COASTAL OBSERVER

The state Supreme Court has upheld Georgetown County’s approval of a zoning change  that allowed construction of a new restaurant at Marlin Quay Marina, saying even if the county didn’t make the best decision the courts aren’t planners.

The unanimous opinion handed down last week came seven years after County Council approved the change to the “planned development” zoning at Marlin Quay and a year after the court heard arguments in the lawsuit seeking to overturn that decision. 

But a concurring opinion by Chief Justice John Kittredge, who was joined by Justice D. Garrison Hill, said they would have supported the challenge but for a dubious claim of financial damage because the approval process was “tainted” by the involvement of then-Council Member Steve Goggans, whose architecture firm designed the project.

The suit was one of a series brought by the Gulfstream Café to block construction of a new restaurant at the marina in Garden City. Both are part of a planned development created in 1982. Gulfstream argued that the county violated its own rules and ordinances in approving the marina restaurant to replace what its lawyers called a “snack bar” because there isn’t adequate parking.

Gulfstream has an easement to use 62 parking spaces in the development. It first filed suit in November 2016 after the previous marina store and restaurant were demolished to make way for a new one.

Georgetown County initially approved the new facility as a minor change to the zoning that only required staff approval. That was done at Goggans’ prompting, according to court documents. It eventually led to a reprimand and fine from the S.C. Ethics Commission.

The marina owner, Palmetto Industrial Development, whose principal is Mark Lawhon, agreed to resubmit the project, which became known as 1.0, as a major change that required Planning Commission review, a public hearing and three readings by County Council.

Version 2.0 was approved in 2018. Goggans recused himself from the process.

But a lawsuit by Gulfstream, part of a restaurant group whose principal is Jerry Greenbaum, against Palmetto Industrial Development over the parking easement led to a third version of the project.

A Circuit Court judge ruled in that suit that the new Marlin Quay building had to stay within the footprint of the original building.

Version 3.0 complied with that ruling. It was approved in 2019, again without Goggans’ participation.

Gulfstream then filed suit to challenge the county’s approval of the zoning change. It originally named all seven council members as defendants, but eventually dropped six of them. Goggans remained, with Gulfstream arguing at trial in Circuit Court and in its appeal to the Supreme Court that he had tainted the process.

Gulfstream also argued that its constitutional due process rights had been violated and that the county’s approval of the Marlin Quay building amounted to a taking without just compensation.

Circuit Court Judge R. Kirk Griffith ruled for the county in 2023. Gulfstream appealed to the Supreme Court because of the constitutional issues involved.

Simon Bloom, attorney for Gulfstream, told the high court in arguments last year that they either wanted the suit remanded to Circuit Court or compensation for the financial loss that Gulfstream would suffer from losing access to parking spaces.

Henrietta Golding, who represented the county and Goggans, highlighted testimony that showed Gulfstream was worried about the new marina restaurant taking its customers.

“This is about the competition,” she said.

In its opinion, written by Justice George James, the court said Gulfstream’s right to parking was a “limited property right.”

When the parking easement was granted in 1986, it was assumed that the marina would use the spaces in the day and Gulfstream would use them at night. But the court noted that Gulfstream’s easement was “nonexclusive” and that even with the zoning change there were still 62 parking spaces in the development.

“Gulfstream has the same right it had when the easement was conveyed to it in 1986,” James wrote. “For that reason alone, Gulfstream’s substantive due process claim fails.”

Gulfstream argued that the change in the zoning should have required an additional 108 parking spaces under the county zoning ordinance. But the court said that as a planned development Marlin Quay has its own unique set of regulations. “Strict compliance with zoning regulations, including those related to parking, is not required in PDs” under the county ordinance, James wrote.

The county based the parking on 4,500 heated square feet in the new building, which was also limited to 110 restaurant seats. Gulfstream argued that the building was actually 10,000 square feet and could accommodate people on its outside decks overlooking Murrells Inlet.

In his concurrence, Kittredge called the claim that the two buildings had the same “intensity of use” in order to satisfy parking requirements a “fiction” created by Goggans.

“Goggans engaged in self-dealing and inappropriate conduct from the outset that tainted the entire amendment process,” Kittredge wrote.

He said it was “incomprehensible” that County Council didn’t “revisit any of the special concessions initially afforded to Goggans’ pet project.”

But he agreed with the majority that it isn’t the court’s role to second-guess local planning decisions.

“The County’s decision to use only the heated square footage of the new restaurant to calculate the number of parking spaces needed may or may not have been the best decision,” James wrote. “However, a court’s role is not to challenge the wisdom of the county’s decision or become a city planner when the County makes an arguably poor decision.”

The court found that the zoning change was not a taking because Gulfstream did not lose all economic benefit, as it claimed.

Gulfstream presented testimony from an appraiser that the value of its restaurant would be reduced from $1.85 million to $89,900 because of the county’s decision.

The justices all focused on the appraiser’s “extraordinary assumption” that the zoning change would eliminate all parking for Gulfstream. 

James noted Gulfstream owns 17 spaces of its own and that the expert “did not consider the number of customers who may travel by foot, charter bus and ride-sharing services to the restaurant. In sum, Gulfstream still has an economically beneficial use of its property.”

Had it not been for Gulfstream’s “clear failure to quantify its damages in any reliable fashion, I would find Gulfstream otherwise proved its substantive due process claim,” Kittredge wrote.

The expert’s valuation “has no basis in reality,” he said. That was “fatal to Gulfstream’s case.”