Land use
Judge dismisses claims in townhouse lawsuit
A Circuit Court judge has dismissed a series of legal challenges to Georgetown County’s approval of two multi-family developments in the Pawleys Island area. It is the second time this year that claims that the county’s land-use decisions violated state law have been dismissed.
However, the ruling last week by Judge Ben Culbertson allows neighbors and citizens groups to appeal County Council’s approval of 53 townhouses on Petigru Drive and 56 townhouses on Parkersville Road. That will continue to move forward in Circuit Court.
The property at both sites is zoned “general residential,” which allows high density projects (defined by the county as between five and 16 units an acre). The Planning Commission recommended denial of the Petigru project because it didn’t comply with tree and stormwater requirements. It said the Parkersville project didn’t comply with the medium density designation in the future land-use maps that are part of the county’s comprehensive plan.
County Council approved both plans.
A lawsuit filed by Keep It Green Advocacy asked the court to invalidate the council’s decision and affirm the commission’s decision to deny approval. It said the county’s process for site plan approval of multi-family projects violates state law by giving final authority to the
council. It also asked the court to order that the zoning ordinance be brought into compliance with state law.
At a hearing last week, the assistant county attorney, Tommy Morgan, argued the suit should be dismissed because the courts can’t overturn decisions of local government unless they violate a citizen’s constitutional rights. The court rules allow dismissal for “failure to state a claim upon which relief can be granted.”
The state law gives the “governing body” authority to make land-use decisions, Morgan said, and that’s what Georgetown County did.
“The Planning Commission’s an unelected body. They’re not the governing body,” he said.
Morgan told the judge that the argument that the zoning ordinance conflicts with the comprehensive plan is simply wrong.
“A comprehensive plan is just that: it’s a planning document. It’s a guide,” Morgan said.
The plaintiffs didn’t like the council’s decision so “they’re going to try to manipulate and game the system” by asking the court to overturn it, he added. “If plaintiffs don’t like it, they can head to the ballot box.”
The suit is one of four filed by Keep It Green Advocacy since January 2022. Morgan noted that a challenge to the council’s decision to change the “planned development” zoning for another parcel on Petigru Drive to allow a townhouse develop was dismissed by another Circuit Court judge in April. “It’s the exact same argument,” he said.
The property owners, members of the Nesbitt family, and two developers, Laine CRE and TriStar Land, asked to be removed from the suit if it was not dismissed outright.
“We’re just selling the property,” said Clifford Nesbitt. “We have the right to sell our property.”
Cindy Person, chief counsel for Keep It Green Advocacy, acknowledged the issue was with the county, but said the rules of procedure required naming the others defendants.
The county, she said, “mischaracterizes” the complaint.
“It’s not about whether we like the decision or don’t like the decision. It’s about whether the decision follows the law,” she told the court.
Person pointed out that raising the decision in another case, “which is still pending, by the way, is completely misplaced.”
One involves a zoning change. The case at hand “is about land development approval,” she said. “The controversy is whether or not the land development decisions complied with the law.”
Person argued the case should be allowed to move forward to try the facts.
“She’s just acknowledged that this is all a question of law,” Morgan said in rebuttal. “She’s asking the court to go behind the county and put its opinion to determine everything.”
Person asked Culbertson for more time to respond in writing to Morgan’s arguments, which were filed the day before the hearing.
“It’s just a 12(b)(6). I’ll take a look at the complaint,” he said, referring to the rule of procedure that allows a dismissal.
The hearing was held in mid-morning. Culbertson filed his ruling after lunch, asking Morgan to prepare a formal order.
The state law allows appeals of land development approval to receive precedence over other cases at the judge’s discretion.
In April, Judge William Seals dismissed a challenge to the zoning change that will allow 90 townhouses on 14.4 acres that the county originally planned for a tech park. Person asked the judge to amend his decision to allow the suit to move forward, a necessary step before filing an appeal.
The court’s order “improperly addresses the merits of issues raised” rather than limiting its review to claims made in the complaint as the rules require, Person said in a filing.
In a response filed this week, Morgan said there was no “clear error of law” or “manifestly clear injustice” that would require Seals to amend his order.
He said the suit hinges on the claims for the authority of the comprehensive plan. Because of that, it “renders many issues moot if it is determined, as it appropriately was, that the Comprehensive Plan does not have the effect of binding law.”
