MOUNT PLEASANT — A homebuilder has been ordered to stop work on five houses at Sullivan’s Pointe that would exceed the town’s height rules, although the town approved the plans and issued building permits.
The emerging development off Ben Sawyer Boulevard is the latest disputed development to prompt a lawsuit against the town.
The definition of what a “story” is could be a key issue: Is an elevated house in a flood zone, with parking underneath and three floors of living space above, a three-story building, or a four-story building?
Mount Pleasant limits buildings to 40 feet and no more than three stories on the building lots in dispute, but the developer’s lawyer argues that the ground-level parking underneath the buildings shouldn’t count toward those limits. The buildings are four stories tall, and also higher than 40 feet, according town Zoning Administrator Kent Prause.
The term “story” is not defined in Mount Pleasant’s zoning code. Prause cited a dictionary definition at a hearing Monday, and said the town has previously taken the position that the area under an elevated house counts.
Also in dispute is whether the developer should be allowed to build homes that violate zoning rules because the town approved the plans throughout its multistep review process, or whether zoning rules trump the error made by the town’s staff.
Opponents of the development say the architect who prepared the Sullivan’s Pointe site plan, Todd Richardson, was a member of the town’s Planning Commission at the time and should have known the town’s regulations.
Richardson could not be reached for comment Tuesday. The lawsuit filed by Ashton Charleston Residential, LLC, says Richardson “spearheaded the design process and the approvals needed from the Town of Mount Pleasant.”
The development of 21 homes on 1.3 acres has irked residents of the adjacent Simmons Pointe subdivision as well as the Save Shem Creek advocacy group.
The development was approved at a time when the town was encouraging high-density development along Ben Sawyer and Coleman Boulevards — rules that changed in late 2015 — and the building height dispute is unrelated to recent changes in town height regulations.
Of the 21 homes planned at Sullivan’s Pointe, only five are subject to the stop-work order because they abut residential property and stricter height rules apply in that case.
If mistakes were made in approving the development plans, “residents should not be made to pay for it,” Simmons Pointe resident David Shimp said.
The town’s Board of Zoning Appeals rejected an appeal of the stop-work order Monday night, but a lawsuit seeking more than $1.2 million from the town is pending.
Lawyer G. Hamlin O’Kelley III represents the developer, and he said the town subjected them to a “bait and switch” by approving the plans and then declaring the houses violate zoning rules after construction was underway. The town’s approvals, he said, give the developer a vested right that can’t be revoked by the zoning administrator.
“What the town has done here is, frankly, illegal,” O’Kelley told the Board of Zoning Appeals.
The lawsuit joins a list of development-related claims against the town, the largest of which involves a property just across Ben Sawyer Boulevard from Sullivan’s Pointe, where an apartment and retail complex called “The Atlantic” had been planned.
Mount Pleasant killed the development plan for 246 apartments and retail space in March 2015, when Town Council refused to approve the project’s impact statement, although the development met zoning requirements and the developers agreed to roadwork that engineers said would improve traffic.
The town then changed its zoning regulations in ways that prevented the project from being resubmitted.
That lawsuit seeks more than $6.2 million plus punitive damages, and demands the apartment project be approved.
The town is also being sued for blocking development plans near Belle Hall, and in Dunes West.