EDITORIAL: A local Beaufort attorney weighs in about the Safe Harbor lease

This editorial was written by a local Beaufort attorney who has chosen to remain anonymous at this time.

As acknowledged by the current city attorney, no property owned by the city can be legally leased without compliance with South Carolina Code Section 5-7-40.  That statute requires that the city pass an ordinance, with notice to the public and public hearings, authorizing the proposed lease. The purpose of this statute is obvious.  Before the city enters into a lease of public property, the citizens are entitled to full transparency and an ability to provide input on terms and conditions of any such grant of an interest in publicly owned property.  

What is before the council now [at the August 27 City Council Meeting] is described as an ordinance “nunc pro tunc” seeking to simply ratify the terms of the unenforceable lease with Safe Harbor.  A nunc pro tunc procedure can be used to correct clerical or scrivener’s errors, but not the failure to comply with the law. It cannot be used to deprive the citizens of Beaufort of their substantive rights under Section 5-7-40. The failure of the council to comply with state law deprived the citizens of Beaufort of their substantive right to voice their views and to provide their input to the City Council on a potential lease with Safe Harbor with the benefit of full knowledge of the facts, terms, conditions, benefits, and detriments that derive from the proposed lease of land owned by the public. It is the substantive duty of the City Council to consider such public input before voting by ordinance to approve the lease of public land. Absent compliance with state law, there is no valid lease.  

It is unfortunate that the Council was not properly advised by its attorneys about the necessity of complying with Section 5-7-40 before authorizing the City Manager to enter into the Safe Harbor lease.  However, Safe Harbor also is chargeable with knowledge of the laws of South Carolina and has no basis to complain or threaten action against the city when it too failed to comply with state law. The failure of both parties to comply with the law does not convert an illegal lease into an enforceable one nor does it allow the council to avoid providing the transparency required by Section 5-7-40 with respect to the Safe Harbor “lease” by passing the proposed “nunc pro tunc” ordinance.  Any previous “backroom” negotiation of lease terms was illegal, and that illegality cannot be corrected retroactively and without compliance with the law, which includes the public hearings on the terms of the lease as required by law. 

Any suggestion that the lease is “valid and legal” is nonsense.  If that were true, no further action by the City Council would be required. In order to create a valid lease, both Safe Harbor and the city will have to conduct the public hearings required by state law and the citizens must be given access to the information necessary to provide input to the City Council. That would include full disclosure of the lease terms and any outstanding issues of dispute between Safe Harbor and the city.  Only after receiving the input of its citizens can the current City Council decide whether a proposed lease is in the best interest of its citizens and, if so, pass an ordinance authorizing the City Manager to execute the lease on behalf of the city. 

At this point, with the benefit of hindsight and its experience to date with Safe Harbor, and with awareness of the position of the citizens, the city is in a position to negotiate lease terms which are in the best interests of its citizens, whether with Safe Harbor or some other marina operator. The city has a duty to do so. It cannot avoid the public hearings on the lease terms that is required by the law by framing the vote as a “Nunc Pro Tunc” clerical correction. 

Both the city and Safe Harbor are back to square one. Any lease of the marina property can be entered into only AFTER an ordinance is passed in compliance with the proper procedures authorizing the city to do so. This is a great opportunity for the city to remediate the deficiencies of the prior arrangement or to find a new operator for the City Marina.  

In addition to the issues listed above, since the lease includes rights to access and lease portions of the Waterfront Park, approving the lease as originally drafted would violate the restrictive covenants governing the use of the Waterfront Park.  Approving any lease over any portion of the Waterfront Park would be a violation of covenants by the current City Council.  

Read next: Troubling Developments in the City of Beaufort’s Lease with Safe Harbor Marinas