Opinion Extra

Automatic stay protects public when government doesn’t

The Angel Oak, on Johns Island near Charleston, is reportedly the oldest living thing located east the Mississippi River. An automatic stay gave citizens the time to put together a settlement with developers that resulted in the 42-acre tract surrounding the tree being preserved in perpetuity.
The Angel Oak, on Johns Island near Charleston, is reportedly the oldest living thing located east the Mississippi River. An automatic stay gave citizens the time to put together a settlement with developers that resulted in the 42-acre tract surrounding the tree being preserved in perpetuity. tglantz@thestate.com

Our government tries to make the best decisions for the health and welfare of its citizens, but sometimes it fails, and when it does, citizens have always had the ability to challenge those decisions by exercising their right to a hearing.

If they choose to protest a government action as improperly authorized, an “automatic stay” prevents irreversable damage from occurring until a court has heard all the facts and analyzed the situation to make sure that an agency decision is well-founded and complies with state law.

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Over the years, the automatic stay provision in state law has prevented much serious harm.

For example, on Johns Island, our beloved Angel Oak might be no more if lawyers for concerned citizens had not been granted an automatic stay. Developers were planning high-density apartment buildings and commercial businesses, including big-box stores, on the land surrounding the Angel Oak. They planned to fill 5 1/2 acres of wetlands, but citizens challenged the ill-advised wetland fill permits.

An automatic stay kept the developer from moving forward with construction, cutting down acres of surrounding trees, filling wetlands and probably dooming the magnificent Angel Oak. The delay allowed citizens the time to put together a settlement that resulted in the entire 42-acre tract surrounding the Angel Oak being preserved in perpetuity, so future generations can continue to wonder at this breathtaking and ancient live oak tree.

In another case, a group of Laurens County citizens contested a DHEC permit authorizing a new landfill in the small, rural community of Gray Court. At the time, Laurens County generated less than 20,000 tons of waste annually and had 241,000 tons of existing capacity. The new landfill would have added 154,000 tons of new capacity in a county that had no need for more capacity. An automatic stay prevented the landfill company from constructing the new landfill before the court held a hearing. The Supreme Court ultimately agreed that this landfill was not needed and overturned the permit.

Thanks to the stay, Gray Court and Lake Martin, where the landfill was proposed, are now protected from unwanted out-of-state waste.

But there’s an effort at the State House to take away this important tool. Sens. Greg Hembree and Luke Rankin have introduced S.112 and S.105, which would eliminate automatic stays. A companion bill, H.3565, has been filed in the House.

The legislation will strip citizens of a critically important means of challenging unwise and often illegal government actions that benefit the few at the expense of the many. Nothing less is at stake than the ability of a citizen to challenge the government, which is the essence of the American democracy.

Mr. Sanders has served as chief judge of the S.C. Court of Appeals and president of the College of Charleston; contact him at goffp@cofc.edu.

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