Sam's Spit

Update December 2023, ARDA expiration and land transfers:

Please find copies of the PreserveKiawah letters sent to KICA and TOKI below.

Also:

• the KICA Board of Directors sent a letter to Kiawah Partners requesting satisfaction of the same ARDA obligations that are detailed in the PreserveKiawah letter.

____________________________________________________________________________________________

PreserveKiawah 

c/o Post & Computer Center 

130 Gardeners Circle, PMB 311 

Johns Island, SC 29455 

PreserveKiawah@gmail.com 

December 5, 2023 

To the Board Members of the Kiawah Island Community Association (KICA):  

Jerry McGee, Beth Zampino, Lisa Mascolo, David DeStefano, Kevin Donlon, Alex Fernandez, Amanda Mole   

23 Beachwalker Drive   

Kiawah Island, SC 29455   

Re: Immediate Action Required on Post-Expiration Enforcement of Developer Commitments Under the 2013 Amended and Restated Development Agreement (ARDA) 

Dear KICA Board Members, 

As Board Members of PreserveKiawah - Todd Boney (Director), Perry Molinoff (Chair of the Board and President), Larry Rutkowski (Director), Mark Dunlap (Director), and Anne Seuffert (Director) - we write to you collectively to urgently address the post-expiration responsibilities of the KICA Board, particularly the enforcement of commitments made by Kiawah Resort Associates, L.P. (the "Partners"), as per the 2013 Amended and Restated Development Agreement (ARDA). 

The Supreme Court of South Carolina's ruling in Brad J. Walbeck and Lea Ann Adkins, Both Individually and Derivatively on behalf of The I'On Assembly, Inc. v. The I'On Company, LLC, et al. (Opinion No. 283134, February 8, 2023), serves as a critical reminder of the fiduciary duty that HOA Board Members hold, especially in ensuring the enforcement of a developer's commitments. 

The ARDA, which expired on December 4, 2023, contained pivotal commitments from the Partners: 

1. Section 16(a): Conveyance of Low Lands and Marsh Lands** - The ARDA mandated the conveyance of approximately 4,000 to 5,000 acres of low lands and marsh lands contiguous to Kiawah Island to KICA by the aforementioned expiration date. 

2. Section 16(f): Restrictive Covenants on Captain Sam's Spit - This section obligated the Partners to limit development on Captain Sam's Spit and to convey approximately 117 acres of this land to KICA, as detailed in Exhibit 16.2 of the ARDA. 

It is now evident that the Partners have failed to fulfill these obligations by the stipulated deadline. This lack of compliance not only undermines the ARDA but also potentially compromises the environmental integrity and community value of these lands. 

As Board Members of PreserveKiawah, we strongly urge the KICA Board to take immediate and decisive action to enforce these commitments. The failure to do so could be perceived as a neglect of the Board's fiduciary duties to the Community. The preservation of Kiawah Island's natural landscapes and the rights of its community members must be a paramount consideration. 

We expect that the KICA Board will prioritize these issues and act swiftly to ensure the Partners' adherence to their obligations under the ARDA. The community's interest and the environmental well-being of Kiawah Island depend on your prompt action. 

We appreciate your attention to this pressing matter and trust that you will take the necessary steps to uphold the community's best interests. 

Sincerely, 

Todd Boney, Director   

Perry Molinoff, Chair of the Board and President   

Larry Rutkowski, Director   

Mark Dunlap, Director

Anne Sueffert, Director

PreserveKiawah 

cc: Mark Permar, Representative, Kiawah Resort Associates, L.P.   

TOKI Council and Mayor

______________________________________________________________

PreserveKiawah 

c/o Post & Computer Center 

130 Gardeners Circle, PMB 311 

Johns Island, SC 29455 

December 5, 2023 

John Labriola, Mayor   

Brad Belt, Council Member   

Russell Berner, Council Member  

Michael Heidingsfelder, Council Member   

The Town of Kiawah Island   

4475 Betsy Kerrison Pkwy   

Johns Island, SC 29455 

Dear Mayor Labriola, Council Members Belt, Berner, and Heidingsfelder, 

Re: Post-Expiration Enforcement of ARDA Commitments for Captain Sam’s Spit 

On behalf of the Board Members of PreserveKiawah - Todd Boney (Director), Perry Molinoff (Chair of the Board and President), Larry Rutkowski (Director), Mark Dunlap (Director), and Anne Seuffert (Director) - we collectively address an urgent issue following the expiration of the 2013 Amended and Restated Development Agreement (ARDA) on December 4, 2023. This concerns the commitments made under Section 16(f) of the ARDA by Kiawah Resort Associates, L.P. (the "Partners") regarding the future of Captain Sam’s Spit. 

Section 16(f) clearly states that prior to the ARDA's termination date, the Partners were to restrict all remaining undeveloped highlands of Captain Sam’s Spit to non-developable, passive green space through a restrictive covenant recorded in the Charleston County RMC office. Additionally, an easement was to be offered to KINHC for this acreage, subject to their acceptance, with an eventual conveyance to KICA. 

As of today, post-ARDA expiration, it appears these obligations have not been met. The commitments in the ARDA are explicit, and the failure of the Partners to adhere to these terms is a matter of significant concern. It not only undermines the ARDA but also puts at risk the environmental integrity and communal value of Captain Sam’s Spit. 

We urge the Town Council to engage with Mark Permar and the Partners to address this non-compliance and ensure the immediate recording of the necessary restrictive covenant. This action is essential to preserve Captain Sam’s Spit as a natural and non-developable green space, fulfilling the ARDA's stipulations and the community’s expectations. 

We also plan to reach out to the members of the KICA Board to encourage them to take the necessary steps to protect the interests of their members and uphold the commitments regarding Captain Sam's Spit as mandated by the ARDA. 

We appreciate your prompt attention to this critical issue and trust that the Town Council will take appropriate actions in response to this non-compliance. 

Sincerely, 

Todd Boney, Director   

Perry Molinoff, Chair of the Board and President   

Larry Rutkowski, Director   

Mark Dunlap,, Director

Anne Seuffert, Director

PreserveKiawah  

cc: Mark Permar, Representative, Kiawah Resort Associates, L.P.   

KICA Board 

Update July 2023:

KI Community:

You may recall that last August, the South Carolina Environmental Law Project (SCELP) on behalf of PreserveKiawah, filed an appeal that challenged the Town of Kiawah Island Planning Commission's July 6, 2022 decision to extend the Partners' vested rights under a Preliminary Subdivision Plan for Captain Sams Spit.  The Preliminary Subdivision Plan reflected up to Fifty (50) home sites that were planned for development on the environmentally sensitive Spit.

The Partners were unable to pursue any development efforts under the Preliminary Subdivision Plan during the pendency of PreserveKiawah's court challenge.  More importantly, the Partners and the Town have recently conceded that their "vested rights" under the challenged Plan have expired and the Plan is no longer valid. See attached press release.

We are thankful to SCELP for its Counsel and efforts to help PreserveKiawah protect Captain Sams Spit as the 109-acre dynamic, teardrop-shaped isthmus is a unique and important habitat for wildlife, including diamondback terrapins, endangered red knots and bottlenose dolphins as well as valuable natural resource to all.

You can learn more about PreserveKiawah and SCELP by visiting the following links:  

PreserveKiawah

South Carolina Environmental Law Project

Sincerely,

Perry Molinoff

Chairman of PreserveKiawah

Click Here: Sam's Spit Petition and Notice of Appeal 08-04-2022

Date: July 14, 2022 at 3:25 PM

Subject: Re: [iKiawah] Sam Spit -- The Controversy Continues!

To: IKiawah <ikiawah@googlegroups.com>

The discussion regarding Sam’s Spit has gotten very “in the weeds” on the precise wording and applicability of municipal ordinances and state statutes.  I want to take a step back and take a look at the bigger picture as to how we’ve come to this place.  The more time I spend on this, the more I find the Town’s actions to be odd and deeply unsettling - especially over the past month.

Just a brief bit of history.  The original Preliminary Subdivision Plat was approved in 2015 pursuant to the Town’s subdivision ordinances.  Two things are particularly noteworthy.  

First, there were a number of conditions imposed by the Planning Commission at that time before a final subdivision plat, which would be a recorded document, would be approved.  Eight years later, none of those conditions have been satisfied.  Second, subdivision regulations provided for a 3 year approval period and single six month extension.  At that time, the applicant did not question the applicability of the 3 year approval period, nor did the Town.  All of this took place 10 years after the state Vested Rights Act was enacted, which is relevant given the arguments Town counsel is now advancing.  

Jump to 2017.  At that time, the developer submitted a request for an annual extension, now based on the Town’s vested rights ordinance, 12-194.  It was the developer’s view that 12-194 was the applicable ordinance,  even though no support was provided for deeming the preliminary subdivision plat as a “site specific development plans”.  The Town now states on the TOKI website that the Town “rejected” the extension request. There is no record in the Planning Commission meeting minutes of a denial of the extension request.  What I understand is that the Planning Director may have “rejected” the request.  The Town now appears to be saying that was an error. 

Regardless, and this is critical, if the developer believed that the “rejection” was in error, the Town’s ordinances provides for a 30-day period to appeal the decision to Charleston County court.  The developer did not appeal and its failure to do so should have extinguished any further its extension rights it might otherwise have had beyond the initial approval period - whether 2 or 3 years.   

Nonetheless, we come to 2018, and the Town blithely accepts and approves a one-year extension. Nothing mentioned about a Town error or the failure of the developer to timely pursue its appeal rights the prior year. And, both the developer and Town now seem to be on the same page - that the applicable ordinance was 12-194 - even though there still was still no explanation provided anywhere in the record as to how a preliminary subdivision plat had morphed into a “site specific development plan.”  Another critical point here - 12-194 provides for an initial 2 year approval period followed by a maximum additional 5 years (in one year increments, if sought).

Fast forward to one month ago - and this is where it begins to get Through the Looking Glass weird.  Another annual extension request shows up on the Planning Commission June calendar, even though 7 years had now lapsed since the original preliminary approval.  Nonetheless, the agenda materials included a highlighted subparagraph of 12-194 indicating that the Town was required to approve the extension. A few of us started looking at this and asking questions, as it did not appear that the developer was entitled to a further extension, nor could one be granted.  And, at a sparsely attended Planning Commission, the newer members of the Commission were asking the same questions.  So what happened?  Commission member Joanne Hennessy noted that even if 12-194 applied, which was questionable, the developer already had the benefit of the 7 years allowed under the ordinance and she moved to deny the extension as moot.  The Planning Director quickly jumped in and said that the Commission didn’t have to make a decision then and could wait for further “clarification.”  The pending extension request was then tabled.  

What is also noteworthy about this meeting is that it wasn’t noteworthy up until that point.  There were only a handful of attendees in the room (I was one of them).  From the Town, only the Planning Director and the Town Council liaison were there.

Contrast that to last week.  First, there was an executive session scheduled at the Town Council meeting about the requested extension, even though the Planning Commission was the decision-making body.  Then another executive session scheduled at the Planning Commission meeting.  Attendees at this meeting include 3 Council members, Town counsel and the Town Administrator.  I’ve skimmed through two years of Planning Commission meetings and didn’t find any other regular meeting of the Commission that had that show of force from Town leadership.  

As had been noted elsewhere, at the meeting itself, there was absolutely no discussion of the whys and wherefores of the extension during the public portion of the meeting.  No case put forward by the developer or any developer representative as to why it felt it was entitled to an extension.  The chair dismissed the request of PreserveKiawah to discuss the legal analysis against extension that had been sent to Town Counsel the day before.  We learned in real-time that the analysis provided by PreserveKiawah counsel had been withheld from Planning Commission members until 30 minutes before the meeting.  

Then, early the next day, there was a clearly pre-baked update to the Development Resources page of the Town’s website addressing the Planning Commission’s approval.  Below is one portion - a self-asked question:

"Why did the Planning Commission approve an annual extension for the land known as Captain Sam’s Spit?

On July 6, The Planning Commission approved an annual extension request for the approved preliminary subdivision plat for lands of KDP II, LLC & Kiawah Resort Associates, LP. – Cape Charles (Captain Sam’s Spit). This extension request for the subject approved preliminary plat now grants a one-year extension which expires on July 6, 2023."

Does that strike you as an answer?

It’s actually not clear what the update is or supposed to be?  It can’t be an explanation for why 4 members voted yes to approve an extension - because there was no reason given.  Unless someone was taking notes in executive session and the 4 members explained that was the basis for their informed decision.  Apart from other reasons to question that, it can’t be correct because deliberation and decision-making are required by state law to take place in public, not behind closed doors.

Is it an opinion of counsel?  If so, what is counsel opining to - that an extension was required?  That it wasn’t required, but could be approved if the Commission thought that an extension was in the best interests of the community?  Or that it wasn’t actually required but should be approved?  Because, why?  The developer asked nicely?  Because the Town arguably made a mistake 5 years ago and wanted to make amends to the developer?  Because the Town counsel said the Town would be sued by the developer with potentially millions in economic damages if the extension wasn’t approved? 

What it clearly is - a reverse engineered, legally specious, and logically inconsistent effort to justify a predetermined outcome.  Out of whole cloth a new argument is advanced that even though the developer had pursued an extension under 12-194, which would have provided for a maximum of 5 years of extensions, 12-194 is no longer applicable and is superseded in its entirety by the state Vested Rights Act, which provides for at least 5 annual extensions.  Which Act was adopted 17 years ago - and this is the first time its come up?  No longer is it that the Planning Commission was required to approve, as previously asserted by both the developer and the Town, but now could if it wanted to.  Which it did. So there.  Never a position advanced, at least in any public setting, by the developer itself, but advanced sua sponte by the Town counsel to the benefit of the developer.

You can't make this stuff up - I really am beginning to feel like Alice falling down the White Rabbit’s hole.

It is patently obvious from the totality of circumstances that the Town went all in to ensure that the extension was approved - even though an extension was not required and the better argument is that it wasn’t allowed under the Town’s own ordinances.  Indeed, at every turn involving the Sam’s Spit preliminary subdivision plat saga, the Town appears to have bent over backward to accommodate the interests of the developer.

Given a clearly justifiable basis (actually bases) for not approving the extension, given the overwhelming public opposition to development of Sam’s Spit, and given the SC Supreme Court decision, the question is why?  Look above - you won’t find the answer there….

Brad Belt

Bobcat Ln   

July 5, 2022

BREAKING NEWS! Sam’s Spit - Letter to Town from PreserveKiawah

PreserveKiawah, today sent to the mayor, members of town council, town counsel and the Kiawah Planning Commission the attached letter from PreserveKiawah's legal counsel.  The letter explains why there is NO valid basis for the Town or the Planning Commission to approve an extension of the preliminary subdivision plat of Capt. Sam’s Spit as requested by the Partners.

View the letter below.

The letter was delivered prior to the Town Council’s executive session today to discuss the proposed extension.

Thoughtful Analysis - Transparency - Open Communication