062217 Litchfield Plantation: Neighbors oppose multi-family development
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A first phase of the condo development is under way next to the Abbey at Pawleys.

Litchfield Plantation: Neighbors oppose multi-family development

By Charles Swenson
Coastal Observer

A plan for 34 multi-family units on the marsh at Litchfield Plantation meets all of Georgetown County’s requirements. Whether they comply with the deed restrictions for the community is another matter, one that is likely to end up in court.

“We don’t feel like you should be placed in the position of being judge and jury,” Boyd Johnson, the county planning director, told the Planning Commission last week.

The 600-acre tract is one of the oldest gated communities on Waccamaw Neck, but unlike those that followed, it is not a “planned development” with its own zoning district. So when Georgetown County was asked by the owners of 5.2 acres within Litchfield Plantation to approve the multi-family project, the planning staff calculated that the nine buildings met the requirements of the “resort commercial” zoning for density, stormwater and tree protection. The project doesn’t require a zoning change, just a review by the commission and County Council for compliance.

“We meet all county requirements,” Tim Harris, engineer for the Marina Village project, said. “There are certainly some questions about the restrictive covenants.”

The Litchfield Plantation homeowners association opposes the project. Nate Fata, the association’s attorney, asked the commission to recommend County Council deny approval because the developers, Richard “Trey” Smith and Theodore Kirkpatrick, didn’t disclose the dispute over deed restrictions as required by state law. “The developer went around that,” he said.

“But there’s more,” Fata said. The developer already designated the density of the property under the deed restrictions: 10 lots. Any increase requires approval of two-thirds of Litchfield Plantation’s property owners. “You haven’t asked us for 34 units, and we’re not going to give it to you,” he said.

Henrietta Golding, attorney for the developers, said Fata and the association got it wrong. The right to enforce deed restrictions on the property were assigned to the developers when they bought the 5.2 acres for $1.1 million in 2016. The requirement to designate density “is only an initial declaration,” she said. The developer “has the right to establish the number of lots and units.”

The current deed restrictions for Litchfield Plantation were adopted in 2005. One of the provisions cover the “bulk sale” of property and required the buyer to designate the maximum number of lots planned at the time of purchase. The 5.2 acres was sold in 2009. The buyers designated seven lots, but the restrictive covenants gave the buyers the right to change that.

The same provision was included in sales of the property in 2010 and 2016. The number of lots was increased to 10.

While Golding emphasized the language of the 2009 document, Fata said the 2005 restrictions are the ones that apply. Golding pointed out that the homeowners association approved the 2009 document. Fata said that approval came from the association board, not from a vote of the members as required under the 2005 restrictions.

“I know this is complicated,” Golding told the commission.

That’s why the planning staff recommended the commission approve the development and send it on to County Council, Johnson said. “County Council obviously has more legal resources.”

The development of multi-family units also drew objections from The Abbey at Pawleys Island, which renovated the former Litchfield Plantation carriage house and added a church. The development companies are Abbey LLC and TRK Abbey LLC although unrelated to the church.

The church spent over $4 million on its property, relying on the deed restrictions and their limits on density. “We were confident our church campus would be a safe and enjoyable facility which would foster the spiritual growth of our congregations and community,” the Rt. Rev. Chuck Murphy wrote in a letter to the commission.

Will Howard, a member of the church vestry, told the commission “the density of the property next door will have an impact on our church.”

“It will significantly impact our church in a very destructive way,” Cissy Van Balen, a church member, said.

Another adjacent property owner also objects to the project. Adam Williams, attorney for King George II Holdings, said the proposed development violates the deed restrictions. The registered agent for King George is John Miller, who is also president of the Litchfield Plantation Co. Miller bought the company in 2011. He could not be reached for comment.

The 5.2 acres has always been zoned for high-density development, Johnson told the commission. “Nothing’s changed,” Krauss said. “All those other issues will have to be decided at the County Council level.”

The commission recommendation included a condition added by commission member Lee Shoulette that no development begin before the dispute over the deed restrictions is resolved. The vote was 5-1, with commission member Zach Grate opposed.

The deed restrictions at Litchfield Plantation were the subject of a suit between the developer and the homeowners association that reached the state Court of Appeals in 2015. Judge James Lockemy, now the chief judge, said at the time of the hearing that the plantation looks “so serene and calm.” After hearing arguments, he said, “It’s not. It’s chaos.”

That suit was over control of the homeowners association. The Litchfield Plantation Co. always had the majority of votes for the association board until the company failed to make required payments to the association. Other property owners elected a new board and went to court to confirm the election. The case was settled last year and the company relinquished control.

The association brought suit this spring against the Litchfield Plantation Co. and Litchfield Plantation Weddings over the use of the colonial era plantation house for weddings and events. The association says the company improperly turned over its rights to the wedding company, which failed to make payments for use of the facility.

The defendants deny the claim and say it is the association that owes them money for maintaining the plantation house.

What’s next? Commission offers some hints

After some Murrells Inlet residents awoke to find a 53-lot subdivision in their backyards earlier this year, members of the Georgetown County Planning Commission wanted to make sure the Litchfield Plantation residents who packed their meeting last week didn’t have a similar experience.

“Be mindful,” Elizabeth Krauss, who chairs the commission, said following a vote to allow construction of 34 multi-family dwellings. Georgetown County Council, which has the final say.

Last year, the commission denied a rezoning request to allow a subdivision in Murrells Inlet. County Council reversed the commission’s decision, but residents who returned to the commission meeting earlier this year when the 53-lot development came up for review said they weren’t aware of the council’s decision.

After the vote on Litchfield Plantation, commission member Johnny Weaver asked if the residents who showed up to oppose the multi-family project would get notice when the issue comes before County Council. “No notice is sent out,” Boyd Johnson, the county planning director, said.

He also pointed out to the commission, and by extension the audience, that although the council won’t hold a public hearing on the project, citizens can sign up to speak during a comment period at the start of the meeting.

“So everybody who’s here would need to show up if they had any issues,” said commission member Freddie Hill.

That’s right, Johnson said. It should be on the agenda for the June 27 meeting, he added.

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