THE STATE OF SOUTH CAROLINA
In The Supreme Court
Faye P. Croft, Personally and as Trustee of the James A.
Croft Trust; James A. Croft Trust; William A. Harbeson;
Heyward G. Hutson; James Stephen Greene, Jr.; South
Carolina Public Interest Foundation; Summerville
Preservation Society; and Dorchester County Taxpayers
Association, individually, and on behalf of all others
similarly situated, Petitioners,
v.
Town of Summerville and Town of Summerville Board
of Architectural Review, Respondents.
Appellate Case No. 2020-000334
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from Dorchester County
Edgar W. Dickson, Circuit Court Judge
Opinion No. 28036
Heard March 3, 2021 – Filed June 16, 2021
VACATED
Michael T. Rose, of Mike Rose Law Firm, PC, of
Summerville, and W. Andrew Gowder Jr., of Austen &
Gowder, LLC, of Charleston, for Petitioners.
G. Waring Parker, of G. Waring Parker Law Firm, LLC,
of Summerville, and Timothy Alan Domin, of Clawson &
Staubes, LLC, of Charleston, for Respondents.
Jay Bender, of Baker, Ravenel and Bender, LLP, of
Columbia, for Amicus Curiae South Carolina Press
Association.
JUSTICE JAMES: In this appeal, several Summerville residents and public
interest groups (Petitioners) ask the Court to invalidate approval granted by the
Town of Summerville Board of Architectural Review (the Board) for construction
of a proposed development project (the Project). Petitioners contend the Board
violated the Freedom of Information Act (FOIA)1 and various Summerville
ordinances. At some point during Petitioners' appeal of the Board's decision,
Applegate & Co. (the Developer) decided not to go forward with the Project. Since
there remains no actual controversy for this Court to decide, we vacate the court of
appeals' decision and dismiss Petitioners' appeal as moot.
Background
On July 9, 2014, the Town of Summerville (the Town) and Town of
Summerville Redevelopment Corporation entered into an agreement with the
Developer to construct the Project. The Project, to be called "The Dorchester,"
included plans for a conference center, hotel, condominiums, and parking garage.
The Developer subsequently sought design approval from the Board.
The Board is a seven-member public body charged with reviewing
applications for construction, modification, and demolition within Summerville's
historic district. Summerville, S.C., Code of Ordinances § 32-175(b), (f). As a
public body, the Board must comply with the record disclosure and open meeting
requirements of FOIA and Summerville's ordinances. See S.C. Code Ann. §§ 30-4-
30, -60; Summerville, S.C., Code of Ordinances §§ 32-176(d)-(e), -182(b). Pertinent
provisions of both are discussed below.
1
S.C. Code Ann. §§ 30-4-10 to -165 (2007 & Supp. 2020).
On July 21, 23, and 29, 2014, six Board members2 met on separate occasions
with the Mayor of Summerville and the Developer in groups of two. Prior to those
gatherings, the Board Secretary wrote in an email to Board members:
The Mayor would like to get your input and thoughts on this project
while still in the very early stages of design. His thought is to meet you
at his home . . . in a casual setting, two board members at a time for
approximately 30 minutes (no possibility of it looking like a quorum).
The gatherings at the Mayor's house were not open to the public, and the Board did
not keep minutes of the gatherings.
On October 6 and November 3, 2014, the Board held publicly-noticed
meetings and discussed the Project. Minutes were kept, and the Board took public
comment during the meetings. The Board did not vote on the Project at either
meeting.
On December 12, 2014, six Board members met with the Developer in pre-
arranged groups of three on two separate occasions. The Board Secretary wrote in
an email to Board members:
To avoid any possibility of a quorum (as this is not a public meeting),
please stay within your agreed time frame. Please remember this is a
workshop to give you an opportunity to review plans and discuss
concerns from prior meetings.
These two gatherings were not open to the public, and the Board did not keep
minutes of the gatherings.
On January 5, 2015, the Board held a publicly-noticed meeting and discussed
the Project. Minutes were kept. The meeting was held in the Town Hall Annex
training room, while the other public meetings about the Project were held in the
Town Hall Annex council chambers. According to a letter written by an attendee of
the meeting, "there were far too few seats to accommodate the number of people
crowded into the [training room]." The Board Chairman opened the meeting by
stating "we usually choose to allow others to express comments that might help
influence our decision making," and asked the attendees to limit their comments to
2
One Board member recused himself from all Board discussion of the Project due
to a conflict of interest. Accordingly, only six Board members considered, and
ultimately voted on, the Project.
three minutes. However, the Board did not take public comment during the meeting.
The Board granted the Project "conceptual and preliminary approval" during the
meeting. The Board also approved demolition of a gas station, contingent upon the
Project receiving final approval.
On January 12, 2015, the Board held a publicly-noticed meeting to discuss the
Project's demolition needs. Minutes were kept. The Board did not take public
comment during the meeting. The Board voted to allow demolition of several
buildings, contingent upon the Project receiving final approval.
On April 6 and May 11, 2015, the Board held publicly-noticed meetings and
discussed the Project. Minutes were kept, and the Board took public comment
during both meetings. During the April 6 meeting, the Board granted the Project
"conditional final approval." During the May 11 meeting, the Board granted the
Project final approval.
Petitioners timely appealed the Board's April 6 and May 11 decisions to the
circuit court, seeking a reversal of the Board's approval of the Project.3 Petitioners
claimed the Board violated FOIA and applicable Summerville ordinances
throughout its review of the Project. Petitioners did not seek to enjoin the Developer
from constructing the Project while Petitioners' appeal was pending. By order dated
September 24, 2015, the circuit court affirmed the Board's approval of the Project.
Petitioners timely appealed to the court of appeals. The court of appeals affirmed
the circuit court and upheld the Board's approval of the Project. Croft v. Town of
Summerville, 428 S.C. 576, 837 S.E.2d 219 (Ct. App. 2019). This Court granted
Petitioners a writ of certiorari to review the court of appeals' decision.
Discussion
Petitioners ask this Court to reverse the court of appeals and invalidate the
Board's approval of the Project. Petitioners allege the Board violated several FOIA
provisions and Summerville's ordinances during the Board's review of the Project.
For example, Petitioners contend the gatherings of small groups of Board members
with the Developer in July and December 2014 were "meetings" of "committees" of
the Board required to be open to the public. See S.C. Code Ann. §§ 30-4-20(a), (d),
(e), -60. Petitioners claim the Board also violated FOIA by holding the January 5,
2015 meeting in a room that was too small to allow public participation. Petitioners
also argue the Board violated a Summerville ordinance by failing to give the public
the opportunity to comment during the January 5 and January 12, 2015 public
3
The appeals were consolidated by consent of the parties.
meetings during which the Board considered the Developer's application to demolish
structures. See Summerville, S.C., Code of Ordinances § 32-182(b).
Again, Petitioners contend the only appropriate remedy for these alleged
violations is invalidation of the Board's approval of the Project. Granting such relief
would prohibit the Developer from moving forward with the Project and would
require the Developer to obtain new Board approval before any construction could
begin.
A. Mootness
During oral argument, members of the Court asked counsel for Petitioners and
Respondents about the current status of the Project. Petitioners' counsel responded,
"my understanding is that the Project is not going forward," and explained he
believed the Developer made the "economic decision" to abandon the Project.
Respondents' counsel provided the same information to the Court. Counsel
explained the Developer abandoned the Project when the Town committed what the
Developer thought was an insufficient amount of funding for the public
improvement portion of the Project. During oral argument, counsel for both
Petitioners and Respondents acknowledged the Developer's abandonment of the
Project likely rendered Petitioners' appeal moot.
"Generally, this Court only considers cases presenting a justiciable
controversy." Sloan v. Friends of the Hunley, Inc., 369 S.C. 20, 25, 630 S.E.2d 474,
477 (2006). "An appellate court will not pass on moot and academic questions or
make an adjudication where there remains no actual controversy." Curtis v. State,
345 S.C. 557, 567, 549 S.E.2d 591, 596 (2001). "A moot case exists where a
judgment rendered by the court will have no practical legal effect upon an existing
controversy because an intervening event renders any grant of effectual relief
impossible for the reviewing court." Sloan, 369 S.C. at 26, 630 S.E.2d at 477.
Counsel for Petitioners and Respondents are correct this appeal is now moot.
In their brief, Petitioners ask the Court "to invalidate the [Board] approvals of the
Project and . . . require the [Developer] to obtain new approvals following lawful
procedures." Respondents ask the Court to affirm the Board's approval of the
Project. At its core, the fight in this case is over whether the Developer can build
the Project as currently approved by the Board, or whether the Developer must return
to the Board and obtain new approval before building the Project. This controversy
ended when the Developer decided not to build the Project. A decision rendered for
either party would not provide any practical relief and would be a purely academic
exercise by this Court.
B. Exceptions to Mootness
Petitioners request the Court to consider two exceptions to the mootness
doctrine. First, they urge the Court to decide the merits of the appeal because the
issues at play are capable of repetition, yet evade review. This Court has recognized
this exception to the mootness doctrine. See, e.g., Byrd v. Irmo High School, 321
S.C. 426, 431-32, 468 S.E.2d 861, 864 (1996). However, for the exception to apply,
"the action must be one which will truly evade review." Sloan, 369 S.C. at 27, 630
S.E.2d at 478. The exception is most applicable in situations where the prejudice
suffered by the complaining party is temporary and has ended by the time of
appellate review. See Byrd, 321 S.C. at 432, 468 S.E.2d at 864 (finding short-term
student suspensions evade review because they are, "by their very nature, completed
long before an appellate court can review the issues they implicate"). Even if the
issues related to alleged FOIA and ordinance violations by the Board are capable of
repetition, they do not evade review. Here, Petitioners' appeal became moot because
the Developer decided to abandon the Project, not because Petitioners had
insufficient time to challenge the Board's approval before the controversy ended.
Petitioners also ask this Court to decide the merits of the appeal under the
public interest exception to the mootness doctrine. An appellate court may address
an issue despite its mootness "when the question considers matters of important
public interest." Sloan, 369 S.C. at 26-27, 630 S.E.2d at 478. For this exception to
apply, "the issue must present a question of imperative and manifest urgency
requiring the establishment of a rule for future guidance in 'matters of important
public interest.'" Id. at 27, 630 S.E.2d at 478 (quoting Sloan v. Greenville Cty., 361
S.C. 568, 570, 606 S.E.2d 464, 465-66 (2004)). We agree it is "important" that
citizens have the ability to stay informed of the activities of public bodies. See S.C.
Code Ann. § 30-4-15 ("The General Assembly finds that it is vital in a democratic
society that public business be performed in an open and public manner so that
citizens shall be advised of the performance of public officials and of the decisions
that are reached in public activity and in the formulation of public policy.").
However, we hold the public importance exception does not apply in this case
because there exists no imperative or manifest urgency requiring this Court to issue
an opinion on the application of FOIA and Summerville's ordinances to the Board's
activity. We therefore refuse to apply the public importance exception.
Conclusion
For the foregoing reasons, we vacate the court of appeals' decision and dismiss
this appeal as moot.
VACATED.
BEATTY, C.J., KITTREDGE, HEARN and FEW, JJ., concur.