South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

Planning by lawsuit? Residential growing pains land Greenville County in court — again
December 11th, 2018

By Anna B. Mitchell, The Greenville News

The specter of urban sprawl has pulled Greenville County back into court.

In a legal challenge filed Nov. 21, a highly organized contingent of rural residents is trying to block construction of a 45-home subdivision, Howard Farms, off Fairview Road in southern Greenville County, a project the county planning commission had initially rejected.

It is the converse of an appeal that developer Bruce Niemitalo filed in September against the Greenville County Planning Commission, which had initially approved, then rejected, the Ethan Richard Estates subdivision in northern Greenville after another highly organized rural citizens group confronted the body.

Both cases highlight the intense growing pains that leaders are grappling with as land development rules have evolved and dense residential development has pushed north and south of the county's urban core.

Michael Corley with the South Carolina Environmental Law Project has helped rural residents at both ends of the county formulate legal arguments against sprawl. He is also representing two people — Brian Campbell and Julie Turner — whose properties neighbor the proposed Ethan Richard Estates development, and has intervened in that case to support the county's rejection of it.

"I think Greenville County more than almost anywhere in the state has this problem of high-density subdivisions just being slapped down in these rural landscapes," Corley said. "We are facing this at both ends of the county, north and south."

Campbell's backyard off Tigerville Road will face six houses if the Ethan Richards project goes through. He said people in the area bought their homes because they were looking to retire in a quiet country setting. They don't object to the site getting developed, but he said the density of the development — 31 homes on half-acre lots — is the problem.

"Where do you meet in the middle — that's the neighborly perspective," Campbell said. "You want to build houses. That's fine. Just don't build a lot of houses."

Southern Greenville County resident Caron Wilson says she objects to the Howard Farms development because urban sprawl is already "destroying" her farm, Freehaven Farm. In addition to herbicides and pesticides polluting ground and surface water pollution, she said, people are using her farm as their personal "green space."

"My animals have been shot, stolen, maimed and killed by subdivision residents and their so-called pets," Wilson said at a recent planning commission meeting. "How does this planning commission justify taking away others' rights in favor of a developer who has no concern for the surrounding rural area nor its existing residents?"

Developer Kenny Lavertu did not respond to a request for comment but has until the end of December to file an answer in defense of his proposed Howard Farms subdivision.

The attorney representing Ethan Richard Estates, Stokely Holder, wrote in an email to The News that he is confident in his client's case against the planning commission and has strong evidence to support it.

"We understand there is a desire of some to try and litigate only certain aspects of this case in the media," he wrote. "We have confidence that our judicial system will resolve this matter by reviewing all of the relevant facts in accordance with the law that applies."

Prior to this year, rural residents such as Wilson had little legal recourse against development in unzoned, rural areas, but that changed with a rule the Greenville County Council added this past spring to its Land Development Regulations (LDR).

In it, the new Article 3.1 gives the planning commission power to approve (or reject) subdivisions based on their "compatibility" with the surrounding area. Roads, wetlands, historic landmarks and — critically — the density of nearby subdivisions, can all be invoked in a subdivision's rejection.

But defining "compatible" has proven to be a problem, opening the door for litigation.

"3.1 has been only enacted fairly recently, so the commission is learning how to interpret it and developing a feel for how to interpret it," Jay Rogers, chairman of the Greenville County Planning Commission, said recently.

ARTICLE 3 GENERAL SUBDIVISION REQUIREMENTS 3.1 Review Criteria: Submitted subdivisions may be approved if they meet all of the following criteria: • Adequate existing infrastructure and transportation systems exist to support the project; • The project is compatible with the surrounding land use density; • The project is compatible with the site’s environmental conditions, such as but not limited to, wetlands, flooding, endangered species and/or habitat, and historic sites and/or cemeteries.

Members of the commission have invoked 3.1 to justify votes both for and against developments, leaving residents and developers confused about how the county's residential growth will proceed into the future.

In the case of Ethan Richard Estates to the north, commissioners said in their July meeting that it was the proposal's density that drove their decision to reject. The 31-house subdivision would have lot sizes averaging 0.56 acres within a 23.6-acre footprint. Its 11 neighboring lots average 4.8 acres each.

In the case of Howard Farms, commissioners said in their October meeting that it was the proposal's roads that drove their decision to approve. Lot sizes will be just over half an acre while neighboring ones ringing the subdivision range from two to 100 acres, and the commission had previously used 3.1 to justify rejecting it.

"It's very difficult to understand why they would change a decision from one month to another when very little changes in an application," said Jim Moore, an active member of Citizens for Quality Rural Living, the group suing to stop Howard Farms.

The word "arbitrary" comes up in both the Howard Farms and Ethan Richard Estates lawsuits.

"The commission seems to swing back and forth on its decisions based on 3.1 because perhaps 'compatible' isn't well-defined," said Faith Martzin, a Greenville attorney representing Citizens for Quality Rural Living.

Such land use rules seek a middle ground between allowing discretion to deal with individual situations and not being so open-ended as to be meaningless.

"The idea we would take some step to curb this rampant sprawl, it's something new and needed and very much exciting from the perspective of groups like mine and the people I represent," Corley said.

From the Howard Farms lawsuit: "The decision of the Planning Commission to approve 'Howard Farms' in October was arbitrary, in that the Planning Commission denied approval of the subdivision in July on the basis that the subdivision was not compatible with the surrounding land use."

And the Ethan Richard Estates lawsuit: "The Planning Commission’s purported reconsideration and revocation of its prior approval of Plaintiff’s application was arbitrary, capricious, unreasonable, and beyond its lawfully delegated authority."

Martzin told The News Howard Farms is the third suit Citizens for Quality Rural Living has filed to block high-density residential development in southern Greenville County. The other two previously proposed subdivisions — Copperleaf and The Meadows at Fair Grove — and Howard Farms are all within a mile of each other, a crossroads of suburbia and rural homes off Fairview Road.

"Subdivisions along Fairview Road have not been well managed," Martzin said. "And it's sort of the urban sprawl, urban creep that seems to be happening that way."

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