Judge rules in Sergeant Jasper case, says BAR overstepped its authority

Legal expert says the case highlights potential due process problems caused by historic preservation boards that are “so arbitrary and ill-defined.”

Sgt. Jasper "Building in the Park" (modified) concept   The Beach Company

Circuit Court Judge J.C. Nicholson, Jr. ruled today that the Charleston Board of Architectural Review (BAR) overstepped its authority in denying The Beach Company’s application to redevelop the Sergeant Jasper property, even though the proposal complied with existing zoning laws.

While The Beach Company’s appeal in the case could have impacted the constitutionality of the BAR, Judge Nicholson did conclude that the BAR ordinances are constitutional.

“As we have said all along, The Beach Company supports the BAR and its purpose, but the ordinances do not empower the BAR to deny an application for a Certificate of Appropriateness based on matters subject to applicable zoning restrictions, such as height,” said John Darby, president and CEO of The Beach Company. “It is reassuring that Judge Nicholson took such a big step toward protecting property rights in Charleston.”

The ruling is subject to appeal to the South Carolina Supreme Court, but Darby said in a statement that he hopes Mayor Tecklenburg and City Council don’t “clutter the court system and further waste taxpayers’ dollars.”

Jim Burling, director of litigation at the Pacific Legal Foundation, told Palmetto Business Daily that the Sergeant Jasper legal battle highlights the problems caused by historic preservation boards that are “so arbitrary and ill-defined.”

“By that I mean when you have a board that is making decisions based totally on aesthetic reasons, such as, ‘I don’t like this project because it is not in conformity with the neighborhood,' it is impossible to tell in advance what that means,” explained Burling.

What this creates, Burling said, is a situation of uncertainty for local developers.

“I think builders, developers, homeowners — even community members — would be much better off with more objective standards,” Burling said. “So if you are going to have standards based off, for example, floor area, rations, height restrictions, set back lines, those are things that can be measured and understood and things that you can look at in advance.”

Judge Nicholson’s ruling should be a step toward ensuring more objective standards for developers, which Burling said is important for economic development. 

“If that is your goal — to keep development out of an area — lack of clarity and uncertainty works admirably,” said Burling. “But if you are trying to develop a community, or maintain a community, where your children can have affordable housing, where you have a reasonable business climate so people can live in an economically sustainable area, it is not a very good policy.”

In that regard, Judge Nicholson's ruling is a positive sign for the Lowcountry's economic future.

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