By Warwick Jones
Threats of lawsuits to restrain the city, the State Ports Authority and cruise ship lines have been commonplace for a year or so. But it appears the threat is likely to become a reality.
The South Environmental Law Center is preparing a complaint to be filed in a state court with Carnival Lines as the defendant. The Coastal Conservation League is the original plaintiff and last week the Historic Ansonborough Neighborhood Association voted to join it.
In addition, the South Environmental Law Center expects that the Charleston Neighborhood Association will also vote to join it when it meets later this month.
The summary sent to Historic Ansonborough Neighborhood Association members stated that a complaint would be filed in South Carolina state court seeking a legal declaration that cruise operations in Charleston are being undertaken in violation of certain local and state laws.
The complaint would include the following claims:
- Cruise operations are not a permitted use in areas classified for “light industrial” use;
- Cruise operations include accommodations, which are not permitted at the Union Pier Terminal;
- Amplified sounds from cruise ships violate the noise ordinance;
- The noise, soot, and traffic that result from the cruise ships’ presence create a nuisance to neighbors who suffer a loss of enjoyment of and value in property;
- Pollutants being released by Carnival into the Charleston harbor violate the S.C. Pollution Control Act and do not have required permits;
Of Historic Ansonborough Neighborhood Association 200 or so members, 30 turned up for the meeting. Of that number, 23 voted to join the suit and seven were opposed.
Blan Holman of the South Environmental Law Center made a short presentation and told members that preparation for a suit had been underway for some months. There was no guarantee that the suit would be successful.
Historic Ansonborough Neighborhood Association President Kirk Grant assured members that there would be no liability on the part of the association or its members if the suit failed and Carnival Line decided to countersue.
Grant is a law professor and his opinion was based on his interpretation of state law that applied to nonprofit organizations. Holman also opined that Carnival Lines was also unlikely to countersue because he though there were no ground for a countersuit in his opinion, and because of the opprobrium of suing a neighborhood group.
Holman said that the suit split into three broad categories. He stated the first related to city ordinances and their application. The zoning at Union Pier was light industrial and this did not include cruise ships.
Cruise ships accommodated large numbers of passengers, sometimes amounting to double that which can be accommodated by the city’s largest hotel. The cruise ships should fall under the accommodation overlay of the city and thereby be subject to regulation.
The second related to nuisance issues and related to noise, pollution and traffic. These created hardships for surrounding communities. Its remedy rests essentially in common law.
The third related to environmental issues. The cruise ships discharge pollutants in state waters and therefore should need state permits to do so.
Holman stated that there was no precedent for the suit that was being prepared. Also, he noted that the suit was looking to the courts for guidance on some of these issues. The decision as to how to proceed beyond the planned suit would depend on the courts’ decisions.
Presumably, if the courts decided that cruise ships did indeed fall under the accommodation overlay, the city would be sued if it did not move to enforce the overlay. He also said that he hoped that more information would come to light in the “discovery” process as the SELC seeks information from Carnival, specifically relating to cruise ship discharges.
It was likely that the State Ports Authority would also become a defendant with Carnival Lines as a defendant, Holman said. But he did not expect the city to become one.
The vote to join the suit was no surprise. The association last year voted to request the city to regulate cruise ship visits and the size.
Although the association supported the agreement between the city and the Ports Authority to limit visits to about two a week average and a vessel size to a 3,500-passenger complement, it wanted a legally enforceable document.
Earlier this year, it voted to support the CNA petition which amongst other things, sought to have the cruise ship terminal located somewhere other than Union Pier. The petition also sought the sale of the Union Pier property to a private developer.
It was interesting that a senior member of one of Charleston’s large law firms stated at the meeting that, in his opinion, the suit had no chance of success. He also noted that he was not happy about Carnival Lines but thought the Union Pier development plan was a good thing for the city.
But he had a fear that the Ports Authority will abandon the plans for the Union Pier terminal if it is confronted with a law suit. He also said that the whole process with appeals, could take three years or more.
Warwick Jones is a resident of Charleston and has been involved with a number of area organizations, including the Charleston County Greenbelt Advisory Board and the Preservation Society of Charleston.
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