Citizens Group Appeal Against Howard Farms Subdivision in Greenville County, South Carolina

ELECTRONICALLY FILED - 2018 Nov 21 10:52 AM - GREENVILLE - COMMON PLEAS - CASE#2018CP2305907
STATE OF SOUTH CAROLINA IN THE CIRCUIT COURT

THIRTEENTH JUDICIAL CIRCUIT
COUNTY OF GREENVILLE
Citizens for Quality Rural Living, Inc., C.A. No. 2018-CP-23-_______

Appellant,
vs. SUMMONS
Greenville County Planning Commission,

and Kenny Lavertu,
Respondents
TO THE RESPONDENTS/DEFENDANTS ABOVE NAMED:
WITHIN 30 days after service of this summons on you (not counting the day you received
it), you must serve on the plaintiff an Answer to the attached Notice of Appeal and Appeal.
The answer must be served on the plaintiff’s attorney, B. Faith Martzin, whose address is 33
Market Point Drive, Greenville, South Carolina 29615. If you fail to do so, a judgment by
default will be requested against you for the relief demanded in the Appeal. You must also
file your answer or motion with the Court.
s/ B. Faith Martzin
Barbara Faith Martzin, Esq.
S. C. Bar Number 011817
B. Faith Martzin, PC
33 Market Point Drive
Greenville, SC 29607
864/551-2604
Greenville, South Carolina
Dated: November 21, 2018

NOTICE OF APPEAL FROM AN ADMINISTRATIVE TRIBUNAL
THE STATE OF SOUTH CAROLINA

In The Circuit Court
________
APPEAL FROM GREENVILLE COUNTY PLANNING COMMISSION
Jay Rogers, Chairman

_________
Subdivision Application 2018-148

_________
Citizens for Quality Rural

Living, Inc.,
Appellants,
v.
Greenville County Planning Respondents.

Commission and Kenny
Lavertu
__________
NOTICE OF APPEAL
_________
Citizens for Quality Rural Living, Inc., appeals Greenville County Planning Commission
approval of the Howard Farms preliminary subdivision by vote on October 24, 2018.
November 21, 2018 s/B. Faith Martzin__________

Barbara Faith Martzin
33 Market Point Dr.
Greenville, South Carolina 29607
(864) 551-2604
Email: fmartzin@martzinlaw.com
Attorney for Appellants
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STATE OF SOUTH CAROLINA IN THE CIRCUIT COURT
THIRTEENTH JUDICIAL CIRCUIT
COUNTY OF GREENVILLE
Citizens for Quality Rural Living, Inc., C.A. No. 2018-CP-23-_______

Appellant,
vs. APPEAL AND REQUEST
FOR DECLARATORY RELIEF
Greenville County Planning Commission,
and Kenny Lavertu,
Respondents
Appellant, complaining of Defendant Greenville County Planning Commission, and

appealing its decision to approve Defendant Kenny Lavertu’s preliminary subdivision
proposal entitled “Howard Farms,” would respectfully show unto the Court as follows:
PARTIES and JURISDICTION
1. Appellant Citizens for Quality Rural Living, Inc., is a not for profit community entity
incorporated in South Carolina whose members are residents of the County of
Greenville owning property impacted by the decision of the Greenville County
Planning Commission.
2. Respondent Greenville County Planning Commission (“Planning Commission”) is an
appointed local planning commission as defined in Section 6-29-310, et. seq., South
Carolina Code of Laws, also known as the South Carolina Local Government
Comprehensive Planning Enabling Act of 1994, and was created pursuant to that
legislation.
3. Respondent Kenny Lavertu is, upon information and belief, a South Carolina resident,
and is named on the Preliminary Subdivision Data Sheet as the Developer, and is a
necessary party to this action.
4. This Court has personal jurisdiction over the parties due to their location or activities
in Greenville County.
5. This Court has subject matter jurisdiction of this action pursuant to S. C. Code of
Laws, Section 6-29-1150, and Greenville County Land Development Regulations,
Article 1, Section 1.6.2 (2018).
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STATEMENT OF FACTS
6. Two applications have been filed for preliminary approval to develop “Howard
Farms,” a high density subdivision in a rural section of Greenville County off
Fairview Road south of Highway 418.
7. A Planning Commission meeting was held on July 25, 2018, at which time approval
of the first preliminary plat proposal for the subdivision (PP-2018-085) was denied by
voice vote based on violation of 3.1 of the Land Development Regulations, “in that it
was not compatible with the surrounding land use.” Greenville County Planning
Committee Minutes July 25, 2018 (Exhibit A)
8. Approximately fifty members of the community were in attendance in the July 2018
meeting in opposition to the subdivision.
9. A Planning Commission meeting was held on October 24, 2018, and a revised
preliminary plan (PP-2018-148) (Exhibits B & C) was given approval by a vote of
five to three.
10. Many members of the community were in attendance in October in opposition to the
subdivision as presented.
STANDARD OF REVIEW
11. The Court may apply the same standard to appeal of Planning Commission decisions
that it would apply to Zoning Board decisions. “A decision of a zoning board will not
be upheld where it is based on errors of law, where there is no legal evidence to
support it, where the board acts arbitrarily or unreasonably, or where, in general, the
board has abused its discretion.” Peterson Outdoor Advertising v. City of Myrtle
Beach, 327 S.C. 230, 235, 489 S.E.2d 630, 633 (1997), cited in Kurschner v. City of
Camden Planning Commission, 376 S.C. 165, 173-74, 656 S.E.2d 346, 351 (2008)
(applying Zoning Board standards to a Planning Commission decision). Further, “a
decision of a municipal [Z]oning Board will be overturned if it is arbitrary,
capricious, has no reasonable relation to a lawful purpose, or if the board has abused
its discretion.” Rest. Row Assocs. v. Horry Cty., 335 S.C. 209, 216, 516 S.E.2d 442,
446 (1999).
12. Although a review Court gives deference to those applying local zoning ordinances,
ordinances are subject to “a broader and more independent review . . . when the issue
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concerns the construction of an ordinance.” Eagle Container LLC v. County of
Newberry, 379 S.C. 564, 568 666 S.E.2d 892 894 (2008), cited in Mikell v. County of
Charleston, 386 S.E.2d 326, 687 S.E.2d 326, 329 ((2009).
GROUNDS FOR APPEAL
I. Abuse of Discretion: Comprehensive Plan
13. The Appellant, complaining of the Respondents, reiterate all of the allegations set for
above as if fully repeated herein.
14. The decision of the Planning Commission approving the “Howard Farms”
preliminary subdivision plan violates the Comprehensive Planning map for
Greenville County, and the Comprehensive Planning map was not given any
consideration by the Planning Commission.
a. The Greenville County Comprehensive Land Use Plan, adopted by Ordinance No.
4333 of Greenville County Council on December 1, 2009, entitled “Imagine
Greenville County Tomorrow’s Vision Today,” was reviewed and underwent a five
year update. The Plans are mandated by South Carolina Code of Laws Section 6-29-
510, et. seq. and provides that within the Plan, “All planning elements must be an
expression of the planning commission recommendations to the appropriate
governing bodies with regard to the wise and efficient use of public funds, the future
growth, development, and redevelopment of its area of jurisdiction, and consideration
of the fiscal impact on property owners.” S. C. Code Section 6-29-510(E).
b. Both the original plan and the update contain a Future Land Use Map which
designates the area south of Highway 418 in Greenville County as Rural Land Use 1
or Rural Land Use 2. The land proposed for Howard Farms falls within Rural Land
Use 2. Rural Land Use 2 provides for an “Ideal density of up to 1 [housing] unit per
3 acres.” (Exhibit D)
c. Thus, the Planning Division as the author of this Plan, recommended to Council that
the Rural Land Use designation for this area is “the best location and intensity of uses
based on information from the needs and barriers identified in the other elements of
the Comprehensive Plan.” The Plan describes the Future Land Use map as the “most
important part of the Land Use element” of the Comprehensive Plan. Greenville
County Comprehensive Plan 5 Year Review, p. 16.
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d. The Plan is self-described as being “a useful tool to promote and maintain future
growth and improve the quality of life for all residents of Greenville County,” and “is
intended to serve as a reference guide and as a decision making tool for local
government officials, as well as private businesses and the public.” Imagine
Greenville County Tomorrow’s Vision Today, p. xvi
e. The intent Greenville County Land Development Regulations, which includes
subdivisions, is as follows:
The public health, safety, economy, good order, appearance, convenience, morals,
and general welfare require the harmonious, orderly, and progressive development of
land within the municipalities and counties of the State of South Carolina. In
furtherance of this general intent, the regulation of land development by counties is
authorized for the following purposes, among others:
A. To encourage the development of economically sound and stable counties;
B. To assure the timely provision of required streets, utilities, and other facilities and
services to new land developments;
C. To assure the adequate provision of safe and convenient traffic access and
circulation, both vehicular and pedestrian, in and through new land developments;
D. To assure the provision of needed public open spaces and building sites in new
land developments through the dedication or reservation of land for recreational,
educational, transportation, and other public purposes; and
E. To assure, in general, the wise and timely development of new areas, and
redevelopment of previously developed areas in harmony with the comprehensive
plans of counties.
Greenville County Land Development Regulations Section 1.2 (italics added).
15. The members of the audience in opposition to the subdivision were clearly within the
description of “residents of Greenville County” for whom the Plan is intended to
preserve and promote the quality of life; the developer did not, at the time of the
Planning Commission decision, own the land upon which the subdivision is proposed
to be built. The residents of Greenville County described for the Commission the
detriment to their “public health, safety, economy, good order, appearance,
convenience, morals, and general welfare” that the subdivision would cause, as stated
above, yet the Commission seemingly failed to give consideration to the impact on
these Greenville County residents.
16. The Comprehensive Land Use plan was not mentioned by the Commission or staff
when it approved the Howard Farms subdivision, nor is it referred to in the
information packet provided to the commissioners.
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17. By not referencing the Plan, the Planning Commission ignored the “most important
part of the Land Use element” of the Comprehensive plan by approving lots of less
than 0.6 acres rather than 3 acres, being a clear and blatant deviation from the future
use plan, which the Planning Department itself designated with the Plan to comply
with the state statute for “the wise and efficient use of public funds, the future growth,
development, and redevelopment of its area of jurisdiction, and consideration of the
fiscal impact on property owners.”
18. Land use decisions are intended to be in “harmony with the comprehensive plan of
counties.” Aerial maps demonstrate that this subdivision is out of harmony with the
local area, which is primarily wooded, open space or farmed. See Exhibit E.
19. In approving the subdivision, the Planning Commission ignored its reference guide
and planning tool, and approved a subdivision grossly outside the bounds of the Plan,
and thereby abused its discretion.
II. Erroneous or Manipulated Evidence: Compatibility and LDR 3.1
20. The Appellant, complaining of the Respondents, reiterates all of the allegations set
forth above as if fully repeated herein.
21. The decision of the Planning Commission approving the “Howard Farms”
preliminary subdivision plan violates provision 3.1 of the Land Development
Regulations of Greenville County which provides as follows:
3.1 Review Criteria
To further the intent set forth in Section 1.2, the following shall apply for all
developments reviewed under this Article.
Submitted subdivisions developments 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.
22. Planning staff told the Planning Commission that the land is unzoned and therefore
there was no restriction on the usage, when in fact LDR 3.1 requires compatibility
with the surrounding usage.
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23. A nearby resident presented her experience of a subdivision being built next to her
farm and the consequent monetary losses, livestock losses, trespassing, water
contamination, silt and pollution in the creek and water supply and other difficulties
demonstrating how unsuitable it is to put a subdivision in a rural or farming
community.
24. Planning Staff stated as a fact to the Commission that the proposed development is
compatible with the surrounding land, in accordance with Greenville County Land
Development Regulation Section 3.1.
25. The Commission was led to believe that the number of lots proposed in the October
hearing was significantly reduced from the prior proposal in July. (Statements of Dr.
Howard and planning staff at the hearing.) (A FOIA request for the meeting transcript
has not been fulfilled as of the time of appeal.)
26. The average lot size in the October proposed Howard Farms subdivision was
increased by only three one-hundredths (0.03) of an acre from the prior proposal.
27. Three one-hundredths of an acre is an insignificant amount as compared to one acre
or the surrounding average lot size in excess of 6.5 acres.
28. Planning staff indicated the area land usage to be one acre rural residential, when in
fact the area is more agricultural than strictly residential, and the average lot size is
more than six times that size.
29. At the October hearing the Commission was not told in the hearing the average size
of the thirteen parcels contiguous to the proposed development, which is 6.77 acres,
(see Subdivision Advisory Committee packet for the July meeting, Exhibit F) with a
maximum size of 19.1 acres, and a minimum size of 1 acre.
30. Planning staff stated that the Fairbrooke Subdivision across Fairview Road from the
proposed Howard Farms is made up of lots that are less than one acre. In reality,
forty-two percent of the lots are larger than one acre, and eighty-five percent are
larger than the lots in the proposed Howard Farms, and none of the remaining 15%
are smaller than the proposed lots.
31. The size of the majority of lots in the Fairbrooke subdivision enables a more rural
lifestyle, woods, open space and undeveloped areas. See Exhibit G Canterbury Road
overview and compare Exhibit H Buck Trail overview which contains many lots of
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approximately 0.6 acres and requires use of the majority of the lot to accommodate
outbuildings with little to no woods, open space or pasture.
32. Even so, the Fairbrooke subdivision is not representative of the greater community
surrounding the Howard Farms proposed site. See Exhibit E.
33. The Commission was not informed in October that although the land is unzoned, the
surrounding area is zoned RR-1 and RR-3. See zoning map Exhibit I
34. LDR 3.1 also requires adequate existing transportation systems, but the Planning
Commission as misinformed as to the true traffic counts as set forth below.
35. The decision of the Planning commission was based upon willful erroneous or
manipulated evidence and should be remanded.
III. Erroneous or Manipulated Evidence: Traffic Standards
36. The Appellant, complaining of the Respondents, reiterates all of the allegations set for
above as if fully repeated herein.
37. The decision of the Planning Commission was based upon willful erroneous or
manipulated evidence regarding traffic counts and South Carolina road standards.
38. The traffic count presented to the Planning Commission as relevant was station 308,
(See Exhibit J) which is approximately 1 mile south of the site, at which the most
current count was stated by Commission staff to be 3301 average daily trips.
However, the accurate data for 2017, which is the most recent data available on the
South Carolina Department of Transportation website is 3800, which is fifteen (15%)
percent more than was reported. (Exhibit K)
(https://www.scdot.org/travel/pdf/trafficcounts/2017/Greenville.pdf )
39. The next nearest traffic count station, 368, is north approximately 1.4 miles from the
site, and has a 2017 count of 8900, or 2.7 times the traffic reported by Commission
staff.
40. Planning staff stated that the 368 count station was irrelevant.
41. Traffic count numbers are public records and the Court can take judicial notice of
them. See http://www.scdot.org/getting/annualtraffic.aspx
42. There are approximately 161 subdivision type lots whose streets directly connect to
Fairview Road between the southern traffic count station number 308 and the
proposed subdivision which would make the average daily traffic count at the
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proposed subdivision site to be closer to 5400, without counting the traffic from
Watson Road or non-subdivision homes on Fairview Road.
43. County LDRs make significant differences in county road requirements based on
vehicular traffic counts, including counts over 4000 and under 4000, and misleading
information could have influenced the Planning Commission decision. See LRD
Article 5 Street Classification and Design Standards.
44. LDR 9.4 provides for additional traffic mitigation if the project is located in a high
growth corridor. “Additionally, improvements may be required if a project is located
in a “high-growth corridor” as identified by County Planning and Engineering Staff.
“High-growth corridors” are identified as roads or groups of roads (and intersecting
streets when applicable) in areas that have experienced at least 1.5% annual
population growth, or roads/intersections currently operating at LOS D or higher.”
45. The site of Howard Farms has been determined to be in a high growth area. (See
Greenville County High Growth Census Tracts map Exhibit L).
46. The Planning Commission was not informed of the status of the property being in a
high growth area for them to be aware that additional improvements may be
warranted, and thereby was uninformed of the legal status of the property.
IV. Abuse of Discretion: Ignoring Traffic Standards
48. The Greenville County Land Development Regulations require that “Projects on state
roads must comply with the DOT’s Access & Roadside Manual.” (SCDOT ARMS)
Greenville County LDR 9.1
49. The LDR further requires “Wherever the requirements made under authority of these
regulations impose higher standards than are required in any other statute, local
ordinance, or regulations, the provisions of these regulations shall govern. Wherever
the provisions of any other statute, local ordinance, state or federal regulations impose
higher standards than are required by these regulations, the provisions of such statute,
local ordinance, or regulations shall apply.” LDR 1.5
50. SCDOT ARMS requires that for a roadway with a speed limit of 50 miles per hour
that there be a sight distance of 555 feet. (SCDOT ARMS Chapter 7 and LDR 8.14)
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51. Planning staff acknowledged that the developer does not have a sight distance of 555
feet, yet the commission approved the proposed subdivision even though it violates
the SCDOT ARMS standard, with no requirement that the developer acquire the
necessary property or rights of way to provide the required sight distance before
beginning work, only that he “try” to obtain the required sight distance.
52. For urban intersections, the minimum spacing requirement between intersections
should be 500 feet, or 700 feet if streets are on opposite sides of the main roadway.
SCDOT ARMS 5B. “For rural areas, provide a minimum spacing of ¼ mile (1320
feet) and, desirably, ½ mile (2640 feet) apart.”
53. The distance between the two existing roads between which the proposed Howard
Farms intersection with Fairview Road would be located is approximately 713 feet,
making it impossible to have 500 feet between Howard Farms and either of the two
existing roads, as though this were an urban area. See Exhibits M & N.
54. The area is not urban, but rural, which would require a minimum of 1320 feet and
preferably 2640 feet between intersections; the area is already in violation of the
SCDOT ARMS standard, and building the Howard Farms subdivision as proposed
would greatly compound the violations, and is a gross violation of the standards.
55. The SCDOT comments in the July information packet (Exhibit F) express concern
over the road alignment and expresses a preference that the developer acquire the
property necessary to align this road with Canterbrooke Court.
56. Ignoring the road standards puts the public at risk and is capricious and an abuse of
discretion.
IV. Arbitrary
58. 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.
59. At the October meeting, there was no testimony that the surrounding land use had
changed, nor had the land use or footprint of the proposed subdivision changed.
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60. The Preliminary Plat approved in October showed fewer lots with an increase in size
of only three one-hundredths of an acre (0.03 acres), an insignificant addition when
considering whole acres.
61. The small increase in lot size is not sufficient to change land usage to be compatible
with the surrounding rural land usage.
62. The vote to approve was an arbitrary vote with no basis upon which to change the
prior decision.
V. Variance
64. The developer requested and received Variance VA-2018-148 to eliminate
approximately 681 linear feet of a required buffer (See preliminary plat Exhibit C)
due to a hardship because of the narrow neck of land that abuts Fairview Road and
the desire to have a 90 degree angle at the intersection and certain other requirements.
65. As pointed out by the stormwater department in the July packet comments, there is a
portion of the land that abuts Watson Road and the concern about the buffer, as well
as all the problems regarding the intersection on Fairview Road would be eliminated
by using the portion of the property that abuts Watson Road.
66. Granting a hardship variance when there are reasonable ways to comply with the
standards is an abuse of discretion.
67. The Appellant requests that this Court make a finding that the Planning Commission
abused its discretion, acted arbitrarily and unreasonably, made a mistake at law by
completely ignoring legislative intent in not considering the Comprehensive Plan,
made a decision based upon erroneous statements, and consequently issued an invalid
decision.
WHEREFORE, your Appellant request that this Court
a. issue its order reversing and remanding the decision of the Greenville County
Planning Commission, and
b. for costs of this action and such other and further relief as this Court finds just and
appropriate.
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Respectfully Submitted,
B. FAITH MARTZIN, PC
_s/B. Faith Martzin______________

Barbara Faith Martzin,
S.C. Bar No. 11817
33 Market Point Drive
Greenville, SC 29607
(864) 551-2604
(864) 751-6369 fax
fmartzin@martzinlaw.com
Attorney for Appellants

November 21, 2018
Greenville, South Carolina
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Citizens Group Appeal Against Howard Farms Subdivision in Greenville County, South Carolina

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Citizens Group Appeal Against Howard Farms Subdivision in Greenville County, South Carolina

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ELECTRONICALLY FILED - 2018 Nov 21 10:52 AM - GREENVILLE - COMMON PLEAS - CASE#2018CP2305907

STATE OF SOUTH CAROLINA IN THE CIRCUIT COURT

Citizens for Quality Rural Living, Inc., C.A. No. 2018-CP-23-_______

Greenville County Planning Commission,

TO THE RESPONDENTS/DEFENDANTS ABOVE NAMED:

file your answer or motion with the Court.

Dated: November 21, 2018

THE STATE OF SOUTH CAROLINA

APPEAL FROM GREENVILLE COUNTY PLANNING COMMISSION

Jay Rogers, Chairman

Subdivision Application 2018-148

Citizens for Quality Rural

Greenville County Planning Respondents.

November 21, 2018 s/B. Faith Martzin__________

Citizens for Quality Rural Living, Inc., C.A. No. 2018-CP-23-_______

Appellant, complaining of Defendant Greenville County Planning Commission, and

_s/B. Faith Martzin______________

Attorney for Appellants

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