ELECTRONICALLY FILED - 2018 Sep 21 6:00 PM - GREENVILLE - COMMON PLEAS - CASE#2018CP2304891

STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS

)
COUNTY OF GREENVILLE ) C.A. No. _____________________
)
Niemitalo, Inc., )
)
Plaintiff, )
)
vs. )
) SUMMONS
Greenville County Planning Commission, )
)
Defendant. )
)

TO THE DEFENDANT ABOVE NAMED:

YOU ARE HEREBY summoned and required to answer the Notice of Appeal in this action, of
which a copy is herewith served upon you, and to serve a copy of your response on the subscribers at their
offices, P.O. Box 1804, Greenville, South Carolina, 29602, within thirty (30) days after the service hereof,
exclusive of the day of such service.
Respectfully submitted,

HOLDER, PADGETT, LITTLEJOHN + PRICKETT, LLC

s/ Anna L. Bullington
M. Stokely Holder (SC Bar # 73892)
Anna L. Bullington (SC Bar # 102503)
P.O. Box 1804
Greenville, SC 29602
110 West North Street, Suite 100
Greenville, SC 29601
Ph. 864.335.8808
Attorneys for Plaintiff
September 21, 2018
Greenville, SC
 ELECTRONICALLY FILED - 2018 Sep 21 6:00 PM - GREENVILLE - COMMON PLEAS - CASE#2018CP2304891
STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS
)
COUNTY OF GREENVILLE ) Civil Action No.: ______________
)
Niemitalo, Inc., )
)
Plaintiff, )
) NOTICE OF APPEAL FROM
) DECISION OF THE GREENVILLE
) COUNTY PLANNING COMMISSION
v. )
)
Greenville County Planning Commission, )
)
Defendant. )
)

Plaintiff, Niemitalo, Inc., complaining of Defendant, Greenville County Planning

Commission, and appealing Defendant’s decision to revoke its prior approval of Plaintiff’s

preliminary subdivision plan, would respectfully show unto this Court as follows:

PARTIES

1. Plaintiff Niemitalo, Inc. (“Niemitalo”) is a corporation organized and existing

under the laws of the State of South Carolina and is the developer of Ethan Richard Estates, the

development at issue in this action.

2. Defendant Greenville County Planning Commission (“Planning Commission”) is

an appointed local planning commission as defined in South Carolina Code Section 6-29-310, also

known as the South Carolina Local Government Comprehensive Planning Enabling Act of 1994,

and was created pursuant to that legislation.

3. This Court has jurisdiction over the parties and subject matter of this appeal

pursuant to South Carolina Code Section 6-29-1150 and Article 1, Section 6 of the Greenville

County Land Development Regulations (2018).

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FACTUAL ALLEGATIONS

4. Niemitalo owns approximately 24 acres of land in an unzoned area of Greenville

County, which it is seeking to develop as a subdivision called “Ethan Richard Estates.”

5. On April 27, 2018, Niemitalo submitted its application for preliminary plan

approval to the Greenville County Subdivision Administration (Application #2018-070).

6. No variances or special exceptions were required for the preliminary plan to comply

with the subdivision regulations.

7. The Subdivision Advisory Committee (“SAC”) reviewed the application,

determined it complied with the applicable regulations, and recommended to the Planning

Commission that it be conditionally approved, with certain standard requirements.

8. At its meeting on June 27, 2018, the Planning Commission heard public comments

against and in favor of the application, including concerns about the subdivision’s compatibility

with surrounding land use density under Section 3.1 of the Greenville County Land Development

Regulations (“LDR”), as amended in April 2018.

9. After discussion, the Planning Commission granted conditional approval of the

plan as recommended by the SAC. A true and correct copy of the approval letter dated July 2, 2018

is attached hereto as Exhibit “A.”

10. The approval letter provides that “[t]he approval of this plan is your assurance that

the Final Plat of your subdivision will be approved when the required improvements have been

installed in accordance with the Greenville County Land Development Regulations.” See Exhibit

A.

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11. In good faith reliance upon that assurance, Niemitalo proceeded with engineering

design for Ethan Richard Estates and incurred significant obligations in preparing the project for

development and final plat approval.

12. At a regular meeting of the Greenville County Council on July 17, 2018,

Councilman Joe Dill made a motion for Council to request that the Planning Commission

reconsider its prior approval of the Ethan Richard Estates application.

13. Neither Niemitalo nor the lead engineer on the project received notice that the

matter was being brought before County Council.

14. A request was then submitted to the Planning Commission on behalf of the County

Council for reconsideration of its approval of the preliminary plat for Ethan Richard Estates.

15. Neither Niemitalo nor the lead engineer on the project received notice that the

matter was being sent back to the Planning Commission for reconsideration.

16. On July 25, 2018 at approximately 3:30 P.M., the lead engineer for Ethan Richard

Estates received an e-mail from a county administrator advising him that the Planning Commission

would be reconsidering its prior approval of the application at a meeting in one hour. A true and

correct copy of the e-mail correspondence is attached hereto as Exhibit “B.”

17. Neither Niemitalo nor the lead engineer on the project were able to attend the

meeting due to the lack of prior notice.

18. At the July 25th meeting, the SAC recommended again that the application be

approved with conditions.

19. After public comment and discussion, during which no new information was

presented that was not discussed at the prior meeting, the Planning Commission voted 5-4 to

revoke the original approval and deny the application.

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20. A letter notifying Niemitalo of the Planning Commission’s decision, including the

grounds for the decision, was sent on August 22, 2018 after request by Plaintiff’s counsel. A true

and correct copy of the letter is attached hereto as Exhibit “C.”

21. The reason stated for denial is “LDR Section 3.1 – compatibility with surrounding

land use density.”

GROUNDS FOR APPEAL

Due Process

22. The Plaintiff hereby restates each and every allegation contained in the preceding

paragraphs as if fully set forth herein.

23. The Greenville County Land Development Regulations provide that the Planning

Commission has final decision-making authority to approve site-specific development plans, such

as preliminary subdivision plans.

24. The Planning Commission is required to approve applications that comply with

zoning regulations and the specific, objective requirements of the LDR.

25. Niemitalo submitted a preliminary subdivision application, in compliance with all

applicable ordinances and regulations, for a site-specific development in an unzoned area.

26. The SAC and Planning Commission determined that the application met the

requirements of the LDR, including Section 3.1, and granted conditional approval.

27. The conditional approval granted by the Planning Commission conferred upon

Niemitalo a vested right in completing the development under the terms and conditions of the

approved plan for two years.

28. Niemitalo reasonably relied on the Planning Commission’s approval as the final

decision of the County and incurred significant expenses in further completion of the development.

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29. 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.

30. Further, the Planning Commission’s failure to provide the Plaintiff with reasonable

notice and a meaningful opportunity to be heard on a matter that directly affects his property rights

is a violation of Niemitalo’s constitutional right to due process.

31. As a result of the Planning Commission’s denial of Niemitalo’s basic due process

rights, Niemitalo will suffer significant financial damages, including, but not limited to, lost profits

and expenditures on preparation of the site for development.

32. The Plaintiff is entitled to an order reinstating the Commission’s original approval

and prohibiting the Planning Commission from further unlawful interference with its development.

33. The Plaintiff is also entitled to a judgment against the Planning Commission for

actual damages in an amount to be proven at trial.

Request for Pre-Litigation Mediation

34. The Plaintiff hereby restates each and every allegation contained in the preceding

paragraphs as if fully set forth herein.

35. S.C. Code § 6-29-1150 provides that a property owner whose land is the subject of

a decision of the Planning Commission may file a request for pre-litigation mediation with a notice

of appeal.

36. The Planning Commission’s attempt to revoke their prior approval of the Plaintiff’s

subdivision plans constitutes a decision of the Planning Commission as contemplated by § 6-29-

1150.

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37. The Plaintiff hereby requests pre-litigation mediation in accordance with the

provisions of S.C. Code § 6-29-1155.

WHEREFORE, the Plaintiff prays for the following:

a. that the Court issue an order reversing the decision of the Greenville County

Planning Commission and reinstating the conditional approval;

b. for an order prohibiting the Planning Commission from further unlawful

interference;

c. that the Plaintiff be awarded damages against the Defendant;

d. that the Court order the parties to conduct pre-litigation mediation in accordance

with § 6-29-1155; and

e. for such other and further relief as this Court may deem just and proper.

HOLDER, PADGETT, LITTLEJOHN + PRICKETT, LLC

s/ Anna L. Bullington________________
M. Stokely Holder (SC Bar #73892)
Anna L. Bullington (SC Bar # 102503)
P.O. Box 1804
Greenville, SC 29602
(864) 335-8808
(864) 248-4090 (fax)
sholder@hplplaw.com
abullington@hplplaw.com
Attorneys for Niemitalo, Inc.
September 21, 2018
Greenville, SC