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A lawsuit against Charleston's year-round cruise industry should be allowed to go forward because plaintiffs may be able to show ships are public nuisances that create soot, traffic and noise, according to a state judge.
However, Circuit Judge Clifton Newman said in his report late Friday that the ships don't violate city zoning or state pollution rules. Newman was appointed as a special referee in the lawsuit filed by environmental and preservation groups and city residents, but whether the lawsuit moves forward is ultimately up to the state Supreme Court.
Lawyers for both sides have 15 days to file objections before the justices decide on the recommendations. If the nuisance claims go forward, the matter would return to the lower courts for a trial.
In the past, Charleston had only seasonal cruises. But Carnival Cruise Lines permanently based its Fantasy in Charleston three years ago, prompting the lawsuit.
"We are gratified with Judge Newman's report and recommendations to the Supreme Court regarding the zoning and environmental claims," said Jim Newsome, the president and CEO of the state Ports Authority. Authority attorneys are still reviewing the 27-page report before making comments to the court.
Blan Holman, an attorney for the Southern Environmental Law Center, said the plaintiffs are looking forward to pressing their nuisance claims.
"The question is not whether we have cruise operations, but how we balance them with the valuable assets that make this area a great place to visit, live and invest," he said.
Charleston Mayor Joseph P. Riley Jr. called the recommendation to dismiss the zoning and the pollution complaints "very positive news" and said the city is confident it will prevail on the nuisance complaints if they go forward.
The cruises, he said, "are a maritime activity in a port city, and they are conducted in a very appropriate manner."
During the July hearing, Newman heard arguments ranging from whether the Fantasy, when docked, is a structure governed by zoning ordinances to whether the ship needs a separate state pollution permit.
The plaintiffs want to block cruise operations and have the court declare it illegal for the Ports Authority to create a new $35 million terminal near the existing cruise facility.
Plans for that terminal have also prompted a federal lawsuit. Newman recommended the justices find that the new terminal site is permitted under city zoning rules.
But he wrote that the plaintiffs have outlined facts that, if proven, would entitle them to relief on the nuisance claims. He noted they contend Carnival's activities "cause water and air pollution, noise, soot, view obstructions, traffic congestion, road closures and large crowds in their neighborhoods."
While the plaintiffs say cruise liners amount to illegal hotel operations, Newman said the purpose of a cruise liner is transportation, not providing accommodations. It therefore does not violate zoning rules.
The plaintiffs also complained the Fantasy's signature red, white and blue whale-shaped smokestack is a company logo violating sign ordinances. But Newman said a smokestack is just that and, even it if were construed to be a sign, would not be illegal because it is not attached to a building.