City of Charleston v. City of North Charleston

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

City of Charleston, Appellant,

v.

City of North Charleston and Millbrook Plantation, LLC,
Respondents.

AND

Millbrook Plantation, LLC, Plaintiff,

v.

City of Charleston, Defendant.

AND

City of Charleston, Plaintiff,

v.

City of North Charleston and Millbrook Plantation, LLC,
Defendants.

Appellate Case No. 2019-000903

Appeal From Charleston County
Eugene C. Griffith, Circuit Court Judge

Opinion No. 5966
Heard October 11, 2022 – Filed February 1, 2023

AFFIRMED
Frances Isaac Cantwell, of City of Charleston Legal
Department; Julia Parker Copeland, of Hinchey Murray
& Pagliarini, LLC; and Wilbur E. Johnson and Russell
Grainger Hines, both of Clement Rivers, LLP, all of
Charleston, all for Appellant.

Bruce E. Miller, of Bruce E. Miller, P.A., of Charleston,
for Respondent Millbrook Plantation, LLC.

Derk Van Raalte, IV, of City of North Charleston Legal
Department; and J. Brady Hair, of Law Office of J. Brady
Hair, both of North Charleston, for Respondent City of
North Charleston.

WILLIAMS, C.J.: This appeal arises from three consolidated actions 1
challenging cross-annexations by Appellant City of Charleston (Charleston) and
Respondent City of North Charleston (North Charleston) of certain real property
(Parcel 006) owned by Respondent Millbrook Plantation, LLC (Millbrook).
Charleston argues the circuit court erred in concluding: (1) Charleston lacked
standing to challenge North Charleston's annexation of Parcel 006 because
North Charleston's 2017 Ordinance did not annex property previously annexed in
2005 (Parcel 006-1) and (2) the Supreme Court of South Carolina has declined to
adopt the "prior jurisdiction doctrine." We affirm.

FACTS/PROCEDURAL HISTORY

Parcel 006 consists of approximately thirty-one acres of real property located on
South Carolina Highway 61 in Charleston County. On May 10, 2005, Charleston
adopted an ordinance (the 2005 Ordinance) annexing the portion of Parcel 006
located within 100 feet of Highway 61 (Parcel 006-1). On December 19, 2017,
Charleston began the annexation of the remainder of Parcel 006 (the Charleston
Ordinance) by accepting an annexation petition under the "75% Annexation

1
These actions are individually designated as Case Nos. 2018-CP-10-0846
("Millbrook I"); 2018- CP-10-2131 ("Millbrook II"); and 2018-CP-10-2539
("Millbrook III").
Method" pursuant to subsection 5-3-150(1) of the South Carolina Code (2004) and
voting to have a public hearing on the petition.

Two days later, North Charleston gave first reading to its petition to annex Parcel
006 (the 2017 Ordinance) under the "100% Annexation Method" of subsection
5-3-150(3), which was adopted seven days later. The 2017 Ordinance's property
description unintentionally included Parcel 006-1, which Charleston previously
annexed in 2005. Weeks later, on January 23, 2018, Charleston City Council held
a public hearing and gave first reading to the Charleston Ordinance, which
attempted to annex the same parcel North Charleston annexed the prior month.

At the time North Charleston drafted the 2017 Ordinance, Charleston County
records did not reflect the existence of Parcel 006-1. Therefore, on March 15,
2018, North Charleston gave first reading to the 2018 Ordinance, purporting to
clarify the 2017 Ordinance's legal description by discounting any perceived intent
to annex Parcel 006-1 and reaffirming its intent to annex only the remainder of
Parcel 006. The 2018 Ordinance states in part:

The City of North Charleston recently annexed Parcel
TMS #361-00-00-006. The clearly expressed intent of the
ordinance was to annex only this parcel. Based upon
then-existing Charleston County TMS mapping data[,]
the map and legal description described Parcel
361-00-00-006 as extending all the way to Ashley River
Road. County TMS mapping data has recently been
corrected to reflect the existence of a sub-parcel.
361-00-00-006-1. This sub-parcel is a 100' deep strip of
land along the side of Ashley River Road. Based on
updated County records[,] it appears that this sub-parcel
was annexed into the City of Charleston in 2005.
Obviously, it was North Charleston's intent to annex
unincorporated parcel 361-00-00-006, not annex property
already within the jurisdiction of any another City. The
attached ordinance would amend Ordinance 2017-083 to
make the boundaries consistent with this intent and
consistent with the now corrected County data.

On March 22, 2018, North Charleston adopted the 2018 Ordinance. Five days
later, Charleston filed the summons and complaint in Millbrook I, asserting that the
2017 Ordinance was invalid because (1) the 2017 Ordinance illegally included
Parcel 006-1 and (2) Charleston took the first step to annex the remainder of Parcel
006 before North Charleston, entitling Charleston to proceed with its annexation
without interference pursuant to the "prior pending jurisdiction rule." Additionally,
Charleston City Council adopted the Charleston Ordinance on April 10, 2018.
Shortly thereafter, Millbrook filed the summons and complaint in Millbrook II
challenging the Charleston Ordinance.

On May 18, 2018, Charleston filed the summons and complaint in Millbrook III
challenging the 2018 Ordinance adopted by North Charleston. Charleston alleged
in Millbrook III that it obtained prior jurisdiction over Parcel 006 based upon the
"prior pending proceedings rule . . . by accepting the annexation petition, holding a
public hearing, and giving first reading to the ordinance annexing [Parcel 006] into
the City prior to North Charleston's beginning the process of passing [the 2018
Ordinance]." Further, Charleston alleged the 2018 Ordinance could not cure the
substantive defect contained in the 2017 Ordinance's legal description
incorporating Parcel 006-1.

Millbrook moved to dismiss Millbrook I and Millbrook III, arguing Charleston
lacked standing to challenge a 100% annexation petition. The circuit court granted
Millbrook's motion to dismiss and held Millbrook's annexation into North
Charleston was complete on December 28, 2017, upon the enactment of the 2017
Ordinance. The circuit court stated our supreme court has ruled that a municipality
has no standing to challenge a 100% annexation petition and the only non-statutory
party that may challenge a municipal annexation is the State through a quo
warranto action. Charleston acknowledged that the State has not challenged either
the 2017 or the 2018 Ordinance. Furthermore, the circuit court examined the
language of the 2017 Ordinance and found it never made any claim to annex Parcel
006-1 and thus did not attempt to annex it. Lastly, the circuit court held our
supreme court declined to adopt the prior pending proceedings rule in City of
Columbia v. Town of Irmo and likewise declined to do so. See 316 S.C. 193, 447
S.E.2d 855 (1994). As a result, the circuit court found North Charleston's 2017
Ordinance properly annexed Parcel 006 on December 28, 2017, and Charleston
had no standing to challenge this annexation.

ISSUES ON APPEAL

I. Did the circuit court err in concluding North Charleston's 2017 Ordinance did
not intend to annex Parcel 006-1?
II. Did the circuit court err in concluding the Supreme Court of South Carolina
has declined to adopt the prior jurisdiction doctrine?

STANDARD OF REVIEW

"In reviewing the dismissal of a claim for failure to state facts sufficient to
constitute a cause of action under Rule 12(b)(6), SCRCP, the appellate court
applies the same standard of review as the trial court." Sloan Constr. Co. v.
Southco Grassing, Inc., 377 S.C. 108, 112, 659 S.E.2d 158, 161 (2008).

A ruling on a 12(b)(6) motion to dismiss must be based
solely upon the allegations set forth on the face of the
complaint and the motion cannot be sustained if facts
alleged and inferences reasonably deducible therefrom
would entitle the plaintiff to any relief on any theory of
the case.

Toussaint v. Ham, 292 S.C. 415, 416, 357 S.E.2d 8, 9 (1987). "The question is
whether, in the light most favorable to the plaintiff, and with every doubt resolved
in his behalf, the complaint states any valid claim for relief." Plyler v. Burns, 373
S.C. 637, 645, 647 S.E.2d 188, 192 (2007).

LAW/ANALYSIS

I. Statutory Standing

Charleston argues it possesses standing to challenge North Charleston's annexation
of Parcel 006 as the 2017 and 2018 Ordinances infringe upon its "proprietary
interests or statutory rights" because the 2017 Ordinance included Parcel 006-1,
which was annexed into Charleston in 2005. Charleston relies on Bostick v. City of
Beaufort in arguing that the 2017 Ordinance was fatally flawed because the
inaccuracies in the description of the proposed property to be annexed created a
substantive defect that could not be corrected through a subsequent ordinance. See
307 S.C. 347, 350, 415 S.E.2d 389, 391 (1992). We disagree.

Our supreme court in Bostick held:

Procedural or technical deficiencies in an ordinance may
be corrected by a subsequent ordinance, but not
substantive defects. We conclude that omission of the
date from two of the petitions constituted a technical flaw
in Ordinance 0-07-89. This flaw was corrected by
Ordinance 0-31-89, which effectively ratified the valid
portion of Ordinance 0-07-89. Conversely, the omission
of descriptions for the area to be annexed and failure to
also shade such property on the plat which shows shaded
the area to be annexed is a substantive defect in the
petitions. We find that Ordinance 0-07-89 was fatally
flawed from its inception as to annexation of the
Bosticks' property.

307 S.C. at 350, 415 S.E.2d at 391. The court specifically referenced the property
description requirement of subsection 5-3-150(1), which states, "The petition shall
contain a description of the area to be annexed and there shall be attached to the
petition a plat of the area to be annexed . . . ." Bostick, 307 S.C. at 349–50, 415
S.E.2d at 391. Therefore, the court found the omission of the property description
for the area to be annexed and the failure to show this area on the plat was
substantive because it was in direct contravention of subsection 5-3-150(1)'s
statutory requirements.

Here, the 2017 Ordinance does not omit the property description but inadvertently
incorporates Parcel 006-1 (a parcel that did not exist at the time North Charleston
drafted the 2017 Ordinance). Subsection 5-3-150(1) requires that "the petition
must contain a description of the area to be annexed and there must be attached to
the petition a plat of the area to be annexed." S.C. Code Ann. § 5-3-150(1) (2004).
The record demonstrates that North Charleston sufficiently complied with both of
subsection 5-3-150(1)'s requirements by including a description of the property to
be annexed and attaching a plat of the area. North Charleston's inadvertent
inclusion of Parcel 006-1 based upon then existing county information was a
technical deficiency capable of correction by the 2018 Ordinance. See Bostick,
307 S.C. at 350, 415 S.E.2d at 391; see also 62 C.J.S. Municipal Corporations §
102 ("[W]here a statute or ordinance so requires, a map, plan, or plat must be filed
or recorded and approved by municipal or other authorities. A substantial
compliance with the statutes is sufficient."); § 8:33 Boundary changes—
Procedures, 1 Local Government Law § 8:33 ("Courts have generally held that a
description which conforms substantially to the provisions of the pertinent statute
suffices, allowing leeway for slight or trivial errors . . . ."). Further, South Carolina
does not require scientific precision when describing property in other property
disputes. See Hoyler v. State, 428 S.C. 279, 295, 833 S.E.2d 845, 853–54 (Ct.
App. 2019) ("While a property description need not be perfect, it must allow one
examining it to identify the property conveyed; otherwise, the conveyance is
void.").

We therefore affirm the circuit court's finding that the 2017 Ordinance was lawful
as it did not attempt to annex Parcel 006-1 but, instead, attempted to clarify its
intent to annex only Parcel 006. Consequently, Charleston's argument that it
possesses standing based on infringement of its statutory and proprietary rights is
moot. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518
S.E.2d 591, 598 (1999) (declining to address remaining issues when a prior issue
was dispositive); Ex parte State ex rel. Wilson, 391 S.C. 565, 572, 707 S.E.2d 402,
406 (2011) ("The 100% petition method provides neither an express notice
provision nor an authorization for third parties to challenge the annexation. . . .
Rather, '[i]n order to challenge a 100% annexation, the challenger must assert an
infringement of its own proprietary interests or statutory rights.'" (quoting St.
Andrews Pub. Serv. Dist. v. City Council of Charleston, 349 S.C. 602, 604, 564
S.E.2d 647, 648 (2002))); id. at 573–74, 707 S.E.2d at 407 ("The ordinance recites
that the annexation was achieved using the 100% petition method. If we went
behind that assertion without a proper plaintiff, we would be inviting a sliding
scale for standing: the more meritorious a claim appears, the more relaxed the
standing requirement would be. We rejected such reasoning when we overruled
Quinn v. City of Columbia.").
II. Prior jurisdiction doctrine

Charleston argues that before North Charleston gave first reading to either the
2017 Ordinance or the 2018 Ordinance, Charleston's City Council already accepted
a petition to annex Parcel 006 and ordered a public hearing on the matter.
According to Charleston, under the common law "prior jurisdiction doctrine" also
called the "prior pending proceedings rule," this entitled Charleston to complete the
annexation without interference. However, our supreme court has previously
declined to address whether these common law doctrines apply in South Carolina.
See City of Columbia v. Town of Irmo, 316 S.C. 193, 196, 447 S.E.2d 855, 857
(1994) ("We decline to reach the issue of whether the 'prior pending proceedings'
rule should be adopted by this Court." (emphases added)). As such, the circuit
court did not err in holding that Charleston lacks current or existing precedent
supporting this alternative argument for standing.

Based on the foregoing analysis, the circuit court is
AFFIRMED.

THOMAS, J., and LOCKEMY, A.J., concur.