County Council members delay action on development rule after judge urges them to 'fix' it

Hours after a judge urged the Greenville County Council to "fix" a controversial land-development rule, council members delayed taking any decisive action Tuesday on the measure that has sparked legal battles.

But Councilman Chris Harrison is vowing to push ahead with a proposed solution later this month that he says will encourage developers to preserve sizeable swaths of land when they build subdivisions in rural parts of the county.

On Tuesday morning, Circuit Court Judge Edward W. Miller called on the council to remedy problems in the rule known as Article 3.1. The rule is meant to curb urban sprawl, but detractors say its provisions are overly vague.

"Our County Council has got to take some initiative here and get this under control," Miller said. His comment came during a hearing involving a dispute over a subdivision northeast of Lake Robinson near Blue Ridge High School that a group of residents is seeking to block.

Council Chairman Willis Meadows proposed repealing Article 3.1 in March, sparking an outcry from rural residents and environmental activists. At a committee meeting Tuesday afternoon, a majority of council members voted for the second time to put off moving ahead with the rule's repeal.

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.

Council chairman's naming of ad hoc committee draws criticism 

Meadows appointed an ad hoc committee Tuesday to devise a strategy for overhauling Article 3.1. The panel includes Councilmembers Lynn Ballard, Mike Barnes, Joe Dill, Butch Kirven and Steve Shaw. Each of them represents districts with unzoned rural property.

Meadows said his overall goal is to "level the playing field" so that both developers and rural residents who oppose growth cannot use Article 3.1 as a tool to veto decisions by the county Planning Commission.

His decision to form the ad hoc committee was criticized by Councilman Dan Tripp. He accused Meadows of taking a "masterful Machiavellian swipe" at Dill and Harrison.

"The word on the street that you're going after them because they haven't been part of your coalition and so that's one of the reasons I object to this," Tripp said.

Dill represents the northern end of the county where residents have voiced the loudest concerns about protecting rural areas from development. Harrison is a former land planner who has taken a leading role in seeking to revise Article 3.1.

Harrison expressed frustration at Tuesday's committee meeting. He said Meadows' decision to form an ad hoc panel could "negate all the work that's been going on."

In response, Meadows told Harrison that "we've had very little communication as to what you've been doing."

Harrison said he intends to introduce a "viable option" for revising Article 3.1 when the council's Planning and Development Committee meets on June 14.

He declined to offer details in an interview Tuesday. But he did say that the plan will embrace the concept of conservation subdivisions in which developers are allowed to build more homes in exchange for preserving significant amounts of their property.

Judge threatens to 'light a fire' under County Council

During the court hearing Tuesday morning, Miller recalled telling council members at a previous hearing that they needed to fix Article 3.1.

"Nothing has happened," Miller said.

He raised the possibility of striking down the rule.

"Sometimes the court just has to examine things in light of our constitution," he said.

But Miller said he recognizes the need to regulate growth in Greenville County, which is the state's most populated county and one of its fastest-growing areas.

"I know how to light a fire under them," Miller said. "You just want to make sure if that match is struck, that it is appropriate it. So I'm going to think about this."

Attorney for county introduces new legal argument

The case before Miller involves a subdivision known as Fews Crossing, which would include 24 residential lots on nearly 19 acres at Fews Chapel and Ridge roads.

The county Planning Commission approved Fews Crossing on a 5-4 vote last year.

A group called Northern Greenville County Rural Landowners has gone to court to block the subdivision's approval. Besides raising concerns about flooding, the group contends that the Planning Commission ignored a provision in Article 3.1 that says a subdivision cannot be approved unless its density is compatible with surrounding properties.

At Tuesday's hearing, a lawyer hired to represent the Planning Commission introduced a new legal argument. Greenville attorney Christopher Antley told Miller that Article 3.1's density provision does not apply to unzoned properties such as Fews Crossing.

Antley previously embraced a different position. In a December 2019 legal brief, he wrote: "If the surrounding area is dominated by large tracts of land, as in the rural areas of Greenville County, Section 3.1 tells the landowner that subdividing a parcel into half-acre lots is not going to work."

Antley said Tuesday that after recent litigation, "I went back and studied the law as hard as I could."

"Right now this is our interpretation: We believe that 3.1's density provision is applicable to the zoned portions of the county but not the unzoned portions," he said.

There are at least five pending court cases related to Article 3.1 besides Few Crossing. Four of those cases were brought by residents in unzoned rural areas who want to stop subdivisions from being built. The other case was filed by a landowner after the Planning Commission rejected a subdivision on zoned property near Pebble Creek.

The county recently reached a partial settlement in another case involving Article 3.1. As part of that agreement, developer Niemitalo Inc. will receive $100,000 and permission to proceed with a subdivision in rural northern Greenville County that county officials had blocked in 2018.

Michael Martinez, an attorney with the South Carolina Environmental Law Project, represented Northern Greenville County Rural Landowners at Tuesday's hearing. He said he is optimistic that Miller will order the Planning Commission to reconsider its approval of Fews Crossing.

"This appeal is a critical component of our ongoing efforts to ensure the adoption and proper implementation of land development regulations like Article 3.1 to avoid unrestrained and unwise sprawl," Martinez said in an email after the hearing.

Kirk Brown covers government, growth and politics for The Greenville News. Reach him at kebrown@greenvillenews.com or on Twitter @KirkBrown_AIM. Please subscribe to The Greenville News by visiting greenvillenews.com/subscribe.