COASTAL OBSERVER

The state Court of Appeals last week denied a motion to dismiss an appeal of a lawsuit over the rezoning of property on Pawleys Creek and a request to sanction the neighbors who filed the suit.

Lawyers for the developers of the Magic Oaks project of 27 single-family lots between the creek and Highway 17 claimed that the suit was filed “to hinder and delay Magic Oaks from developing its property.”

The suit was filed last year by owners of four neighboring properties after Georgetown County Council approved a “flexible design district” zoning designation for the property. The suit argued that the zoning change was invalid because the county failed to previously bring the zoning into compliance with the “conservation preservation” designation for the property in the county’s comprehensive plan.

In addition, the neighbors argued that the council improperly changed the location of a proposed public kayak launch in the development rather than sending the change back to the Planning Commission for review.

Magic Oaks successfully argued in Circuit Court that the claim over the kayak launch should be removed because the developers couldn’t reach agreement with another neighbor, who owns the Hammock Shops Village, for public parking.

The neighbors, represented by Keep It Green Advocacy, appealed, saying that the council’s action was improper regardless of the final location of the kayak launch. In the meantime, they amended their complaint to remove the claim.

Magic Oaks, represented by the Bellamy law firm, asked the Appeals Court to dismiss the appeal, noting that removing the claim about the kayak launch didn’t affect the neighbor’s principal claims that the county didn’t have the authority to amend the non-compliant zoning.

“In fact, Appellants’ Amended Complaint retains all of the same causes of action as the initial Complaint,” Magic Oaks argued in its filing.

Under the court rules, the appeal was improper, Magic Oaks said.

It said the “ulterior purpose” was “to delay development and effect an injunction without posting a bond to protect Magic Oaks,” it said. It asked for sanctions “to discourage like conduct in the future.”

In February, Trip Nealy, who is developing the property, announced that he is moving forward and held an open house for real estate agents.  He said his lawyers approved his decision.

The neighbors argued that the change made by County Council to the location of the kayak launch in the development plan was a “critical element” of its suit.

The decision of the lower court to strike that element from the complaint “prevents Appellants from producing evidence of the ‘changed plan,’ that forms the basis of their cause of action. The effect of the Order is a decision on the merits that prevents Appellants from litigating their claim, essentially dismissing the cause of action at issue,” they said in a filing.

That was an error, they argued, that the Appeals Court should reverse.

As for sanctions, they pointed out that in the motion to dismiss, Magic Oaks “inundated the court with more than 100 pages of documents, the majority of which are not related to this appeal in any way.”

The Appeals Court denied the motion to dismiss “without prejudice,” allowing it to be renewed in future filings.

It also declined to impose sanctions, both “after careful consideration.”

“Ironically, any delay in this case was brought about by Respondents’ filing a Motion to Strike material matters during the pleadings stage of the case rather than simply allowing Appellants to litigate their claims on the merits,” the neighbors said.