COASTAL OBSERVER

The town of Andrews waited too long to challenge the 2014 capital project sales tax referendum that included $1.5 million for a building to house its police and fire departments that became a $5.7 municipal complex, a Circuit Court judge ruled this week.

Judge Alex Hyman granted Georgetown County’s motion for summary judgment in a suit brought by the town in 2021. Following a hearing on the eve of the trial, the town attorney, mayor and administrator came to court the next day with boxes of files and exhibits. The table for the county’s attorneys was nearly empty.

“The law was clearly on our side,” Tommy Morgan, the assistant county attorney who handled the case, said afterward. “This could have been averted if they had just followed the language of the referendum.”

Eleazer Carter, the town attorney, fielded most of the questions from the judge during the hearing, particularly about a summary sheet of bids for the project to the town that showed contractors considered the town hall features as add-ons to the police and fire complex.

“I’m shocked and stunned,” Carter said after the ruling.

While he said he would await the final order, which the judge asked Morgan to prepare and he expected to supplement, Carter said he saw a path toward an appeal.

“When the referendum passed, you had 30 days” to file a challenge, he said. “We weren’t even in the picture.”

The referendum established a 1-cent local sales tax over four years that would fund $6 million for dredging in Winyah Bay, $10.3 million for dredging Murrells Inlet, $1.5 million for the Andrews “fire/police complex,”$1.5 million for rural fire stations and $8.9 million for road resurfacing.

The ordinance setting the referendum question defined those amounts as “the maximum cost of the projects or facilities funded from the proceeds to be raised by the tax.”

If the tax raised more than the $28.2 million “estimated maximum cost” of the projects, the money was to be used to complete those priority projects, “if necessary.”

The Winyah Bay dredging was dropped after the total project cost, to be shared by the state and federal government, rose from $33.5 million to $72.7 million.

After four years, the sales tax ended up raising $42 million. The county allocated another $1.5 million to Andrews in 2020 from the surplus.

The town had obtained proposals the year before from three firms. The town included two options: a “combined fire and police complex” and “fire and police spaces along with administration as one municipal complex.”

The town signed a contract with the Columbia firm GMK Associates for the $5.2 million municipal complex.

The town asked County Council to fund the additional cost, which rose to $2.7 million, from the surplus sales tax. The council declined.

In filing suit to force the county to pay the extra cost, Morgan argued,  the town was challenging the ordinance that allowed the referendum and the referendum itself. Both specified a “fire/police complex” and set the amount to be funded at $1.5 million.

Morgan also pointed out that with another $1.5 million from the surplus, and a $150,000 public safety grant from the state, the town had enough to fund the project proposed by the three bidders. The lowest was $2.8 million.

“They wanted to go ahead and do whatever they wanted to do,” Morgan said. “We think that’s against the law.”

He said the statute of limitations to challenge the ordinance and the referendum had expired in 2015.

“All their claims are basically an attack on the referendum itself,” Morgan said.

He cited a state Supreme Court decision from Calhoun County in a suit that challenged capital sales tax projects five months after the vote. That suit was barred. “The delay in that case pales in comparison to what the Court is being asked to consider in this case,” Morgan wrote in a filing.

“It’s almost 11 years,” he said at the hearing.

While it sounded harsh, Morgan added that the statute of limitations was  “grounded in public policy.” Without it, government couldn’t move forward with its decisions.

By expanding the public safety building into a new town hall, “they just completely disregarded the will of the voters,” Morgan said.

And he told the court that the records obtained from the town and provided to the court showed “the bait and switch that the town did.”

“They admit that they knew they were changing the project,” Morgan said.

In rebuttal, Carter argued that the initial $1.5 million was the “estimated” cost of “a new town building.”

Under the strong-mayor form of government in Andrews, the mayor is in charge of police and fire and other staff provide services to those departments.

“We had no problem with the ordinance,” Carter said. “We have no issue with the referendum.”

What the county didn’t do, Carter argued, was follow the language of the state law that was included in the ordinance when it failed to fund the additional cost of the project.

“You cannot have excess or surplus money until all the projects are completed,” he said.

If that’s true, Hyman asked, what about the Winyah Bay dredging? “All parties knew it was going to cost more than $6 million.”

Morgan had argued that under the town’s theory, the full $72.7 million would have had to come from the local sales tax, meaning no projects would have been funded since only $42 million was raised.

“That’s not my argument,” Carter said.

The dredging project was abandoned, the town project just ended up costing more, he said.

“The plan specifically says ‘town hall,’” Hyman said.

The supervisors were always going to be in the building, Carter said. He said the town wasn’t responsible for the names that architects put on the spaces. Hyman said he had served in local government in Conway. “Our mayor was certainly not in the fire station,” he said.

Andrews is much smaller than Conway, Carter said.

The issue isn’t whether Andrews needs a new town hall, but in whether it should be funded with money designated for a “fire/police complex,” the judge said.

The extra cost of the project wasn’t due to including administration, Carter said. He handed the judge a sheet that summarized the cost of the project, which showed that the construction accounted for $3.9 million and design and site preparation accounted for $1.9 million.

Hyman asked who created the document.

“We compiled it in the mayor’s office,” Carter said.

“This is something you made up?” Hyman said.

He also questioned Carter’s claim that the municipal complex was the same building envisioned in the referendum. Citing a copy of the request for proposals that included the two options for prospective bidders, he asked who had created the request.

Carter said it was the mayor and administrator working with the other departments.

“That specifically shows that it was not rogue contractors that came up with this,” Hyman said. “It’s two separate requests.”

Carter said he didn’t know why the bidders listed the costs that way.

“I know why they did. It was in the RFP,” Hyman said.

In ruling from the bench, Hyman said he was granting summary judgment based on the statute of limitations. Even though the town argued it wasn’t challenging the referendum, “the evidence shows otherwise.”

“You are challenging the referendum,” Hyman said. “Summary judgment is appropriate.”