Wednesday, April 27, 2022

Horry County, South Carolina: Lawsuit against a helicopter tour company was dismissed. What happens next? The company's lease expires next year

Horry County Government’s decade-long struggle with a Myrtle Beach area helicopter tour business may be resolved next year, but county officials fear they could still face a lengthy and expensive legal fight, according to public records.

The county sued Helicopter Adventures in July, asking the court to force the company to cease operations on or before January 1, 2024. That’s when a county ordinance requires that all local helicopter tour companies be working out of public airports. Helicopter Adventures is located on land leased from Burroughs & Chapin Co. across U.S. 17 Bypass from Broadway at the Beach near 21st Avenue North. That property is not part of an airport.

“The public gain in this case is the elimination of a significant safety concern and a source of noise pollution, as well as eradicating the disruptive effects of HA’s operations on the use and enjoyment of numerous nearby properties, including many residences in the community,” the county’s July 30 complaint stated.

But on Friday a judge dismissed the county’s case, noting that the county lacked standing to bring the lawsuit because the deadline in its ordinance has not arrived and the company’s lease would not end until August 2023.

“As such, any alleged violation by Defendants of Ordinance 15- 16 is contingent, hypothetical, and abstract,” Judge J. Cordell Maddox Jr.’s order stated. “There are no facts on the record indicating that Defendants’ violation of Ordinance 15-16 is imminent, and because the Ordinance is not yet legally binding, Plaintiff has suffered no invasion of a legally protected interest sufficient to constitute an injury in fact.”

Helicopter Adventures owner Freddie Rick declined to comment on the ruling.

Rick has been fighting to keep his company operating almost since it first opened.

During the summer of 2010 — before Helicopter Adventures began flying — Rick searched for a Grand Strand site that was zoned for helicopter tours, according to court records. He first approached the airports in North Myrtle Beach and Myrtle Beach, but neither one would allow this type of business. Helicopter sightseeing companies were not specifically mentioned in any of the county’s zoning district provisions.

Rick sought approval from both the county and the Federal Aviation Administration (FAA) before making financial commitments to the business, according to court records.

In 2011, the county’s zoning administrator wrote to an engineer hired by Rick’s firm informing him that a helicopter tour facility would be allowed under the county’s amusement/commercial zoning, which the 21st Avenue North site had held for at least a decade. All other county permits and plans were approved.

But once Helicopter Adventures opened in 2012, the company became a source of frequent complaints from neighbors, who objected to the helicopters’ noise and worried about the safety of the tours.

A group of residents even challenged the decision of the county’s zoning administrator. When their complaint reached the county’s zoning board, the panel voted 4-3 in favor of the residents. But Rick appealed the decision and prevailed in court. A judge ruled that the county’s zoning did not exclude tour facilities such as Helicopter Adventures — the judge said the business fell under “sight-seeing depots” in the zoning code — and the S.C. Court of Appeals upheld the ruling in 2015.

The controversy prompted county leaders to pass an ordinance in 2016 requiring that all heliports/helipads operate at public airports. In order to give Helicopter Adventures time to adjust to the new standards, the county set a deadline of Jan. 1, 2024, for the company to relocate and conform with the rules.

On Dec. 9, 2019, the county sent Rick a letter informing him that he would need to shut down his business by the deadline or move the operation to an airport.

But Rick informed the county last spring that he intended to continue operating at his current location unless the county provided him space for his business at Myrtle Beach International Airport, according to the county’s lawsuit. The county also asserted that Burroughs & Chapin Co. intended to renew its lease with Helicopter Adventures at the 21st Avenue North location or enter into a new agreement with the company once the current lease expires.

However, in a court filing requesting that the county’s lawsuit be dismissed, Rick’s attorneys wrote that there are no plans to extend the lease.

A representative for Burroughs & Chapin Co. said the company doesn’t comment on tenant leases.

Before Friday’s decision, county officials had urged the court to issue a ruling in their favor ahead of the ordinance deadline.

In court records, county officials stressed that they have no duty to find Rick an alternative location for his business and Horry County Council gave him more than seven years to recoup his investment at his current location, “more than triple the amortization periods that have been upheld by the South Carolina Supreme Court.”

The county wanted the court to declare that Helicopter Adventures would be a public nuisance if it operates past the ordinance’s deadline.

“The County is entitled to a declaratory judgment now — and need not wait for the opposing parties to file an eleventh-hour challenge to the ordinance,” the county said in a response to Rick’s motion to dismiss. “Absent a declaration now, the HA Defendants could wait until the eleventh hour … to file an action for injunctive relief to challenge the validity of the Ordinance. They could argue that the ordinance is preempted, unconstitutional, etc., and urge the Court to issue a temporary injunction to prevent the Ordinance from being enforced until these important issues can be resolved, which could take years to occur.”

The county also wanted a judge to declare its ordinance valid ahead of the deadline because it risks monetary damages if a court later determines its ordinance is invalid.

“The County is seeking to avoid a last-minute lawsuit and the potential risk of millions of dollars in economic damages (ultimately payable by the citizens of Horry County) by obtaining a timely declaration of rights,” the county said in its opposition to the motion for dismissal.

When asked about last week's ruling, county spokeswoman Kelly Moore declined to comment. County officials typically don’t discuss pending litigation.

1 comment:

  1. The business location seems reasonably well positioned: