Land use
Judge will hear additional arguments in townhouse lawsuit
A Circuit Court judge is scheduled hear arguments next week over whether he should alter his decision to dismiss a lawsuit over two developments in the Parkersville area.
The suit is one of three challenging Georgetown County’s land use decisions that were dismissed by separate judges earlier this year. Central to these suits and another that is currently before the state Court of Appeals, is the claim by neighbors and citizens groups that the county failed to follow state law by making zoning decisions “in accordance with” the county’s comprehensive plan. The land use element of that plan is currently being updated.
In each case, the plaintiffs asked the judge to reconsider. In two, the judge denied those motions based on written filings.
Next week’s hearing is an exception.
“We’re very pleased to see that,” said Cindy Person, chief counsel for Keep It Green Advocacy, which represents the plaintiffs. She also noted that this will be the first in-person hearing in any of the cases. The others have been held virtually.
At issue is the approval of two townhouse developments on property owned by members of the Nesbit family: 6.9 acres on Petigru Drive proposed for 41 units and 13.7 acres on Parkersville Road proposed for 47 units.
In June, Judge Ben Culbertson granted motions to dismiss the case against the property owners and the prospective developers and to limit the complaint against Georgetown County to an appeal of the council’s decision.
In his written order, Culbertson said the plaintiffs’ complaints that the county had violated state and local laws in approving the projects was not “a justiciable controversy.”
“At the heart of Plaintiffs’ claims for declaratory judgment is the assertion that the Planning Act requires the comprehensive plan of the county to be strictly adhered to in a county’s land use decisions and that it may be used as justification to deny development applications. The Court disagrees with this conclusion for several reasons,” he wrote.
Lawyers for Keep It Green Advocacy asked Culbertson to amend or reconsider his decision in July, arguing that there were facts in dispute to be decided at trial.
“The questions whether or not the actions of the governing body exceeded its authority under the Planning Act, whether or not the actions of Georgetown County Council violate the Planning Act or other applicable law, and whether or not the underlying zoning ordinance complies with the Planning Act requirement that zoning be ‘in accordance with’ the comprehensive plan are all factual determinations to be made after evidence has been presented” rather than in a motion to dismiss, they wrote.
Both tracts are zoned “general residential,” which allows townhouses, but the future land use maps in the current comprehensive plan show the property as “medium density,” which would not allow that many units.
The suit claims the zoning should have followed the limits in the comprehensive plan. It also claims that the final authority to decide if the projects comply with county regulations should have rested with the Planning Commission, not County Council, which gave them final approval. The commission recommended denial.
Since those decisions the council changed the ordinance to take itself out of the approval process for multifamily developments. The approval is now made by planning staff.
Culbertson’s order allowed the plaintiffs to appeal the council’s decision, without the mandate they sought that the county bring the zoning for the property into compliance with the density limit shown in the comprehensive plan.
Culbertson’s decision to dismiss the bulk of the complaint followed a similar decision by Judge William Seals in May dismissing a suit over the rezoning of county-owned property on Petigru Drive from a tech park to allow 90 townhouses. After he denied a motion to reconsider, Keep It Green Advocacy appealed to the state Court of Appeals.
In July, Judge Kristi Curtis dismissed a suit over the county’s approval of a 12-unit townhouse development on two acres, also on Petigru Drive. Last week, she denied a request to reconsider. Person said Keep It Green Advocacy plans to appeal her ruling.
A fourth suit is also on appeal by one of the defendants. Benjamin Goff is seeking to have a suit challenging the rezoning of his property to increase the number of lots dismissed.
A Circuit Court judge denied his motion. Goff appealed to the state Court of Appeals.
