Karesh v. City Council

247 S.E.2d 342, 271 S.C. 339, 1978 S.C. LEXIS 334
CourtSupreme Court of South Carolina
DecidedAugust 31, 1978
Docket20757
StatusPublished
Cited by3 cases

This text of 247 S.E.2d 342 (Karesh v. City Council) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Karesh v. City Council, 247 S.E.2d 342, 271 S.C. 339, 1978 S.C. LEXIS 334 (S.C. 1978).

Opinion

Ness, Justice;

This is an action for declaratory judgment and injunctive relief to prevent the City of Charleston from entering into a contract with a private developer to construct a convention center-hotel complex in downtown Charleston. The trial [341]*341judge held the City could proceed with the project. We reverse.

The City of Charleston proposes a joint undertaking with Holywell Corporation involving the city block bounded by Hasell, Meeting, Market and King Streets. Holywell would purchase the 93,500 square foot southern section of the block and construct a hotel, a major department store, and a restaurant thereon. The City proposes to acquire the remaining portions of the block (except lands owned by St. Mary’s Church and one small adjoining portion) by purchase or condemnation, and permit Holywell to construct thereon a 500 car parking garage and a convention center.

To raise the funds for the acquisition of that portion of the project site to be owned by the City, it will use a $4.1 million Urban Development Action Grant and issue general obligation bonds. In order to pay for the costs of constructing the convention center and the parking facility, the City plans to issue and sell revenue bonds to the extent necessary. The revenue bonds will be payable from and secured solely by the revenue derived from the leasing of the convention center and parking garage to a limited partnership whose managing partner is a wholly owned subsidiary of the Holywell Corporation.

In designing the parking garage, the City undertakes to preserve as many as possible of the existing facades of architectural value on Market Street. Shallow buildings behind these facades will be leased to private entrepreneurs. Similarly, on King Street, the auditorium is to be constructed so that the street level will contain buildings for lease to retail establishments.

The critical issue in this case is whether the City of Charleston can condemn land and lease it to a private corporation for the construction of a parking facility and convention center containing rental commercial space. We believe it cannot.

[342]*342In this State, the power of eminent domain is restricted to the taking of private property for “public use.” Article 1, Section 13 of the South Carolina Constitution. While in other jurisdictions the power of eminent domain may be exercised for a public purpose, benefit or the public welfare, the courts of South Carolina have adhered to a strict interpretation of our constitutional provision. Riley v. Charleston Union Station Co., 71 S. C. 457, 51 S. E. 485 (1904); Bookhart v. Central Electric Power Co-operative, Inc., 219 S. C. 414, 65 S. E. (2d) 781 (1951). As stated in Edens et al. v. City of Columbia et al., 228 S. C. 563, 571, 91 S. E. (2d) 280, 283 (1956) :

“Our controlling decisions are to the effect that ‘public use’ means just that and private property cannot be taken except for public use, without the consent of the owner.”

The restrictive view of the power of eminent domain expressed by the framers of our constitution and the courts of this State is indicative of a high regard for private property. As the Court stated in Young et al. v. Wiggins et al., 240 S. C. 426, 435, 126 S. E. (2d) 360, 365 (1962):

“ ‘This exercise of the right of eminent domain is, in its nature, in derogation of the great and fundamental principle of all constitutional governments, which secures to every individual the right to acquire, possess, and defend property.’ ”

What constitutes a public use is ultimately a judicial question. Edens et al. v. City of Columbia et al., supra at 576, 91 S. E. (2d) 280. The term is an elastic one in order to keep abreast of changing social conditions, and presents a question of fact in each particular case. Gasque v. Town of Conway, et al., 194 S. C. 15, 8 S. E. (2d) 871 (1940); Timmons v. South Carolina Tricentennial Commission, et al., 254 S. C. 378, 175 S. E. (2d) 805 (1970).

[343]*343Appellants assert that the City, by effecting the construction of the parking garage and convention center simultaneously with the hotel and retail facilities to be owned by Holy-well, converts a public use to a private use. The trial court concluded the private rental units were merely incidental to the overall complex and did not destroy the public use concept of the parking garage and the convention center. We disagree.

We believe the proposed plan would allow the City to join hands with a developer and undertake a project primarily of benefit to the developer, with no assurance of more than negligible advantage to the general public. Anderson, et al. v. Baehr, et al., 265 S. C. 153, 217 S. E. (2d) 43 (1975). Both the convention center and the parking garage, ostensibly public facilities, are to be leased to the private developer-owner of the hotel and operated as an adjunct to the hotel operation itself. The initial lease term would extend for forty years and be subject to two extensions at the option of the lessee for ten years each.

Both the convention center and parking garage will contain retail shops which will replace the existing retail stores in the area. The developer will sublet these new shops to new merchants, not to the land-owner merchants whose property the City proposes to condemn. We cannot constitutionally condone the eviction of the present property owners by virtue of the power of eminent domain in favor of other private shopkeepers.

Apart from the displacement of present shopkeepers with other occupants, we do not believe the proposed use of the city block would serve a public use. We are aware of decisions recognizing parking facilities as a public use for which property may be condemned. City of Richmond v. Dervishian, 190 Va. 398, 57 S. E. (2d) 120, 124 (1950); Ermels v. Webster City, 246 Iowa 1305, 71 N. W. (2d) 911 (1955); Timmons v. S. C. Tricentennial Commission, supra. However, in this case, Holywell, as a long-term les[344]*344sor, would have full control over the convention center and parking garage. The only restriction on Holywell’s use is a requirement that the garage “shall be made available on reasonable demand to all members of the general public,” and that “no more than 10 percent of the space in the Parking Garage may at any one time be reserved for the exclusive use of patrons and employees of the Convention Center.” (Tr. pp. 21-22).

The guarantee that the public will enjoy the use of the facilities, so necessary to the public use concept, is absent. The following language from Riley v. Charleston Union Station Co., supra, 71 S. C. at 486, 51 S. E. at 496, quoted approvingly in Edens et al. v. City of Columbia et al., supra, is illustrative of the requirement of a definite use by the public:

“These definitions involve the idea that the public must have a definite and fixed use of the property to be condemned, independent of the will of the person or corporation taking title under condemnation, and that such use by the public is protected by law.”

Similarly in Tuomey Hospital v. City of Sumter et al., 243 S. C. 544, 551, 134 S. E. (2d) 744, 747 (1964), the Court stated :

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Karesh v. CITY COUN. OF CITY OF CHARLESTON
247 S.E.2d 342 (Supreme Court of South Carolina, 1978)

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Bluebook (online)
247 S.E.2d 342, 271 S.C. 339, 1978 S.C. LEXIS 334, Counsel Stack Legal Research, https://law.counselstack.com/opinion/karesh-v-city-council-sc-1978.