From: Paul Trask <manager.beaufortplaza@gmail.com>
Date: Sun, Sep 1, 2024 at 7:36 AM
Subject: Safe Harbor Lease dated June 25, 2019
To: Philip Cromer <pcromer@cityofbeaufort.org>, Neil Lipsitz <nlipsitz@cityofbeaufort.org>, Phillip Scallate <pscallate@cityofbeaufort.org>, Mitch Mitchell <mmitchell@cityofbeaufort.org>, Mike McFee <mmcfee@cityofbeaufort.org>, Scott Marshall <smarshall@cityofbeaufort.org>, John Sauve <jsauve@cityofbeaufort.org>
Good Morning:
I am writing to you as a citizen of Beaufort. I am not a lawyer but the case information below is easy to understand and pertains almost exactly to the facts and situation with the Safe Harbor lease.
Please read the attached report: Berkeley Elec. Coop v. Town of Mt. Pleasant. The circumstances are nearly identical to the lease situation with Safe Harbor.
Summary:
1. In 1982, Mt. Pleasant entered a franchise agreement with Berkeley but failed to adopt an ordinance to do so with the required two readings.
2. In 1988, Mt. Pleasant discovered the error and determined the Berkeley agreement was invalid.
3. Thereafter, Mt. Pleasant properly adopted an ordinance which reduced the rights previously asserted to Berkeley in the invalid 1982 agreement.
4. Berkeley sued seeking a declaration that the 1982 agreement was valid.
5. The lower court agreed with Berkeley and the decision was appealed by Mt. Pleasant and S.C. Electric and Gas.
6. The S.C. Supreme Court reversed the lower court decision:
“Berkeley is not excused by its unawareness that Mt. Pleasant’s act was in contravention of statute. Berkeley is charged with knowledge that Mt. Pleasant’s power to grant franchises was limited by sections 5-7-240(4) and 5-7-270.”
“Thus, Berkeley’s reliance on the validity of the 1982 agreement was not reasonably justified.”
“Restrictions on municipal power are created to protect citizens. Although it may seem harsh to deny Berkeley a remedy for impairment of its franchise, it is better that Berkeley suffer from the mistakes of Mt. Pleasant than for this Court to adopt a rule which, through improper combination or collusion could be detrimental or injurious to the public.”
“When a municipality goes beyond the law, the person who deals with it in so doing does so at his own risk.”
By substituting a few words, you can see the following deduction:
Safe Harbor is not excused by its unawareness that Beaufort’s act was in contravention of the statute. Safe Harbor is charged with knowledge that Beaufort’s power to grant a lease is limited by section 5-7-260(6).
Thus, Safe Harbor’s reliance on the validity of the lease with Beaufort is not reasonably justified.
Restrictions on municipal power are created to protect citizens. Although it may seem harsh to deny Safe Harbor a remedy for impairment of its lease, it is better that Safe Harbor suffer from the mistakes of Beaufort than for this Court to adopt a rule which, through improper combination or collusion could be detrimental or injurious to the public.
“When a municipality goes beyond the law, the person who deals with it in so doing does so at his own risk.”
Conclusion:
The Safe Harbor lease is illegal and invalid.
The proposed ratification of the existing Safe Harbor lease is unacceptable. Any lease of the public’s marina must be negotiated from scratch. Such lease must follow the requirements of South Carolina law and the recorded 1976 Property Management Agreement.
The first step should be to simply stop and take a breath. The City can allocate some of the remaining ARPA money to find out what features the citizens really want in an updated marina. Once the citizenry has been surveyed, the City will be in a position to negotiate with a marina operator.
Sincerely,
Paul Trask
