Cottages Development Appeal

ELECTRONICALLY FILED - 2022 Feb 25 5:40 PM - HORRY - COMMON PLEAS - CASE#2022CP2601234
STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS

) FIFT EENTH JUDICIAL CIRCUIT
COUNTY OF HORRY )
)
Charles W. Martino, Jr.; T. Kirk Truslow;) CASE NO. 2022-CP-26-______
Michael Smith; Terry Livingtson; )
Cynthia Setzer; Juan Castro; Arthur )
Scott; and Gary Falatovich )
)
Petitioners )
) SUMMONS
The City of Myrtle Beach, South )
Carolina, Community Appearance )
Board; The City of Myrtle Beach, )
South Carolina; GDMB Commercial, )
LLC; and The Zoning Administrator )
for the City of Myrtle Beach, South )
Carolina )
)
Respondents )
TO THE ABOVE-NAMED RESPONDENTS:
YOU ARE HEREBY SUMMONED and required to answer the Petition/Complaint
filed herein, a copy of which is herewith served upon you, and to serve a copy of your
answer to this Petition/Complaint upon the subscriber, at the address shown below,
within thirty (30) days after service hereof, exclusive of the day of such service, and if
you fail to answer the Petition/Complaint, judgment by default will be rendered against
you for the relief demanded in the Petition/Complaint.
/s/ John M. Leiter

__________________________________
John M. Leiter, Esq., SC Bar #3187
Law Offices of John M. Leiter PA
405 79th Avenue North, Suite B
Myrtle Beach, SC 29572
Tel. 843-449-1451; Fax: 843-449-4884
Email: [email protected]
Attorney for Petitioners
STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS
) FIFTEENTH JUDICIAL CIRCUIT
COUNTY OF HORRY )
)
Charles W. Martino, Jr.; T. Kirk Truslow; ) CASE NO. 2022-CP-26-______
Michael Smith; Terry Livingston; )
Cynthia Setzer; Juan Castro; Arthur ) PETITION FOR JUDICIAL REVIEW
Scott; and Gary Falatovich ) and COMPLAINT
)
Petitioners ) (Appeal of Decision of The Community
) Appearance Board, Declaratory Relief,
The City of Myrtle Beach, South ) Injunctive Relief, and FOIA Violation)
Carolina, Community Appearance )
Board; The City of Myrtle Beach, ) NON JURY
South Carolina; GDMB Commercial, )
LLC; and The Zoning Administrator )
for the City of Myrtle Beach, South )
Carolina )
)
Respondents )
TO THE ABOVE-NAMED RESPONDENTS:
The above-named Petitioners file this Petition pursuant to S.C. Code Ann. § 6-
29-900 and the Zoning Ordinance of the City of Myrtle Beach § 606 asserting that the
decision entered by the City of Myrtle Beach Community Appearance Board on January
27, 2022, and determinations, acts and/or omissions of the City of Myrtle Beach and the
City of Myrtle Beach Zoning Administrator leading to same, are contrary to law, and
states as follows:
INTRODUCTION
1. This matter is before the Court on appeal from a decision of the City of
Myrtle Beach Community Appearance Board (CAB) approving conceptual buildings,
landscaping, parking and fence for a 305-unit horizontal apartment complex containing
two-unit and multifamily dwellings (hereafter referred to as the “Cottages”) within the
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Cane Patch Tract of the Grande Dunes Planned Unit Development (“PUD”). The
Cottages development would provide traffic access directly onto 76th Avenue North (“76th
Ave. N.”) not only from the Cottages, but also from an adjoining 325 residential rental unit
development known as the Willows. The Cottages is located within a portion of the of the
Cane Patch Tract set aside for development consistent with the City’s R-7 zoning
classification. The Cottages is not an authorized use in the R-7 zoning classification, the
CAB’s decision approving its layout and design and the manner in which the CAB and the
City’s Zoning Administrator administered this matter was and is in clear and direct
violation of the City’s zoning code and contrary to law. The Petitioners also seek relief for
violations of the South Carolina Freedom of Information Act.
PARTIES AND JURISDICTION
2. Petitioner, Charles W. Martino, Jr., is an adult individual residing on
Briarwood Drive, in an area adjacent to the development at issue and he and his property
are adversely affected by the development of the property subject to this Petition.
3. Petitioner, T. Kirk Truslow, is an adult individual residing in an area adjacent
to the development at issue and he and his property are adversely affected by the
development of the property subject to this Petition.
4. Petitioner, Michael Smith, is an adult individual residing on Regina Court, in
an area adjacent to the development at issue and he and his property are adversely
affected by the development of the property subject to this Petition.
5. Petitioner, Terry Livingston, is an adult individual residing on Triana Court,
in an area adjacent to the development at issue and he and his property are adversely
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6. Petitioner, Cynthia Setzer, is an adult individual residing on Catena Lane, in
an area adjacent to the development at issue and she and her property are adversely
7. Petitioner, Juan Castro, is an adult individual residing on Catena Lane, in an
area adjacent to the development at issue and he and his property is adversely affected
by the development of the property subject to this Petition.
8. Petitioner, Arthur Scott, is an adult individual residing in an area adjacent to
the development at issue and he and his property is adversely affected by the
development of the property subject to this Petition.
9. Petitioner, Gary Falatovich, is an adult individual residing on Woodland
Drive, in an area adjacent to the development at issue and he and his property is
adversely affected by the development of the property subject to this Petition.
10. Respondent, The City of Myrtle Beach Board Community Appearance
Board (“CAB”), is an architectural review board established by the City of Myrtle Beach in
Article 6 under of the Zoning Ordinance of the City of Myrtle Beach (“Ordinance”) and the
authority granted by S.C. Code Ann. § 6-29-870.
11. Respondent, City of Myrtle Beach, South Carolina (the “City”) is a municipal
corporation and body politic created by and subject to the laws of the State of South
Carolina.
12. Upon information and belief, Respondent, GDMB Commercial, LLC is a
limited liability company having an address at 1400 Sunday Drive, #101, Raleigh, NC
27607 and, based on Horry County Tax Assessment Records, is the owner of a certain
26.69 acre parcel of land located along US Highway 17 Bypass between 71st Ave. N. and
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76th Ave. N., designated as Horry County PIN No.: 39500000030 Parcel No. 2, hereafter
referred to as the “Property”.
13. The Property is located in the northwest corner of the Cane Patch Tract of
the Grande Dunes PUD.
14. Upon information and belief, the Zoning Administrator for the City was
charged with the duty to properly administer the City Zoning Code, subject to those
limitations imposed on his authority by Ordinance.
15. Petitioners are aggrieved by the decision of the CAB made on January 27,
2022 granting final approval of the layout and design of 305 multifamily residential rental
units in the northwest corner of the Cane Patch Tract of the Grande Dunes PUD (i.e., the
“Cottages”) and the location of a road providing ingress and egress to 76th Ave. N. and
request:
a. An appeal from the CAB decision, together with
(i) Declaratory relief finding and declaring that any decision of the CAB
approving the Cottages development is contrary to law, ultra vires, void
and invalid as a matter of law as the CAB does not have the statutory
authority to review or approve plans which change the density of
development without compliance with the terms of the City’s Zoning
Code; and
(ii)
(iii) Declaratory relief finding and declaring that the CAB’s approval of the
Cottages plan is contrary to law and must be reversed as it fails to
protect the public health, safety and welfare and will cause substantial
injury to the value of other property in the immediate area
b. Declaratory relief finding and declaring that any decision by the Zoning
Administrator to place the Cottages development before the CAB, or
determine the Cottages development to be a “minor amendment” to the 76th
Ave. Carve-Out of the Cane Patch PUD, is contrary to law, outside the
scope of his authority, ultra vires, void ab initio, voidable and subject to
reversal by the Circuit Court.
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c. Declaratory relief finding and declaring that improper unilateral
interpretations by the Zoning Administrator which authorizes the
development of uses not specifically identified by Ordinance as permissible
in the Grande Dunes PUD in general, and in the Cane Patch Tract in
particular, and the submission of development plans for same to the CAB
for approval, violates Petitioners’ procedural and substantive due process
rights.
d. A request for declaratory relief finding and declaring that the City, through its
Zoning Administrator, failed to supply documents relative to the construction
of the Cottages prior to final approval by the CAB in violation of S.C. Code
Ann. § 30-4-10 and the grant of legal and/or equitable relief resulting from
same.
e. Supersedeas or other injunctive relief enjoining the City from issuing permits
or taking action on any requests for the approval of vested development
rights in the Cottages pending resolution of those issues raised in this action
and setting aside any actions taken by the City to approve same.
16. This Honorable Court has both subject matter and personal jurisdiction over
the parties to this action.
17. Venue is proper in Horry County pursuant to the provisions of S.C. Code
Ann. § 6-29-900 and the City Zoning Code Section 606.
18. Petitioners have standing to contest actions of government agencies which
violate a specific statute/ordinance and exceed such agencies’ specific authority to act as
illegal and ultra vires.
BACKGROUND
19. Petitioners incorporate herein by reference those allegations set forth in
paragraphs 1-18, as if the same were set forth at length hereafter.
20. PUDs are districts or development projects comprised of housing of
different types and densities and of compatible commercial uses, or commercial centers,
office parks, and mixed-use developments. A PUD is established by rezoning prior to
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development and is characterized by a unified site design for a mixed-use
development.” City of Myrtle Beach Zoning Code § 1903.
21. A PUD is required to be developed in strict compliance with an adopted
Ordinance and approved final plans. It is a contractual undertaking that is binding upon
the applicant and the owners of the land covered by the PUD, their successors and
assigns, and limits and controls the construction, location, use and operation of all land
and all improvements to be located within PUD. City of Myrtle Beach Zoning Code §
1903.H.
22. Changes that alter the concept of the PUD, including but not limited to,
changes in density, type and location, height of buildings, proposed open space,
development schedule, road standards or any changes in final governing agreements,
or provisions or covenants must be approved by Ordinance through the submission of a
PUD amendment application. City of Myrtle Beach Zoning Code § 1903.I.2.
23. “No variances may be granted within, or for, a Planned Unit
Development.” City of Myrtle Beach Zoning Code § 1903.I.3.
24. On October 27, 1998, the City amended its Zoning Code through the
enactment of Myrtle Beach Ordinance 981027-52, adopted October 27, 1998 to create
an area known as the “Grande Dunes PUD”. The Grande Dunes PUD is a mixed-use
PUD having multiple tracts, one of which is the “Cane Patch Tract”.
25. The Cane Patch Tract is located between Kings Highway and US 17
Bypass and runs along 76th Ave. N. adjacent to the Northwood Plan of Lots, one of the
City’s founding communities. All Petitioners herein reside either within single family
residential housing developments in the Cane Patch Tract or the Northwood Plan.
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26. The Property at issue is located in the northwest corner of the “Cane
Patch Tract” at the intersection of 76th Ave. N. and US 17 Bypass. It is a separate and
distinct 26.69 acre parcel of land fronting along US 17 Bypass between 71st Ave. North
and 76th Ave. N. within the City limits.
27. In or about May 2002, City Council enacted Ordinance No. 2002-28
approving a “Text Amendment” to Ordinance § 102.05 of the Grande Dunes PUD. In
applicable part, this amendment provides:
102. 05 Transfer Provision.
As the development of Grande Dunes Resort will evolve

over a number of years, it is necessary for a method to be a
part of this ordinance which allows for land use transfers to
occur in a manner that maintains adequate levels of public
facilities and provides for appropriate relationships to
surrounding properties. The accompanying table reflects this
transfer determination based on the impact to the
transportation system as it represents a measurable
relationship of intensity of use. The only area not subject to
this provision will be the Single-Family lots (see Exhibits 1,
1A and 2) in the Cane Patch Tract. This tract is to be
developed as defined by Exhibit 2: provided however that
Exhibit 1A contains a detailed line table which defines the
exact area and boundaries of the area subject to the
applicable R-7 zoning to be applied within the Cane Patch
Tract: and further provided that no road, street, thoroughfare,
alley or travel lane or lanes shall be constructed northwest
from Driftwood Drive up to US 17 Bypass that shall connect
to or serve a land use which is not consistent with R-7 uses.
They shall be developed in accordance with the R-7 zoning
regulations of the City of Myrtle Beach with the exception of
required front yard and side yard requirements for
Residential Uses which shall be changed to read as follows:
Front Yard - 20 feet

Side yard combined - 15 feet
Width on one side - 7.5 feet
Any portion of said lots which abut on 76th Ave. N. shall be designated
as a rear yard for setback purposes.
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28. Exhibit 1A carves out an area of the Cane Patch Tract extending west
along 76th Ave. N. from a commercial hotel to US Bypass 17 and restricts development
to uses consistent with the City’s “R-7 zoning” classification (hereafter the “76th Ave.
Carve-Out”).
29. There are three authorized uses in the City’s R-7 Zoning district, namely:
a. “Horse farms” as a “conditional use”;
b. “Permanent Residence, single-family dwellings” as a permitted use; and
c. “Residential Care facilities of nine or less persons with mental or physical
handicaps” as a permitted use.
30. The restriction in the “Transfer Provision” precluding construction of any
“road, street, thoroughfare, alley or travel lanes northwest from Driftwood Drive up to US
17 Bypass” refers to “Driftwood Drive” in the Northwood Plan of Lots, located across
76th Ave. N. from the entrance to “Seville”.1 A copy of the foregoing Exhibit 1A is
attached hereto, made a part hereof and marked Exhibit “A” to this Petition.
31. On information and belief, Petitioners are unaware of any modifications of
or amendments to Ordinance No. 2002-28 that were “approved by Ordinance through
the submission of a Planned Unit Development amendment application” under Section
1903.I.2 of the Zoning Code that would change the R-7 zoning classification of this
property and, accordingly, development of the 76th Ave. Carve-Out is and continues to
be limited and restricted to only those uses authorized in the City’s R-7 zoning
classification.
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Seville is a component of the Cane Patch Tract comprised of only single-family
residential homes and constructed in compliance with the Grande Dunes PUD.
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32. Although minor changes to a PUD may be made by the Zoning
Administrator, the Zoning Administrator has no statutory authority to decide or approve
changes as a “minor amendment” where the change would:
a. Alter the concept of the PUD;
b. Change the permitted land uses;
c. Reduce the minimum building setback for principal structures;
d. Decrease the number of off-street parking spaces; or
e. Otherwise violate the restrictions applicable within the PUD.

City of Myrtle Beach Zoning Code
§ 1903.I.1.
33. On or about December 16, 2021, Development Resource Group
(hereafter “DRG”) submitted an application to the CAB for conceptual review of a
request for the construction of “Conceptual buildings, landscaping, parking and fence for
a 305 unit horizontal apartment complex” within the 76th Ave. Carve-Out (hereafter
referred to as the “Cottages”) The Cottages is proposed to consist of a combination of
Two-Family and Multifamily dwelling units with access to 76th Ave. North directly across
from Briarwood Drive, a roadway sitting between Driftwood Drive and US 17 Bypass.2
34. None of the uses contemplated by the Cottages are permitted in the R-7
zoning district and the construction of the accessway onto 76th Ave. North is precluded
as it would not connect 76th Ave. North to uses that were permitted in the R-7 zoning
classification.
2
Upon information and belief, DRG is an engineering and architectural company
that assists individuals and entities with the development of property. Although
information submitted by DRG along with the application makes reference to
“360” and “Freehold”, the interests of 360 and Freehold in the Property are not
specifically identified.
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35. After reviews of “conceptual plans”, DRG made application to the CAB for
a final review of the Cottages on or about January 10, 2022. On January 27, 2022,
notwithstanding a submission of a January 27, 2022 Memorandum to the Board by one
of the Petitioners herein raising the CAB’s inability to approve the Cottages due to
zoning issues, the CAB voted to approve those documents submitted by DRG for the
Cottages. A copy of the aforesaid Memorandum is attached hereto, made a part hereof
and marked Exhibit “B”.
36. Neither the Two-Family or Multifamily residential dwellings contemplated
by the Cottages can, by the exercise of common sense, logic, or otherwise, be
interpreted to be a “horse farm”, “single-family residential dwelling” or a “residential care
facility for persons with mental or physical handicaps” as two-family and multifamily
residential dwellings are defined in the City’s zoning code and excluded from being
constructed in the R-7 zoning classification.
37. The Cottages development alters the concept of the 76th Ave. Carve-Out,
changes the density and type of buildings, proposed open space and access ways, and
changes the governing agreements, or provisions or covenants in Ordinances
previously approved by the City without the submission of a PUD amendment
application under City of Myrtle Beach Zoning Code § 1903.I.2.
COUNT I – NOTICE OF APPEAL FROM CAB DECISION

AND REQUEST FOR DECLARATORY RELIEF
Any decision of the CAB approving the Cottages development is

contrary to law, in violation of City Ordinances, outside of the scope
of its authority to act, ultra vires, void and invalid as a matter of law
as the CAB does not have the statutory authority to review or
approve plans which change the type and density of development
without obtaining the required formal amendment to the Grande
Dunes PUD.
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paragraphs 1-37 as if same were set forth at length hereafter.
39. The submissions made to the CAB for the Cottages Development included
a 2018 version of the Grande Dunes PUD dated 2018 stating:
“As the development of the Grande Dunes Resort will evolve over a
number of years, it is necessary for a method to be a part of this ordinance
which allows for land use transfers to occur in a manner that maintains
adequate levels of public facilities and provides for transfer relationships
to surrounding properties. The accompanying table reflects this transfer
determination based on the impact to the transportation system as it
represents a measurable relationship of intensity of use. The only area not
subject to this provision (relating to “density transfer provisions”) will
be the Single-Family lots (see Exhibits 1 and 2) in the Cane Patch
Tract. This tract is to be developed as defined by Exhibit 2. They shall
be developed in accordance with the R-7 zoning regulations of the
City of Myrtle Beach with the exception of required front yard and
side yard requirements for Residential Uses…”. (Emphasis added).
40. Exhibits 1 and 2 referenced above show the Siena Park and Seville
developments as constructed and continue to identify the remaining area of the 76th
Ave. Carve-Out separately from the other portions of the Cane Patch Tract. Copies of
Exhibits 1 and 2 are attached hereto, made a part hereof and marked collectively as
Exhibit “C”. Nothing in the aforesaid Exhibits change the R-7 zoning classification of this
area.
41. The Cottages proposed development plan changes the R-7 zoning
classification of this area, alters the concept of the Cane Patch Tract applicable to the
76th Ave. Carve-Out relating to density of development, the types of buildings permitted
for construction and modifies the agreements, provisions and covenants previously
approved by Ordinance enacted by the Council of the City for this area.
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or provisions or covenants are required to be approved by Ordinance through the
submission of a Planned Unit Development amendment application.” City of Myrtle
Beach Zoning Code § 1903.I.2. No variances may be granted within, or for, a Planned
Unit Development.” City of Myrtle Beach Zoning Code § 1903.I.3.
43. The CAB does not have the authority to waive or modify the site
development requirements of the City’s zoning code, or the requirements of any other
applicable city ordinance. Ordinance § 604.B.
44. The CAB’s decision modifies the permitted uses authorized for the 76th
Ave. Carve-Out and the site development requirements for this area contrary to the
City’s zoning code.
45. The CAB lacks statutory authority to hear, or make determinations on
development applications which change or alter the concept of a PUD, including but not
limited to, changes in density, type and location, height of buildings, proposed open
space, development schedule, road standards or any changes in final governing
agreements, or provisions or covenants, such authority being vested solely within the
City through the PUD amendment process, and any such determination is contrary to
law.
46. The CAB’s decision approving the Cottages application is contrary to law,
outside the scope of its authority, contrary to the procedures established by the City for
the type of changes required for the Cottages, ultra vires, void ab initio or voidable,
constitutes an error of law and should be reversed by the Circuit Court.
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COUNT II – NOTICE OF APPEAL FROM CAB DECISION AND REQUEST FOR
DECLARATORY RELIEF
The CAB’s approval of the Cottages plan is contrary to law,

and must be reversed as it fails to protect the public health,
safety and welfare and will cause substantial injury to the
value of other property in the immediate area
48. The Ordinance requires PUDs to be designed so that the public health,
welfare and safety is protected and does not cause substantial injury to the value of
other property in the immediate area. City of Myrtle Beach Zoning Code § 1903.B.6
and B.7.
49. The CAB’s site design review procedures require an assessment of
whether the proposed development would “sustain the comfort, health, tranquility, and
contentment of residents and attract new residents by reason of the City's favorable
environment; and thus, to promote and protect the peace, health and welfare of the
City.” Ordinance § 601.B.8.
50. The Cottages is intended to have direct access to 76th Ave. N. In addition,
it’s internal road system will provide direct site interconnected cross-access to 76th Ave.
N. from a neighboring 325 multifamily residential rental unit development known as the
“Willows”.
51. If constructed according to plans, the site interconnected cross-access will
permit traffic from 630 multifamily dwelling units to enter from and exit to 76th Ave. N.
across from Briarwood Drive in the Northwood Plan. It will also permit this traffic to use
the streets in the Northwood Plan for through traffic to 79th Ave. N.
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52. Both 76th Ave. N. and 79 th Ave. N. are 2-lane roadways extending between
US 17 Bypass and Kings Highway. They abut the Northwood Plan to its north and
south. Residents in the Northwood Plan, as well as adjoining residential communities,
walk, jog, walk dogs, ride bicycles, and operate golf carts within the roads in the
Northwood Plan and along 76th Ave. N. and 79 th Ave. N.
53. Grocery stores, restaurants, drug stores, hairdressers, nail salons and
other forms of retail shops for goods and services are located along Kings Highway,
between 0.6 and 0.8 miles away from the entrance of the Cottages onto 76th Ave. N.,
and are directly accessible from 76th Ave. N. and 79 th Ave. N.
54. The intersection of 76th Ave. N. and US 17 Bypass is an intersection
known to be prone to severe accidents and was referred to during CAB meetings on the
Cottages plan as a “death trap”.
55. In the summer of 2021, before the current Cottages plan was proposed,
76th Ave. N. and 79th Ave. N. were determined by the City to have problems with
speeding under pre-development conditions and, as a result, the City agreed to install
additional traffic calming measures on both roads to address existing adverse traffic
conditions.
56. The area of the Northwood plan between Driftwood Drive and US 17
Bypass is comprised of approximately 32.6 acres of land and contains 57 single-family
homes and one church (a density of one single family dwelling for every 0.57 acres of
land). The area of the Cottages contains approximately 26.6 acres of land and is
proposed to contain 305 multifamily dwelling units (a density of one dwelling unit for
every 0.087 acres of land).
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57. There are approximately 210 single-family homes combined in the
Northwood, Sienna Park and Seville developments.
58. The combined number of dwelling units contained in the Willows and
Cottages plans (i.e., 630) will increase the density of residential dwelling units in the
area by 200%.
59. Upon information and belief, Petitioners aver that the dwelling units
contemplated in both the Willows and Cottages plans are intended to be rental units
with both sites being under and subject to the control of a single owner.
60. The construction of a combination of 630 two-family and multifamily
residential rental dwelling units will decrease the value of the surrounding properties that
are developed for single-family residential homes.
61. The CAB’s approval of the Cottages plan fails to take into consideration
the substantial impact the Cottages development would have on the public health,
safety and welfare of surrounding property owners, and the devaluation of their
properties caused by the substantial increases in the density of development and traffic
flow from the Cottages plan, impermissibly alters the protections provided to residents
within the 76th Ave. Carve-Out and the adjoining Northwood Plan by the creation of the
R-7 zoning classification for that area, fails to follow those directives for CAB review
provided in the zoning code, is contrary to law and must be reversed.
COUNT III – ACTIONS OF THE ZONING ADMINISTRATOR

REQUEST FOR DECLARATORY RELIEF
Any decision by the City Zoning Administrator to place the

Cottages development before the CAB, or declare the Cottages
development to be a “minor amendment” to the 76th Ave.
Carve-Out of the Cane Patch PUD, is outside the scope of his
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authority, ultra vires, void ab initio, voidable and subject to
reversal by the Circuit Court.
63. Section 308 of the City’s zoning code provides that:
“In the planning and zoning context in which

applications for approval are required to be reviewed
by an appointed body after preliminary staff review,
applications that are incapable of review due to
incompleteness, failure to address required statutory
standards, or illegibility shall be returned to the
applicant for completion and correction prior to staff’s
submittal of the application to the reviewing body.”
(Emphasis added).
64. More specifically, the Zoning Administrator is required to examine
materials submitted to the CAB to ensure they satisfy submission requirements and
arrange for their presentation before the Board. This review is required to ensure that
projects that come before the Board are compliant with zoning standards. Ordinance §
605.A.
65. The 76th Ave. Carve-Out is limited to development consistent with the R-7
zoning classification which does not include multifamily dwellings. There are three
authorized uses in the City’s R-7 Zoning district, namely:
a. Horse farms as a conditional use;
b. Permanent Residence, single-family dwellings as a permitted use; and
c. Residential Care facilities of nine or less persons with mental or physical

handicaps” as a permitted use.
66. Although the Zoning Administrator has some authority to make minor
changes to an approved PUD as a “minor amendment”, the Zoning Administrator’s
authority to act does not permit “minor amendments” which:
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a. Alter the concept of the PUD;
b. Change the permitted land uses; or
c. Otherwise violate the restrictions applicable within the PUD.
City of Myrtle Beach Zoning Code § 1903.I.1.
67. Any attempt by the Zoning Administrator to “interpret” the zoning code to
include the Cottages within one of the three uses authorized in the R-7 zoning
classification, or to consider the Cottages as an authorized use under a “minor
amendment” to the Cane Patch Tract is precluded, as a matter of law, as it necessarily
changes the permitted land uses in the R-7 zoning classification from Single-Family
homes to Two-Family and Multifamily dwellings, alters the concept of the 76th Ave.
Carve-Out portion of the Cane Patch Tract and violates the restrictions, limitations and
covenants agreed to by City Council and approved by Ordinance some 20 years ago.
68. The Cottages development clearly, and as a matter of law, alters the
concept of the PUD, changes the permitted land uses in same or otherwise violates the
R-7 development restrictions applicable to the 76th Ave. Carve-Out and any action by
the Zoning Administrator that could be deemed or construed otherwise, is contrary to
law, outside the scope of the Zoning Administrator’s authority, ultra vires, void ab initio,
voidable and must be reversed as a matter of law.
COUNT IV – ZONING ADMINISTRATOR - DECLARATORY RELIEF –

VIOLATION OF DUE PROCESS RIGHTS
Unilateral interpretations by the Zoning Administrator

which authorize the development of uses not
specifically identified by ordinance as permissible in the
Grande Dunes PUD in general, and in the Cane Patch
Tract in particular, and place same before the CAB for
approval, violates Petitioners’ procedural and
substantive due process rights.
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70. The City provides a process through which changes in PUDs may be
pursued.
or provisions or covenants are required to be approved by Ordinance through the
submission of a Planned Unit Development amendment application.” City of Myrtle
Beach Zoning Code § 1903.I.2. No variances may be granted within, or for, a Planned
Unit Development.” City of Myrtle Beach Zoning Code § 1903.I.3.
72. The PUD amendment process requires review of such amendment by the
City’s Planning Commission, a full public hearing conducted by the Planning
Commission and approval by City Council through the enactment of an Ordinance.
Notification of the public hearing before the Planning Commission is required to be in
the form of advertisement in a local newspaper, public hearing sign(s) posted on the
property, and letters mailed to owners of property within 300 feet of the PUD.
73. Upon information and belief, Petitioners aver that the Zoning Administrator
has made improper unilateral legislative determinations in this and other cases involving
the Grande Dunes PUD, which authorize uses not specifically identified by Ordinance
as approved for the PUD, and, without making same a matter of public record,
submitted applications for the construction of same to the CAB for approval without
submitting them for prior review through the PUD amendment process.
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74. Such improper unilateral determinations eliminate requirements for
planning commission review and approval of amendments to the PUD, eliminates the
necessity for public hearings, and circumvents City Council review and approval of PUD
amendments by ordinance where, as here, the appropriateness, nature, extent and
density of uses permitted within the PUD are at issue.
75. As the CAB is not required to conduct a “public hearing” on any matter
before it, the aforesaid practice effectively avoids or limits public comment to only those
“architectural matters” that are within the “purview of the CAB”, precludes public
comment or questioning of proponents on matters that are not related to “architectural
matters”, reduces the time allowed for public comment and is violative of the public’s
rights to substantive and procedural due process otherwise afforded through public
hearings required in the PUD amendment process.
76. Accordingly, any action, inaction or failure of the Zoning Administrator
which authorized or permitted the Cottages development to proceed before the CAB is
void as a matter of law, outside the scope of the Zoning Administrator’s authority to act
and violates Petitioners’ rights to substantive and procedural due process.
77. The Petitioners pray the Circuit Court declare the actions of the Zoning
Administrator to be inappropriate, contrary to law and violative of Petitioners’ rights to
substantive and procedural due process, reverse any action, inaction or failure of the
Zoning Administrator which caused the Cottages to appear before the CAB for review
and approval, declare any such act or omissions to be ultra vires under the
circumstances and direct the Zoning Administrator to return the Cottages application to
the Applicant as noncompliant with the City’s zoning code.
19
COUNT V – CITY OF MYRTLE BEACH
FREEDOM OF INFORMATION ACT VIOLATION
The City, through its Zoning Administrator, failed to supply

documents relative to the construction of the Cottages prior to
final approval by the CAB in violation of S.C. Code Ann. § 30-4-
10.
79. The City is a public body subject to the provisions of the South Carolina
Freedom of Information Act (FOIA) at S.C. Code Ann. § 30-4-10, et. seq.
80. The City maintains documents subject to public disclosure under the FOIA
in various departments throughout the City, including the office of the Zoning
Administrator.
81. The City, and its Zoning Administrator, have a duty to make a response to
FOIA records requests within ten (10) business days of the date of a FOIA request
unless the records requested are more than 24 months old.
82. On December 20, 2021, one of your Petitioners filed a request with the
City under the Freedom of Information Act requesting, “All plans, records, drawings,
traffic studies, traffic impact assessments, and all other documents submitted for the
development of property or properties along US 17 Bypass between 67th Street North
and 76th Street North.” (the “December 20, 2021, FOIA”).
83. The Willows and the Cottages are the only two development plans in the
area subject to the request.
84. In response, the City provided some, but not all, documents associated
with the Willows Plan for in person review on the morning of January 6, 2022. However,
it did not provide any documents associated with the current Cottages plan nor did it
20
state any objections to the production of such documents or provide a reason why same
would not be produced.
85. At 1:30 p.m. on January 6, 2022, at a CAB meeting scheduled at the time,
the CAB discussed a revised conceptual plan submission for the Cottages, but did not
take any public comment on same. Petitioners believe that the CAB had a variety of
documents in its possession associated with the Cottages at its January 6, 2022
meeting, and a prior meeting held November 4, 2022, which it was required, but failed,
to produce in response to the December 20, 2022 FOIA.
86. The City did not provide any documents associated with the Cottages
under the December 20, 2021 FOIA until after the CAB meeting on January 27, 2022 at
which the Cottages request for final review was approved.
87. After the January 27, 2022 CAB meeting the City, through its Zoning
Administrator, began to piecemeal the production of documents requested.
88. From December 20, 2022 FOIA to date, the Petitioner has sought
documents and information from the City regarding how the use of the property for the
two-family and multifamily residential dwellings proposed by the Cottages were
approved in the R-7 zoning classification applicable to the 76 th Ave. Carve-Out.
89. To date, the City has failed to provide any document which would reflect a
statement of policy, or interpretation of the City’s zoning code, adopted by the City,
specifically relating to the R-7 zoning classification of the 76th Ave. Carve-Out, that
would permit two-family or multifamily dwellings within same, nor has it provided a
reason why such document has not been produced or admitted that no such document
exists.
21
90. Petitioners believe, and therefore aver, that the City, through its Zoning
Administrator, has arbitrarily and capriciously violated the provisions of FOIA by (a)
voluntarily withholding records associated with the Cottages development until after the
CAB granted final approval for same; (b) attempting to impose unreasonable charges of
$1,000.00 for the search and production of documents that it has in its possession in
digital format; (c) advising Petitioner(s) that certain documents associated with the
Siena Park and Seville developments were no longer available; and (d) piece-mealed
the production of documents readily in its possession.
91. The failure of the City, by and through the office of its Zoning
Administrator, to supply information in a timely manner as required by FOIA has
adversely affected, and continues to adversely impact, (a) the ability of Petitioners to
obtain information and documents required to fully assess the appropriateness of the
procedures employed by the Zoning Administrator in matters associated with the
Cottages plan and (b) actions that could have been taken by the Petitioners if the
information was properly released.
92. Petitioners pray that this Court issue an order directing the City to produce
forthwith any written document, adopted by the City, which would reflect a statement of
policy or interpretation of the City’s zoning code stating that two-family or multifamily
dwellings were appropriate for construction within the R-7 zoning classification
attributable to the 76th Ave. Carve-Out or provide a response that no such document
can be produced. In addition, Petitioners request an award of attorney’s fees, costs and
expenses for failure to comply with the requirements of FOIA.
22
COUNT VI – CITY OF MYRTLE BEACH – FREEDOM OF INFORMATION ACT
VIOLATION - REQUEST FOR SUPERSEDEAS OR INJUNCTIVE RELIEF
The City should be prevented or enjoined from issuing permits

or taking action on any requests for the approval of vested
development rights in the Cottages pending resolution of
those issues raised in this action.
94. For reasons set forth above, Petitioners believe the City, through the office
of the Zoning Administrator, violated the South Carolina FOIA.
95. The failure of the City, by and through the office of its Zoning
Administrator, to supply information in a timely manner as required by FOIA has
adversely affected, and continues to adversely impact, the ability of Petitioners to obtain
information and documents required to fully assess the appropriateness of the
procedures employed by the Zoning Administrator in the disposition of matters
associated with the Cottages plan.
96. Determinations regarding whether the Cottages development plan
complies with the City’s Zoning Code are at issue in this case.
97. There are two types of development plans which may be submitted to the
City for approval, namely a “Phased development plan” and a “Site specific
development plan”.
98. A “Phased development plan” is a development plan submitted to the
local governing body, or body authorized by the local governing body, to make land
use decisions that shows the types and density or intensity of uses for a specific
property or properties to be developed in phases, but which do not satisfy the
23
requirements for a site-specific development plan. The Code of Ordinances, City of
Myrtle Beach, South Carolina § 20-72.
99. A “Site specific development plan” is a development plan submitted to the
local governing body, or a body authorized by the local governing body to make land
use decisions, by a landowner describing with reasonable certainty the types and
density or intensity of uses for a specific property or properties. The plan may be in the
form of, but is not limited to, the following plans or approvals: planned development;
subdivision plat; preliminary or general development plan; variance; conditional use or
special use permit plan; conditional or special use district zoning plan; or other land
use approval designations as are used by the City; provided that all such plans must
conform to, comply with and satisfy all applicable planning, zoning, subdivision, storm
water management and control, building, fire, water and sewer, road and other City
codes and ordinances applicable to such development.” The Code of Ordinances,
City of Myrtle Beach, South Carolina § 20-72.
100. Based on the information provided by the City to date under the
December 20, 2021 FOIA, the Petitioners are unable to determine whether the
Cottages application is being treated as a “site specific development plan” or a “phased
development plan” or what stage of review the Cottages plan is currently in.
101. Petitioners believe and therefore aver that the current status of the
Cottages development may tempt plan proponents to request the City to afford the
Cottages “vested rights” in its development.
102. The City may not approve the establishment of a vested right in an
approved phased development plan, and may only approve and establish a vested
right in any phase of a phased development plan, if it conforms to, complies with and
24
satisfies all state statutes and county codes and ordinances including, but not limited
to, planning, zoning, subdivisions, storm water management and control, building, fire,
water and sewer, road and other state and county codes applicable to such
development. The Code of Ordinances, City of Myrtle Beach, South Carolina § 20-
73(d).
103. If the City approves a vested right for one or more phases of a phased
development plan, a site specific development plan is required for approval with respect
to each phase in accordance with regulations in effect at the time of vesting. The Code
of Ordinances, City of Myrtle Beach, South Carolina § 20-74(a)(3).
104. The form and content of a site specific development plan submitted by a
landowner must conform and comply with the city planning, zoning, subdivision, storm
water management and sediment control, building, electrical, mechanical, life safety,
fire, water and sewer, road and other codes, ordinances and regulations applicable to
such development or development plan. The Code of Ordinances, City of Myrtle
Beach, South Carolina § 20-74-(a)(1).
105. No vested right in a site specific development plan can be established
except in conformity with the city planning, zoning, subdivision, storm water
management and sediment control, building, electrical, mechanical, life safety, fire,
water and sewer, road and other land use codes, ordinances and regulations. The
Code of Ordinances, City of Myrtle Beach, South Carolina § 20-74(a)(2).
106. The Cottages development is not permitted in the R-7 Zoning
classification, no phased or site specific development plan can be submitted for the
Cottages that complies with the R-7 zoning classification for the 76th Ave. Carve-Out,
25
the Petitioners’ rights to relief are clear and, accordingly, such development cannot be
subject to a vested rights approval by the City.
107. Based on information and belief, Petitioners believe and therefore aver
that following the CAB’s January 27, 2022 approval, additional plan reviews are still
required for the Cottages project, that the project is not approved until all departments
assigned to the project have signed off and that the project will not be ready to permit
until such reviews have occurred and the plans have been determined to be
appropriate.
108. To the extent a vested rights request has been made to the City but not
yet approved, the Petitioners pray that this Court enter a supersedeas as the Court
deems equitable under S.C. Code Ann. § 6-29-920 or otherwise to enjoin the City from
approving same or issuing permits for construction pending the disposition of this
Petition.
109. To the extent a vested rights request has been made to the City and has
been approved, the Petitioners pray that this Court grant equitable relief, declare such
approval to be void or invalid, suspend, set aside and/or vacate such approval as ultra
vires, and enjoin the City from approving any further request for a vested rights pending
the outcome of this litigation
110. The Petitioners pray that this Court enter a supersedeas as the Court
deems equitable, together with such other equitable or injunctive relief set forth above,
and enter an award of attorney’s fees costs and expenses in addition to any
compensatory or equitable relief requested herein.
26
PRAYER FOR RELIEF
Petitioners respectfully request this Honorable Court enter an Order:
1. Enjoining the City from considering the Cottages plan for vested
rights treatment while this action is pending;
2. Requiring the City to produce any written document, adopted by the

City, which would reflect a statement of policy or interpretation of
the City’s zoning code stating that two-family or multifamily
dwellings were appropriate for construction within the R-7 zoning
classification attributable to the 76th Ave. Carve-Out or provide a
response that no such document can be produced;
3. Declaring any determination or any attempt by the City’s Zoning

Administrator to make a determination that the Cottages was a
permitted use in the 76th Ave. Carve-Out is void, invalid, ultra vires
and contrary to law;
4. Reversing the determination of the City’s Community Appearance

Board approving the final Cottages plan submission;
5. Enjoining the City of Myrtle Beach from taking any action with
respect to the Cottages application unless and until the City
complies with the requirements of the Grande Dunes PUD;
6. Awarding the Petitioners their attorney’s fees and costs expended;

and
7. Such other and further relief as this Honorable Court may deem
just and equitable.
RESPECT FULLY SUBMITTED,
/s/ John M. Leiter

__________________________________
John M. Leiter, Esq., SC Bar #3187
Law Offices of John M. Leiter PA
405 79th Avenue North, Suite B
Myrtle Beach, South Carolina 29572
Tel. 843-449-1451; Fax: 843-449-4884
Email: [email protected]
Attorney for Petitioners
27

Cottages Development Appeal

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ELECTRONICALLY FILED - 2022 Feb 25 5:40 PM - HORRY - COMMON PLEAS - CASE#2022CP2601234

STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS

TO THE ABOVE-NAMED RESPONDENTS:

YOU ARE HEREBY SUMMONED and required to answer the Petition/Complaint

you for the relief demanded in the Petition/Complaint.

/s/ John M. Leiter

TO THE ABOVE-NAMED RESPONDENTS:

Myrtle Beach Community Appearance Board (CAB) approving conceptual buildings,

violations of the South Carolina Freedom of Information Act.

PARTIES AND JURISDICTION

2. Petitioner, Charles W. Martino, Jr., is an adult individual residing on

3. Petitioner, T. Kirk Truslow, is an adult individual residing in an area adjacent

development of the property subject to this Petition.

4. Petitioner, Michael Smith, is an adult individual residing on Regina Court, in

affected by the development of the property subject to this Petition.

5. Petitioner, Terry Livingston, is an adult individual residing on Triana Court,

affected by the development of the property subject to this Petition.

affected by the development of the property subject to this Petition.

7. Petitioner, Juan Castro, is an adult individual residing on Catena Lane, in an

by the development of the property subject to this Petition.

8. Petitioner, Arthur Scott, is an adult individual residing in an area adjacent to

development of the property subject to this Petition.

9. Petitioner, Gary Falatovich, is an adult individual residing on Woodland

adversely affected by the development of the property subject to this Petition.

10. Respondent, The City of Myrtle Beach Board Community Appearance

authority granted by S.C. Code Ann. § 6-29-870.

12. Upon information and belief, Respondent, GDMB Commercial, LLC is a

referred to as the “Property”.

the Grande Dunes PUD.

limitations imposed on his authority by Ordinance.

a. An appeal from the CAB decision, together with

the parties to this action.

Ann. § 6-29-900 and the City Zoning Code Section 606.

18. Petitioners have standing to contest actions of government agencies which

illegal and ultra vires.

19. Petitioners incorporate herein by reference those allegations set forth in

paragraphs 1-18, as if the same were set forth at length hereafter.

20. PUDs are districts or development projects comprised of housing of

office parks, and mixed-use developments. A PUD is established by rezoning prior to

development.” City of Myrtle Beach Zoning Code § 1903.

21. A PUD is required to be developed in strict compliance with an adopted

development schedule, road standards or any changes in final governing agreements,

or provisions or covenants must be approved by Ordinance through the submission of a

PUD amendment application. City of Myrtle Beach Zoning Code § 1903.I.2.

23. “No variances may be granted within, or for, a Planned Unit

Development.” City of Myrtle Beach Zoning Code § 1903.I.3.

and 76th Ave. N. within the City limits.

approving a “Text Amendment” to Ordinance § 102.05 of the Grande Dunes PUD. In

applicable part, this amendment provides:

102. 05 Transfer Provision.

As the development of Grande Dunes Resort will evolve

Front Yard - 20 feet

a. “Horse farms” as a “conditional use”;

b. “Permanent Residence, single-family dwellings” as a permitted use; and

c. “Residential Care facilities of nine or less persons with mental or physical

handicaps” as a permitted use.

30. The restriction in the “Transfer Provision” precluding construction of any

31. On information and belief, Petitioners are unaware of any modifications of

or amendments to Ordinance No. 2002-28 that were “approved by Ordinance through