By David Wren dwren@postandcourier.com

Petitioning the S.C. Court of Appeals to revisit a case it’s already ruled on is typically a futile formality on the way to asking the state’s highest court for a review.

Such rehearings are rarely granted.

But last week’s petition, filed by opponents of a new cruise ship terminal at the Port of Charleston‘s Union Pier near the historic City Market, provides a preview of the arguments those groups will make if the S.C. Supreme Court later decides to take the case.

The appeals court last month ruled the opponents — they include environmental, neighborhood and historic preservation groups — do not have a legal right to stop the state’s Department of Health and Environmental Control from issuing a permit the State Ports Authority needs to build the $35 million terminal.

Those opponents, in their petition for rehearing, say the court’s three-judge panel made numerous mistakes in coming to their conclusion.

For example, the judges said the increased noise, pollution, traffic congestion and aesthetic harm opponents say a new terminal would bring are “generalized complaints” that aren’t sufficient to establish direct harm to the groups that are suing.

“In fact, each of the individual members of the community groups that provided affidavits described concrete and particularized injuries that they would personally suffer,” Southern Environmental Law Center lawyer Blan Holman, who represents the opposition groups, wrote in last week’s petition.

Those opponents say they’re already experiencing sore throats caused by cruise ship emissions, oily soot landing on their homes and property and other issues with cruise operations at the SPA’s current terminal a few hundred feet south of the proposed site. A bigger terminal, they say, would lead to even bigger problems.

Each of these people, Holman wrote, have “demonstrated injury from the cruise terminal in a personal and individualized way.”

The judges also said opponents must prove their business or property values have declined as a direct result of the new terminal — something Holman said is “difficult if not impossible” to do because the terminal hasn’t been built.

Holman also said in his petition that opponents were already granted the right to challenge a permit for the new terminal during a separate, but related, federal court hearing — something the appeals court judges ignored, he added.

He wants the appeals court to reverse its earlier decision and give terminal opponents the right to fight the DHEC construction permit. The SPA has not filed a response to the petition, but previously said it is “gratified” by the October ruling.

The long-running legal dispute centers around a permit that DHEC issued in 2012 allowing the SPA to place five additional clusters of support pilings beneath an older warehouse at the north end of Union Pier. That’s where the maritime agency wants to build a new terminal, replacing a nearby 1970s-era building used mostly by Carnival Cruise Line and its Ecstasy cruise ship.

The pilings are needed, according to court documents, to support three elevators and two escalators. The new site would be more than three times larger than the existing terminal.

Groups including the Coastal Conservation League, the Preservation Society of Charleston and others filed a lawsuit opposing DHEC’s ruling, but a state Administrative Law Court judge ruled the groups did not have a right to sue. Those groups then filed their appeal.

Holman has said the groups would support a terminal farther north from the city’s Historic District, but SPA officials say Union Pier is the only site available for construction.

The SPA also needs a federal permit to proceed with the project. The Army Corps of Engineers is reviewing an application for that permit but has not set a timetable for its decision. A previous permit application was tossed out by a federal judge in 2013 because the proposal did not consider the terminal’s impact on the city’s Historic District.

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The battle over a new cruise ship terminal in downtown Charleston won’t be overshadowed by the presidential election after all.

The state’s Court of Appeals, which was going to hear arguments in the cruise ship case on Election Day, canceled the Nov. 8 hearing “after careful consideration,” Jenny Kitchings, the clerk of court, said in a letter sent to lawyers on Friday. There is no new date for the hearing, which has been delayed numerous times over the past two years due to scheduling conflicts.

The case pits several Charleston area environmental and historic preservation groups against the State Ports Authority and the state’s Department of Health and Environmental Control.

DHEC granted a permit in 2012 that would let the maritime agency place five additional clusters of support pilings beneath an old warehouse at the north end of Union Pier. The SPA wants to spend about $35 million at that site on a new terminal for cruise ships, replacing a nearby 1970s-era building used mostly by Carnival Cruise Lines.

The environmental and preservation groups filed a lawsuit opposing DHEC’s ruling, but a state Administrative Law Court judge ruled the groups did not have a right to sue. An appeal of that ruling was filed in April 2014, and all sides have been waiting since then to present their arguments in court.

FINALLY!!!!!

The SC Court of Appeals has scheduled oral argument in our State case challenging DHEC’s issuance of a permit to the State Port Authority for election day, Tuesday, November 8, at noon.

Yes, that is election day.

The arguments will be in Courtroom 1, SC Court of Appeals, 1220 Senate Street, Columbia.  The building is called the Calhoun State Office Building, and the entrance for the court is on the north side of the building, near the intersection of Senate and Sumter Streets.

This is our chance to PHYSICALLY show our belief in the case….Bodies will matter!!

TO THAT END: C4 has worked with the Coastal Conservation League to organize transportation to/from Columbia if enough people commit to coming.

Please RSVP at this link by November 3.  We currently have space for 14-30 people.

C4 and the Coastal Conservation League are happy to cover the cost of the transportation, but as always any donations would be much appreciated!!

Those who choose to join us in Columbia will be back well prior to 7:00PM to vote!!!!!! There is always the option to vote beforehand as well–we anticipate getting on the road to Columbia at 9 AM.

As you may recall, the main issue on appeal is whether C4 and the other groups have legal “standing” to challenge the permits issued by the SC Department of Health and Environmental Control (DHEC) for SPA’s proposed new, larger cruise terminal on Laurens Street. The sanctions imposed on us by the ALC will also be reviewed at the hearing.

Our attorneys have appealed a S.C. Administrative Law Court decision which held that our groups had no legal right to challenge DHEC’s approvals. The judge reasoned that none of our members would suffer any injury from a 100,000 sq ft., $35 million cruise terminal built to home-base 3500-passenger vessels in downtown Charleston.

Because the ALC threw the case out for lack of standing, we never had the opportunity to present the merits of the case. On appeal, we contend that the terminal’s localized air pollution, increased traffic, and historic neighborhood degradation are more than sufficient to allow our day in court.

As stated above, the public is welcome to attend Court of Appeals hearings.  The Court has advised counsel to arrive early, since cases beforehand may end early.

Robert Rosen’s Sept. 18 op-ed provided an interesting snapshot of Charleston’s transformation over the past 36 years.

Drawing on his years of service with the city, he offered sound advice for dealing with the rapid growth Charleston is experiencing.

He pointed out that “infrastructure, especially highways, is simply not in place to support this growth.”

There is another relatively new infrastructure component Mr. Rosen does not mention but that Charleston and many coastal cities must factor into future planning and development: the daunting technical challenges and immense cost of adapting to sea-level rise in the decades ahead.

Richard Wildermann

Privateer Creek Road

Johns Island

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PISA, Italy — A deadly plague haunts Venice, and it’s not the cholera to which Thomas Mann’s character Gustav von Aschenbach succumbed in the Nobel laureate’s 1912 novella “Death in Venice.” A rapacious tourist monoculture threatens Venice’s existence, decimating the historic city and turning the Queen of the Adriatic into a Disneyfied shopping mall.

Millions of tourists pour into Venice’s streets and canals each year, profoundly altering the population and the economy, as many native citizens are banished from the island city and those who remain have no choice but to serve in hotels, restaurants and shops selling glass souvenirs and carnival masks.

Tourism is tearing apart Venice’s social fabric, cohesion and civic culture, growing ever more predatory. The number of visitors to the city may rise even further now that international travelers are avoiding destinations like Turkey and Tunisia because of fears of terrorism and unrest. This means that the 2,400 hotels and other overnight accommodations the city now has no longer satisfy the travel industry’s appetites. The total number of guest quarters in Venice’s historic center could reach 50,000 and take it over entirely.

Just along the Grand Canal, Venice’s main waterway, the last 15 years have seen the closure of state institutions, judicial offices, banks, the German Consulate, medical practices and stores to make way for 16 new hotels.

Alarm at this state of affairs led to last month’s decision by the United Nations Educational, Scientific and Cultural Organization to place Venice on its World Heritage in Danger list unless substantial progress to halt the degradation of the city and its ecosystem is made by next February. Unesco has so far stripped only one city of its status as a heritage site from the more than 1,000 on the list: Dresden, after German authorities ignored Unesco’s 2009 recommendations against building a bridge over the River Elbe that marred the Baroque urban ensemble. Will Venice be next to attain this ignominious status?

In its July report, Unesco’s committee on heritage sites expressed “extreme concern” about “the combination of ongoing transformations and proposed projects threatening irreversible changes to the overall relationship between the City and its Lagoon,” which would, in its thinking, erode the integrity of Venice.

Unesco’s ultimatum stems from several longstanding problems. First, the increasing imbalance between the number of the city’s inhabitants (which plummeted from 174,808 in 1951 to 56,311 in 2014, the most recent year for which numbers are available) and the tourists. Proposed large-scale development, including new deepwater navigation channels and a subway running under the lagoon, would hasten erosion and strain the fragile ecological-urban system that has grown up around Venice.

For now, gigantic cruise liners regularly parade in front of Piazza San Marco, the city’s main public square, mocking the achievements of the last 1,500 years. To mention but one, the M.S.C. Divina is 222 feet high, twice as tall as the Doge’s Palace, a landmark of the city that was built in the 14th century. At times, a dozen liners have entered the lagoon in a single day.

The inept response of the Italian authorities to the very real problems facing Venice gives little hope that this situation will change anytime soon. After the shipwreck of the Costa Concordia in January 2012 off the coast of Tuscany left 32 people dead, the Italian government ruled that megaships must stay at least two miles from shore to prevent similar occurrences in the future. But the Italian government, predictably, failed to stand up to the big money promised by the tourist companies: A loophole to that law was created just for Venice. A cruise liner running ashore in the Piazza San Marco would wreck centuries of irreplaceable history.

Furthermore, after a corruption scandal over a multibillion-dollar lagoon barrier project forced Mayor Giorgio Orsoni to resign in June 2014, he was replaced a year later by Luigi Brugnaro, a booster of Venice’s tourism. Mr. Brugnaro not only fully welcomes the gargantuan ships but has even proposed the sale of millions of dollars of art from the city’s museums to help manage Venice’s ballooning debt.

The destruction of Venice is not in Italy’s best interest, yet the authorities remain paralyzed. Local authorities — the city and the region — are at odds with the government in Rome. Regardless, they have failed to diversify the city’s economy, meaning that any changes would put the few remaining Venetians out of work. To renew Venice’s economic life, new policies are strongly needed, aimed at encouraging young people to stay in the historic city, encouraging manufacturing and generating opportunities for creative jobs — from research to universities and the art world — while reutilizing vacant buildings.

No effective provision on Venice’s behalf has been enforced so far by the Ministry of Cultural Heritage, although protection of environment and cultural heritage is among the fundamental principles of the Italian Constitution. Nor are authorities developing any project whatsoever aimed not just at preserving the monuments of Venice, but at ensuring its citizens a future worth living.

If Italy is to spare Venice from further violation by the new plague devouring its beauty and collective memory, it must first review its overall priorities and, abiding by its own Constitution, place cultural heritage, education and research before petty business.

Appeals court narrows dates for Charleston cruise ship terminal hearing

David Wren
David Wren Email @David_Wren_
Aug 1 2016 2:32 pm

After months of delays, the state Court of Appeals has set a date — actually two of them — to hear arguments in a case that will determine whether the State Ports Authority gets one of the permits it needs to build a new cruise ship terminal near Charleston’s Historic District.

Lawyers from all sides said they have no conflicts that would keep them from attending a hearing on either Nov. 9 or Nov. 17, two dates the appeals court has set aside to hear arguments in the case. The court will choose one of those two dates at a later time.

This is the eighth, and apparently final, time the court has tried to schedule the case. The previous delays primarily have been because of conflicts that lawyers on both sides have had keeping them from attending the proceeding in Columbia.

A half-dozen environmental and historic preservation groups are appealing an administrative law judge’s ruling in 2014 that determined they don’t have standing to object to a state-issued construction permit for the project at the SPA’s Union Pier Terminal.

The S.C. Department of Health and Environmental Control granted a permit in 2012 that would let the ports authority place five additional clusters of support pilings beneath an old warehouse at the north end of the property. The maritime agency wants to invest about $35 million at the site to replace a nearby, early 1970s-era building used mostly by Carnival Cruise Lines.
Video: Raw: First Cruise Ship in 40 Years Docks in Cuba

The SPA also needs a federal permit to proceed with the project. The Army Corps of Engineers is reviewing an application for that permit. The federal agency held a public hearing on the permit in April, with a majority of those speaking and submitting written comments saying they are opposed to the project.

Army Corps spokesman Sean McBride said the agency continues to review the permit application.

In addition to a new terminal, the project would include a loading dock, parking areas, rain canopies, security fences and other items to support cruise ship operations.

Cruise ship supporters say the industry is an important part of the tourism economy and a source of jobs. The SPA has said a new terminal would improve traffic patterns and allow nearby streets to stay open during embarkation and debarkation days.

Local environmental and historic preservation groups say a new terminal would threaten the unique character of the Historic District and have negative impacts on the community, such as added congestion and pollution.

The SPA first proposed the new terminal in 2010, the same year Carnival Cruise Lines based its 2,056-passenger Fantasy cruise ship in Charleston. The Ecstasy cruise ship replaced the Fantasy this year.

Reach David Wren at 843-937-5550 or on Twitter at @David_Wren_

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