COASTAL OBSERVER

A challenge to Georgetown County’s approval of a new marina store and restaurant at Marlin Quay that prompted a series of lawsuits should be dismissed because it was filed too late, the county argued at a hearing last week.

“This is the one issue,” said Henrietta Golding, the attorney who represents the county. “If we try this case, that is the one issue as well.”

Marlin Quay is a “planned development” zoning district that was created in 1982. It includes the marina, the Gulfstream Café, a parking lot and condominiums. 

In November 2016, the new owner of the marina, Mark Lawhon, demolished the old store and shop. Gulfstream, which according to court documents is owned by Jerry Greenbaum of Boca Raton, Fla., and managed by CentraArchy Restaurants  of Charleston, filed suit saying the work interfered with its easement to use the parking lot. Gulfstream also challenged Lawhon’s plan for a new building, both at the county and in the courts.

The first version of the building plan was approved as a minor change to the planned development that only required staff approval, a decision upheld by the Circuit Court. But Lawhon then applied for approval as a major change, which required a public hearing, review by the Planning Commission and three readings by County Council. That plan, known in court filings as version 2.0, was approved by the county in February 2018.

The following June, a jury ruled that Lawhon had interfered with Gulfstream’s easement. A judge issued an injunction saying the new marina facility could only be rebuilt in the footprint of the old facility. That required Lawhon to seek another change to the planned development. Following a hearing and review by the Planning Commission, the County Council gave final approval to version 3.0 in January 2019.

Gulfstream filed suit in Circuit Court to overturn that approval, arguing that the county violated its own procedures in the process and that the result was an unconstitutional taking.

At last week’s hearing, Golding held up two three-ring binders containing Gulfstream’s response for her motion for summary judgment in the county’s favor and told Judge Jennifer McCoy that she could  address each of Gulfstream’s claims and show where its facts were “either not accurate or misapplied.”

But she said the court’s resources were limited.

Instead, Golding argued the restaurant’s claims are invalid because it failed to appeal version 2.0 in 2018 within the 60-day window required by state law.

“All of Gulfstream’s constitutional challenges as well as the taking of property challenges are gutted if Gulfstream should have appealed from version 2. That is the central issue,” Golding said.

Andrea Pearson, who represented Gulfstream, said that Golding had “overly simplified the issues.”

Among those, she focused on the role of Council Member Steve Goggans, whose architecture firm designed the first plan for Lawhon, and noted that he was sanctioned by the S.C. Ethics Commission for representing Lawhon before the county Board of Zoning Appeals.

He had “very considerable back and forth with staff,” Pearson said. “He got them to agree.”

Pearson told the court that version 3.0 was different from version 2.0 of the marina restaurant.

“The footprint of 2.0 could not be built” following the injunction issued in June 2018, Pearson said. “It’s a false premise to say these are the same building.”

The judge pressed Pearson about Gulfstream’s failure to appeal version 2.0. 

“They were fine with how that plan would be?” McCoy asked. “They were good with it?”

Pearson said Gulfstream was challenging that building through its initial suit against Lawhon and his company, Palmetto Industrial Development.

“I don’t think that means you relinquish the  duty or responsibility to follow the statute as far as appealing,” McCoy said.

Pearson also listed ways Gulfstream thinks the county failed to follow its own rules, particularly in failing to apply its parking requirements to the new restaurant. “They didn’t want to look because they knew what they would find,” she said.

Simon Bloom, a principal in the Atlanta law firm where Pearson works, asked for an opportunity to explain why Gulfstream did not appeal the county’s 2018 approval over version 2.0. He explained that he had handled the suit against Lawhon that resulted in the injunction.

Lawhon’s plan for a restaurant that would compete for business and limited parking space “would put Gulfstream out of business,” Bloom said. “That’s why they sued the new owner of the marina.”

The original arrangement was for the marina “snack shop” to use the parking during the day and the Gulfstream Café to use it at night.”

Although Gulfstream vigorously opposed all of Lawhon’s plans, it had no obligation to appeal version 2.0, Bloom said.

And since the injunction prohibited Lawhon from building 2.0, an appeal wasn’t needed, he said.

“But you didn’t know all that until the 60 days had passed,” the judge said.

“We took a risk,” Bloom said.

“There you go,” McCoy said. “You just hit the nail on the head.”

But Bloom said once the county approved version 3.0 of the marina facility, the clock started running again.

“There’s not a single case that they can rely on that says we waived our ability to appeal a brand new piece of legislation,” Bloom said.

In rebuttal, Golding said the differences between the versions of the building didn’t matter. The amendment to the zoning ordinance was the same.

“They say we have no case law? We have the statute,” Golding said. “They should have appealed version 2.”

The case is scheduled for trial in February.

“I’ll try to get an order as soon as possible,” McCoy said.