Donohue v. City of North Augusta , 412 S.C. 526 ( 2015 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
Stephen P. Donohue, Appellant,
v.
City of North Augusta, the Mayor and City Council of
North Augusta, Respondents.
Appellate Case No. 2014-002235
Appeal from Aiken County
J. Ernest Kinard, Jr., Circuit Court Judge
Opinion No. 27530
Heard May 5, 2015 – Filed June 17, 2015
AFFIRMED IN PART AND REVERSED IN PART
James D. Mosteller, III, of Mosteller Law Firm, LLC, of
Barnwell, for Appellant.
Belton Townsend Zeigler, Gary Tusten Pope, Jr., and
Charles Douglas Rhodes, III, all of Pope Zeigler, LLC, of
Columbia, and Kelly F. Zier, of Zier Law Firm, of North
Augusta, for Respondents.
JUSTICE PLEICONES: This is an appeal from a circuit court order upholding
the validity of an ordinance amending respondent City of North Augusta's (City's)
1996 Tax Increment Financing District (TIF) ordinance and finding that
respondents Mayor and City Council1 did not violate the Freedom of Information
Act (FOIA).2 We affirm the order to the extent it upholds the ordinance, but
reverse the finding that respondents did not violate the FOIA, and remand that
issue with instructions.
FACTS
Appellant is a resident of North Augusta. He brought this action to challenge the
validity of Ord. No. 2013-19 which amended Ord. No. 96-10. The 1996 ordinance
created a TIF3 within the Redevelopment District4 created in 1991 by respondents'
Resolution 91-06. He also challenged respondents' compliance with the Freedom
of Information Act5 (FOIA) between January 2013 and September 2013.
ISSUES
1) Was Ord. No. 2013-19 adopted in compliance with S.C.
Code Ann. § 31-6-80(F)(2) (Supp. 2014)?
2) Did respondents violate the requirement in S.C. Code Ann.
§ 30-4-70 (2007) that they announce the specific purpose of
Council's executive sessions?
ANALYSIS
I. Validity of Ord. No. 2013-19
In 1996, respondents adopted an ordinance creating a Redevelopment Plan to
revitalize the City's riverfront and the adjacent areas. In 2013, City Council
adopted an ordinance amending the Redevelopment Plan to allow the City to
proceed with "Project Jackson." This project involves an as yet undeveloped
1
Hereafter, we refer to respondents collectively.
2
S.C. Code Ann. §§ 30-4-10 et seq. (2007).
3
See S.C. Code Ann. §§ 31-6-10 et seq. (2007 and Supp. 2014). The TIF Act
authorizes municipalities "to incur indebtedness to revitalize blighted and
deteriorating areas" within their city limits. See Wolper v. City Council of City of
Charleston, 287 S.C. 209, 212, 336 S.E.2d 871, 873 (1985).
4
See S.C. Code Ann. §§ 31-10-10 et seq. (2007).
5
Specifically, S.C. Code Ann. § 30-4-70 (2007).
parcel of riverfront property where commercial activities, including brick works,
had been located. The proposed project includes a minor league baseball stadium,
a convention center, parking decks, a YMCA, a 200 room hotel, and assorted
commercial buildings. The 2013 ordinance both extended the duration of
respondents' Redevelopment Plan and the associated TIF Bonds6 and increased the
amount of the estimated Bond Issuance to finance the Plan.7
Appellant acknowledges the TIF Act authorizes amendment of the Redevelopment
Plan ordinance, but contends that the City did not comply with the statutory
requirements of S.C. Code Ann. § 31-6-80(F) (Supp. 2014). Subsections (F)(1)
and (2) provide:
(F)(1) Subsequent to the adoption of an ordinance approving a
redevelopment plan pursuant to Section 31-6-80, the
municipality may by ordinance make changes to the
redevelopment plan that do not add parcels to or expand the
exterior boundaries of the redevelopment project area, change
general land uses established pursuant to the redevelopment
plan, change the proposed use of the proceeds of the obligations
in relationship to the redevelopment plan, or extend the
maximum amount or term of obligations to be issued under the
redevelopment plan, in accordance with the following
procedures:
(a) The municipality must provide notice of the proposed
changes by mail to each affected taxing district. The
proposed changes shall become effective only with
respect to affected taxing districts that consent to the
proposed changes by resolution of the governing body of
the taxing districts.
(b) The municipality must publish notice of the adoption
of the ordinance in a newspaper having general
circulation in the affected taxing districts. Any interested
party may, within twenty days after the date of
6
The Plan's end date was extended from December 5, 2016, to November 18,
2048.
7
The amount was increased from $13.4 million to $55 million.
publication of the notice of adoption of the
redevelopment plan, but not afterwards, challenge the
validity of the adoption by action de novo in the court of
common pleas in the county in which the redevelopment
plan is located.
(2) Subsequent to the adoption of an ordinance approving a
redevelopment plan pursuant to Section 31-6-80, the
municipality may by ordinance make changes to the
redevelopment plan that adds parcels to or expands the exterior
boundaries of the redevelopment project area, to general land
uses established pursuant to the redevelopment plan, to the
proposed use of the proceeds of the obligations in relationship
to the redevelopment plan, or to extend the maximum amount
or term of obligations to be issued under the redevelopment
plan, in accordance with the procedures provided in this chapter
for the initial approval of a redevelopment project and
designation of a redevelopment project area.
At issue here is the meaning of the last clause of subsection (F)(2) which requires
the amendatory ordinance be enacted "in accordance with the procedures provided
in this chapter for the initial approval of a redevelopment project and designation
of a redevelopment project area."
Appellant contends the final clause of § 31-6-80(F)(2) requires respondents to
redetermine that the property affected by the amended ordinance meets the criteria
set forth in § 31-6-80(A)(7) (Supp. 2014). He argues respondents were required to
hear evidence and then state their § 31-6-80(A)(7) findings8 in Ord. No. 2013-19.
8
This subsection requires:
(7) findings that:
(a) the redevelopment project area is an agricultural, blighted,
or conservation area and that private initiatives are unlikely to
alleviate these conditions without substantial public assistance;
(b) property values in the area would remain static or decline
without public intervention; and
The circuit court held that when a redevelopment ordinance is amended to increase
the amount of bonds and to extend the time to repay them, § 31-6-80(F)(2) does
not require updated or additional findings of blight, declining or static property
values, etc., as are required in the original ordinance by § 31-6-80(A)(7). The
court held the statutory language in § 31-6-80(F)(2) providing that a "municipality
may by ordinance make changes to the redevelopment plan . . . . in accordance
with the procedures for the initial approval" refers only to the procedural
requirements, i.e. public notices and hearings found in § 31-6-80(B)-(D), and not
to the substantive requirements found in § 31-6-80(A)(7). We agree.
Section § 31-6-80(F) permits a municipality to amend a Redevelopment Plan.
Subsection (F)(1) is concerned with relatively minor changes, and in those cases
provides for a simplified procedure requiring only notice to affected taxing districts
and public notice of the adoption of the amended ordinance. While (F)(1) creates a
truncated process for relatively minor changes, (F)(2) specifies that the procedural
requirements attendant to the enactment of the original ordinance, and not the
shortened process allowed in (F)(1), must be met when a more substantial change
to the Redevelopment Plan is contemplated. Since we agree with the circuit court
that (F)(2) requires only procedural compliance with § 31-6-80(B)-(D), and since
there is no contention that respondents failed to meet these requirements, we affirm
that part of the order which upholds the validity of Ord. No. 2013-19.9
II. FOIA Violations
Appellant contends that the circuit court erred in finding that between January and
September 2013 respondents complied with the FOIA's requirement that "the
specific purpose of the executive session"10 be announced in open session. The
circuit court held an announcement that the purpose of the executive session was
(c) redevelopment is in the interest of the health, safety, and
general welfare of the citizens of the municipality.
9
In light of this ruling, we do not address the additional grounds upon which the
circuit court upheld the ordinance. See Futch v. McAllister Towing of Georgetown,
Inc., 335 S.C. 598, 518 S.E.2d 591 (1999).
10
S.C. Code Ann. § 30-4-70(b) (2007).
the discussion of a "proposed contractual matter" satisfied the specific purpose
requirement. We agree with appellant that the FOIA was violated.
Section 30-4-70(a) (2007) allows a public body to hold a closed meeting for any
one of five reasons. If such a closed executive session is to be held, its "specific
purpose" must be announced in the open session. "Specific purpose" is defined by
statute as:
a description of the matter to be discussed as identified in items
(1) through (5) of subsection (a) of this section. However,
when the executive session is held pursuant to Sections 30-4-
70(a)(1) or 30-4-70(a)(5), the identity of the individual or entity
being discussed is not required to be disclosed to satisfy the
requirement that the specific purpose of the executive session
be stated.
§ 30-4-70(b).
Subsection (a)(1) covers employment matters while (a)(5) covers "Discussion of
matters related to the proposed location, expansion, or the provision of services
encouraging location or expansion of industries or other business in the area served
by the public body." Here, respondents did not invoke either (a)(1) or (a)(5), but
rather, in each of the eleven executive sessions challenged by appellant, the
minutes reflect respondents invoked only § 30-4-70(a)(2), and merely stated that
the specific purpose of the meeting was to be a "contractual matter."
In Quality Towing, Inc. v. City of Myrtle Beach, 345 S.C. 156, 547 S.E.2d 862(2001), the Court was asked to determine whether the city had met the "specific
purpose" requirement of the FOIA before going into executive session. In that
case, the written agenda reflected as item 4(C) "Towing-Contractual
Recommendation." When item 4(C) was reached, the City Council minutes
reflect:
C. Towing -- Contractual Recommendation
Mayor Grissom advised this matter would be discussed in
Executive Session
Upon motion Councilman Cain, seconded by Councilman
Woods, Council voted unanimously to go into executive
session.
Id. at 164, 547 S.E.2d at 866. In finding this notice insufficient, Court said:
FOIA is clear in its mandate that the "specific purpose" of the
session "shall be announced." (emphasis added in original
opinion). Therefore, FOIA is not satisfied merely because
citizens have some idea of what a public body might discuss in
private. As evidenced by the minutes, the presiding officer did
not announce the specific purpose of the executive session.
This was a violation of FOIA.
The City argues, even if there was no "specific purpose"
announced, reversal is not warranted because substantial
compliance with FOIA should be found when only a technical
violation has occurred, and there has been no demonstrated
effect on a complaining party. See Piedmont Pub. Serv. Dist. v.
Cowart, 319 S.C. 124, 459 S.E.2d 876 (Ct. App. 1995).
However, given the history and the purpose of FOIA, this was
more than a "technical violation." The statute clearly mandates
the specific purpose of the session must be announced.
Id.The circuit court erred in finding that respondents satisfied the FOIA's specific
purpose requirement when they announced the specific purpose of the executive
session in these types of general terms:
ITEM 1. LEGAL: Executive Session-Request of the
City Administrator
Upon the request of the City Administrator and in accordance
with Section 30-4-70 (a) (2) and on motion by Councilmember
Baggott, second by Councilmember Adams, City Council
unanimously voted to go into executive session for the purpose
of discussion of negotiations incident to 1 proposed contractual
matter.
On motion by Councilmember McDowell, second by Mayor
Jones, the executive session was adjourned. There was nothing
to report out.11
Having found respondents violated the FOIA, we now remand the issue to
determine what relief, if any, appellant is entitled to as a result of these violations.
Quality Towing, supra. Since none of the challenged executive sessions related to
Ord. No. 2013-19, we disagree with appellant's contention that the FOIA violations
would support the invalidation of Ord. No. 2013-19. On remand, the circuit court
shall limit its consideration of possible remedies to attorneys' fees and/or costs
and/or prospective injunctive relief relating to future executive sessions. See Sloan
v. South Carolina Dep't of Rev., 409 S.C. 551, 762 S.E.2d 682 (2014).
CONCLUSION
The circuit court's order is
AFFIRMED IN PART AND REVERSED IN PART.
TOAL, C.J., BEATTY, KITTREDGE and HEARN, JJ., concur.
11
This excerpt is from the minutes of the August 5, 2013 meeting.