Background
The Mercom Technology Park Planned Development (Mercom PD) is a 28.4-acre tract on Pawleys Island that Georgetown County Council (County Council) originally approved in 2008 for resort and office-related uses. In 2015, County Council amended the PD to allow additional uses including restaurants, retail, medical clinics, and conference centers. In August 2022, the Alliance for the Economic Development of Georgetown County (the Alliance), which owned one of the three parcels comprising the Mercom PD, applied to amend the PD again — this time to allow high-density, multi-family residential rental housing. Georgetown County’s Planning Commission unanimously recommended denial because the proposal conflicted with the County’s Comprehensive Land Use Plan (Comprehensive Plan). In November 2022, County Council approved the Alliance’s application, amending the future land use map and rezoning the property to residential (Ordinances 22-36 and 22-37).
Neighboring landowners and community organizations filed an amended complaint against Georgetown County and the Alliance asserting six declaratory judgment counts: (1) the original Mercom PD (2008) was void from inception as a single-use PD; (2) County Council had a statutory duty under Ordinance 1703 to initiate reversion proceedings because construction had not begun within two years of approval; (3) the 2022 Ordinances violated the South Carolina Local Government Comprehensive Planning and Enabling Act of 1994 (Enabling Act) because they conflicted with the Comprehensive Plan; (4) the 2022 Ordinances violated Ordinance 1701 requiring justification by public necessity, general welfare, and good zoning practice; (5) the Alliance’s application was invalid because not all three parcel owners submitted it; and (6) the approval amounted to unlawful spot zoning. Respondents moved to dismiss under Rule 12(b)(6), SCRCP. The circuit court granted the motions on all grounds, and Appellants appealed.
The Court’s Holding
The Court of Appeals affirmed in part, reversed in part, and remanded. Writing per curiam with Judges Konduros, McDonald, and Vinson concurring, the court reversed the dismissal as to five of the six counts and affirmed only the application-standing issue.
On the constitutional deprivation question and the Comprehensive Plan, the court reversed the circuit court’s finding that Appellants had failed to allege any constitutional deprivation. Appellants’ complaint alleged that County Council’s actions were arbitrary, had a disparate impact on the minority community, would decrease property values, overburdened infrastructure, created stormwater and traffic hazards, and interfered with the enjoyment of neighboring properties. Under the Rule 12(b)(6) standard — which requires the court to construe the complaint in the light most favorable to Appellants — these allegations were sufficient to state a constitutional claim. The court also faulted the circuit court’s heavy reliance on the principle that a comprehensive plan is “only a guideline”: while a comprehensive plan is not itself law, the 2022 Ordinances are law, and the Planning Commission’s unanimous denial on consistency grounds raised factual questions about arbitrariness that could not be resolved at the dismissal stage.
On the validity of the original Mercom PD, the court held it was error to resolve at the 12(b)(6) stage whether the 2008 PD was void from inception as a single-use PD. Whether the original PD lawfully qualified as a planned development district under § 6-29-720(C)(4) — which requires a PD to include housing of different types and densities and compatible commercial uses — turned on factual questions requiring a fuller record. See Sinkler v. County of Charleston, 387 S.C. 67 (2010). The court also rejected the circuit court’s holding that a limitations period barred a challenge to the 2022 Ordinances premised on the argument that the Mercom PD (2008) was invalid: Appellants challenged the 2022 amendments within the sixty-day window under § 6-29-760(D).
On Ordinance 1703 (the two-year reversion provision), the court reversed because whether County Council violated the procedure for initiating reversion proceedings was a factual issue. Appellants sought not automatic reversion, but merely enforcement of the ordinance’s mandated review process, a distinction the circuit court missed.
The court preserved one ruling in Respondents’ favor: Ordinance 619.501, which requires the owner of “the area proposed” to join an application for rezoning, required only the Alliance as owner of the parcel subject to the proposed change — not all three Mercom PD parcel owners — to submit the application. This was a pure question of ordinance construction resolvable at the dismissal stage.
The court declined to reach Appellants’ argument that County Council failed to resubmit the zoning changes to the Planning Commission before final passage under § 6-29-760(A), finding the issue unpreserved because it was raised for the first time on appeal in a different form than it was presented below.
Key Takeaways
- A Rule 12(b)(6) motion to dismiss is not the appropriate vehicle for resolving whether a zoning decision was arbitrary or whether a comprehensive plan’s requirements were satisfied when factual development of the record is needed. South Carolina courts should not decide these issues on the face of the pleadings.
- The principle that a comprehensive plan is “only a guideline” (from McClanahan v. Richland County Council, 350 S.C. 433 (2002)) does not mean that a county’s departures from its comprehensive plan can never form the basis of a legal challenge. Where passed ordinances — not merely the plan itself — are the subject of review, the plan’s consistency requirements remain a relevant factual issue at trial.
- Neighboring property owners and community organizations alleging specific harms (reduced property values, infrastructure burden, stormwater, traffic, disparate community impact) adequately state the constitutional deprivation required to challenge a zoning ordinance under Knowles v. City of Aiken, 305 S.C. 219 (1991), at the pleading stage.
- Whether a planned development district approved in 2008 was lawfully constituted as a multi-use PD under § 6-29-720(C)(4) is a factual question that cannot be resolved on a motion to dismiss when the record is undeveloped. See Sinkler v. County of Charleston, 387 S.C. 67 (2010) (invalidating a PD ordinance that lacked required mixed uses).
Why It Matters
Powers v. Georgetown County is a companion to two other Court of Appeals decisions issued the same day — Bryant v. Georgetown County (2026-UP-282) and Michael T. Green v. Georgetown County (2026-UP-288) — which reversed circuit court dismissals of challenges to other Georgetown County development approvals on Enabling Act grounds. Together, the three decisions signal a robust judicial appetite for subjecting Georgetown County’s development approval process to statutory and constitutional scrutiny, with at least some claims surviving to the merits stage even in unpublished form.
Powers is notable for its treatment of the “guideline only” characterization of comprehensive plans. Practitioners have historically relied on McClanahan for the proposition that comprehensive plans lack enforceable legal force. The court here distinguishes McClanahan sharply: that case involved a challenge to the plan itself as a taking; here, the challenge is to County Council’s inconsistent ordinances, which are law, and the Planning Commission’s unanimous contrary recommendation provides factual grounds for a non-frivolous arbitrariness claim that must survive the pleading stage. Landowners challenging zoning decisions should plead both the statutory-authority and the arbitrary-action theories carefully, with specific factual allegations about the discrepancy between the comprehensive plan and the challenged ordinance.