Land use expert warns of property rights infringement by 'unelected bureaucrats' on the Charleston BAR

Marc Scribner, research fellow, Competitive Enterprise Institute

Court-ordered mediation may finally bring the Sergeant Jasper legal feud to a close, but concerns raised by The Beach Company over the power of the Board of Architectural Review (BAR) may have lasting repercussions.

After the BAR rejected The Beach Company’s concept for the Sergeant Jasper redevelopment last June, the company filed an appeal with the South Carolina Charleston County Circuit Court to challenge the BAR.

The appeal claimed the BAR ordinances provide no guidelines or standards to applicants or the BAR members.

"The Beach Company supports the BAR and its purpose, but believes the vagueness of the approvals process is excessively onerous for property owners,” John Darby, president and CEO of The Beach Company, said in a statement earlier this week.

Darby and other groups, such as the Trident CEO Council, have raised concerns about property rights in the wake of the BAR’s treatment of the Sergeant Jasper project.

Marc Scribner, research fellow with the Competitive Enterprise Institute (CEI), agrees.

“The unelected bureaucrats on the Board of Architectural Review and nosy neighbors may have all sorts of warm and fuzzy feelings about proposed real estate projects,” Scribner said.  “But it is still unconstitutional to deny property owners their due process rights.”

Scribner focuses on transportation, land use and telecommunications policy issues at CEI, a free enterprise think tank in Washington, DC.

He said that boards, such as the BAR, must maintain a fair and objective review process based on the criteria they are authorized to use to promote historic preservation.

What if the board oversteps its enabling statutes, or if those statutes are not clear?

“Citizens should be concerned not only that government officials are repeatedly threatening their constitutional rights based on personal whims, but by the large expenditure of taxpayer dollars to defend these unnecessary and intrusive government actions in court,” Scribner said.

He warned against a nationwide trend of replacing traditional separation-of-use zoning with what is called form-based code.

“Form-based codes combine many of the anti-growth principles of conventional zoning with the arbitrary aesthetic preferences generally expressed by historic preservation authorities,” Scribner explained. “The winners are professional planning bureaucrats and the ‘Not In My Backyard’ busybodies who tend to dominate public hearings.”

The losers?

“Land owners, renters, consumers and anybody concerned about private property rights,” he added. “Unfortunately for property rights supporters, the U.S. Supreme Court has failed to rein in abusive local land-use regulations.”

Scribner said it’s up to state legislatures to protect local property rights.

“As the courts are unlikely to protect property rights from local government predation, state legislatures must seriously examine the underlining zoning enabling statutes and seek substantial pro-market reforms,” he said.

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City of Charleston Competitive Enterprise Institute The Beach Company U.S. Supreme Court

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