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Saturday, July 09, 2005 - Last Updated: 8:13 AM 

Suit fails to topple Mt. Pleasant building cap

Developer's case has no merit, according to ruling


Of The Post and Courier Staff



Mount Pleasant won a major victory when a Charleston master in equity ruled that the town acted legitimately when it established a building cap to curtail residential growth.

Master-in-Equity Mikell R. Scarborough ruled late Thursday that a lawsuit filed against the town by the developers of Hamlin Plantation in Mount Pleasant was unfounded and did not merit a trial.

Mount Pleasant Town Council instituted the building permit allocation program in 2000 to slow growth so the town's infrastructure and services, including roads, police and fire, could catch up with the area's population explosion. The cap limits the number of home-building permits issued to a 3 percent growth rate per year.

Mayor Harry Hallman Jr. said he expected the favorable court ruling because, in his mind, the building cap treats all parties fairly. The town will continue to defend its right to limit residential growth, he said.

"Anybody can go to court, but we're prepared to meet them at the courthouse," he said.

In the late 1990s, Hamlin Plantation and its parent, Sintra Corp., poured $7.5 million into development for roads, a sewer system and amenities that include a pool and community center for a 900-home subdivision off Rifle Range Road.

The developers filed a lawsuit in February 2004 after the building cap brought the pace of construction in Hamlin to a near standstill, costing the company millions of dollars as roughly 450 lots remained undeveloped.

The suit claimed the cap amounted to a lottery because developers only get a chance to obtain building permits by paying the town's building permit fee. Developers also claimed that the cap was an unconstitutional taking of private land because Hamlin isn't being allowed to develop as planned.

Developers sought an injunction that, if granted, would have ended the town's building cap.

In a 21-page ruling, Scarborough concluded that the economic impact of the cap does not amount to an unconstitutional taking from developers, partly because the town did not physically take any property.

Scarborough also concluded that the building permit fee, which predates the cap, covers administrative costs and, thus, is not an entry fee for a lottery. The cap also is not a lottery because the town holds no drawing and sells no tickets, Scarborough said.

"Because the building permit allocation program, unlike a game of chance, guarantees each applicant at least one permit, I conclude as a matter of law that the program is not a lottery," Scarborough wrote.

Town Administrator Mac Burdette said the ruling validates the cap and sends a message to other developers that the town is on solid legal ground.

"We felt all along that we had built a solid program that can withstand legal tests," he said.

It is not known whether developers will appeal the decision to the state Supreme Court. The lawyer for the developers, Keith Babcock of Columbia, said he was disappointed with the decision. He plans to review the ruling with his client in figuring out the next step.



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