For three years, I had the pleasure of serving on Charleston's Board of Architectural Review. After that, I served for a time as assistant corporate counsel to the city. Part of my responsibility in the corporate counsel position was to defend appeals brought by dissatisfied applicants against the BAR and Board of Zoning Appeals. I cannot remember the city ever losing an appeal involving the BAR.
Based on this history, it is my opinion that the Beach Company's appeal against the recent BAR decision to deny its Sergeant Jasper application is dead in the water. It shouldn't be that way, but unfortunately the only way to correct bad decisions made by the BAR is to revise the project, reapply, and hope that a future board sees things differently.
I say "unfortunately" because I disagreed strongly with the BAR's denial of the Jasper project. It was my opinion when serving as a board member that if an applicant follows all of the directives and recommendations given by both staff and board members from a previous BAR hearing, then the project should be approved based on those changes being made. But the Jasper project was different. It became a symbol to many of future development on the peninsula, and therefore the final hearing involved much more than discussions about the architectural revisions the board was expecting to review.
To hear opponents of the project tell it, the application was a "battle for the soul of the city." It did not matter if the building had the finest materials imported from Italy, was designed by the world's most renowned architect, or had the same dimensions and occupancy as the previous Jasper. Opponents saw the application as an opportunity to correct a mistake made in the 1950s when the Jasper was originally built. Those same opponents have since called for the property to be condemned and converted to green space or a park. Holders of this sentiment weren't going to be convinced by trimming a few floors here or there or a clever presentation with fancy pictures and lofty sounding catchphrases by the project presenter. They wanted the project killed or scaled down beyond the point of commercial viability.
The recurring problem I have with the way the BAR made its decision is the prevailing sentiment that pressure during the public input portion of the hearing somehow affected the eventual outcome. Preservation groups and some neighborhood leaders walked away from the final hearing convinced that their ability to marshal angry residents to a packed meeting room swung the deciding fifth vote in their favor. They may be right. Even if they are, it does not change the fact that an appeal of the decision is very unlikely to result in a reversal. Judges are loathe to substitute their judgment for that of municipal board members, and in fact they only intervene in instances of impropriety, bias, or when a decision is clearly arbitrary. There is no indication any of this occurred with the Jasper decision. Instead, a vocal subset of homeowners on the peninsula flexed their political muscle by protesting the project en masse.
I attended that hearing, and it was impossible for me not to be struck by the homogeneity of the opposition, generally speaking, in terms of both race and age. This group did not come to nitpick architectural details. This was a group of older, established Charlestonians pushing back against a territorial intrusion by others onto prime waterfront property on the peninsula. The proposed Sergeant Jasper would provide the means of intrusion into their turf. To hear these opponents complain about the trash new residents would bring and the congestion occasioned by having condos placed there, you would think the Sgt. Jasper had been unoccupied for the past 60 years. You would also think that the protesting longtime residents didn't generate trash or traffic either.
These residents have found that showing up in large numbers is the best way to impede new development downtown because some BAR board members will change their vote as a result. The sad part is that until the constitution of the board changes, or until other worthy projects are approved over the future employment of these kinds of tactics, these obstructionists just may have a point.
One thing is certain, however: The courts are not going to reverse an otherwise valid BAR decision because the losing side has a problem with how the process unfolded. Had the vote gone the other way, which it very nearly did, these same preservation groups who are now praising the BAR would have undoubtedly also sued, attacking the same process. And they would be about to find out the same thing that the Beach Company will find out: It's much easier to get a favorable BAR decision at a hearing than to have an unfavorable one overturned in court.