Author: Paul Gable

Discovery Imminent in Skydive Myrtle Beach Case Remanded to District Court

Discovery requests for production of documents, answers to interrogatories and depositions will go out very shortly in the lawsuit that Skydive Myrtle Beach (SDMB) filed against Horry County, the Horry County Department of Airports (HCDA), Robinson Aviation and numerous individuals associated with those entities.

After hearing arguments by the opposing parties in the case last spring, the South Carolina Supreme Court reversed prior decisions by the Fifteenth Circuit Court and S. C. Court of Appeals and remanded that case back to district court for trial.

In October 2015, Horry County government evicted Skydive Myrtle Beach from Grand Strand Airport using a 73 page Federal Aviation Administration (FAA) Director’s Determination as justification. Much of the Director’s Determination report was based on 112 safety violations allegedly committed by SDMB.

The alleged safety violations were recorded on a form generated by the HCDA, called an “Unusual Incident Report”. They are one page reports signed either by HCDA staff members or Robinson Aviation personnel. In one case, five alleged violations were reported by letter to the FAA from former HCDA Director Pat Apone.

No record of any action, other than the filling out of these forms, by either HCDA or Robinson Aviation, the contracted tower operator at Grand Strand Airport, was taken. It appears the forms were created to establish a paper record of alleged safety violations with no backup investigations to support the allegations.

These forms were the ones county attorney Arrigo Carotti provided in response to an FOIA request. Along with that response was a cover letter by Carotti which stated in part, “These records are provided in an abundance of caution, in that each may or may not demonstrate violation by Skydive Myrtle Beach of Horry County Department of Airports Minimum Standards, as that assessment has not been undertaken.”

On at least three occasions since the Director’s Determination was published, the FAA has admitted in email correspondence regarding Freedom of Information Act requests that it has no documentation with respect to investigations, fines or other information on the alleged 112 violations.

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Supreme Court May Address Merits of Skydive Myrtle Beach v Horry County et al Case

The S.C. Supreme Court notified both attorneys in the Skydive Myrtle Beach v. Horry County lawsuit that they have been afforded the opportunity to file supplemental briefs with the Supreme Court addressing the merits of the entire case.

The order, signed by Chief Justice Donald Beatty, was filed two days after a September 24, 2019 hearing of the parties before the Court.

The September 24th hearing was scheduled to address whether a claim by the county that the issue of the county’s eviction of Skydive Myrtle Beach (SDMB) from Grand Strand Airport in October 2015 was in fact “moot” as the county claimed.

Attorney Mike Battle, representing Horry County, told the court during his oral argument that the decision before the Court was of a very limited scope.

Evidently the justices don’t see it that way.

The order from the Chief Justice reads in part, “The briefs filed with this Court only address the issue of mootness. … this Court may wish to address the merits of this case. Therefore, this Court will afford each party the opportunity to serve and file a supplemental brief addressing the merits.”

The order goes on to say any supplemental brief must be filed within 30 days of the date on the order, September 26, 2019, and no briefing in response to any supplemental brief filed will be allowed.

The merits of the case have never been litigated.

The Supreme Court has heard arguments before it on two occasions regarding aspects of the case.

The first hearing, held last spring, dealt with whether the District Court erred in removing individual defendants from the case. The S.C. Court of Appeals upheld that decision but the Supreme Court reversed it and remanded the case to District Court for trial with the individuals included with Horry County, Horry County Department of Airports and Robinson Aviation as defendants.

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The County Debate over Unrestricted Rezoning

An interesting dynamic has recently emerged in the debate over unrestricted rezoning and development within the unincorporated areas of Horry County.

The development industry is moving fast forward with an agenda designed to characterize anyone opposed to its desires to do whatever it wants, wherever it wants, whenever it wants, with respect to rezoning and development in the county, as disrupting the local economy and costing jobs.

Recent presentations during public input at county council meetings by business owners in the development industry are one indication of this.

Another is a recent article posted in a local blog (no, not this one). A prominent display of NIMBY (Not In My Back Yard) symbols included with the article attempted to set the tone of a faulty argument.

The article attempts to paint groups opposing any rezoning in the county as Democrats and/or environmentalists “stoking people’s fears to threaten office holders with eviction at the next election in order to finally advance environmentalism’s long-held goals of locking up private property from any future use at all.”

Prominently mentioned as such groups were the Coastal Conservation League, Horry County Rising, Highway 90 Corridor Concerns and Rosewood Strong. There are those in the development industry with personal grudges against some of these groups. That is not a good reason to mischaracterize their goals.

The writer, Audrey Hudson, may draw any conclusions she wishes, however flawed. But, even a cursory look at the mix of citizens in the groups opposing unrestricted rezonings in the county will quickly observe a large percentage in the mix are Republicans who voted for Donald Trump.

This issue isn’t about Democrats and environmentalists opposing “the GOP’s commitment to preserving the free market and protecting private property rights” as the writer suggests. It is merely about people wanting county elected officials to take steps to properly exercise the core functions of any government in order to minimize flooding and plan for infrastructure and public safety needs at least in concert with new rezoning approvals.

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Gun Ordinance Flop – Lesson in Local Culture

When Horry County Council member Dennis DiSabato pulled his proposed ordinance tightening gun regulations within the county during a council meeting earlier this week, he may have finally learned a lesson in local culture.

That lesson? If you are going to call yourself a “conservative Republican” politician in Horry County, don’t mess with a person’s gun rights.

DiSabato reportedly introduced the ordinance, which would have essentially eliminated shooting east of the Waccamaw River and in Longs, in response to complaints from a few constituents in the Carolina Forest area.

The county already has ordinance restrictions on shooting within 300 feet of homes, schools, churches and commercial areas as well as restrictions against “reckless discharge” of firearms. DiSabato’s proposed ordinance would have expanded the existing restrictions.

Up for reelection next year, DiSabato may have viewed the increased restrictions as a means to secure his voting base in Carolina Forest. If so, it backfired.

Several council members reportedly warned DiSabato that opposition to the new restrictions on shooting would be unpopular.

According to a number of sources, council members received hundreds of emails from voters opposing the new regulations including a number of those emails from voters in DiSabato’s District Three.

Interestingly opposition was not only against the new restrictions themselves, but also against perceived government overreach in legislation affecting citizens’ rights.

Local activist Chad Caton was directly on point when he told council members during public input that they should be concentrating on the infrastructure needs of the county rather than attempting to limit 2nd Amendment rights.

The infrastructure needs of the county are serious especially in the areas of stormwater management, road improvements and public safety staffing.

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Smooth Evacuation Contradicts I-73 Claims

The Grand Strand evacuated Zone A yesterday in preparation of the oncoming Hurricane Dorian.

Zone A includes all properties east of U.S. 17, Kings Highway in Myrtle Beach. In other words, the major portion of hotels along the Grand Strand and those permanent residents who evacuated.

The evacuation went smoothly – no major traffic jams on the routes out and no sitting in an idling car on the highways for hours at a time.

I personally drove to Myrtle Beach at 11:30 a.m. yesterday morning along S.C. 22 and back just after 3 p.m. Traffic going west on S.C. 22 on my trip in was the heaviest I have ever seen on that highway and I have lived here 15 years before that road was built.

Although the traffic was heavy, it was moving slowly but steadily and the traffic at the on ramp from S.C. 31 was about one mile long but moving.

When I went home, going west on S.C. 22 at three o’clock, there was no traffic to speak of all the way to Hwy 90 where I exited.

I have been told by locals who travelled U.S. 501 and Hwy 544, the same conditions prevailed – heavy traffic moving slow but steady and gone by mid-afternoon.

All of this was accomplished with normal traffic flow – no lane reversals on any of the highways.

This is the second year in a row that evacuation in preparation for an oncoming hurricane went this smoothly.

What does all of this mean? We DON’T need I-73 to ensure a safe, smooth evacuation from the Grand Strand.

Last year, after Hurricane Florence, Seventh District Congressman Tom Rice asked Gov. Henry McMaster to amend the state’s request for hurricane relief funds to include $348 million in immediate funding for I-73.

A statement on Rice’s Congressional website announcing the request read,” I wrote a letter to Governor Henry McMaster urging him to amend his application to the federal government for disaster relief from Hurricane Florence to include immediate funding for I-73 as an adequate evacuation route. In the wake of Hurricane Florence’s devastation, and the ongoing, life-threatening risks it poses to our residents, funding an adequate evacuation route for the Grand Strand needs to be a top priority.”

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County Council Kicks I-73 Decision Down the Road

Horry County Council again dodged making a definitive decision on the I-73 contract with SCDOT at its special meeting Wednesday.

Instead of voting to cancel or go forward with the contract, council voted to defer a final decision until the end of the year.

In the meantime, council has asked the cities to step up with funding for the project or the county would be forced to cancel the contract by December 31, 2019.

In simple terms, the county does not have the ability to fund the up to $25 million per year currently promised in the contract. SCDOT has asked for $12.5 million in the first year, but plans to bond against $25 million per year in future years.

The City of Myrtle Beach continues to cloud the truth by saying the county can fund the contract with its hospitality fee revenues from the unincorporated areas. This is not true.

With the county now banned from collecting a 1.5% hospitality fee, the municipalities and the cities collecting their own hospitality and accommodations taxes, the county has no more than approximately $10 million it can designate for I-73.

In order to reach the $25 million per year called for in the SCDOT contract, Myrtle Beach would have to pledge approximately the same as the county, $10 million per year, and North Myrtle Beach, Surfside Beach, Conway, Loris, Aynor, Atlantic Beach and Briarcliff would have to combine to make up the remaining $5 million.

I don’t believe any of that is going to happen. Not only would the cities have to pledge the funds each year, there would need to be an intergovernmental between the county and the municipalities formalizing those commitments and each party would need to sign the contract with SCDOT.

Those are the details of what needs to happen to keep the SCDOT contract alive. However, there are other details that make keeping the contract more disturbing.

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Horry County Council at Precipice of I-73 Decision Wednesday

Horry County Council will decide the fate of its Financial Participation Agreement with the South Carolina Department of Transportation at a specially called meeting Wednesday.

The agreement, which was signed by the county and SCDOT December 13, 2018, commits the county to provide up to $25 million per year for funding the Interstate 73 project.

The county does not have the money and the only sane step for council to take is to cancel the contract before it takes effect and SCDOT begins committing money the county does not have.

County officials planned to use revenue from a countywide 1.5% hospitality fee on prepared food and beverages, accommodations, admissions tickets and rental car fees to provide the $25 million per year.

However, that plan, hatched by former council chairman Mark Lazarus and former county administrator Chris Eldridge was fatally flawed from the beginning.

The countywide hospitality fee was enacted specifically, with the consent of the cities and a hard sunset provision, for the purpose of funding the short term projects listed in the Road Improvement and Development Effort report of October 1997 and approved by then Gov. David Beasley. I-73 was not included with those projects.

County council overstepped its bounds when it removed the sunset provision from hospitality fee legislation in April 2017 at the urging of Lazarus and Eldridge who specifically wanted to use the revenue for construction of I-73 when the RIDE bonds were paid off.

That first blunder was compounded by a second when the Lazarus/Eldridge tandem put a full court press on county council to provide up to $25 million of hospitality fee revenue for I-73 in July 2018 without consulting the cities.

A trifecta of blunders was completed when, one month before he left office, Lazarus effectively bullied council into contractually obligating itself to SCDOT for I-73 funding. This was only weeks after Hurricane Florence again demonstrated to county officials the desperate need for upgrades to roads and other critical county infrastructure already in place.

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Parker Campaign Stumbles Out of the Gate with Unpaid Taxes and Media Comments – Updated

Update

Horry County records show Clark Parker paid the three unpaid tax bills referred to below on August 19, 2019.

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Like a racehorse losing a race by stumbling out of the starting gate in his first steps, we may have witnessed the beginning and effective end of the Clark Parker campaign for Horry County Auditor on the day it began.

Parker had his campaign kickoff last Friday. It began with an interview published on the MyHorryNews.com website.

In that interview, Parker said he felt that he could “contribute a lot to the needs of the county” and that it was “important that we collect all our taxes that are due to the county.”

Shortly thereafter it was reported by MyrtleBeachSC.com that Parker had three unpaid county tax bills from tax years 2012, 2017 and 2018. That information is public information available on the horrycounty.org website.

One would expect someone running for public office, especially an office that deals with county taxes and a person who is a certified public accountant by trade, would double check to make sure there are no skeletons in their closet.

There are additional problems with the interview. Parker announced he is running for auditor yet it is the treasurer, not the auditor, who is responsible for collecting taxes. He wouldn’t be involved in that end of the county tax structure so why mention it in an interview?

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Hospitality Fee Mediation Impasse Demands New Direction by Local Governments

After two extended mediation sessions between representatives from Myrtle Beach and Horry County, it is obvious the two sides are at an impasse for any agreement with regard to the ongoing hospitality fee lawsuit.

This may have been the result the city was looking for from the beginning. According to sources familiar with the proceedings, not one elected council member from Myrtle Beach participated in either of the mediation sessions.

Horry County had several elected council members participate in the sessions. It is extremely difficult to come to any solution if those who will ultimately pass the legislation that would be needed to approve and institute the agreement do not participate in the process.

With a view to court decisions to date, Horry County cannot now nor hope in the future to collect a 1.5% countywide hospitality fee as it has since 1997 until challenged in court by Myrtle Beach.

The simple way out of this mess is for both sides to step away from the legal process. Myrtle Beach and the other cities can collect the revenue from the new hospitality and accommodations taxes they passed earlier this year and spend that money as they choose.

Likewise, Horry County could continue to collect either the 1.5% hospitality fee it now receives from the unincorporated areas or choose to pass new ordinances under current state law for hospitality and accommodations taxes. The county could then spend those proceeds on the projects they need locally.

There is one possible perceived obstruction from the walking away process. Included in the initial lawsuit filed by Myrtle Beach is a claim that the countywide collection of the hospitality fee has been illegal since January 1, 2017 and that the county should refund the approximately $60 million collections from that date amount to.

Several considerations seem to make this claim spurious.

Those refunds cannot go to the cities. If taxes are collected illegally the refunds must go back to those who paid them, in other words the consumers.

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County Council’s Cursory Look at Imagine 2040

Horry County Council recently approved first reading of an ordinance approving the county’s updated comprehensive development plan called Imagine 2040.

First reading approval took place at the end of a specially called workshop for council to receive an overview of the plan from county staff and to ask questions about the regulations. The entire meeting lasted for one hour eleven minutes, a cursory look at best by council members, only eight of whom attended the workshop.

It would be convenient to think that all the council members intently read and comprehended the entire over 400 page document and the 10 key areas identified in it, thereby needing little amplification from county staff. But, I don’t have that kind of faith in the 12 who sit on the dais.

Questions from council were very few and those few generally fit into the category of ‘what can I say to stop the emails I have been receiving from citizens with concerns about the plan?’

Counties in South Carolina must approve an updated comprehensive plan every 10 years according to state law. Too often, this has been a bureaucratic exercise to satisfy a bureaucratic requirement that, after approval, is relegated to the shelf until it is pulled down nine years hence for another required update.

As plans go, I have been informed by people whose observations I trust that Imagine 2040 is a decent one.

However, it is going to take an informed, involved planning commission and county council to even begin to make it work. Council chairman Johnny Gardner has often stated what we need is “smart development.” Imagine 2040 alone does not guarantee this.

One area of the plan that has drawn criticism from the public recently is a change, many call it a loophole, which would allow developers an easier route to approval of higher density development in areas designated as scenic and conservation.

The change to Imagine 2040 was made late last year after a rezoning request for what is called the Bear Tracts off of Hwy 90 was disapproved because this loophole didn’t exist. There is no reason to allow developers the option of disputing the designation of land as wetlands. One only has to look at what storms in the past several years have done to Polo Farms, Forestbrook and Aberdeen residential areas as examples.

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