County Change to CFA Zoning Will Bring Lawsuit in New Year

By Paul Gable

A virtually overlooked vote by county council during its final meeting of 2021 is guaranteed to bring a class action lawsuit against the county in the New Year.

Council member Gary Loftus called for reconsideration of Ordinance 142-2021, which had been passed on third reading at the November council meeting as part of the consent agenda.

The ordinance dealt with eliminating multi-family housing from the Commercial Forest Agriculture zoning classification.

Upon reconsideration, an amendment was approved with the final effect of eliminating multi-family housing (apartments and condominiums) from CFA zoned parcels and reducing the overall calculations for the number of units which could be built on the parcel from three to two per acre. Town homes may still be constructed in CFA.

The amendment also limited calculations for density to be restricted to non-wetland acreage in the parcel. CFA zoning until the passage of the amended ordinance had been limited to three units per acre, multi-family and/or town house, with the total acreage in the parcel, wetland and non-wetland, allowed in the density calculation.

Council passed the amended ordinance unanimously on the reconsideration vote.

According to several council members contacted by GSD, the change was made to eliminate the threat of construction of three multi-family and/or town home units on CFA parcels if rezoning requests for single-family units were turned down by council. According to those sources, council had become tired of developers using the threat of building more units on the land under current CFA zoning if the single-family rezoning proposals were rejected.

Many of the remaining CFA zoned parcels in the county can be found along the Hwy 90, 905, 701 and 707 corridors, which have been areas of new development resisted by citizens’ groups. A number of re-zonings from CFA to single-family developments have already occurred, especially in the 90 and 905 corridors, raising public opposition to further re-zonings.

A number of small farmers still in possession of CFA zoned parcels, as well as developers who have already purchased similar parcels from farmers, could be affected financially by the reduction in overall density stipulated in the new, amended ordinance.

GSD has learned that representatives from those groups are already in the process of working with attorneys to file a class action lawsuit against Horry County because of reduced value of CFA zoned parcels caused by the new ordinance.

Regulatory restrictions on land use by governmental agencies are a complicated area of the law with a number of Supreme Court, both state and federal, and lower court decisions already recorded.

One legal standard, which has evolved from these various cases is, “Governmental land-use regulation that deny the property owner any economically viable use is deemed a taking of the affected property.”

Zoning is considered governmental land use regulation.

This principle is best summed up in the case of Agins v. City of Tiburon, “the application of land-use regulations to a particular piece of property is a taking only “if the ordinance does not substantially advance legitimate state interests … or denies an owner economically viable use of his land.”

A question that must be asked is how much research into past case precedents was conducted by Horry County before the amended ordinance was passed?

Horry County lost a lawsuit caused by down zoning in Deer Track years ago.

An ordinance, which had been in the legislative process for three readings and ultimately approved was rather abruptly reconsidered and amended by council only two weeks after third reading approval.

It would appear, on the surface, that a reduction in density could be considered a denial of “any economically viable use” of the property that existed before the reduction. Is such a change enough to require compensation to the affected landowners?

Time and a new lawsuit will tell in the coming year.

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