Background

In an unprecedented move to curb bad development, in 2018 Greenville County amended its Land Development Regulations in order to allow rejection of subdivisions that are not "compatible with the surrounding land use density" or the site's environmental conditions.

Accordingly, the Planning Commission started rejecting several new subdivisions proposed in rural areas. Unsurprisingly, the developers did not take it well and, in the case of a project in northern Greenville County, even sued the commission, which has since taken a much more subdued stance, greenlighting other ill-sited and ill-conceived projects.

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Save Greenville County's Vanishing Rural Communities!

Tigerville and Article 3.1

The Ethan Richard Estates project envisions 31 homes on a 23-acre property along Tigerville Road in an unincorporated part of the County. In stark contrast, the adjoining properties are 10 and 14 acres each, both with a single residence and mixed agricultural use. The existing property density and usage are typical of the area, and community opposition to this aberrant subdivision has been strong and persistent. Appropriate land use regulation is a critical tool for environmental protection, and our local government must be empowered to use it for the greater good, which is exactly what Article 3.1 of the Land Development Regulations makes possible.

After the Planning Commission reconsidered its initial approval and denied approval of the project in July 2018, the developer sued the commission in Circuit Court, seeking the reversal of the denial. This litigation threatened not only to disfigure the affected rural tract, but also to eviscerate the new land planning regulation and the County’s power to protect rural lands in general. We therefore intervened in the appeal on behalf of neighbors. After a prolonged but unsuccessful mediation, several hearings were held, with the Court gradually realizing the wider implications for Greenville County land planning. In January 2020, the Court sided with the developers. However, the ruling was not based on the subdivision’s incompatibility with surrounding land use density under Article 3.1, but rather on the commission’s lack of legal authority to reconsider its earlier approval of the project.

After the Planning Commission reconsidered its initial approval and denied approval of the project in July 2018, the developer sued the commission in Circuit Court, seeking the reversal of the denial. This litigation threatened not only to disfigure the affected rural tract, but also to eviscerate the new land planning regulation and the County’s power to protect rural lands in general. We therefore intervened in the appeal on behalf of neighbors. After a prolonged but unsuccessful mediation, several hearings were held, with the Court gradually realizing the wider implications for Greenville County land planning. In January 2020, the Court sided with the developers. However, the ruling was not based on the subdivision’s incompatibility with surrounding land use density under Article 3.1, but rather on the commission’s lack of legal authority to reconsider its earlier approval of the project.

Saving the Bunched Arrowhead

While the litigation on Tigerville progressed, a new subdivision called Crestfield Farm was proposed in a rural part of Greenville County where many surrounding properties have been acquired for conservation of extraordinarily rare plant life, including the endangered bunched arrowhead. SCELP represented the community before the Planning Commission and in early January 2020, the applicant withdrew its proposal. Adding to the good news, we also learned that conservationists are planning to purchase the property to allow the rare plant species to thrive.

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As soon as the January 2020 Circuit Court’s decision in favor of the developers re-instated the initial approval of the Tigerville subdivision, we appealed it before the same Court on the grounds of its incompatibility with Article 3.1 of the Land Development Regulations. The outcome of this case holds the fate of the rural subdivision ordinance in the balance.

Indeed, the Tigerville lawsuit seems to have tamed the enthusiasm for the new regulations and in February 2020, the Planning Commission green-lit the high-density Oakvale subdivision in the Blue Ridge area, setting a dangerous precedent for the Upstate's rural lands, which face increasing encroachment. In response to this faulty decision, in May we filed an appeal with the Circuit Court.

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Fews Crossing

A few weeks after reviewing our arguments to stop the Oakvale subdivision, another high-density subdivision called Fews Crossing was approved practically next door. Both subdivisions raise flooding issues on Foyster Creek, which has flooded infrastructure in the last year. And, both subdivisions defy the county's sensible land development regulations.

Like with Oakvale, in August 2020 we filed an appeal of the Fews Crossing approval on behalf of Northern Greenville County Rural Landowners.

On June 22, 2021, the Honorable Edward R. Miller, Thirteenth Circuit Judge remanded the approval of the Fews Crossing subdivision to the Greenville County Planning Commission.

At the June 1, 2021 hearing, Upstate Staff Attorney Michael Martinez argued on behalf of Northern Greenville County Rural Landowners that the Planning Commission improperly approved the subdivision by refusing to apply the criteria requiring a project’s compatibility with the surrounding land use density because it is an unzoned area and by failing to assess the potential for increased flooding caused by the project.  

In the order, Judge Miller remanded the approval back to the Planning Commission and ordered the Planning Commission to make “comprehensive written findings to delineate the reasoning of its approval of the subdivision.” The written findings “must expressly address the factors outlined in Article 3.1 of the County’s Land Development Regulations.” The Court determined “the lack of specific findings” for the three factors delineated in Article 3.1 was “inadequate to support the Planning Commission’s decision to approve the proposed subdivision.”

"Judge Miller’s order affirms the Planning Commission’s obligation to apply the law and specifically address all three of the criteria listed in Article 3.1 when it issues a decision, including whether a project is compatible with the surrounding land use density,” Martinez said following the win. “The Court’s ruling is a significant win in SCELP’s ongoing effort to preserve the character of Greenville County’s rural communities and ensure development does not harm sensitive environmental features or exacerbate the risk of flooding.”  

Download a copy of the order for remand below.

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Oakvale

Great news! On November 3, 2021, the Honorable Perry H. Gravely, Thirteenth Circuit judge, issued an order reversing the Greenville County Planning Commission’s approval of the high-density Oakvale subdivision in the Blue Ridge area, finding that Article 3.1 applied to zoned and unzoned subdivisions alike and that there was not enough evidence to support the approval.  Judge Gravely remanded the matter back to the Planning Commission for consideration of all the Article 3.1 factors.

“The Court’s order today establishes that the Planning Commission disregarded its clear mandate to consider the density compatibility provision of Article 3.1 without any legal basis and in contradiction of its past practices,” said staff attorney Michael Martinez, who fought on behalf of Northern Greenville County Rural Landowners. “This litigation and the Court’s order should serve as notice to the Planning Commission that its regulations and procedural rules cannot be ignored without consequences.”

Download a copy of the order below.

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Issue Update

On August 17, 2021, in defiance of their constituents' wishes and county planning staff's recommendations, Greenville County Council voted 7-5 to replace the county's only check on unabated sprawl, Article 3.1., and to instead allow developers to set aside little to no open space for subdivisions in rural, unzoned areas.

The decision comes after a bombshell report revealed that development interests contributed at least $77,000 to County Council campaigns — the largest source of campaign money for Council members. Elected officials should represent their community's interests, not their largest donors. Nevertheless, we are undeterred and appreciate everyone who called and emailed their elected officials and showed up at public hearings. SCELP will evaluate potential legal action against the County for its use of a procedure that prevented critical input from members of the public on a matter that affects all of Greenville.

READ MORE: The Fight to Protect Greenville from Unrestrained Development Continues, by Upstate Staff Attorney Michael Martinez