Fed. Dist Court of SC Denies Motion to Stay Following Remand of Case Involving Alleged Illegal Development

This post was authored by Matthew Loeser, Esq.

The county of Charleston filed suit against defendants to stop their allegedly illegal development of land on Johns Island. In early September, 2017, the Charleston County Planning and Zoning Department discovered that the following land development activities had occurred on defendants’ properties without permits: “use of commercial land clearing equipment to clear and grub land, cutting and removal of protected trees, uncontrolled burning of vegetative waste, and resource extraction and mining.” The county of Charleston alleged that these activities violated the county’s zoning requirements, and that it informed defendants of these violations through letters, personal meetings, and Stop Work Orders. On September 28, 2017, the county of Charleston was assured that all work had ceased, so it dismissed the violations with the understanding that defendants would take corrective action and apply for the necessary permits. Despite this, defendants’ land-clearing activities continued through November 2017.

In this case, Defendants asked the court to stay its order remanding the case to state court until the Fourth Circuit ruled on defendants’ appeal of the court’s order to remand. Defendants contend that since the instant matter was not first argued before state administrative agencies before going to state court, the court should not have abstained. The court declined to interpret state laws, however, finding that the county of Charleston had already established a thorough administrative scheme for handling zoning issues, and decided it was best left to a state court to interpret and apply this administrative scheme. Accordingly, the court determined that defendants failed to meet the high bar of making a “strong showing” that their appeal would succeed – which was a factor that weighed heavily in favor of denying the defendants’ motion to stay.

Defendants next argued that if the court declined to stay its order, their appeal of the court’s decision to abstain under Burford would effectively become moot, which would deprive them of their right to judicial review and to have their case adjudicated by a federal court. The court noted, to the contrary, that there were many instances of a federal appellate court hearing an appeal of a decision to remand after the district court denied a motion to stay the remand pending appeal. Thus, the court found the defendants would not suffer irreparable harm if the court did not grant their motion to stay. Conversely, the county of Charleston demonstrated that it would suffer substantial injury if the case was stayed. Accordingly, the court held that the issuance of a stay would prevent the County from the enforcement of its zoning and land use ordinance, and denied the motion to stay.

County of Charleston v Finish Line Foundation II, Inc. 2018 WL 3303197 (D. SC 7/15/2018)