Judge strikes down Lexington County subdivision ban, but says council can try again

Builders are free to put up new subdivisions in Lexington County. At least in theory.

A judge struck down the county’s attempt to put a moratorium on new subdivision construction on Tuesday, saying the county council had improperly closed a meeting on the idea before the ban was enacted April 13.

But Judge Debra McCaslin did not rule on wider objections the Building Industry Association of Central South Carolina brought against the moratorium, and said the county was free to try to pass the moratorium a second time.

“You’re going to have to go back and do it again,” McCaslin told Lexington County attorney Jeffrey Anderson.

Anderson told the court the county could hold a special called council meeting within days to simply approve the moratorium again. It’s unclear what, if any, new subdivision proposals could be submitted in the meantime for the lengthy approval process.

“If that’s their only problem, we could do it again by Thursday,” Anderson told the judge of the builders’ objection to how the building freeze was enacted.

The building group argued the process county council used to put the moratorium in place was illegal.

The building industry group argues the council violated the state’s Freedom of Information Act by enacting the ordinance after a closed executive session without giving the public the legal justification for the move.

“It’s vital in a democratic society that the public’s business is performed in an open manner,” attorney Jay Bender told the court. “This was a state where the plantation owner makes the rules and everybody else is expected to follow them. That attitude carried over into the mill villages... Council members seem to have the mistaken notion that they are our rulers and not our representatives.”

Bender has represented The State in Freedom of Information and other issues.

Prior to the executive session on April 13, Council Chairman Todd Cullum said the session was to “discuss the possibility of enacting an ordinance,” without getting into the legal specifics of the potential moratorium. A representative of the Building Industry Association attempted to get a copy of the proposed ordinance before the meeting, but was unable to, the suit claimed.

Anderson argued the county had been sufficiently transparent about its intentions, citing what McCaslin said was a “very detailed” outline of the proposal in its public agenda.

“That’s why the plaintiff was at the meeting, because it was on the agenda,” Anderson said. He also said the building industry’s representative was given a copy of the ordinance between the planning committee’s closed-door meeting and the full council’s vote on the moratorium later that same day.

McCaslin ruled that insufficient, finding the law required the presiding officer to announce specific reasons for the executive session spelled out in state law.

But the judge did not act on the association’s larger claim that challenged a county action that put the building freeze in effect immediately, arguing it bypassed a required three readings and a public hearing on any zoning changes.

Attorney Ellis Lessemann said many developers had invested time and money preparing property to build new homes, only to suddenly find they can’t move forward after a quick action by the county council.

But McCaslin sounded skeptical that the subdivision freeze met the legal definition of a zoning change.

“Lexington is growing uncontrollably,” she said. “They might need to put a pause on growth so they can figure out how they’re going to handle water and sewer purposes.”

That means the council could put a freeze back into effect immediately as soon as members can meet again. Anderson indicated that because members already voted on it once, holding an executive session would not even be an issue at the next meeting.

Under the moratorium, the building of single family homes and subdivisions of less than 10 lots is still permitted during the 180-day freeze, but more massive housing developments — any application to develop 10 or more lots for new housing, subdivisions with lots of less than half an acre, or developments with some “attached land use activities” — had been postponed for 180 days.

McCaslin’s decision is only the latest action a judge has taken in response to how Midlands counties conduct meetings outside of the public eye. In Richland County, a court ruled last year that Richland County Council’s decision to pay a $1 million settlement to a former administrator was invalid because of similar violations in how the council used executive session.