The Beaufort County (S.C.) Planning Commission on June 5 denied two requests from developer Elvio Tropeano in his effort to build a golf resort on the St. Helena Island property. Tropeano asked the commission to remove the 502-acre property from the St. Helena Island Cultural Protection Overlay and appealed a decision made by the county’s Planning and Zoning Department in April to deny permit applications for three six-hole golf courses. The commission ruled against Tropeano on both counts. “We gave both sides a chance to state their case,” said Ed Pappas, Planning Commission chair. “I think we were fair to the applicant and fair to the county.”
After a marathon meeting that ran nearly five hours, the Beaufort County (S.C.) Planning Commission handed developer Elvio Tropeano a pair of setbacks June 5 in his effort to build a golf resort on the St. Helena Island property known as Pine Island Plantation, The Post and Courier reported.
Tropeano appeared before the commission to request that the 502-acre property be removed from the St. Helena Island Cultural Protection Overlay.
The overlay is a community-based zoning ordinance that prohibits golf courses, resorts and gated communities within the overlay zone, which covers much of St. Helena Island and its surrounding islands, The Post and Courier reported.
If the requested rezoning were to be approved, the underlying zoning would allow the Boston developer to build the golf resort he has pursued since at least November.
The commission also heard an appeal from Tropeano’s legal team pertaining to an April decision by the county to deny his permit application to build three six-hole golf courses, The Post and Courier reported.
By the end of the night, the commission ruled against the developer on both issues.
“We gave both sides a chance to state their case,” said Ed Pappas, Planning Commission chair. “I think we were fair to the applicant and fair to the county.”
Conforming or nonconforming use?
Tropeano’s rezoning application faced an uphill battle from the start.
Prior to the meeting, county staff issued a memo recommending the application be denied, though the commission was not obligated to adhere to the staff recommendation, The Post and Courier reported.
“To move the boundaries for the purpose of excluding certain parcels erodes the effectiveness of the (cultural protection overlay) by allowing the very uses that have been identified as posing the greatest threat to the character and stability of the island community,” wrote Rob Merchant, director of Beaufort County Planning and Zoning Department, in the recommendation dated May 23.
Tropeano’s application argued Pine Island Plantation should have never been included within the overlay zone, stating the property has historically been used as a private, gated recreation destination since the 1800s, The Post and Courier reported. Those uses continue to this day, he added.
“Accordingly, the property should be excluded from the (cultural protection overlay) as a preexisting, nonconforming use, consistent with other, similar properties in the vicinity,” Tropeano wrote in the application.
A nonconforming use is a property that once complied with the applicable zoning ordinances, but no longer does.
Dataw, Fripp and Harbor islands were excluded from the overlay zone when it was adopted by the Beaufort County Council in 1999, The Post and Courier reported. According to the county’s argument, those communities had well-established development patterns that contradicted the restrictions present in the overlay. Features like golf courses and gated communities already existed at the time the cultural protection overlay was adopted.
Their inclusion in the overlay zone would have instantly resulted in their designation as nonconforming properties, an action the county explicitly stated it wanted to avoid, The Post and Courier reported.
The county did not make the same assessment for the Pine Island property. It was included in the overlay and remains within the zone to this day.
Jessie White of the Coastal Conservation League countered Tropeano’s argument that Pine Island is a nonconforming property based on past and current uses, The Post and Courier reported.
“A private fence is not the same thing as a gated community, and historic use as a private recreational retreat is not the same thing as a resort,” White said.
As the commission moved toward voting on the application, Commissioner Jonathan Henney was similarly unconvinced by Tropeano’s argument, The Post and Courier reported. He noted that properties excluded from the overlay zone, such as Dataw and Fripp islands, were developed differently when compared to Pine Island.
“I don’t think that’s a valid justification for excluding it from the [cultural protection overlay],” Henney said.
The commission voted 6-0 to recommend denying the application, The Post and Courier reported.
The application will proceed to the Community Services and Land Use Committee with the commission’s recommendation that the application be denied. The application will ultimately be heard and decided by the full County Council.
Appealing the six-hole golf course decision
The second Pine Island-related issue before the commission was an appeal of a decision made by the county’s Planning and Zoning Department in April to deny permit applications for three six-hole golf courses, The Post and Courier reported.
Charleston-based attorney Ellis Lesemann represented Pine Island Property Holdings LLC before the commission. That entity is listed as the purchaser of the Pine Island property in documents filed with the county, though Tropeano routinely identifies himself as the property owner.
Brian Hulbert, deputy county attorney, represented the county.
For two hours the counselors argued a number of legal points related to the denial issued April 14 by Merchant, The Post and Courier reported.
“This was the most complex appeal issue I’ve ever dealt with in my six years on the commission,” Pappas said. “It was terribly complex.”
The commission had its own legal counsel on hand, a move that Pappas said is normal when the commission hears an appeal, The Post and Courier reported.
The argument appeared to boil down to one key point: Does the county’s development code recognize the existence of a six-hole golf course?
Lesemann asserted that the overlay prohibited golf courses with nine or more holes, making a six-hole course allowable, while Hulbert argued that the county’s development code defined a golf course as having either nine or 18 holes, The Post and Courier reported.
As a six-hole course didn’t fit the county’s definition of a golf course, it couldn’t be permitted.
Henney again took a lead role in the commission’s debate prior to vote, stating that he found no evidence that a six-hole golf course was a “by-right use” in either the overlay language or the community development, The Post and Courier reported.
The commissioners rejected Tropeano’s argument that his property was nonconforming because it operated as a gated community prior to the adoption of the overlay, The Post and Courier reported. They noted that there was no evidence of deed restrictions, covenants or homeowner associations that typically define gated communities.
“Gated communities are specifically prohibited, which is what this is going to be according to the conceptual plan,” said Commissioner Glenn Miller.
The commission voted 6-0 to affirm the county’s denial of the applications.
Tropeano can appeal the commission ruling.
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