Articles Posted in Zoning, Planning & Land Use

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Appellant Deerfield Plantation Phase II B Property Homeowners Association appealed an Administrative Law Court's (ALC) decision affirming Respondent South Carolina Department of Health and Environmental Control's (DHEC) decision to grant a National Pollutant Discharge Elimination System (NPDES) General Permit for Storm Water Discharges from Large and Small Construction Activity and Coastal Zone Consistency Certification to Respondent Deertrack Golf, Inc. Deertrack Golf owns the real property that is the subject of this dispute, a non-operational golf course known as the Old South Golf Course. Bill Clark Homes entered into a contract with Deertrack Golf to purchase the Old South Course. Bill Clark Homes designed a residential subdivision to be constructed within the acreage known as Phase I of the Old South Course, and obtained approval from Horry County for a subdivision consisting of 278 lots and comprising approximately 85 acres. The Old South Course is adjacent to an existing residential development known as Deerfield Plantation Phase II B, and Appellant represents its residents, who oppose the residential redevelopment of the Old South Course. The redevelopment plan necessitated the construction of a new stormwater management system utilizing an existing drainage network of stormwater ponds on the Old South Course. The redevelopment required a jurisdictional determination from the Army Corps of Engineers (the Corps) regarding whether any portion of proposed redevelopment acreage contained "waters of the United States" subject to the Corps' jurisdiction. In 2006, the Corps determined that the tract did not contain any federal waters subject to the Corps' jurisdiction. However, in 2010, upon Appellant's application, the Corps declared federal jurisdiction over .37 acres of the existing waters on the proposed 85-acre redevelopment tract. Appellant appealed the decision to the federal district court, arguing the Corps erred in failing to declare federal jurisdiction over the remaining waters found within the proposed redevelopment tract, and the district court granted summary judgment to the Corps. Appellant appealed the district court's decision to the Fourth Circuit Court of Appeals, which affirmed. During the pendency of the federal appeals, the South Carolina Court of Appeals variously stayed and held in abeyance the state appeal. However, in 2012, the court of appeals remanded the case "to the ALC to further remand the matter to DHEC for additional administrative action." The ALC remanded the case to DHEC. After DHEC took no additional administrative action, the court of appeals dismissed the appeal. After Respondents filed petitions for rehearing claiming the court of appeals misapprehended DHEC's reasons for taking no action on the Permit, the court of appeals reinstated the appeal. The South Carolina Supreme Court then certified the case for review, and affirmed (as modified) the ALC's decision upholding DHEC's issuance of the permit. Further, in light of the subsequent declaration of federal jurisdiction as to part of the acreage subject to the permit, the South Carolina Supreme Court remanded the case to DHEC for further administrative action. View "Deerfield Plantation v. SCDHEC" on Justia Law

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Appellant Columbia Venture, LLC, purchased approximately 4500 acres of land along the eastern bank of the Congaree River in Richland County, intending to develop the property. Columbia Venture knew at the time of the purchase that the Federal Emergency Management Agency (FEMA) was in the process of revising the area flood maps and designating most of the property as lying within a regulatory floodway. Pursuant to federal law, development is generally not permitted in a regulatory floodway. When Columbia Venture's efforts to remove the floodway designation were unsuccessful, Columbia Venture sued Richland County, alleging an unconstitutional taking. By consent, the case was referred to a special referee, who after numerous hearings and a multi-week trial dismissed the case and entered judgment for Richland County. The Special Referee concluded that Columbia Venture's investment-backed expectations were not reasonable in light of the inherent risk in floodplain development. Moreover, the Special Referee concluded that, on balance, the "Penn Central" factors preponderated against a taking and therefore that the County could not be responsible for any diminution in the property's value. Like the able Special Referee, the Supreme Court found Richland County's adoption of floodway development restrictions and the County's required utilization of FEMA flood data did not constitute a taking of any sort, and affirmed the Special Referee's decision. View "Columbia Venture v. Richland County" on Justia Law

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At issue before the Supreme Court in this case was a circuit court's order upholding the validity of an ordinance amending respondent City of North Augusta's 1996 Tax Increment Financing District (TIF) ordinance, and a finding that the Mayor and City Council did not violate the Freedom of Information Act (FOIA) between January to September 2013. In 1996, respondents adopted an ordinance creating a Redevelopment Plan to revitalize the City's riverfront and the adjacent areas. In 2013, City Council adopted an ordinance amending the Redevelopment Plan to allow the City to proceed with "Project Jackson," a development project of riverfront property for commercial activities ("minor league baseball stadium, a convention center, parking decks, a YMCA, a 200 room hotel, and assorted commercial buildings"). The ordinance both extended the duration of the Redevelopment Plan and the associated TIF Bonds, and increased the amount of the estimated Bond Issuance to finance the Plan. Appellant Stephen Donahue contended that the City did not comply with the statutory requirements of S.C. Code Ann. 31-6-80(F) (Supp. 2014). Appellant contends the final clause of 31-6-80(F)(2) required respondents to redetermine that the property affected by the amended ordinance met the criteria set forth in 31-6-80(A)(7) (Supp. 2014). He argued the City was required to hear evidence and then state their 31-6-80(A)(7) findings in Ord. No. 2013-19. Appellant subsequently made a FOIA request with regard to the the City's discussions of the ordinance amending the TIF Bonds. Appellant contends that the circuit court erred in finding that between January and September 2013 respondents complied with the FOIA's requirement that "the specific purpose of the executive session" be announced in open session. The circuit court held an announcement that the purpose of the executive session was the discussion of a "proposed contractual matter" satisfied the specific purpose requirement. The Supreme Court agree with the trial court that the ordinance at issue on appeal here was valid, but the Court agreed with appellant that the FOIA was violated. View "Donohue v. City of North Augusta" on Justia Law

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In January 1994, Respondent purchased two parcels of property located on Folly Island, South Carolina: 806 East Cooper Avenue, and Tract D. These lots were previously a contiguous tract of high ground property in which the Tract D portion abutted the ocean, and the Cooper Avenue portion abutted the roadway. However, at some point prior to Respondent's property purchase, two man-made canals were constructed, after which Tract D became completely surrounded by coastal tidelands and waters. In 2009, Respondent filed a permit application with the Department of Health and Environmental Control requesting permission to construct a vehicular bridge from 806 East Cooper Avenue to Tract D. DHEC denied the application because Regulation 30-12(N)(2)(c) prohibited the agency from issuing a bridge construction permit to a "coastal island" less than two acres in size, and the parties agreed that if Tract D was a "coastal island," it did not meet the regulation's minimum size requirement. Respondent requested a contested case hearing before the ALC. At the hearing, the parties focused on whether Tract D met the definition of a "coastal island." Ultimately, the ALC found Tract D "geologically, geographically and by legal description, is on and within the boundaries of Folly Island," and it constituted a "coastal island" separate and apart from Folly Island. The ALC upheld DHEC's denial of Respondent's bridge permit application. Respondent appealed to the court of appeals, and the court of appeals reversed the ALC's decision. Specifically, the court of appeals found that because DHEC "failed to challenge" the ALC's finding that Tract D was part of Folly Island, that finding became the law of the case. The Supreme Court concluded that the court of appeals misapprehended the law of the case doctrine. Specifically, the court of appeals erred in applying the doctrine so as to bar the prevailing party below from raising an additional sustaining ground. Therefore, rather than find the argument procedurally barred, the court of appeals should have considered whether Tract D was a "coastal island" as defined in the regulations. Accordingly, the specific regulatory exemption for Folly Island controls over the more general regulatory definition of "coastal island." As a result, Tract D could not be considered a "coastal island," and the minimum acreage requirement found in Regulation 30-12(N)(2)(c) does not bar Respondent's bridge construction permit application. In conjunction with Regulation 30-12(F) and the ALC's finding that "[t]he proposed bridge was the least environmentally damaging alternative for access to Tract D and, in fact, would have de minimus environmental impact," the Supreme Court found that DHEC and the ALC erred in denying Respondent's permit application. Therefore, the Court affirmed the result reached by the court of appeals, albeit through different reasoning. View "Dreher v. So. Carolina Dept. of Health & Env. Control" on Justia Law

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After prevailing in a condemnation action, petitioners-landowners moved for an award of attorneys' fees pursuant to section 28-2-510(B)(1) of the Eminent Domain Procedure Act. Contrary to petitioners' view, the circuit court determined attorneys' fees should be awarded based on an hourly rate via a lodestar calculation rather than the contingency fee agreement between Petitioners and their attorney. The Court of Appeals affirmed. The Supreme Court interpreted section 28-2-510 and concluded the General Assembly intended for attorneys' fees to be awarded based on a constellation of factors. Specifically, section 28-2-510(B)(1) mandated that in order for a prevailing landowner to recover reasonable attorneys' fees he or she must submit an application for fees "necessarily incurred." Therefore, by implication, the General Assembly precluded a landowner from recovering attorneys' fees based solely on a contingency fee agreement without regards for section 28-2-510. The Court explained that even though the contingency fee agreement is not the sole element in the calculation, it is still a significant component as it may be used to explain the basis for the fee charged by the landowner's counsel. "Our decision should not be construed as somehow condemning or eliminating an attorney's use of a contingency fee agreement. To the contrary, we recognize that the use of these agreements is a legitimate and well-established practice for attorneys throughout our state. This practice may still be pursued. Yet, it is with the caveat that the terms of the agreement are not controlling. Rather, they constitute one factor in a constellation of factors for the court's consideration in determining an award of reasonable litigation expenses to a prevailing landowner under section 28-2-510(B)(1). The court may, in fact, conclude that the contingency fee agreement yields a reasonable fee. However, the court is not bound by the terms of the agreement. " For this case, the Supreme Court held that the Court of Appeals misapplied case law precedent. Furthermore, the Court concluded the circuit court failed to conduct the correct statutory analysis, and remanded this matter to the circuit court. Petitioners' counsel was instructed to submit an itemized statement in compliance with section 28-2-510(B)(1) as counsel's original affidavit failed to identify the "fee charged" and the actual number of hours expended. View "South Carolina Dept. of Trans. v. Revels" on Justia Law

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The issue this case presented for the South Carolina Supreme Court's review centered on the correct application of those statutes and regulations pertinent to an invaluable (environmentally, economically, and socially) stretch of tidelands located on the edge of a spit of land along the South Carolina coast. A landowner and real estate developer sought a permit to construct a bulkhead and revetment stretching over 2,700 feet in length and 40 feet in width over the State's tidelands, thereby permanently altering 111,320 square feet or over 2.5 acres of pristine tidelands. The landowner sought to halt ongoing erosion along that stretch of tidelands in order to facilitate a residential development on the adjacent highland area. The Department of Health and Environmental Control denied the majority of the requested permit and granted a small portion to protect an existing county park. An administrative law court (ALC) disagreed and found a permit should be granted for the entire structure, and this appeal followed. The Supreme Court concluded the ALC committed several errors of law and therefore, it reversed and remanded for further consideration. View "Kiawah Development v. South Carolina Dept. of Health & Env. Ctrl." on Justia Law

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The plaintiffs in this case consist of four Charleston citizens' groups. Plaintiffs brought suit seeking an injunction against what they believed to be the unlawful use of a terminal by the Carnival Corporation's cruise ship, the "Fantasy." The Terminal is within the City's Old and Historic District which is listed on the National Register of Historic Places maintained by the United States Department of the Interior. Plaintiffs' complaint sought injunctive relief based on ten claims: seven based on City ordinances, a public nuisance claim, a private nuisance claim, and a claim based on the South Carolina Pollution Control Act. Following a hearing, the trial court commissioned a report which concluded: that as a matter of law, none of the ordinances applied to the Fantasy's use of the Terminal; the Pollution Control Act did not govern the Fantasy's discharges in South Carolina waters; but that the complaint made sufficient allegations to set forth both a private and a public nuisance cause of action. Plaintiffs and Defendants filed exceptions to the report. After considering the report and the exceptions, the Supreme Court dismissed the noise ordinance, sign ordinance, and Pollution Control Act claims, and withheld ruling on the motions to dismiss on the five zoning and two nuisance claims. After ordering briefing on the issues of standing, preemption, and whether the zoning ordinances applied to the Fantasy's use of the Terminal, the Supreme Court concluded Plaintiffs lacked standing. Accordingly, the Court granted Carnival's motions to dismiss. View "Carnival Corporation v. Historic Ansonborough Neighborhood" on Justia Law

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The Town of Hollywood filed suit against William Floyd, Troy Readen, and Edward McCracken (collectively, the developers) seeking a declaration that the developers could not subdivide their property without approval from the Town's Planning Commission and an injunction prohibiting subdivision of the property until such approval was obtained. The developers filed counterclaims under 42 U.S.C. 1983 alleging equal protection and due process violations as well as various state law claims. The circuit court granted summary judgment in favor of the Town on its claims for equitable and declaratory relief, and also granted the Town's motion for a directed verdict on the developers' state law claims. The jury returned a verdict in favor of the Town on the developers' due process claim, but awarded the developers $450,000 in actual damages on their equal protection claim. Both parties appealed. The Town argued that the circuit court erred in denying its motions for a directed verdict and judgment notwithstanding the verdict (JNOV) on the developers' equal protection claim, and in granting the developers' motion for attorney's fees and costs. The developers argued the circuit court erred in granting summary judgment in favor of the Town on its claims for equitable and declaratory relief. Upon review, the Supreme Court affirmed in part and reversed in part. The Court concluded that the circuit court properly granted summary judgment in favor of the Town on its claims for declaratory and injunctive relief., but erred in denying the Town's motions for a directed verdict and JNOV because the developers failed to show the Planning Commission treated them differently than other similarly situated developers in the subdivision application process. View "Town of Hollywood v. Floyd" on Justia Law

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Appellants owned property in North Myrtle Beach bounded by water on the west and north. In early 2007, they applied to the Department of Health and Environmental Control ("DHEC") for a critical area permit to construct a replacement bulkhead. DHEC issued a Critical Area Permit to Appellants. The permit included a special condition: "Provided the proposed bulkhead is placed in the same location as the existing bulkhead." In response to a complaint, a DHEC Enforcement and Compliance Project manager inspected Appellants' property and observed the replacement bulkhead was partially constructed in a different location along the northern property line and that fill dirt had been placed in the area between the house and new bulkhead. DHEC issued Appellants various written warnings, including a Cease and Desist Directive and a Notice of Violation and Admission Letter. However, follow-up inspections revealed Appellants continued to alter the critical area and construct the replacement bulkhead in a different, unauthorized location. Accordingly, DHEC sent Appellants a Notice of Intent to Revoke the permit. Thereafter, (in 2010) DHEC issued a separate administrative enforcement order assessing against Appellants a civil penalty of $54,0002 and requiring Appellants to restore the impacted portion of the critical area to its previous condition. However, rather than requesting a contested case before the ALC, Appellants filed an action in circuit court seeking judicial review of the Enforcement Order de novo and requesting a final order "overturning [DHEC's] [Enforcement Order] and decision dated [. . .] 2010, with prejudice[.]" The circuit court granted DHEC's motion to dismiss for lack of subject matter jurisdiction. The court found section 48-39-180 did not confer jurisdiction on the circuit court to review administrative enforcement orders issued by DHEC. Rather, the circuit court held such orders were administrative in nature and governed by the APA. Upon review of the matter, the Supreme Court agreed with the appellate court and affirmed dismissal of the action for lack of subject matter jurisdiction. View "Berry v. SCDHEC" on Justia Law

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The issue before the Supreme Court in this case arose from an administrative law court's (ALC) decision authorizing Respondent Kiawah Development Partners to construct a bulkhead and revetment on Captain Sam's Spit (the Spit) on Kiawah Island. In 1999, the Office of Coastal Resource Management (OCRM) established a baseline and building set back line twenty feet landward based on information that the Spit had accreted, and had not been subject to any significant, measurable erosion between 1959 and 1999. The movement of the baseline prompted Respondent to consider development of the Spit. On February 29, 2008, Respondent submitted an application to DHEC for a permit to construct a combination bulkhead and revetment in the area. On December 18, 2008, DHEC issued a conditional permit approving the construction of the erosion control structure for a distance of 270 feet. DHEC refused the permit request for a remaining 2,513 feet based on its concerns regarding cumulative negative impacts, including interference with natural inlet formation and possible adverse effects on wintering piping plovers. DHEC also determined that the project was contrary to the policies set forth in the Coastal Zone Management Program (CZMP). Respondent requested a final review conference by the DHEC Board, but the Board declined to hold a review conference. Respondent then requested a contested case hearing before the ALC, and challenged the denial of the construction of a bulkhead and revetment along the remaining 2,513 feet. The Coastal Conservation League (CCL) opposed the construction of any bulkhead or revetment on the Spit, and also requested a contested case hearing challenging the decision to authorize the 270 foot structure, but supporting denial of the remainder. The cases were consolidated. The ALC granted Respondent's permit to construct the bulkhead and revetment, subject to certain conditions reducing and altering its size. DHEC and CCL (collectively, Appellants) appealed the ALC's order. The Supreme Court reversed the ALC and remanded the issue in a decision published in late 2011. The Court subsequently granted Respondent's petition for rehearing, and accepted an amicus brief from the Savannah River Maritime Commission (the SRMC). The Court then withdrew its initial opinion, and issue this opinion, affirmed the decision of the ALC. "The essence of Appellants' argument is rooted in dissatisfaction with the verbiage and structure of the ALC's order, and not in actual errors of law or the absence of substantial evidence. The ALC acted within the permissible scope of its authority in modifying the existing permit to include a structure no larger than that requested by Respondent or initially reviewed by DHEC. On appeal of a contested case, we must affirm the ALC if the findings are supported by substantial evidence." View "Kiawah Development v. SCDHEC" on Justia Law