The South Carolina Court of Appeals ruled, in August, that a developer frustrated in its attempts to have a development plan approved in light of a County Council’s efforts to pass a height limitation ordinance, where there had been no limitation before, could maintain an action against Council members, in their unofficial, individual capacities for civil conspiracy, where the developer was able to allege the required elements of civil conspiracy in its complaint. On the other hand, where that complaint names the Council members only as individuals, and not as officials, no causes of action addressing their actions as Council members could be maintained.

Cricket Cove sought to construct two condominium buildings containing over 200 units each in the Little River section of unincorporated Horry County. The property was located in a Resort Commercial zoning district, where construction height was unlimited, subject to parking and flight path ordinances. On July 7, 2005, Council held a special meeting and gave first reading to Ordinance 107-05 for the purpose of limiting the height of all new construction within the Little River area to sixty feet. The meeting was not advertised properly, however, and Cricket Cove did not receive notice of County Council’s actions to limit height in its zoning district.

In August, 2005, Cricket Cove submitted a sketch site plan to the county’s planning department for review and comment, which it accepted for review. At the same time, the height ordinance was referred to the Planning Commission for approval. The Commission, however, voted to recommend disapproval of the ordinance. Thereafter, Council deferred a second vote on the ordinance and referred it to Council’s Infrastructure and Regulations Committee for further deliberation.

Meanwhile, a planning department employee sent a letter to Cricket Cove stating that its sketch plan needed several modifications. After making the modifications, Cricket Cove scheduled a meeting with the employee for review of the plan. Several county representatives attended the meeting to advise Cricket Cove that the plan could not be reviewed because it contemplated new construction that would exceed sixty feet in height, but those representatives declined to put that decision in writing.

Cricket Cove filed a lawsuit in October 2005 against Horry County and the Council seeking a declaratory judgment that the County and Council had violated Ordinance 49-05, was acting upon an invalid pending ordinance (draft Ordinance 107-05), and was violating Cricket Cove’s vested right to have its plan reviewed. It also alleged the County and Council were taking its property without just compensation, violating its due process rights, and denying it equal protection under the law. Cricket Cove also sought a writ of mandamus requiring the County and Council to review its proposed plan.

In July, 2006, nine months after filing the action against the County and Council, Cricket Cove brought this lawsuit against two Council members and “Persons Unknown, being ‘JaneDoe’ [sic] And ‘Richard Roe,’” seeking damages for civil conspiracy and injunctive relief. Cricket Cove sought to prohibit these two Council members from giving orders or instructions to county employees in violation of section 4-9-660 of the South Carolina Code (1986) (which prohibits Council members from giving direction to any county official other than the administrator) and also to prohibit them from discussing outside a public forum those matters coming before Council at its meetings.

The second complaint alleged that at Council’s January 2006 meeting, the height ordinance was under review for Third Reading, and when a Council member sought to amend the draft, one of the Council member defendants asked for a recess. During the recess, certain Council members discussed the proposed ordinance outside the public forum. Upon return to the public forum, the proposed amendment was not discussed, but a vote was taken to defer Third Reading until the next scheduled Council meeting.

At the February 2006 meeting, Council adopted an amendment to the proposed ordinance that changed the height limitations to affect only the defendant Council member’s district and to exempt from the height limitations all other areas of the county. Council also adopted an amendment that had the effect of changing the height limitation for construction in that Council member’s district from 180 feet to 120 feet. During the meeting, an unscheduled recess occurred. After the recess, the other defendant Council member admitted that Council had discussed the height ordinance outside the public forum.

The complaint alleged the two Council members who were sued in their individual capacities, as well as persons unknown, engaged in a civil conspiracy to harm Cricket Cove. The complaint also sought to enjoin those Council members from giving orders to County staff in furtherance of the conspiracy and from discussing draft ordinances with other Council members outside the public forum. Cricket Cove also requested a writ of mandamus requiring one of the defendant Council members to properly advertise Council meetings.

The defendant Council members filed a motion to dismiss the complaint pursuant to Rule 12(b)(6), SCRCP, and Rule 12(b)(8), SCRCP on the grounds that the complaint failed to adequately state a cause of action, and because the same action was already pending. The circuit court dismissed this lawsuit on the basis that the first action was the same action.

The Court of Appeals, on review, noted that the second case was different in that the cause of action for civil conspiracy was not the same, and more significantly, the Council members were being sued as individuals and not in their official capacity as County Council members. As a result, the Court of Appeals reversed the circuit and ruled that the complaint did state a cause of action for civil conspiracy, at least enough to get past the pleadings stage. Interestingly, it also ruled that the other causes of action, seeking to address the defendant Council members’ actions in their official capacities, could not be maintained in this case, when they were sued as individuals, not as Council members.