An Oct. 4 town requisition form for the check states, "Mark Mason/OK Tire property/condemnation action to be filed relative to property known as the OK Tire property."
On Oct. 9, Council voted to "authorize a final offer and, if not accepted, pursue final legal action as discussed." At that time, Young declined to describe the piece of property involved but said he had been authorized to file a condemnation proceeding if the $2,285,000 were rejected.
Councilman Paul Gawrych said Tuesday that there was no secrecy involved in council votes on the OK Tire property condemnation.
Bender has said that Town Council violated provisions of the state FOIA when it voted Nov. 13 to go into an executive session on a matter related to Shem Creek property without adequately stating what the vote was about. On that date, council voted to enter executive session for "legal and contractual matters pertaining to properties near Shem Creek."
Afterward, council voted to have Young proceed as discussed in executive session. At the time, Young declined to identify the properties near Shem Creek that were discussed in executive session.
On Nov. 14, Young disputed Bender's claim that the town was in violation of the FOIA because of the vague wording of the public notice for the Nov. 13 executive session on the Shem Creek condemnation. Young has said that on Nov. 13 he gave council an update on the condemnation of the OK Tire property.
In a public notice for a Nov. 16 council meeting and executive session, the town more clearly stated that it was talking about the Shem Creek condemnation behind closed doors.
The town offered Mason and co-owner Phillip Smith $6 million for the OK Tire property and 43.5 acres that front the creek past Vickery's known as "The Bailey Docks" where a marina would be built. Mason and Smith rejected the offer, and the town came back with its $2,285,000 offer for the 1.07-acre OK Tire property, which the owners also rejected.
Mason and Smith have sued to have the condemnation dismissed. Among the grounds they claim for dismissal are allegations that the town has violated the Freedom of Information Act.
Mason wants to put 24 condominiums on the OK Tire land and 24 floating boat slips on Shem Creek. An appraisal obtained by SunTrust bank for the OK Tire property values it at $4.6 million.
OK Tire property time line
- Oct. 3: Town Attorney Allen Young requests a check for $2,285,000 to be issued on or before Oct. 10 payable to Charleston County Clerk of Court. The funds will be posted with the clerk as part of a condemnation action to be filed relative to the OK Tire property, Young says in a memo to Charlie Potts, director of administrative services.
- Oct. 4: A requisition form for $2,285,000 states that the money is for "Mark Mason/OK Tire property condemnation."
- Oct. 9: Council votes to "authorize a final offer and, if not accepted, pursue final legal action as discussed" after an executive session to discuss Shem Creek contractual and legal matters. Young declines to name the specific piece of property that the council wants to buy because of ongoing negotiations. Council does not name an amount it is offering for the unspecified piece of property.
- Oct. 10: Young issues a statement that the town is condemning the OK Tire property after owner Mark Mason rejects an offer of $2,285,000. Mason has an appraisal of $4.6 million for the land.
- Nov. 16: OK Tire property owners Mason and Phillip Smith file suit against the town, asking for the condemnation to be dismissed. Among the grounds for their countersuit are alleged town violations of the state Freedom of Information Act, including a violation Oct. 9 when Town Council approved the condemnation.
Charleston SC Post and Courier: http://www.charleston.net