Michael T. Green v. Georgetown County

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Michael T. Green and Carrie J. Green; Julian P. Rutledge
and Melvin L. Rutledge; Patricia S. Grate; Carlethia B.
Jenkins; Frances Jo Baker; Parkersville Planning &
Development Alliance, Inc.; Keep It Green Inc.; and
Preserve Murrells Inlet, Inc., Plaintiffs,

of which Michael T. Green and Carrie J. Green; Julian P.
Rutledge and Melvin L. Rutledge; Carlethia B. Jenkins;
Frances Jo Baker; Parkersville Planning & Development
Alliance, Inc.; Keep It Green Inc.; and Preserve Murrells
Inlet, Inc., are the Appellants,

v.

Georgetown County; Laine CRE, LLC; TriStar Land,
LLC; and Samuel J. Nesbit on behalf of the heirs of Will
Nesbit, Respondents.

Appellate Case No. 2024-000023

Appeal From Georgetown County
Benjamin H. Culbertson, Circuit Court Judge

Unpublished Opinion No. 2026-UP-288
Heard May 13, 2025 – Filed June 10, 2026

REVERSED
F. Patrick Hubbard, of Columbia, and Cynthia Ranck
Person, of Pawleys Island, for Appellants.

H. Thomas Morgan, Jr., of Smith Robinson Holler
DuBose Morgan, LLC, of Camden; Shanon N. Peake and
Sydney Jean Douglas, both of Smith Robinson Holler
DuBose Morgan, LLC, of Columbia, all for Respondent
Georgetown County,

Matthew Evan Pecoy, of Pecoy Law Firm, LLC, of
Charleston, for Respondents Laine CRE, LLC, and
TriStar Land, LLC.

PER CURIAM: Michael T. and Carrie J. Green; Julian P. and Melvin L.
Rutledge; Carlethia B. Jenkins; Frances Jo Baker; Parkersville Planning &
Development Alliance, Inc.; Keep It Green, Inc., and Preserve Murrells Inlet, Inc.
(collectively, Appellants), appeal the circuit court's dismissal of their complaint
contesting Georgetown County Council's (County Council's) approval of two
applications for new subdivisions. 1 We reverse.

FACTS/PROCEDURAL HISTORY

The two subdivision applications involved in this case were submitted to the
Georgetown County Planning Commission (Planning Commission) on July 19,
2022. The applications sought approval for the construction of two townhome
communities in the Parkersville community in Georgetown County. The Planning
Commission's staff recommended approval of the applications. At the Planning
Commission's August meeting, it denied the subdivision applications because they
did not comply with the County's Comprehensive Land Use Plan (the
Comprehensive Plan). The subdivision applications were placed on County
Council's September 27, 2022 agenda, and County Council reversed the Planning
Commission's denial of the subdivision applications.

1
Individual appellants are adjoining landowners, and the other appellants are
community action organizations.
On October 24, 2022, Appellants filed a complaint against Respondents, seeking a
declaratory judgment that sections of Ordinance 607 giving County Council
authority to approve the subdivision application were invalid because they
conflicted with the South Carolina Local Government Comprehensive Planning
and Enabling Act of 1994 (the Enabling Act).2 Appellants also maintained County
Council's decision was arbitrary and conflicted with the County's Comprehensive
Land Use Plan (the Comprehensive Plan).3 In the event the circuit court
determined County Council had the authority to grant the subdivision applications,
Appellants also sought an appeal of that decision. Georgetown County, Laine
CRE, LLC, TriStar Land, LLC, and Samuel J. Nesbit (collectively, Respondents)
filed motions to dismiss pursuant to Rule 12(b)(6), SCRCP. The circuit court
granted the motions,4 concluding the general provisions of the Enabling Act give
County Council, as Georgetown County's legislative body, the authority to make
rules regarding zoning. The circuit court also found Appellants failed to allege a
constitutional deprivation to provide the basis for a claim seeking to invalidate a
zoning decision. Finally, the circuit court held Appellants' argument that County
Council's approval was contrary to the Comprehensive Plan was immaterial
because the Comprehensive Plan is merely a guideline and not law. This appeal
followed.

LAW/ANALYSIS

I. Conflict with the Enabling Act

On appeal, Appellants challenge County Council's authority to approve the site
plan because sections of Ordinance 607, which provided for review and approval
of site plans by County Council in certain instances, conflicted with the Enabling
Act. Specifically, Appellants assert Ordinance 607 conflicted with section
6­29­1150, which provides that the Planning Commission has the final decision on
site plan approval or disapproval with appeals taken to the circuit court.

2
S.C. Code Ann. § 6-29-310 to -1640 et seq. (2004 & Supp. 2025).
3
Appellants raised several other arguments in their complaint to the circuit court
that are not raised in this appeal.
4
The circuit court ruled the appeal of County Council's decision could go forward.
However, because this opinion determines County Council's approval of the
subdivision application conflicts with the Enabling Act, any appeal therefrom is
moot. See Byrd v. Irmo High Sch., 321 S.C. 426, 431, 468 S.E.2d 861, 864 (1996)
("This Court will not pass on moot and academic questions or make an
adjudication where there remains no actual controversy.").
Section 6-29-1150 provides:

(A) The land development regulations adopted by the
governing authority must include a specific procedure for
the submission and approval or disapproval by the
planning commission or designated staff. These
procedures may include requirements for submission of
sketch plans, preliminary plans, and final plans for
review and approval or disapproval.
....

(C) Staff action, if authorized, to approve or disapprove
a land development plan may be appealed to the planning
commission by any party in interest. The planning
commission must act on the appeal within sixty days, and
the action of the planning commission is final.

(D)(1) An appeal from the decision of the planning
commission must be taken to the circuit court within
thirty days after actual notice of the decision.

Several sections of Ordinance 607 related to larger site plans and indicated the
applications "shall have a site plan reviewed by the Planning Commission,
approved by County Council and comply[ing] with" certain additional
requirements. See 607.207, 607.306, 607.4025 (2011-41).5 Appellants contend
these sections conflicted with the Enabling Act rendering Ordinance 607 invalid,
meaning County Council lacked authority to approve or disapprove of the
proposed site plan. We agree.

"[I]n order for there to be a conflict between a state statute and a municipal
ordinance 'both must contain either express or implied conditions which are
inconsistent or irreconcilable with each other. Mere differences in detail do not
render them conflicting.'" Town of Hilton Head Island v. Fine Liquors, Ltd., 302
S.C. 550, 553, 397 S.E.2d 662, 664 (1990) (quoting McAbee v. S. Ry, Co., 166 S.C.
166, 169-70, 164 S.E. 444, 445 (1932)). In this case, the additional layer of review
by County Council was in contradiction to the plain language of the Enabling Act
because it removed the final decision on the proposed plans from the Planning

5
Amendments have been made to these ordinances since County Council's
approval of the applications in this case.
Commission and gave that power to County Council. If, as in this case, the
Planning Commission and County Council votes are at odds, the posture of the
appeal to the circuit court is reversed from what the legislature has clearly
instructed. While the legislative body is given discretion in determining certain
requirements in the site approval process, the Act clearly states the decision of the
Planning Commission is final and appeal therefrom is taken to the circuit court.
See Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000) ("Where the
statute's language is plain and unambiguous, and conveys a clear and definite
meaning, the rules of statutory interpretation are not needed and the court has no
right to impose another meaning."); § 6-29-1150 (providing that the Planning
Commission has the final decision on site plan approval or disapproval with
appeals taken to the circuit court). In the absence of authority to make such a
decision, County Council's approval of the site plan was ultra vires and void. See
Baird v. Charleston County, 333 S.C. 519, 531, 511 S.E.2d 69, 75 (1999)
(indicating a county may be sued based on allegations of conduct exceeding its
statutory authority).

II. Constitutional Deprivation

Appellants argue the circuit court also erred in dismissing their complaint based on
their failure to allege a constitutional deprivation. Appellants maintain they were
not required to do so, and if they were so-required, they did so sufficiently to
withstand a motion to dismiss. We agree.

The circuit court's order relied on Knowles v. City of Aiken, which involved
whether the passage of a zoning ordinance constituted spot zoning. 305 S.C. 219,
220, 407 S.E.2d 639, 640 (1991). In that case, a nonadjoining landowner protested
the annexation of previously unzoned land that was subsequently zoned for
professional offices. Id. Neighboring landowners supported the ordinance. Id. at
223, 407 S.E.2d at 642. In considering the issue, our supreme court stated
"[z]oning is a legislative act which will not be interfered with by the courts unless
there is a clear violation of citizen's constitutional rights. In order to successfully
assault a city's zoning decision, a citizen must establish that the decision was
arbitrary and unreasonable." Id. at 224, 407 S.E.2d at 642 (citing Byrd v. City of
North Augusta, 261 S.C. 591, 201 S.E.2d 744 (1974)). Notably, Knowles was
decided at the summary judgment stage as opposed to the 12(b)(6) dismissal stage.
Id. at 220, 407 S.E.2d at 640.

In contrast to the facts in Knowles, this appeal involves the approval of a site plan.
Cases discussing this type of appeal do not address the requirement of a
constitutional deprivation distinct from the concept of standing. See Citizens for
Quality Rural Living, Inc. v. Greenville Cnty. Planning Comm'n, 426 S.C. 97, 106,
825 S.E.2d 721, 726 (Ct. App. 2019) (stating any party in interest has standing to
bring a claim under section 6-29-1150(C)). In this case, one of Appellants'
arguments—that County Council was not authorized to approve or disapprove site
plans—has the indirect effect of invalidating Ordinance 607. However, that is not
the equivalent of directly challenging the constitutionality of a substantive zoning
decision by the governing authority. Therefore, we conclude the circuit court's
reliance on Knowles is misplaced.

Even if Knowles is directly applicable, Appellants' complaint alleged County
Council's decision was arbitrary, as required by Knowles. The complaint also
alleged a disparate impact on the minority community. 6 Beyond that, the
complaint alleged multiple negative impacts to Appellants' properties and the
surrounding area including increased traffic, stormwater drainage issues, and a lack
of necessary supporting infrastructure, like fire and police protection. Therefore,
even if Appellants were required to state a constitutional deprivation, as articulated
by Respondents, it sufficiently stated such to withstand a Rule 12(b)(6) motion.
See Spence v. Spence, 368 S.C. 106, 116, 628 S.E.2d 869, 874 (2006) ("Under
Rule 12(b)(6), SCRCP, a defendant may move to dismiss a complaint based on a
failure to state facts sufficient to constitute a cause of action. In considering such a
motion, the trial court must base its ruling solely on allegations set forth in the
complaint."); id. ("If the facts and inferences drawn from the facts alleged in the
complaint, viewed in the light most favorable to the plaintiff, would entitle the
plaintiff to relief on any theory, then the grant of a motion to dismiss for failure to
state a claim is improper."); id. at 116-17, 628 S.E.2d at 874 ("Furthermore, the
complaint should not be dismissed merely because the court doubts the plaintiff
will prevail in the action.").

CONCLUSION

We hold the circuit court erred in determining the site plan approvals by County
Council were valid because sections of Ordinance 607 requiring County Council
approval conflicted with the Enabling Act. Furthermore, we reverse the circuit
court's dismissal of Appellants' complaint under Rule 12(b)(6), SCRCP, as the

6
See Abbeville Cnty. Sch. Dist. v. State, 335 S.C. 58, 65, 515 S.E.2d 535, 538
(1999) (stating a neutral law having a disparate impact violates equal protection if
it is drawn with discriminatory intent).
complaint alleged the necessary elements to withstand a motion to dismiss.7
Accordingly the decision of the circuit court is

REVERSED.

KONDUROS, MCDONALD, and VINSON, JJ., concur.

7
We decline to address other issues raised by Appellants as the disposition of the
prior issues are dispositive. See Futch v. McAllister Towing of Georgetown, Inc.,
335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (stating an "appellate court need
not address remaining issues when disposition of prior issue is dispositive").