Red Bluff Rock LLC vs. Horry Co

ELECTRONICALLY FILED - 2017 Nov 16 4:03 PM - HORRY - COMMON PLEAS - CASE#2017CP2607597
STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS

) FIFTEENTH JUDICIAL CIRCUIT
COUNTY OF HORRY ) CIVIL ACTION NO.
Red Bluff Trade Center, LLC

and )
Red Bluff Rock, LLC, )
) SUMMONS
Plaintiffs, )
)
vs. )
)
Horry County and Horry County Council, )
)
Defendants. )
)
TO: THE DEFENDANTS ABOVE-NAMED:
YOU ARE HEREBY SUMMONED and required to reply to the Appeal and Complaint in
this action, a copy of which is herewith served upon you, and to serve a copy of your reply to the
said Appeal and Complaint upon their subscribers at The Pearce Law Group, P.C., 1314
Professional Drive, Myrtle Beach, South Carolina, 29577, within thirty (30) days after the service
hereof, exclusive of the day of such service. If you fail to reply to the Appeal and Complaint within
the time aforesaid, judgment by default will be rendered against you for the relief demanded in the
Appeal and Complaint.
[SIGNATURE PAGE TO FOLLOW]

THE PEARCE LAW GROUP, P.C.
By: /s/ Christopher H. Pearce

Christopher H. Pearce., Esquire
S.C. Bar No.: 71083
cpearce@pearcelawgroup.com
Kerry K. Jardine, Esquire
S.C. Bar No.: 101090
kjardine@pearcelawgroup.com
1314 Professional Drive
Myrtle Beach, South Carolina 29577
Telephone: (843) 839-3210
Facsimile: (843) 839-3214
ATTORNEYS FOR PLAINTIFFS
November 16, 2017

Myrtle Beach, South Carolina
STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS
) FIFTEENTH JUDICIAL CIRCUIT
COUNTY OF HORRY ) Case No.
Red Bluff Trade Center, LLC and

Red Bluff Rock, LLC,
Plaintiffs,
APPEAL AND COMPLAINT
vs.
[JURY TRIAL DEMANDED]
Horry County and
Horry County Council,
Defendants.
The Plaintiffs Red Bluff Trade Center, LLC and Red Bluff Rock, LLC (together,
Plaintiffs) complaining of the Defendants Horry County and Horry County Council herein,
would show and allege to this Honorable Court as follows:
PARTIES AND JURISDICTION
1. A jury trial is hereby demanded on all issues so triable.
2. Red Bluff Trade Center, LLC is a limited liability company organized under the
laws of South Carolina. It owns that real property in the Red Bluff Community of Horry County,
South Carolina, containing approximately 53.83 acres and identified with PIN 30000000011 (the
Property). The Property is currently zoned Commercial Agriculture (AG2).
3. Red Bluff Rock, LLC is a limited liability company organized under the laws of
South Carolina and formed for the specific purpose of operating a limestone and fill dirt mine
on the property owned by Red Bluff Trade Center, LLC.
4. Defendant Horry County (hereinafter, the County) is a body politic and corporate
for the purpose of being sued.
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5. Defendant Horry County Council (the Council) is a body politic and corporate
and the county council for Horry County, South Carolina.
6. The Court has jurisdiction over the parties and subject matter hereto in that the
allegations involve the Councils denial of a resolution that would have allowed Red Bluff Rock,
LLC to operate a mine on Red Bluff Trade Center, LLCs property. Said property is located in
Horry County.
7. Venue is proper as the acts complained of occurred in Horry County.
FACTS
8. On or about September 25, 1984, the Council enacted a comprehensive Code of
Ordinances a/k/a the Horry County Code of Ordinances (hereinafter, the Code of Ordinances).
9. In 1994, the State of South Carolina enacted the South Carolina Local Government
Comprehensive Planning Enabling Act of 1994 (hereinafter, the Planning Act), S.C. Code Ann.
6-29-320, et al. Pursuant to the Planning Act, when a county adopts a comprehensive zoning plan,
zoning regulations must be made in accordance with the comprehensive plan for the jurisdiction
and all conditions, restrictions, or limitations must be set forth in the text of the zoning ordinance.
See S.C. Code Ann. 6-29-720(B), 6-29-79(B)(6).
10. On or about October 7, 1999, the Council enacted The Zoning Ordinance of Horry
County, South Carolina (hereinafter, the Zoning Ordinance) pursuant to Title 6, Chapter 29,
Code of Laws of South Carolina, 1976, as amended in accordance with the Comprehensive Plan.
11. On or about February 7, 2006, the Council enacted Ordinance 141-05, which
amended the Code of Ordinances to add review and permitting standards for all commercial
mining and established Chapter 13, Article VI, titled Mining Permits (hereinafter, Chapter 13,
Article VI or the Mining Permits Ordinance).
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12. The Mining Permits Ordinance exists distinct, separate, and apart from and outside
the regulatory plan, guidance, and text of the Zoning Ordinance.
13. Subject to two minor exceptions, the Mining Permits Ordinance requires a permit
be obtained for [a]ll mining operations in the Forest Agriculture (FA) and Commercial Forest
Agriculture (CFA) zoning districts as conditional uses pursuant to the zoning ordinance. By its
terms, the Mining Permits Ordinance does not apply to any other zoning district.
14. Upon information and belief, at some point in or prior to 2006, the Forest
Agriculture (FA) and Commercial Forest Agriculture (CFA) zoning districts ceased to be eligible
for zoning purposes under the Zoning Ordinance. However, the Mining Permits Ordinance
continues to reference these zoning districts.
15. In or about October 2007, Red Bluff Trade Center, LLC purchased the Property.
The purchase price was $2,691,500.00. At the time, the Property was zoned High Bulk Retail
(RE4).
16. Prior to purchase, Red Bluff Trade Center, LLC knew it was highly likely that the
Property contained limestone reserves. Red Bluff Trade Center, LLC confirmed that fact via
testing after purchase.
17. Red Bluff Rock, LLC did not commence efforts to commence a mining operation
on the Property for some time after purchase, because William H. Griste, the owner of Red Bluff
Rock, LLC and Red Bluff Trade Center, LLC, was subject to a pre-existing non-compete
agreement that extended for a fifty-mile radius with respect to mining, which radius encompassed
the site of the Property. The non-compete clause terminated in April of 2014.
18. Based on Plaintiffs intent and the results of the tests, when it was determined that
the far superior and most economically beneficial use of the Property was as a mine and Mr. Griste
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was no longer under the restrictions of a non-compete agreement, Plaintiffs began the process of
working with the County and State of South Carolina to take the necessary steps to mine the
Property.
19. Plaintiffs intended use of the Property was as a +/- 35 acre fill dirt and limestone
mine (the Mine).
20. Using conservative estimates, the Property has approximately 5,300,000 tons of
limestone, which at current market rate is worth approximately $12.00 a ton. The limestone is
highly valuable resource, which is scarcely located in this County. Thus, using conservatives
estimate, the limestone in the Property is worth $63,600,000.00.
21. Using conservative estimates, the Property has approximately 81,000 cubic yards
of topsoil, which at current market rates is worth approximately $8.00 a cubic yard. Thus, using
conservative estimates, the topsoil in the Property is worth a total of $648,000.00.
22. Using conservative estimates, the Property has approximately 1,300,000 cubic
yards of fill dirt, which at current market rates is worth approximately $4.50 a cubic yard. Thus,
using conservative estimates, the fill dirt in the Property is worth a total of $5,850,000.00.
23. In total, at conservative estimates, the retail value of the material sought to be mined
is $70,098,000.00.
24. In or around 2016, Plaintiffs and their agents and/or representatives began
discussions with the County regarding the mining and rezoning of the Property from High Bulk
Retail (RE4) to a zoning district that would permit mining activities.
25. Pursuant to the Code of Ordinances, since in or about 2006, there was no zoning
district that would allow a mine of the type proposed by Plaintiffs.
26. Upon information and belief, since in or about 2006, the County had been using the
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Planned Development District (PPD) zoning district to allow the operation of mines of the type
sought to be developed by Plaintiffs.
27. Upon information and belief, the County was using the Planned Development
District (PPD) zoning district as a loophole to avoid the Mine Permit Ordinance.
28. Upon information and belief, the County amended the Planned Development
District (PPD) zoning district so as to close this loophole.
29. Plaintiffs engaged DDC Engineers, Inc. to assist with rezoning its Property from
High Bulk Retail (RE4) to a district that would allow the development and operation of the Mine,
such as a Planned Development District (PDD).
30. DDC Engineers, Inc., acting as agent for Plaintiffs, originally intended to submit a
rezoning submittal to the County for the Property from High Bulk Retail (RE4) to a Planned
Development District (PDD).
31. However, on November 29, 2016, DDC Engineers, Inc. met with the Planning and
Zoning Department of the County regarding the planned rezoning district and proposed use
mining - and was specifically advised that the Property should be rezoned to Commercial
Agriculture District (AG2).
32. At that meeting, the County informed DDC Engineers, Inc. that the Commercial
Agriculture District (AG2) was being amended to allow mining as a conditional use.
33. The rezoning of Red Bluff Trade Center, LLCs Property and the amendment of
the Commercial Agriculture District (AG2) to allow mining as a conditional use occurred parallel
to one another.
34. The application for the rezoning clearly identified the reason for the requested
rezoning was to establish a mining operation.
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35. The Rezoning Review Sheet indicated that transportation information had been
assessed as part of the rezoning process.
36. The Rezoning Review Sheet indicated that Horry County Staff recommended
approval of the rezoning.
37. On or about February 21, 2017, the Council enacted Ordinance 06-17, which
amended Commercial Agriculture District (AG2) to permit mining as a conditional use.
38. On February 21, 2017, the Council enacted Ordinance 13-17 amending the official
zoning maps for Horry County, South Carolina, as to rezoning the Property from High Bulk Retail
(RE4) to Commercial Agriculture (AG2).
39. The rezoning also substantially changed the economic uses of the Property so that
the Property is no longer eligible for the more economically profitable uses that are associated with
High Bulk Retail (RE4) as opposed to Commercial Agriculture (AG2).
40. The only reason to rezone the Property from High Bulk Retail (RE4) to the lesser
economically profitable district Commercial Agriculture (AG2) was because the County and
Plaintiffs understood that the Property would be used as a mine, which is the only superior
economic use available with the Property zoned as Commercial Agriculture (AG2).
41. Simultaneously with its efforts to rezone the Property, Red Bluff Rock LLC
submitted an application for a Mine Operating Permit to the South Carolina Department of Health
and Environmental Control Bureau of Land and Waste Management Division of Mining and Solid
Waste Permitting (DHEC). The application was submitted on December 13, 2016.
42. Simultaneous with the rezoning efforts and submission of an application for a Mine
Operating Permit to DHEC, Red Bluff Rock, LLC prepared a Mining Permit Application for Horry
County. Plaintiffs filed this permit with Horry County Planning and Zoning on or about April 3,
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2017.
43. Plaintiffs have also submitted the required applications and documents to various
other state and federal authorities in accordance with its intent to mine the Property.
44. Both the Horry County Engineering and Horry County Stormwater Departments
deemed the mining operations approvable.
45. On July 24, 2017, the Infrastructure and Regulation Committee of Horry County,
recommended that the mining permit be issued in accordance with the terms and conditions of
DHEC.
46. On August 16, 2017, DHEC approved the Application and Reclamation Plan for a
Mine Operating Permit and issued Mine Permit I-002144 to Red Bluff Rock, LLC to operate Red
Bluff Rock Mine.
47. Upon information and belief, all applicable state and federal authorities have given
the required approvals for the Property to be operated as a mine or will give their approval once
the Mine Permit is approved by Council.
48. Upon information and belief, as of August 22, 2017, the only step necessary to
establish the Mine, and to comply with Horry Countys Mining Permits Ordinance was a hearing,
at which Plaintiffs would have the opportunity to be heard, public comments to be taken, and
Councils approval of the Resolution and Mining Permit Application.
49. Prior to August 22, 2017, Plaintiffs invested at least $100,000.00 in geological
testing and fees to consultants to rezone the Property, acquire Mine Permit I-002144, acquire all
other necessary approvals from state and federal agencies, and to apply for a mining permit with
Horry County.
50. Upon information and belief, prior to August 22, 2017, there were investors who
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would be willing to invest or enter into business relationships with Plaintiffs.
51. The August 22, 2017, Council meeting, Plaintiffs Mine Permit Application was
submitted as Resolution R-92-17 (the Resolution) and brought before counsel for public
presentation and a public hearing. After several members of the community voiced objections,
public input was closed and Councilman Hardee moved to defer the Resolution until the
community could gather to meet and discuss the same. The motion passed.
52. Plaintiffs and/or their agents or representatives were not provided any opportunity
to be heard at the August 22, 2017 meeting by Council in support of its Mine Permit Application.
53. Upon information and belief, there is no official transcript of the August 22, 2017,
Council meeting.
54. Upon information and belief, there was no sworn testimony regarding the Mine
Permit Application.
55. Upon information and belief, there was no evidentiary basis to defer the Resolution.
56. On September 26, 2017, a community meeting was subsequently held at the
Pleasant Hill Baptist Church located near the Property to discuss the proposed mining operation.
This meeting was attended by agents of Plaintiffs and County staff.
57. Again, upon information and belief, there is no official transcript of the September
26, 2017, community meeting.
Permit Application.
59. Thereafter, the Resolution was again placed on the agenda for the October 17, 2017,
Council meeting.
60. However, on the morning of October 17, 2017, James M. Wooten, PE a/k/a Mike
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Wooten of DDC Engineers, Inc., as agent for Plaintiffs, called David Schwerd, the Deputy Director
of Horry County Planning and Zoning and specifically requested the Resolution be withdrawn and
removed from the October 17, 2017 agenda and/or deferred until Plaintiffs had time to fully
address and respond to all of the public comments received related to the Mine.
61. A confirmatory email was sent that morning to Mr. Schwerd, by Mr. Wooten, with
a copy of that email sent to Council Chair Mark Lazarus.
62. Plaintiffs relied on Mr. Schwerds communications with Mr. Wooten and had no
notice that the Resolution would be heard on October 17, 2017.
63. However, on October 17, 2017, the Resolution was taken up by Council, public
comments were received, and a vote on the Resolution was taken wherein the resolution was
denied.
64. Once again, Plaintiffs and their agents and/or representatives were denied the
opportunity to be heard by Council in support of its Mine Permit Application.
65. Upon information and belief, Council did not consider the adequacy of the
transportation network and the compatibility with the surrounding community in determining
whether the Resolution should be approved as required by 13-63 of the Code of Ordinances.
66. Upon information and belief, there is no official transcript of the October 17, 2017
Council meeting.
Permit Application.
68. Upon information and belief, there was no evidentiary basis to deny the Resolution.
69. As of the date of this filing, no meeting minutes for the October 17, 2017 Council
meeting are publicly available.
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70. On November 2, 2017, Christopher Pearce, Esquire, of The Pearce Law Group,
P.C. sent a letter to Arrigo Carotti, Esquire, the County Attorney, David Schwerd of County
Planning and Zoning, and Pat Hartley, the Clerk to Council requesting a Request for
Reconsideration or pre-litigation mediation, pursuant to S.C. Code of Laws 6-29-310, et al..
71. Attorney Carrottis response, dated November 2, 2017, stated, inter alia, that the
Countys position was that S.C. Code Ann. 6-29-310 et al did not apply.
FOR A FIRST CAUSE OF ACTION

(Appeal)
72. Plaintiffs incorporate the foregoing paragraphs as if fully and completed restated
herein.
73. Section 13-65 of the Code of Ordinances provides that:
Any person having a substantial interest in the issuance, denial or revocation

of a mining permit may appeal the decision of county council to circuit court
in and for the County of Horry by filing with the clerk of court a petition in
writing setting forth plainly, fully and distinctly wherein such decision is
contrary to law.
74. Plaintiffs hereby appeal from Councils denial of the Application for Mining Permit
and denial of the Resolution, which denial occurred at a meeting of the Council on October 17,
2017, on the ground that the Councils decision is unlawful, irrational, arbitrary and capricious and
unsupported by substantial, reliable, and probative evidence, was made with unbridled discretion,
conflicts with state law, and violates the Plaintiffs rights as secured by the Fifth and Fourteenth
Amendments to the Constitution of the United States.
75. More specifically, the Councils decision denying the Resolution and issuance of
the Mining Permit should be reversed for each of the following reasons:
a. It was in violation of the Plaintiffs Fifth and Fourteenth Amendment rights;
b. It was made without permitting Plaintiffs notice and an opportunity to be heard;
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c. The Councils decision and the Mining Permits Ordinance deprives Plaintiffs
of an adequate record to appeal;
d. It was arbitrary and capricious;
e. It was based on a decision made without consideration of Councils own criteria
to approve a mine, as required by Section 13-63 of the Code of Ordinances, to
wit: County council shall consider the adequacy of the transportation network
and the compatibility with the surrounding community in determining whether
the request should be approved or disapproved;
f. The Mining Permits Ordinance allowed Council to act with unbridled discretion
and, thus, any decision based thereon should be reversed;
g. Section 13-63 of the Code of Ordinances should be considered void for
vagueness and any decision based thereon should be reversed;
h. The Mining Permits Ordinance, including Section 13-63, conflicts with South
Carolina state law, specifically, the Planning Act, and any decision based
thereon should be reversed;
i. The Council is estopped from permitting the rezoning of the Property for the
specific use of a mine and then refusing to issue permit in accordance with its
approved use, to Plaintiffs detriment;
76. Plaintiffs are therefore entitled to an order reversing the decisions of the Council.
FOR A SECOND CAUSE OF ACTION

(Promissory Estoppel)
herein.
78. At all relevant times, Plaintiffs were in communication with County, including
11
Council and the County Planning and Zoning Department.
79. It was at the express direction of the County Planning and Zoning Department that
Red Bluff Trade Center, LLC requested the zoning change of its Property from High Bulk Retail
(RE4) to Commercial Agriculture (CA2) to accommodate a mining operation.
80. Council passed ordinance 13-17 rezoning the Property from High Bulk Retail
(RE4) to Commercial Agriculture (CA2) with the knowledge that Plaintiffs intended to establish
a mining operation.
81. At all relevant times, County agents and/or representatives promised that that it
would approve the mining operation and gave suggestions as to how to accomplish that goal.
82. Plaintiffs reasonably relied on Countys promises.
83. Plaintiffs reliance was expected and foreseeable by County.
84. Plaintiffs have been injured in that as a direct and proximate result of Countys
misconduct, it is unable to develop, occupy and use its real property for a lawful use, it has and
will continue to suffer the loss of business revenues and profit, the loss of the economic use of its
Property and the loss of the value of its investment, for which it is entitled to recover compensatory
damages.
FOR A THIRD CAUSE OF ACTION

(Declaratory Judgment -Mining Permits Ordinance)
herein.
86. An active and now existing dispute and/or controversy exists between Plaintiffs and
Defendants.
87. This action is brought under the provisions of Rule 57, SCRCP, and S.C. Code Ann.
15-53-10, the Declaratory Judgment Act, and there is a real and justiciable controversy between
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the parties by these proceedings, the Plaintiffs ask that this Court inquire into and declare the rights
and obligations of the parties hereto arising out of the facts set forth above and below.
88. Local government ordinances conflict with state laws when its conditions, express
or implied, are inconsistent and irreconcilable with South Carolina law.
89. The Mining Permits Ordinance, in whole or in part, is a limitation and condition on
zoning not set forth in the Zoning Ordinance.
90. The Mining Permits Ordinance, in whole or in part, directly conflicts with the
Planning Act.
91. Plaintiffs are therefore entitled to a declaration that the Mining Permits Ordinance
(Chapter 13, Article VI, of the Code of Ordinances) is void, in whole or in part.
FOR A FOURTH CAUSE OF ACTION

(Declaratory Judgment Violation of the Fourteenth Amendment)
herein.
Defendants.
95. Section 13-63 of the Code of Ordinances is unconstitutional under the Fourteenth
Amendment on its face and as applied to Plaintiffs for each of the following reasons:
a. The law is unconstitutionally vague;
b. The law is unconstitutionally overbroad;
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c. The law vests arbitrary and unfettered discretion in the Council in determining
whether to issue a mine permit; and
d. The law irrationally, arbitrarily, and capriciously deprives individuals and entities
of a cognizable property interest.
96. The Mining Permits Ordinance is unconstitutional under the Fourteenth
Amendment as applied to Plaintiffs because Plaintiffs were deprived of notice and an opportunity
to be heard.
97. Plaintiffs are therefore entitled to a declaration that Section 13-63 of the Code of
Ordinances is unconstitutional on its face and as applied and that the Mining Permits Ordinance
(Chapter 13, Article VI of the Code of Ordinances) is unconstitutional as applied.
FOR A FIFTH CAUSE OF ACTION

(Damages - Violation of the Fourteenth Amendment)
herein.
99. As a direct result of Councils misconduct, Plaintiffs have been deprived of its
rights secured by the Fourteenth Amendment, as they are unable to develop, occupy, and use their
real property for a lawful use, they will suffer the loss of business revenues and profits, the loss of
the economic use of their property and the loss other value of their investment, for which they are
entitled to recover compensatory damages.
FOR A SIXTH CAUSE OF ACTION

(Declaratory Judgment Insufficiency of Record/Due Process)
herein.
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Defendants.
103. The actions of Council, as the Countys governing body, are unconstitutional under
the Fourteenth Amendment as applied to Plaintiffs.
104. There are no findings of fact or conclusions of law made by the Council relating to
the Resolution.
105. There is no signed document denying the resolution.
106. Plaintiffs have been deprived of developing an adequate record to appeal due to the
actions, inactions, and regulations of the Council.
107. Plaintiffs are therefore entitled to a declaration that the Councils actions in failing
to develop a sufficient record to appeal violate Plaintiffs Fourteenth Amendment rights, reversing
the Councils denial of the Resolution and requiring the Council to develop a full record to appeal.
FOR A SEVENTH CAUSE OF ACTION

(Damages Violation of the Fifth Amendment)
herein.
109. Plaintiffs are aggrieved by the actions of the Council in denying the Resolution
because it substantially diminishes the value of Plaintiffs Property and preclude Plaintiffs
publicly announced plans to develop its Property as a mining operation.
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110. Plaintiffs had both the intent and capacity to develop the Property as aforesaid, and
Plaintiffs expectations were reasonable under the circumstances.
111. Plaintiffs expended large amounts of money and other resources in preparation for
the development of the Property, all of which are lost as a result of the actions taken by the Council
in denying the Resolution and Application for a Mine Permit.
112. The Fifth Amendment to the United States Constitution, which is applicable to the
State of South Carolina and its political subdivisions, including the Council as the Countys
governing body, by virtue of the Fourteenth Amendment to the United States Constitution provides
in pertinent part as follows: No person shall be deprived of property, without due process of
law; nor shall private property be taken for the public use, without just compensation.
113. But for the Countys Mining Permit Ordinance, Councils action in denying the
Resolution would have been unnecessary.
114. The Councils action was affirmative government action.
115. Government statutes, ordinances, or regulations that substantially further important
public policies may nevertheless amount to a taking of private property for public use to the extent
that such statutes, ordinances, or regulations frustrate the property owners when there is an
economic impact of the regulation or regulatory action on the property owner.
116. Here, Plaintiffs acquired its Property with the expectation of developing a mining
operation.
117. The Councils denial of the issuance of the Mining Permit for Plaintiffs Property
has substantially diminished the value of Plaintiffs Property.
118. The character of the governmental action taken by the Council is not such that the
County can avoid compensating Plaintiffs for the economic effect of its regulations on Plaintiffs.
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The Council, in effect, imposed a regulation that does not permit Plaintiffs to develop their
property to anything of significant value whereas the Mine would generate, at conservative
estimates, materials worth $70,098,00.00.
119. There is no sound evidence to support the Councils denial of the Mining Permit.
120. The Councils decision was arbitrary, irrational, and undertaken without having
heard from Plaintiffs, their representatives and/or agents.
121. The Councils denial of the Resolution and Application for Mining Permit
constitutes a regulatory taking of Plaintiffs property without just compensation or due process of
law in violation of the Fifth and Fourteenth Amendments of the United States Constitution.
122. S.C. Code Ann 28-11-30(3) provides that [w]here an inverse condemnation
proceeding is instituted by the owner of any right, title or interest in real property because of use
of his property in any program or project, the court, rendering a judgment for the plaintiff in such
proceeding and awarding compensation for the taking of property shall determine and award or
allow to such plaintiff, as part of such judgment, such sum as will, in the opinion of the
courtreimburse such plaintiff for his reasonable costs, disbursements and expenses, including
reasonable attorney, appraisal and engineering fees actually incurred because of such proceeding.
123. Plaintiffs are informed and believe that they are entitled to recover in these
proceedings just compensation for the regulatory taking of its Property, plus prejudgment interest
as well as its expenses as aforesaid, including attorneys fees, and/or a judgment declaring the
aforesaid Mining Permits Ordinance invalid, in part or in whole, on its face or as applied to
Plaintiffs.
FOR AN EIGHTH CAUSE OF ACTION

(Violation of the Article I 13 of the South Carolina Constitution)
17
herein.
125. The actions of the Council in taking Plaintiffs Property without just compensation
also violate Article I, 13 of the South Carolina Constitution, which provides in pertinent part that
private property shall not be takenfor public use without just compensation being first made
therefor.
126. Under the South Carolina Constitution, a regulation that advances a legitimate state
interest may nevertheless constitute a taking if it deprives an owner of significantly all of its
economically viable use of its land.
127. A finding of value must be considered under the Takings Clause by reference to the
economic impact on the regulatory action.
128. The Councils action as aforesaid in denying the Resolution and the Application for
the Mine Permit has deprived Plaintiffs of substantially all of the economically viable use of all or
part of its land.
129. Plaintiffs are informed and believe it is entitled to recover in these proceedings just
compensation for the regulatory taking of its property as aforesaid, including prejudgment interest,
expenses, and attorneys fees, and/or a judgment declaring the aforementioned Mining Permits
Ordinance invalid, in part or in whole, and facially or as applied to Plaintiffs.
FOR A NINTH CAUSE OF ACTION

(Violation of 42 U.S.C. 1983)
herein.
131. 42 U.S.C. 1983 provides Plaintiffs with a cause of action for the taking of its
property under color of any state statute, ordinance, or regulation without just compensation as a
deprivation of its rights or privileges secured by the United States Constitution.
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132. The Councils denial of the Resolution and denial of the Application of the Mining
Permit has the effect of depriving Plaintiffs of substantially all of the Propertys economic value
and constitutes a deprivation of Plaintiffs rights secured by the United States Constitution under
the color of state law, entitling Plaintiffs to the remedies provided by 42 U.S.C. 1983.
133. The actions of the Council acting under color of state law also have deprived
Plaintiffs of its rights secured by the Fourteenth Amendment of the United States Constitution, in
that the Council, in denying the Resolution and the Application of the Mining Permit :(i) deprived
Plaintiffs of the notice and opportunity to be heard and (ii) acted arbitrarily, irrationally and
capriciously. The Councils actions thereby deprived Plaintiffs of substantially all of the economic
value of its Property.
134. 42 U.S.C. 1983 also provides Plaintiffs with the remedy of damages.
135. Plaintiffs have suffered general damages resulting from the diminution in the value
of its Property, special or consequential damages in the form of reasonable expenditures made in
preparation for its Propertys development, and profits lost because of Plaintiffs inability to
develop its Property. All of the aforementioned damages were proximately caused by the actions
of the Council, as aforesaid, acting under color of state law.
136. Plaintiffs are informed and believe that they are entitled to recover under said statue
reasonable compensation for the taking of its Property plus prejudgment interest, as well as
damages and costs, including reasonable attorneys fees and/or a judgment declaring the aforesaid
Mining Permits Ordinance invalid, in whole or in part, on its face or as applied to Plaintiffs.
FOR A TENTH CAUSE OF ACTION

(Attorneys Fees Under S.C. Code Ann. 15-77-300)
herein.
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138. S.C. Code Ann. 15-77-300 provides that [i]n any civil action brought by the
state, any political subdivision of the state, or any party contesting state action, unless the
prevailing party is the state or any political subdivision of the state, the court may allow the
prevailing party to recover reasonable attorneys fees to be taxed as court costs against the
appropriate agency if (1) the court finds that the agency acted without substantial justification
and (2) the court finds that there are no special circumstances that would make the award of
attorneys fees unjust.
139. If Plaintiffs prevails in this action, they will be entitled to recover their reasonable
attorneys fees and costs pursuant to S.C. Code Ann. 15-77-300.
PRAYER FOR RELIEF
WHEREFORE Plaintiffs Red Bluff Trade Center, LLC and Red Bluff Rock, LLC pray
that:
a. the Court inquire into the matters and things alleged herein and reverse the decision of the
Horry County Council allowing Plaintiffs to mine their property;
b. award Plaintiffs reasonable compensation for the taking of its property, plus prejudgment
interest and actual and consequential damages;
c. the cost of this action including reasonable attorneys fees;
d. a judgment declaring the aforesaid Horry County mining ordinance, in whole or in part,
invalid as applied to Plaintiffs; and
e. for such other and further relief as the court may deem just and proper.
[SIGNATURE PAGE TO FOLLOW]
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THE PEARCE LAW GROUP, P.C.
By: /s/ Christopher H. Pearce

Christopher H. Pearce, Esquire
S.C. Bar No.: 71083
E-mail: cpearce@pearcelawgroup.com
Kerry K. Jardine, Esquire
S.C. Bar No.: 101090
E-mail: kjardine@pearcelawgroup.com
1314 Professional Drive
Myrtle Beach, South Carolina 29577
Telephone: (843) 839-3210
Facsimile: (843) 839-3214
ATTORNEYS FOR PLAINTIFFS RED BLUFF

TRADE CENTER, LLC AND RED BLUFF ROCK,
LLC
November 16, 2017
21

Red Bluff Rock LLC vs. Horry Co

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Red Bluff Rock LLC vs. Horry Co

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ELECTRONICALLY FILED - 2017 Nov 16 4:03 PM - HORRY - COMMON PLEAS - CASE#2017CP2607597

STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS

Red Bluff Trade Center, LLC

TO: THE DEFENDANTS ABOVE-NAMED:

Appeal and Complaint.

[SIGNATURE PAGE TO FOLLOW]

By: /s/ Christopher H. Pearce

ATTORNEYS FOR PLAINTIFFS

November 16, 2017

Red Bluff Trade Center, LLC and

would show and allege to this Honorable Court as follows:

PARTIES AND JURISDICTION

1. A jury trial is hereby demanded on all issues so triable.

Property). The Property is currently zoned Commercial Agriculture (AG2).

on the property owned by Red Bluff Trade Center, LLC.

for the purpose of being sued.

and the county council for Horry County, South Carolina.

7. Venue is proper as the acts complained of occurred in Horry County.

8. On or about September 25, 1984, the Council enacted a comprehensive Code of

See S.C. Code Ann. 6-29-720(B), 6-29-79(B)(6).

Article VI or the Mining Permits Ordinance).

the regulatory plan, guidance, and text of the Zoning Ordinance.

continues to reference these zoning districts.

testing after purchase.

mine (the Mine).

estimate, the limestone in the Property is worth $63,600,000.00.

conservative estimates, the topsoil in the Property is worth a total of $648,000.00.

Retail (RE4) to a zoning district that would permit mining activities.

district that would allow a mine of the type proposed by Plaintiffs.

sought to be developed by Plaintiffs.

District (PPD) zoning district so as to close this loophole.

such as a Planned Development District (PDD).

Development District (PDD).

Agriculture District (AG2).

rezoning was to establish a mining operation.

assessed as part of the rezoning process.

approval of the rezoning.

amended Commercial Agriculture District (AG2) to permit mining as a conditional use.

(RE4) to Commercial Agriculture (AG2).

High Bulk Retail (RE4) as opposed to Commercial Agriculture (AG2).

deemed the mining operations approvable.

Bluff Rock Mine.

the Mine Permit is approved by Council.

Councils approval of the Resolution and Mining Permit Application.

This meeting was attended by agents of Plaintiffs and County staff.

26, 2017, community meeting.

a copy of that email sent to Council Chair Mark Lazarus.

notice that the Resolution would be heard on October 17, 2017.

opportunity to be heard by Council in support of its Mine Permit Application.

meeting are publicly available.

Reconsideration or pre-litigation mediation, pursuant to S.C. Code of Laws 6-29-310, et al..

FOR A FIRST CAUSE OF ACTION

73. Section 13-65 of the Code of Ordinances provides that:

Any person having a substantial interest in the issuance, denial or revocation

Amendments to the Constitution of the United States.

a. It was in violation of the Plaintiffs Fifth and Fourteenth Amendment rights;

b. It was made without permitting Plaintiffs notice and an opportunity to be heard;

of an adequate record to appeal;

d. It was arbitrary and capricious;

e. It was based on a decision made without consideration of Councils own criteria

to approve a mine, as required by Section 13-63 of the Code of Ordinances, to

and the compatibility with the surrounding community in determining whether

the request should be approved or disapproved;

and, thus, any decision based thereon should be reversed;