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Courts: Judge affirms county decision on Marlin Quay project
By Nikki Best
A Circuit Court judge last week affirmed the decision of the Georgetown County Board of Zoning Appeals that the rebuilding of the Marlin Quay Marina store and restaurant doesn’t require approval from County Council.
The Gulfstream Café challenged a staff decision that the reconstruction at the adjacent marina was a “minor change” to Marlin Quay’s “planned development” zoning and therefore didn’t require a public hearing and approval from County Council. The appeals board unanimously denied the request.
The restaurant filed an appeal last month in Circuit Court. In addition to claiming the appeals board was wrong, the appeal said that Steve Goggans, the architect for the marina project, used his role as a County Council member to influence the staff and appeals board decision. Goggans denied the accusation.
What was scheduled to be a 15-minute hearing turned into 42-minute presentation from George W. Redman III, attorney for Gulfstream Café, of exhibits attached to the appeal.
Halfway through Redman’s speech, Judge Benjamin Culbertson tried to clear up what the real objection was. “Is your objection the fact that y’all did not know or is your objection the fact that it’s a major change, and not a minor change, and that there’s an objective standard that the Board of Zoning Appeals did not follow,” he asked.
“That is correct,” Redman said. “The major change and that the Board of Zoning Appeals did not do any review that they were required to do, to look at this ordinance.”
“So you’re saying that if they had done the review then they would have come to a different conclusion,” Culberston said.
“No question about it,” Redman said.
A major change to a planned development includes increase in density; changes in exterior boundary lines and/or height limit; changes in intensity of land use; changes in the location or amount of land devoted to specific land uses; and, changes that significantly change the exterior appearance.
“I mean if you replace a building it’s going to change the exterior look,” Culbertson said.
“To an extent yes, but the degree this one changes is monumental,” Redman said.
In a letter Goggans sent to property owner Mark Lawhon in September, he outlined changes made to the initial proposal based on, “the many additions and out of scope requirements that have occurred during the course of the project.” The first one listed is, “Increase of the building size to accommodate a possible future Inn, doubling the size of the enclosed space to almost 10,000 SF to include a fire rated second floor – our original proposal was based on approximately 5,000 SF.”
The original marina store, which is demolished, was approved for 4,244 square feet in 1984.
Redman also said that because of the new plans the available parking spaces would decrease from 70 spaces to 59 spaces because of the planned new construction. “The density is increased, the intensity is increased by these plans, there’s a change in the land use, and all this means that there is a major change,” he said.
Goggans told the Zoning Board of Appeal at its hearing in February that the plans actually created 11 more parking spaces. This was also the determination of Boyd Johnson, the county planning director.
Summing up, Redman claimed the appeals board was unaware of the evidence he presented to Culbertson at the hearing and that if it were, it would conclude the new construction of the marina store was a major change.
County attorney Wesley P. Bryant appeared on behalf of the zoning board. “We feel like Mr. Redman has essentially retried this case in front of you today and asked you to give the evidence a different weight,” he said.
“All this that he presented, was it presented to the zoning board for review?” Culbertson asked.
“Yes sir,” Bryant said. “Every single item he presented to you today was actually part of his packet that he gave to the Zoning Board of Appeals and also put it on PowerPoints on screens and TVs in that meeting. They were well aware of everything that has been said today.”
The determination of the appeals board for allowing the large increase of square footage and the “possibility of the inn,” was that the space in the current proposal is unconditioned and not going to be used. It’s a minor change. If the owners of the building use the space, then it must be resubmitted to the county for another round of administrative review before the Planning Commission.
“That kind of sums it up for us your honor,” Bryant said. “We kind of feel like what happened here today was an expansion of the appellate review that’s authorized by the statute. New issues were presented today that were not given to the board of appeals, but I can’t refute those because I can’t present new evidence.”
“New issues” brought to light stemmed from Redman saying Boyd Johnson does not have the authority to make decisions that Joann Ochal, Zoning Administrator, does, despite Ochal’s position falling in Johnson’s zoning department.
“It’s a major change if there’s an increase in bulk and height of the building,” Redman said. “It’s an error of law.”
After an additional 20 minutes of back and forth, Culbertson told the attorneys he would take the presentations under advisement and let them know. Later that day, he filed a one sentence order affirming the appeals board’s decision.
Although work on the marina store and restaurant was allowed to start after the Zoning Board of Appeals issued its decision, Gulfstream Café obtained a temporary injunction in a separate civil suit.
That case is scheduled for mediation on June 14.