Fifth Circuit Court Judge Reginald I. Lloyd said he would contact attorneys at that time with his ruling regarding a technical argument made Thursday by Camden City Attorney Charles Cushman.

Cushman`s argument could lead Lloyd to claim he has no jurisdiction in the case, thereby dismissing the appeal.

``City Code 157.134, which is modeled verbatim from (corresponding) State Code, states that the Clerk of Court must immediately notify all parties when they are in receipt of an appeal,`` said Cushman.

Failing that, he said, there is a civil procedural rule which would at least require the Clerk of Court to make such notification within 30 days.

``The Planning and Zoning Commission`s ruling was made on Jan. 22, 2002. The City Building Officer sent a letter to the Kurschners informing them of the decision and the reasons for the denial on Jan. 28, 2002. Mr. Kurschner filed an appeal on Feb. 27, 2002. So far, so good,`` said Cushman. ``However, it wasn`t until August 2003 -- 18 months later -- that we received a letter from the Kurschners` attorney acknowledging that the Clerk of Court had failed to notify the city of the pending appeal.``

Cushman called Kurschner attorney William Tetterton`s note to the city the ``Whoops!`` letter.

``The appeal was clocked in the clerk`s office on the 29th day after the city sent their letter and then nothing happened. There was no service, no notice -- nothing. It was not immediate, it was not in 30 days and this court, and no higher court, may expand that jurisdiction,`` argued Cushman.

When asked by Lloyd about Cushman`s argument, Tetterton argued that the onus of notification was on the Clerk of Court`s office.

``We asked the clerk to fulfill that requirement as soon as we learned about it,`` Tetterton responded.

Cushman countered that more than the Clerk of Court`s office had that responsibility.

``I don`t think Mr. Tetterton would argue that someone from City Hall should check with the clerk every day. If there is any burden of that, it should be with the appellant,`` said Cushman, citing several cases where notification procedure requirements have been upheld. ``It is very clear that we have a jurisdictional requirement that hasn`t been met. Therefore, the appeal should be denied.``

Cushman`s argument was made in the middle of the hearing, after Tetterton had been allowed to argue the Kurschners` case.

Tetterton asked Lloyd to reverse the commission`s ruling and order it to approve the plat which served as the Kurschners` subdivision request.

``The Kurschners` property is in the R15 residential zone which, according to the city code, includes as a permitted use the subdivision and development of properties in the zone,`` said Tetterton. ``The purpose defined for the R15 zone is to encourage residential infilling and expansion of residential housing. Nowhere do the minutes of the meeting dispute those points.``

Tetterton argued the commission`s minutes and the city`s letter were never specific enough as to how the Kurschners` plat violated any section of the Camden City Code.

In his delineation of a number of code sections, Tetterton argued that one section mandates the Camden Planning and Zoning Commission to approve a proposed subdivision plat if it meets all the requirements of the code.

``It says `shall,` not `may,` and we take that to mean that they must. If they can`t show why it failed to meet the criteria, we think the court should reverse their decision,`` Tetterton said.

Tetterton noted Sarsfield`s historic connections to Mary Boykin Chesnut and her Civil War diary, as well as the property having been included as one of many in a 1971 application to the U.S. Secretary of the Interior to designate 1,794 acres of Camden as a historic district.

``This was an application made by the state of South Carolina, not the city of Camden,`` Tetterton said. ``There is nothing in the city`s ordinances or land use development plan that designates Sarsfield as a historic property or a historic district in Camden.``

The National Historic Preservation Act of 1966, which allows anyone to nominate properties to the National Historic Register, contains nothing which encumbers property owners with additional regulation, he said.

On the other hand, there was nothing to stop Camden from enacting stricter rules of its own, Tetterton said.

``Camden has had ample opportunity to pass ordinances regarding historic preservation,`` Tetterton said.

Tetterton said City Code Section 158, regarding the establishment of the Camden Historic Landmarks Commission, includes verbiage stating the commission cannot impose any burdens on property owners without their permission.

``This voluntary ordinance was the best they could do,`` he said. ``Being just one of many contributory properties on the National Historic Registry does not prohibit the subdivision. There has to be a balance between the rights of the landowner and the planning and zoning commission`s obligation to preserve historic sites.``

Tetterton concluded his arguments by claiming that the city is trying to establish Sarsfield`s historic designation by judicial review rather than legislative act.

``They would much rather hang their hat on defending their disapproval of the plan based on it being a historical site, which has never been done on any level,`` Tetterton said.

Cushman said the Camden Planning and Zoning Commission and the city have no argument with the Kurschners` plat itself, nor the proposed lots in and of themselves.

``The plat has everything it`s supposed to, and those lots do comply with city code, but that`s not what this case is about,`` Cushman said. ``We have to get beyond all that. All of this other information is nice to know, but we`re not arguing those points. The commission is not going to approve a plat just because all the other requirements are met. They are not going to approve it in a vacuum.``

He said there are some details the plat does not and cannot show.

``If you stand in front of that property on Chesnut Street, you will look through a pair of brick columns up a beautiful driveway lined with magnolia trees to a gorgeous house. That front vista has been intact since the house was built. The proposed lots would ignore that driveway and columns and destroy that vista,`` Cushman said.

Both attorneys cited a section of city code stating changes to historic properties must take into consideration a site analysis of the property`s visual features and past and present use, among other criteria.

However, when he was given an opportunity to counter Cushman`s arguments, Tetterton showed off a picture of Sarsfield from Chesnut`s diary which did not show the brick columns or magnolia trees.

``At one point, this house was a golf club house,`` Tetterton said.

He repeated that the city could have done more to protect Sarsfield in the past.

Lloyd`s announcement on his ruling in the jurisdictional matter came after both attorneys finished arguments. In the event Lloyd rules to retain jurisdiction over the case, he has instructed both lawyers to draw up orders for him to sign depending on how he ultimately decides on the appeal`s substantive issues.