Marlin Quay: Rezoning dispute gets day in court without jury
There will be no quick resolution to a dispute that began nearly six years ago over parking at Marlin Quay Marina.
A trial that began this week in Circuit Court in a lawsuit by the Gulfstream Café challenging Georgetown County’s approval of a new marina office and restaurant will be decided by Judge Kirk Griffin after both sides agreed it was not a matter for a jury to decide. The judge and lawyers spent Monday morning whittling a pool of 65 jurors down to a panel of 12 plus two alternates. They returned after lunch to decide the jury wasn’t needed.
“I anticipate taking this matter under advisement,” the judge said during a pre-trial hearing over what evidence each side could submit.
Simon Bloom, representing Gulfstream, and Henrietta Golding, representing the county, said there was evidence proposed by the other side that they wanted to keep from the jury because they thought it would be prejudicial, but they agreed that the judge could decide as the case proceeded whether he would allow it.
Marlin Quay is a “planned development” zoning district approved by the county in 1982. Mark Lawhon, whose company bought the marina, planned to rebuild the store and restaurant. After he tore it down in November 2016, Gulfstream went to court to block the rebuilding, saying that the project would interfere with its easement for parking.
The first version of the project was considered a “minor change” by the county planning staff, meaning it didn’t require a public hearing before the Planning Commission or approval by County Council. Gulfstream appealed that decision, which was upheld by the Board of Zoning Appeals.
Before the issue could go to court, Lawhon agreed to submit the project as a “major change” with public review.
The county approved the plan in February 2018, but four months later a judge in the suit filed by Gulfstream against Lawhon and Palmetto Industrial Development ruled that any new building had to occupy the footprint of the demolished building.
A new plan, known as Versioin 3.0, was passed by the county in January 2019. Gulfstream sued.
Bloom told the court he would show that the county failed to comply with its rules and procedures in approving the new marina shop and restaurant. He called the previous facility a “snack bar.”
But if the judge disagreed, Bloom said, he would show that the impact of the change to the Marlin Quay development by the county was “inverse condemnation.”
“Government action here eliminated a value,” he said. “This is not something many judges see every day.”
Golding pointed out that the uses in the “planned development” haven’t changed since Jerry Greenbaum bought the Gulfstream Café in 1995. “The Marlin Quay restaurant has existed for a long time,” she said.
Golding also told the court that Greenbaum had the opportunity to buy the marina facility, but didn’t want to pay the asking price.
“I have to object,” Bloom said. Neither Greenbaum nor his son Greg, who was involved in the deal, were due to testify.
Griffin said he understood that Golding was only setting out a “road map” for her defense.
Although both sides agreed the heart of the dispute is the shared parking, Golding said the real reason for the suit is “Gulfstream doesn’t want competition anymore.”
Golding sought a motion for summary judgment in the case earlier this year, arguing that Gulfstream should have appealed the county’s initial decision to amend the Marlin Quay PD. It failed to do so, but appealed when the county approved an amendment for Version 3.0. Her motion was denied.
In court this week, Golding argued that the the change from the uncontested Version 2.0 to Version 3.0 was minor, altering only the footprint of the building to stay in the footprint of the original shop and restaurant.
Bloom argued that the change from the original building to the current structure was an expansion of the facility that should have triggered compliance with the county’s parking regulations, which would require far more than the 61 spaces currently at Marlin Quay.
Bloom also said it was the role of County Council Member Steve Goggans, whose firm designed the new building, that tainted the process from the start. He called it “the infection of this ordinance.”
The initial suit was filed against the county, the council and the individual council members. All of the council members except Goggans were dropped as defendants last year.
Goggans spoke at the Board of Zoning Appeals hearing in 2017 to defend the staff decision to treat the new building as a “minor change” that didn’t require public input. Gulfstream filed a complaint with the state Ethics Commission. Goggans was fined $700.
“Was Mr. Goggans’ conduct so improper that it resulted in the arbitrary and capricious approval of 3.0?” Bloom asked in the pre-trial hearing. He said it was the only explanation for the county’s decision to violate its own zoning regulations.
“This is the core of our case,” Bloom said.
Golding had argued that testimony about Goggans’ role should be excluded from the jury trial since it was not related to the approval of Version 3.0.
“He didn’t understand that he could not appear” before the appeals board, Golding said. “There’s no evidence, none, that Mr. Goggans had any influence on Marlin Quay 3.0.”
Jef Kirk, general manage of Gulfstream Café, testified that parking was a problem before the county approved the zoning amendment for the new building. At peak times, the restaurant serves about 350 people a night, he said. In July 2021, a traffic accident at the entrance blocked the access and the numbers fell by more than half, he said under questioning by Bloom. Most people come by car and there is no public parking in the area, Kirk said.
He disputed the claim Gulfstream is worried about competition.
“The real reason we’re here is because Palmetto blocked 15 parking spaces,” Bloom said, referring to Lawhon’s company.
Griffin sustained an objection from Golding to references to Gulfstream’s dispute with Lawhon.
Under questioning from Golding, Kirk said only one parking space had been affected by the new building at Marlin Quay; it was reduced in size due to a fire regulation.
Bloom subpoenaed Holly Richardson, the county planning director, to testify about the process that the Marlin Quay application followed. At the time, she was the senior planner. Bloom asked if County Council had a role in her promotion to planning director in 2020.
Richardson said the promotion was approved by Administrator Angela Christian. Bloom asked who the administrator answers to. The council, Richardson said.
Questioned by Bloom, she also said that Goggans had made an appointment to the Board of Zoning Appeals and the Planning Commission.
“Mr. Goggans had someone to lean on on the BZA,” Bloom said.
Bloom asked Richardson to explain how the county calculates parking requirements in its zoning ordinance, then said “you never did this analysis, did you?”
Seats vs. size
Richardson explained that a “planned development” is its own zoning district with its own set of requirements. Since there are no parking requirements in the Marlin Quay PD, she said the goal was to make sure there was no impact on parking from the new building.
Bloom pointed out that the building increased in size from about 4,500 square feet to 13,000 square feet. He asked if that should have triggered compliance as the ordinance requires.
Richardson said that only applies to “initial construction.”
“That building was torn down. There was no building,” Bloom said.
“I understand the distinction,” the judge said.
Richardson said the impact of the building was controlled by a limit of 110 seats placed on the restaurant. That was the same number as in the old building.
“Seats does not always translate into people,” Bloom said.
He also questioned why Lawhon was able to request two zoning changes within nine months when the ordinance requires 12 months between applications.
Richardson said the 12-month limit only applies to changes in zoning classification, such as from residential to commercial.
Bloom also pointed to evidence that not all residents within 400 feet of the marina got notice of the zoning hearing mailed to them as required by the ordinance.
Richardson said the database the planning department uses didn’t have addresses for the owners of 60 condos at Marlin Quay. The property owners association was contacted to help get notices out.
The hearing could have been delayed, Bloom said. “You didn’t pump the brakes, you just kept on going,” he said.
Richardson said the Planning Commission has a deadline for taking action.
Questioned by Golding, Richardson acknowledged that notices of the hearing were published and that the sign-in sheet contained the names of Gulfstream representatives. She also said the same database for mailing notices to adjacent property owners is used for all applications.
And Golding had Richardson confirm the heated square footage in the building approved in Version 2.0 and in Version 3.0.
It was 4,596 square feet in both, Richardson said, although the space for the restaurant was reduced by 11 square feet.
The trial is expected to continue through Friday.