|The number of cruise ships in Charleston has increased exponentially. | Photo: National Trust
Litigation is often the last option in the fight to protect historic places, but in the relatively new and developing field of historic preservation law, legal precedent is not always available. That’s why the National Trust’s legal team works hard at finding ways to help develop that precedent.
In Charleston, S.C., unregulated and supersized cruise ship tourism provides an opportunity to use the legal theory of “nuisance” to protect historic properties and districts from unreasonable harm caused by cruise tourism, which operates in the absence of any meaningful regulation. Nuisance, one of the oldest causes of action in the law, is designed to protect property owners from unreasonable interference with their right of “quiet enjoyment.”
The National Trust’s legal advocacy efforts on behalf of preservation interests in Charleston cleared an important hurdle last week after Special Referee Clifton B. Newman, a judge appointed by the South Carolina Supreme Court to consider dismissal motions, recommended in a 27-page “Report and Recommendation” that nuisance claims filed against Carnival Cruise Lines be allowed to proceed. The National Trust had strongly supported the use of nuisance claims before the court in its amicus briefs. [Brief 1 | Brief 2] Judge Newman also supported the ability of historic property owners to sue in order to protect the “historic integrity of neighborhoods and buildings that they labor diligently to protect and preserve.”
Judge Newman’s recommendation to allow the plaintiffs’ nuisance claims is especially significant because he simultaneously recommended dismissal of their zoning and environmental claims, which would have left the property owners empty-handed, had it not been for the nuisance claims. The judge’s recommendation that the cruise ships should not be subject to the protections of the zoning ordinance (such as height limits and view corridor protections) was based primarily on his opinion that the cruise ships should not be considered “structures.”
In recognition of the threats posed by cruise tourism to Charleston, the National Trust placed Charleston on a special “watch status” when it released its list of America’s 11 Most Endangered Historic Places in 2011, and helped fund a study about the economic impacts of cruise ship tourism. The National Trust has also supported ongoing litigation in federal court challenging the Army Corps of Engineers’ lack of compliance with the National Historic Preservation Act and in the ongoing dispute over state permitting for a proposed new cruise ship terminal.
Although the South Carolina Supreme Court must now decide whether to accept or reject Judge Newman’s Report, his recommendation to allow nuisance claims to proceed marks a significant milestone in the ongoing litigation over the harmful effects of large cruise ships on nearby historic properties, on Charleston’s internationally recognized skyline, and on nationally designated historic districts. It also represents the potential for positive outcomes when the National Trust is able to work collaboratively with local partners and other advocacy groups to help shape litigation strategy.
The National Trust’s legal team will continue to support the nuisance claims against Carnival Cruise Lines as the litigation progresses. To learn more about the cruise tourism impacts from a global perspective, please join us February 6-8, 2013, in Charleston for “Harboring Tourism: A Symposium on Cruise Ships in Historic Port Communities,” which the National Trust is co-hosting with the World Monuments Fund and the Preservation Society of Charleston. For more information and to register, please click here. Check back for additional updates on Charleston and the National Trust’s ongoing work on this National Treasure.
Will Cook is an associate general counsel at the National Trust for Historic Preservation.
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