Mt. Pleasant's eminent domain tests: Charleston SC Post Courier, 10/20/07

There are two tests ahead for Mount Pleasant officials now that they have decided to exercise their power of eminent domain to condemn property near picturesque Shem Creek. First they have to convince a court that the property is being condemned for a bona fide public use. The second is in the court of public opinion. Has council correctly judged public sentiment regarding the importance of public access to one of the town's best-known locations?

The first test has some very definite criteria, made even tighter by a constitutional amendment approved last year. While the S.C. Supreme Court has been very strict in its interpretation of the state's eminent domain powers, a constitutional change approved by the voters last November ensures that will continue to be the case.

The amendment was a cautionary reaction to a highly controversial U.S. Supreme Court decision upholding a Connecticut law that allows private economic development to be considered a legitimate eminent domain "public purpose." Not so in South Carolina. The state Constitution now makes it clear that when it comes to eminent domain, the only legitimate "public purpose" is "public use." Thus, in this state, private property may only be taken for public use, period.

In terms of public use, Mount Pleasant's plans for the OK Tire property seem to meet the test. Town Administrator Mac Burdette contends his town's goal for the property is to provide additional public access to the Shem Creek area as well as developing a park there and maintaining open space. According to our report, the property owners plan 25 condominiums on the site.

According to Mr. Burdette, public access to the Shem Creek vistas is now limited, and the property in question is one of the last near the creek that isn't the site of an ongoing business. He said the town first tried to buy the property more than two years ago, resumed negotiations this year and finally concluded that the parties were at an impasse. He pointed out that the town's comprehensive plan calls for more access points to the water and that council's decision to condemn the land was unanimous.

After the town filed the proceeding, one property owner was quoted by our reporter as saying town officials were in "for the fight of their lives" and questioned whether the town had followed proper procedure. That's a decision for the courts.

Town officials also answer to the voters. This will be the first time other than for road projects the town has condemned private property. Town council's unanimous decision to exercise such a powerful and controversial tool speaks to the confidence it must feel that there is an overriding public interest in taking the property for public use. If officials are wrong on that score, the ultimate test of public sentiment is at the ballot box.

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Charleston SC Post Courier: http://www.charleston.net