Manning, 062220 SCAGO, AGO 3242

• Case Date: June 22, 2020
• Court: South Carolina

Karen Blair Manning, Esquire AGO 3242 No. 3242 South Carolina Attorney General Opinion State of South Carolina Office of the Attorney General June 22, 2020          Karen Blair Manning, Esquire          Chief Legal Counsel          South Carolina Department of Commerce          1201 Main Street          Suite 1600          Columbia, South Carolina 29201          Dear Ms. Manning:          We received your request for an opinion of this Office on behalf of the South Carolina Department of Commerce. You request an opinion as to the proper construction of the deed restriction on a parcel of property located in Chester County. Specifically, you ask "whether the use of the property as part of the mitigation efforts related to a Department project qualifies as a 'commercial purpose' as set forth in the deed restrictions on the property."          Law/Analysis          By way of background, you informed us

[t]he Department of Commerce has proposed the construction of a mixed-use, pedestrian-friendly development community in York County. The project will have unavoidable adverse impacts to waters of the United States, necessitating environmental mitigation. The project sponsor has proposed using the parcel of property as part of those mitigation efforts.

         Specifically, you note the project will necessitate the use of stream and wetland mitigation credits. The project sponsor wishes to use the property in question, which you refer to as the Landsford Tract, as the focal point of the mitigation plan. You also informed us that the Open Space Institute Trust, Inc. ("OSI") purchased the Landsford Tract as a part of this plan. You state OSI is "engaged in the business of land conservation" and its activities include "preserving land for water quality purposes." You also note, "[m]any of the lands they buy, they steward to become parks and other community assets."          You describe the Landsford Tract as "approximately 500 acres of forested land" located in Chester County, just south of York County. The property is subject to several deed restrictions. You state:

Pursuant to the General Deed Restrictions, the property may be used for either single-family residential purposes or for commercial purposes. General Deed Restrictions §§ 2-3. The deed does not define "commercial purposes," but does preclude usage of the property for purposes which create a nuisance or for certain specific commercial uses, such as adult-oriented businesses, flea markets, a junk yard, or recycling stockyard, among others. Id at § 3. The deed also prohibits raising, breeding, or keeping animals, livestock or poultry of any kind. Id at § 4. While the deed allows for both residential and commercial usage of the property, neither of these uses is required.

         Thus, you asked whether the use of the Landsford Tract for mitigation purposes...