By Mike McCombs
The Island News
The U.S. District Court for the District of South Carolina on Friday, Feb. 20, dismissed Pine Island Property Holdings, LLC’s federal lawsuit challenging Beaufort County’s Cultural Protection Overlay (CPO).
The case is related to the ongoing effort by the developer to build a private golf course resort development on the Pine Island and St. Helenaville properties on St. Helena Island.
In Friday’s order, Judge Richard M. Gergel dismissed the developer’s complaint in its entirety, finding the case “moot.” The Court found that there is no longer a live controversy, as the developer had earlier withdrawn its appeal of Beaufort County’s denial of plans for three 6-hole golf courses, and, with it, said the Court, the basis for many of its underlying claims.
In the lawsuit, one of two filed — one federal and one state — the developer asked the U.S. District Court to invalidate the CPO, a zoning overlay in place since 1999 that protects St. Helena Island, specifically the Gullah culture, from resorts, golf courses and gated communities. The lawsuit alleged constitutional violations and sought to establish a right to construct a golf course on the Pine Island property despite the CPO’s prohibitions.
In September, at the conclusion of a 7½-hour public hearing/meeting attended by more than 500 people, Beaufort County Council voted 10-1 not to move forward with a proposed development agreement put forth by the representative developer Elvio Tropeano that would have put an 18-hole golf course and 49 houses on the property.
At the time, attorney Kevin Dukes, who represents the developer, said “Though some may not want it, Pine Island will be developed.”
Tropeano has long maintained that is unable to build a golf course on the property, developers will go forward with a higher density plan involving a significant increase in the number of homes built on the island.
As many as 149 homes and 90 docks are proposed under the full density plan, which would include no golf course but could be accomplished despite the CPO and without County Council’s approval as it stands with the necessary permits.
On Dec. 12, the developer withdrew its state-level appeal of the Beaufort County Planning Commission’s denial of three 2023 conceptual land development applications relating to Pine Island Golf – Courses A, B and C — three separate six-hole golf courses.
As reported in The Island News in December, according to the withdrawal, the applications denied by the Planning Commission have been “superseded through revised land plans,” making the prior applications obsolete. The developers said they were no longer seeking approval of three separate six-hole golf courses, making the appeal pointless.
“A separate civil action involving causes of action arising under state and federal law asserted by Pine Island Property Holdings, LLC, and Pine Island GC, LLC against Beaufort County, South Carolina remains pending in the United States District Court for the District of South Carolina before the Honorable Richard M. Gergel. Appellants are proceeding with their legal claims in the federal action, which continues to present an active and justiciable dispute,” the Dec. 12 filing said.
But as Gergel stated in his ruling, that withdrawal played a part in Friday’s decision.
“The Court finds that there is no longer a case or controversy before it and that this action must be dismissed,” the dismissal reads. “… Plaintiff’s amended complaint does not bring a facial challenge to the CPO. Instead, it concerns, specifically, obtaining approval of the March 2023 Applications. … But Plaintiffs withdrew and are not pursuing the March 2023 Applications, thus there is no longer a live controversy.”
“This decision affirms what has been clear all along – the St. Helena community-driven Cultural Protection Overlay is a lawful and enforceable exercise of Beaufort County’s zoning authority. We appreciate the Court’s careful attention to the record in bringing this litigation to a close,” said Jessie White, senior attorney for the South Carolina Environmental Law Project, which intervened in the case on behalf of the Gullah/Geechee Sea Island Coalition. “It is regrettable that taxpayers and community members were required to devote substantial time and resources to defending straightforward, long-standing land use protections. We are hopeful this decision will allow the County and the people of St. Helena Island to move forward and focus on the issues that matter most to the community.”
White said she was admittedly a little confused when the developer withdrew its appeal in December.
“It was very perplexing what the strategy could be in the withdrawal because we foresaw this could be a possible outcome of abandoning the state appeal of the order denying the three 6-hole golf course plan,” she said.
The CPO, as originally written, prohibits golf within its boundaries. The underlying argument within the federal case was the right of the developer to develop the property within the original language of the CPO. By walking away from the appeal of the findings of the Beaufort County planning Commission, they were accepting them.
It’s unclear what, if anything, will happen next. An appeal of the dismissal is possible, though it’s unclear if the develop will of if it’s feasible given the particular facts in this case.
The Island News has reached out to Tropeano for comment and is awaiting a response.
“Disya a bless up day!” Queen Quet (Marquetta Goodwine), Chieftess of the Gullah/Geechee Nation, told The Island News in an email. “The Gullah/Geechee Sea Island Coalition and the Gullah/Geechee Nation’s leaders are elated that we have another victory in our protection of the land and human rights of the Gullah/Geechee Nation! Historic St. Helena Island is the epicenter of Gullah/Geechee culture and it is a priceless asset of not only our coast but of the entire state of South Carolina. The judge’s decision honors the original intent of the Cultural Protection Overlay District and all of us that got it established in 1999. I rest assured that the ancestors are well pleased that we fought to prevent St. Helena Island from destructionment.
“It is the 30th anniversary year of the Gullah/Geechee Sea Island Coalition and it’s Black History Month. So, this outstanding news couldn’t have arrived at a better time! Many thanks to SCELP, the judge and everyone in our region and around the world that continues to stand up for and with us as we protect the CPO and keep Gullah/Geechee culture alive! Tenk GAWD fa St. Helena’s CPO!”
County Council Chairman Alice Howard echoed the sentiments of White and Queen Quet.
“I am happy the court has reached [its] decision and it has basically upheld that the CPO is valid. I didn’t know when they would rule, but this is timely. So, that’s good.”
THIS STORY WILL BE UPDATED
Photo credit: An aerial view of St. Helenaville and Pine Island. Photo courtesy of Miles Sanders
Mike McCombs is the Editor of The Island News and can be reached at TheIslandNews@gmail.com.