Long Pt Cooper Investment Group LLC v. Mount Pleasant et al

Filing 59

ORDER granting 45 Motion for Summary Judgment; granting 46 Motion for Summary Judgment Signed by Honorable David C Norton on April 8, 2019.(kwhe, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
LONG PT. COOPER INVESTMENT
GROUP LLC,

)
)
)
Plaintiff,
)
)
vs.
)
)
TOWN OF MOUNT PLEASANT, MOUNT
)
PLEASANT WATERWORKS, and CLAY
)
DUFFIE,
)
)
Defendants.
)
_______________________________________)

No. 2:16-cv-03036-DCN
ORDER

The following matter is before the court on defendants Mount Pleasant
Waterworks (MPW) and Clay Duffie’s (“Duffie”) motion for summary judgment, ECF
No. 45, and defendant Town of Mount Pleasant’s (“the Town”) motion for summary
judgment, ECF No. 46. For the reasons set forth below, the court grants the motions.
I. BACKGROUND
The case arises from a dispute over sewer services. Plaintiff Long Pt. Cooper
LLC (“Long Pt. Cooper”) 1 purchased two pieces of property (“the Properties”) in an
unincorporated area of Charleston County that is contiguous to the Town’s boundaries.
The Properties were previously used as a concrete facility, and they have septic tanks
instead of sewer service. Long Pt. Cooper alleges that prior to purchasing the Properties,
the members of Long Pt. Cooper met with then Mayor Billy Swails, and he expressed a
desire that the Properties be developed. Long Pt. Cooper explains that prior to closing

1

Long Pt. Cooper consists of three members: George Sarkis, Roberta Gosselin,
and Randy Cooper.
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the sale, it knew that the Properties did not have sewer service, but it still purchased the
Properties in reliance on its conversations with Mayor Swails and the fact that it expected
that MPW would still provide sewer service even if the Town did not approve an
annexation petition.
Long Pt. Cooper contends that it worked with the Town to create a development
plan for the Properties that the Town would accept. On June 25, 2014, Long Pt. Cooper
submitted petitions for annexation of the Properties into the Town. Over the next year,
Long Pt. Cooper amended its petitions, and the final petitions requested: (1) annexation;
(2) zoning of the Properties as PD, or Planned Development; and (3) an amendment the
Town’s Comprehensive Plan. Long Pt. Cooper alleges that the Town frequently
considers these types of requests within a petition as a bundle of requests instead of
separate requests.
On November 10, 2015, the Town Council considered the petitions for the first
time. When considering the petitions, one of the council members asked how the
Properties would be zoned if they were annexed. ECF No. 45-4 at 3. Another council
member responded that absent a zoning request, it would come zoned as R-1, which is
low-density residential. Id.; ECF No. 46-1 at 2. The Town contends that is unknown
what zoning classification the Properties would have ultimately been given after
annexation because Long Pt. Cooper withdrew its petitions, preventing the Town from
making a zoning determination; however, Long Pt. Cooper asserts the Town would have
imposed a default R-1 zoning, making it impractical for Long Pt. Cooper’s development
plans. ECF No. 45-4 at 1. The Town Council ultimately voted to approve the annexation
requests but to deny the zoning requests and the requests for an amendment to the

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Comprehensive Plan. Long Pt. Cooper alleges that this piecemeal treatment of its
petitions is contrary to the Town’s previous treatment of petitions of this nature, which
are normally approved in full or denied in full.
Long Pt. Cooper alleges that the Town Council’s acceptance of the annexation
requests but denial of the zoning requests forced Long Pt. Cooper to withdraw the
petitions prior to the Town Council’s second reading. In its letter withdrawing the
petitions, Long Pt. Cooper stated that it was doing so “[b]ecause the default R-1 zoning
the Town would impose on the parcels is impractical, financially unfeasible, out of
keeping with the surrounding development and the applicant’s intended use, and a
massive downzoning of the properties.” ECF No. 45-5 at 1. In other words, Long Pt.
Cooper believed that once annexed, the Properties would be zoned so that Long Pt.
Cooper could not profitably develop the land. The Town accepted the letter and
withdrew the petitions prior to the Town Council’s second reading, meaning that the
Properties were not annexed into the Town.
In January 2016, Long Pt. Cooper made a written request and application to MPW
for sewer service for the Properties. MPW responded with a letter on January 26, 2016
acknowledging its receipt of Long Pt. Cooper’s request. MPW then sent a form to the
Town to determine if the Properties were contiguous, and the Town completed the form,
confirming that the Properties were contiguous. The Town’s lawyer subsequently sent an
email to MPW’s lawyer telling MPW that the Town’s position was that the Properties’
annexation was neither approved nor denied because Long Pt. Cooper withdrew its
petitions. This fact is crucial, because according to § 51.092 of the Town’s ordinances,

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MPW may only provide sewer services to Properties that have been annexed or denied
annexation. The ordinance states:
(A) Continguous Properties. Annexation into the Town is required as a
condition prior to the Mount Pleasant Town Waterworks providing sanitary
sewer to any lot, parcel, or piece of land located outside the corporate limits
of the Town and contiguous to the Town limits.
(B) Denied Contiguous Properties. If a formal annexation petition on any
lot, piece, or parcel of land, located outside the corporate limits of the Town
and also contiguous to the Town, is denied by the Town, or if Town Council
make[s] such a determination on its own motion without a petition, sanitary
sewer services may be provided by the Mount Pleasant Waterworks to such
property, notwithstanding division (A) of this Section.
Am. Compl. ¶ 15. Pursuant to the Town’s position on the annexation issue, MPW denied
sewer service to the Properties because the Properties were neither annexed, as required
by § 51.092(A), nor had their annexation petitions been denied, as required by §
51.092(B). Long Pt. Cooper alleges that there is no process for the Town to
communicate annexation status to MPW and that it was unusual for the Town to
communicate with MPW about this issue.
MPW also contends that it denied sewer service to the Properties because the
Properties did not comply with MPW’s Guidelines for Development, which state:
Any property that has wastewater service available and is not within the
Town limits of Mount Pleasant [ ] will be referred to the Town of Mount
Pleasant Planning Department to ensure compliance with the Town’s Sewer
Use Ordinance, Annexation for Sewer Services requirements. The
Engineering Department cannot provide service until notification is
received from the Town Planning Department that annexation requirements
have been met.
ECF No. 45-1 at 6–7. Long Pt. Cooper contends that it is unclear whether MPW
is actually obligated to abide by the Town’s annexation decisions based on
statements made by the current Mayor of the Town.

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As a result of the denial of sewer service to the Properties, Long Pt.
Cooper filed this action in the Court of Common Pleas for the County of
Charleston, South Carolina on May 4, 2016. Long Pt. Cooper amended its state
court complaint on August 10, 2016 and now seeks: (1) a declaratory judgment
declaring that the Town denied Long Pt. Cooper’s annexation petitions and that
Long Pt. Cooper has satisfied the requirements of § 51.092 of the Town’s
ordinances; (2) a writ of mandamus compelling Duffie and MPW to provide
sewer service the Properties; (3) a mandatory injunction compelling MPW to
provide sewer service to the Properties; (4) a mandatory injunction compelling
MPW to provide sewer service to the Properties based on MPW and the Town’s
violation of Long Pt. Cooper’s rights to substantive due process and equal
protection; (5) a mandatory injunction compelling MPW to provide sewer
services to the Properties based on MPW and the Town’s deprivation of Long Pt.
Cooper’s rights, privileges, or immunities in violation of 42 U.S.C. § 1983; and
(6) actual damages arising from the diminished value of the Properties and the
lost profits from Long Pt. Cooper’s inability to develop the Properties.
The Town removed the case on September 7, 2016 on the basis of federal
question jurisdiction arising from the substantive due process and equal protection
claims. MPW and Duffie filed a motion for summary judgment on October 19,
2018. ECF No. 45. The Town filed a motion for summary judgment on the same
day. ECF No. 46. Long Pt. Cooper responded to both motions on November 16,
2018, ECF No. 40, and the Town replied on November 30, 2018, ECF No. 53.

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The court held a hearing on the motions on February 14, 2019. The motions are
now ripe for review.
II. STANDARD
Summary judgment shall be granted “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine dispute as to
any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c). “By its very terms, this standard provides that the mere existence of some
alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).
“Only disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.” Id. at 248. “[S]ummary
judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Id. “[A]t the summary judgment stage the judge’s function is not himself to weigh the
evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial.” Id. at 249. The court should view the evidence in the light most
favorable to the non-moving party and draw all inferences in its favor. Id. at 255.
III. DISCUSSION
The court grants summary judgment as to all of Long Pt. Cooper’s claims because
they can all be resolved on a legal basis, and there are no genuine issues of material fact
that could affect their outcome. All of Long Pt. Cooper’s actions stem from its
characterization of the Town’s treatment of the Properties’ petitions as a de facto denial.

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However, as discussed below, the court finds that the Town’s treatment of the petitions
was not a de facto denial. Moreover, MPW’s denial of sewer services to the Properties
did not violate Long Pt. Cooper’s substantive due process rights because under South
Carolina law, Long Pt. Cooper does not have a property interest in sewer services.
Summary judgment is also warranted for Long Pt. Cooper’s equal protection claim
because Long Pt. Cooper has presented no evidence that the Properties were treated
differently than other similarly situated properties. And as a result of summary judgment
on these first three claims, the remaining causes of actions cannot survive.
A. Declaratory Judgment
Long Pt. Cooper first seeks a declaratory judgment from the court that the Town’s
treatment of its petitions was a de facto denial. The Town, MPW, and Duffie
(collectively, “defendants”) argue that there was no de facto denial because Long Pt.
Cooper voluntarily withdrew its petitions, and the concept of a de facto denial has never
been applied in such a context. Moreover, the Town argues that determining the Town
de facto denied the petitions would require the court to delve into a local land dispute,
which it should avoid doing for prudential reasons. The court finds that the Town did not
de facto deny Long Pt. Cooper’s petitions.
1. Legal Basis for Declaring a De Facto Denial
The Town argues that Long Pt. Cooper provides no basis in the law for the court
to declare that the Town’s action of approving the annexation portion of the petitions but
denying the zoning portion was a de facto denial of the petitions. The Town explains that
the concept of de facto denial is typically used when a governmental authority fails to
timely act on a land-use request or application. Long Pt. Cooper responds that there is

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legal authority supporting the proposition that a de facto denial occurs when a
government entity grants a request but attaches unreasonably onerous conditions to the
approval, which is what Long Pt. Cooper argues occurred here. However, none of the
cases to which Long Pt. Cooper cites relate to land use nor do they meaningfully discuss
the meaning of a de facto denial, making their mention of de facto denial inapplicable to
the instant case.
Long Pt. Cooper first cites to Almar Ranch, LLC v. Boise, 2010 WL 1727844 (D.
Idaho Apr. 27, 2010). Almar Ranch is a Fair Housing Act case in which the plaintiffs
brought a disparate treatment claim, among others. Id. at *6. One of the elements of
disparate treatment, as applied to the case, was that the defendant denied the plaintiffs’
permit. Id. at *5. The plaintiffs argued that their application for a permit was
constructively denied because the defendant imposed unreasonably expensive conditions
on the permit, making the housing project at issue unfeasible. Id. at *6. The defendant
argued that the conditions were not unfeasible and disputed the characterization of a
construction denial. The court found that there were genuine issues of material fact as to
whether the defendant denied the permit and denied the motion for summary judgment.
However, Almar Ranch contains no legal discussion about what qualifies as a de facto
denial. The court simply explained the parties’ arguments and then found a genuine issue
of material fact. Therefore, this case provides no guidance on whether the Town’s
actions were a de facto denial.
Long Pt. Cooper also cites to Interstate Power Co. v. Nobles Cty. Bd. of
Comm’rs, 617 N.W.2d 566 (Minn. 2000); however, there the court only referenced the de
facto denial of the permit when describing the procedural history of the case. Id. at 570.

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The Minnesota Court of Appeals had found that the defendant had de facto denied the
permit because its approval of the permit contained a special condition that was known to
be unacceptable to the plaintiff. However, the Supreme Court of Minnesota did not
discuss this de facto denial any further and ultimately reversed the opinion of the Court of
Appeals. Id. at 580. Moreover, the other two cases cited by Long Pt. Cooper discuss “de
facto” or “constructive” denials in a hypothetical context and are simply inapplicable to
this case. See Seattle Affiliate of Oct. 22nd Coal. to Stop Police Brutality, Repression &
Criminalization of a Generation v. City of Seattle, 550 F.3d 788, 793 (9th Cir. 2008)
(noting that a constructive denial of a parade permit could occur if police confined
marchers to the sidewalk but not finding that to be the case); Mobile Commc’ns Corp. of
Am. v. F.C.C., 77 F.3d 1399, 1404 (D.C. Cir. 1996) (briefly explaining that “interpreting
an application as one for a license subject to any condition of the Commission’s choosing
would permit the Commission to foreclose judicial review of a de facto denial by
couching its decision as an approval subject to some intolerable condition” but going on
to clarify that “[w]hether or not this is true is immaterial for present purposes”).
Indeed, the only Fourth Circuit cases located by the court that discuss a de facto
denial or constructive denial do so when a party fails to act on an application for an
extended period of time. See Scoggins v. Lee’s Crossing Homeowners Ass’n, 718 F.3d
262, 272 (4th Cir. 2013) (“Under these circumstances, the HOA’s failure to take any
action for such an extended period operated as a constructive denial of the ATV
request.”); Davis v. Rao, 982 F. Supp. 2d 683, 694 (E.D. Va. 2013), aff’d, 583 F. App’x
113 (4th Cir. 2014) (calling the defendant’s decision about the plaintiff’s tenure position
a “de facto denial” because the defendant did not respond to the plaintiff’s appeal after

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being denied tenure); Piotrowski v. Wells Fargo Bank, 2013 WL 247549, at *9 (D. Md.
Jan. 22, 2013) (“Failing to act on an application for credit is a de facto denial.”). And
again, none of these cases relate to land-use decisions made by a local municipality.
Therefore, it is irrelevant whether “there is a genuine issue of material fact as to whether
[Long Pt. Cooper] had any feasible option to proceed any way other than it did,” ECF
No. 49 at 16, because that factual issue plays no role in the court’s determination here.
Here, it is undisputed that the Town Council acted by approving the annexation of
the Properties but denying the zoning request. ECF No. 45-4 at 3–4. As such, the Town
did not fail to act on a first reading and vote of the petitions. Moreover, there is no
dispute that Long Pt. Cooper withdrew its petitions before the second reading, ECF No.
45-5 at 1, meaning that the Town did not fail to act on a second reading. Therefore, this
was not a scenario where the Town did not act on Long Pt. Cooper’s petitions for such a
long period of time as to deny it de facto. As such, the court finds that the Town’s
treatment of the petitions was not a de facto denial.
2. Prudential Concerns
Even if there were case law that provided support for the court to declare a de
facto denial here, there are prudential concerns that prevent the court from doing so. As
the Fourth Circuit explains, “land-use decisions are a core function of local government.”
Gardner v. City of Baltimore Mayor & City Council, 969 F.2d 63, 67 (4th Cir. 1992). As
such, “[r]esolving the routine land-use disputes that inevitably and constantly arise
among developers, local residents, and municipal officials is simply not the business of
the federal courts.” Id. Therefore, “federal courts should be extremely reluctant to upset
the delicate political balance at play in local land-use disputes.” Id. at 68; see also Pulte

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Home Corp. v. Montgomery Cty., Maryland, 909 F.3d 685, 688 (4th Cir. 2018) (“This
court has stated repeatedly in similar cases, and as recently as last year, that federal courts
are not the appropriate forum to challenge local land use determinations.”).
Long Pt. Cooper argues that this is not a land-use decision because it does not
challenge the validity of the Town’s decision to deny the zoning request but instead
requests a declaration that the Town denied the entire petitions. However, interpreting
the Town’s decision to approve the annexation request and deny the zoning request,
which was a land use decision, as the Town denying the entire petitions would, in effect,
change the Town’s decision. The court would change the annexation approval to an
annexation denial. Moreover, annexation decisions clearly relate to the use of land. As
such, the court finds it difficult to understand how this could be anything but a land-use
decision. Long Pt. Cooper also dismisses this law as dicta. But even if it were, the court
sees no problem relying on dicta when considering prudential concerns, because
prudential concerns are not necessarily hard-and-fast rules of law but instead are used “to
assist [courts] in the difficult task of discerning which cases the Constitution forbids them
from hearing.” Corrie v. Caterpillar, Inc., 503 F.3d 974, 981 (9th Cir. 2007).
Given both the lack of legal authority that would allow the court to declare a de
facto denial as well as the prudential concerns, the court grants summary judgment on the
declaratory action. 2

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Moreover, characterizing Long Pt. Cooper’s withdrawal of its petitions as a de
facto denial is undesirable from a policy perspective. Doing so would open the door for
developers to submit annexation petitions, withdraw them, and then be entitled to sewer
services. This would allow developers to circumvent the established process for
obtaining sewer services and would make the Town’s annexation decision meaningless.
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B. Substantive Due Process
Next, Long Pt. Cooper alleges that defendants’ refusal to provide sewer services
to the Properties violates Long Pt. Cooper’s right to substantive due process. For a
plaintiff to succeed on a substantive due process claim such as this one, “he must show
‘(1) that [he] had property or a property interest; (2) that the state deprived [him] of this
property or property interest; and (3) that the state’s action falls so far beyond the outer
limits of legitimate governmental action that no process could cure the deficiency.’”
Quinn v. Bd. of Cty. Commissioners for Queen Anne’s Cty., Maryland, 862 F.3d 433,
443 (4th Cir. 2017), cert. denied sub nom. 138 S. Ct. 1593 (2018) (quoting Sylvia Dev.
Corp. v. Calvert Cty., 48 F.3d 810, 827 (4th Cir. 1995)). “If there is no cognizable
property interest, there is no need to reach the question of whether a purported
deprivation was arbitrary or capricious.” Gardner, 969 F.2d at 68. Therefore, the court
must first determine whether Long Pt. Cooper had a cognizable property interest in sewer
services.
Property interests are created not by the Constitution but by independent sources,
such as state law. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972).
Under South Carolina law, there is no protected property interest in sewer services.
Sunset Cay, LLC v. City of Folly Beach, 593 S.E.2d 462, 470 (S.C. 2004). However,
Long Pt. Cooper argues that it has a property interest that was created by § 51.092 of the
Town’s ordinances. Long Pt. Cooper contends that it has a constitutionally protected
interest in the Properties being treated as “denied contiguous properties” pursuant to
§ 51.092, and therefore being entitled to sewer services, which Long Pt. Cooper claims is

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sufficient to create a genuine issue of material fact warranting denial of summary
judgment.
As an initial matter, “[t]he determination of whether there exists a constitutionally
protected property interest is an issue of law,” not fact. McGuire v. Indep. Sch. Dist. No.
833, 863 F.3d 1030, 1033 (8th Cir. 2017). Therefore, a purported property interest
cannot create a genuine issue of material fact. The court may determine whether, as a
matter of law, whether Long Pt. Cooper has a protected interest pursuant to § 51.092, and
if the court determines that Long Pt. Cooper does not, then summary judgment is
warranted.
A state or local law may create entitlement to a property interest. “[W]hether a
property-holder possesses a legitimate claim of entitlement to a permit or approval turns
on whether, under state and municipal law, the local agency lacks all discretion to deny
issuance of the permit or to withhold its approval.” Gardner, 969 F.2d at 68. As such,
“significant discretion that remain[s] with the zoning authorities defeats the claim of a
property interest.” Siena Corp. v. Mayor & City Council of Rockville Maryland, 873
F.3d 456, 463 (4th Cir. 2017).
An example of determining whether an “entitlement” property interest existed can
be found in Siena Corp., where the plaintiffs planned to build a self-storage facility in an
area of Rockville, Maryland that was zoned as “Light Industrial.” Id. at 459. Local
citizens were concerned about the potential effect of the facility on the neighborhood, so
the Rockville Council requested that the Rockville Planning Staff draft a zoning
amendment to address these concerns. Id. at 460. The amendment prohibited the
location of self-storage facilities within 250 feet of public-school property. After

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conducting the proper notice and hearing procedures, the Rockville Council approved the
amendment. Because of the new amendment, the plaintiff was no longer able to build its
self-storage facility on its property and challenged the amendment as violating
substantive due process, among other claims. Under Maryland law, a party obtained a
constitutionally protected right in an existing zoning use once the party obtained a
building permit. Id. at 461. The plaintiff had not obtained a building permit but argued
that it still had a property right because the Rockville Council had no choice to issue it a
building permit, which created an entitlement to the permit. Id. at 462. The Fourth
Circuit disagreed, explaining that because the Rockville City Code made it clear that
issuing a building permit requiring the discretionary approval of various local agencies,
the plaintiff had no entitlement to a building permit and therefore no property interest.
Id. at 464.
The facts here are similar to those of Siena Corp. Long Pt. Cooper argues that
§ 51.092 entitles the Properties to being treated as a “denied contiguous property” that is
entitled to sewer services; therefore, it has a property interest. However, this argument
contradicts the plain language of the ordinance. Section 51.092 clearly states that if a
contiguous property is denied annexation, “sanitary sewer services may be provided by
the Mount Pleasant Waterworks to such property.” ECF No. 1-1 at 38 (emphasis added).
Therefore, even if the Properties were treated as “denied contiguous properties,” they
would not necessarily be entitled to sewer services. It is clear from the “may” language
that MPW has discretion in determining whether it will provide sewer services to a
denied contiguous property. This discretion “defeats the claim of a property interest.”
Siena Corp., 873 F.3d at 463.

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At the hearing on the motions, Long Pt. Cooper also argued that, pursuant to S.C.
Code Ann. § 5-3-150(3), a municipality must “accept” an annexation petition before
voting as to whether the property should be annexed, and because the Town “accepted”
the Properties’ petitions, it created a property interest. Section 5-3-150(3) provides that:
any area or property which is contiguous to a municipality may be annexed
to the municipality by filing with the municipal governing body a petition
signed by all persons owning real estate in the area requesting
annexation. Upon the agreement of the governing body to accept the
petition and annex the area, and the enactment of an ordinance declaring the
area annexed to the municipality, the annexation is complete.
S.C. Code Ann. § 5-3-150(3). Long Pt. Cooper reads the statute as creating a two-step
process for annexation: first, the Town must “accept” an annexation petition, and then it
must vote as to whether the property should be annexed. ECF No. 49 at 5. Long Pt.
Cooper alleges that the Town “accepted” the petitions on June 16, 2015 prior to the first
reading and the vote on the petitions, Am. Compl. ¶ 8, and then violated the state law.
Therefore, while not completely clear to the court, it appears that Long Pt. Cooper
contends that because the Town initially “accepted” the petitions, it created a property
interest in annexation under S.C. Code Ann. § 5-3-150(3).
As an initial matter, it was MPW who denied sewer services, not the Town.
Therefore, it is unclear to the court how the Town could refuse to provide sewer service
to the Properties, as alleged in the amended complaint. See Am. Compl. ¶ 32 (“the
refusal to provide sewer service to the Properties by Defendants Town and [MPW] . . .
denied [Long Pt. Cooper] its rights to substantive due process.”). Nevertheless, while the
court has doubts regarding Long Pt. Cooper’s interpretation of S.C. Code Ann. § 5-3150(3), the statute is irrelevant to Long Pt. Cooper’s substantive due process claim.

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The statute relates to the Town’s consideration of Long Pt. Cooper’s petitions,
which included annexation requests, but Long Pt. Cooper’s substantive due process claim
is about the denial of sewer services to the Properties. The Town’s process of
considering Long Pt. Cooper’s petitions is separate from MPW’s decision to deny sewer
services. While the court acknowledges that the Town’s ultimate decision on Long Pt.
Cooper’s petitions affects MPW’s decision on whether to provide sewer services, there
are two different decision-making processes. The Town must first consider a property’s
petition containing an annexation request and decide whether to accept or deny the
petition. After that decision is made, then MPW decides whether to provide sewer
services to the property. Here, Long Pt. Cooper only alleges that “the refusal to provide
sewer service to the Properties by Defendants Town and [MPW] . . . denied [Long Pt.
Cooper] its rights to substantive due process.” Am. Compl. ¶ 32. This allegation goes to
MPW’s decision to not provide sewer services. Long Pt. Cooper does not allege in its
amended complaint that the Town’s alleged piecemeal treatment of its petitions violated
Long Pt. Cooper’s substantive due process rights.
Long Pt. Cooper’s argument may be more convincing if § 51.092 required MPW
to provide sewer services based on the Town’s treatment of petitions, meaning the
Town’s treatment of the petitions would automatically dictate whether a property
receives sewer service. However, that is simply not how § 51.092 operates.
Section 51.092(A) states that annexation is a required condition for MPW to provide
sewer services, and § 51.092(B) explains that MPW may provide sewer services to
properties that were denied annexation. There is nothing in § 51.092 requiring MPW to
provide sewer services to properties based on how the Town treats their petitions. As

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such, the Town’s process in handling Long Pt. Cooper’s petitions does not bear on the
issue of whether MPW’s denial of sewer services violated Long Pt. Cooper’s substantive
due process rights. Therefore, whether the Town violated S.C. Code Ann. § 5-3-150(3)
or whether S.C. Code Ann. § 5-3-150(3) created a property interest is irrelevant.
Long Pt. Cooper also relies on Scott v. Greenville Cty., 716 F.2d 1409 (4th Cir.
1983), to establish that it had a property interest; however, Scott is easily distinguishable
from the instant case. In Scott, the Fourth Circuit explained that “[u]nder South Carolina
law settled well before he applied for the building permit, Scott enjoyed an entitlement to
the issuance of a permit upon presentation of an application and plans showing a use
expressly permitted under the then-current zoning ordinance.” 716 F.2d at 1418. Here,
as discussed above, South Carolina law clearly establishes that there is no protected
property interest in sewer services. Sunset Cay, LLC, 593 S.E.2d at 470. And, also
discussed above, it is irrelevant whether the state statute regarding annexation entitles
Long Pt. Cooper to a property interest because the property interest relevant to Long Pt.
Cooper’s substantive due process claim is a property interest in sewer services, not a
property interest in the Town’s processing of Long Pt. Cooper’s petitions. See Am.
Comp. ¶ 32. Because Long Pt. Cooper has no property interest in obtaining sewer
services, the court grants summary judgment as to the substantive due process claim.
C. Equal Protection
Long Pt. Cooper also alleges defendants’ refusal to provide sewer service to the
Properties “was for the purpose of discriminating against Plaintiff and denied Plaintiff its
right to equal protection under the Constitution of the United States.” ECF No. 1-1 at 41.
Defendants argue that the sole factual issue in this claim is whether MPW has provided

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sewer service to other properties for which their annexation petitions were withdrawn,
and because Long Pt. Cooper has not presented any evidence that MPW did provide
sewer services to similarly situated properties, summary judgment is warranted. The
court finds that there is no evidence of similarly situated properties, and as such, there is
no genuine issue of material fact, warranting summary judgment.
“The Equal Protection Clause of the Fourteenth Amendment commands that no
State shall deny to any person within its jurisdiction the equal protection of the laws,
which is essentially a direction that all persons similarly situated should be treated alike.”
City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quotation
omitted). However, when a party has not alleged that it was deprived of a fundamental
right or that it was subjected to discrimination based on a suspect classification, a court
“will uphold the distinctions drawn by [the defendant] if they were ‘rationally related to a
legitimate state interest.’” Pulte Home Corp., 909 F.3d at 693. Here, Long Pt. Cooper
has not alleged that it was deprived of a fundamental right or subjected to discrimination
based on a suspect classification. Therefore, the court must determine if defendants’
refusal to provide sewer services to the Properties as opposed to its provision of sewer
water services to other similar properties was rationally related to a legitimate state
interest. See Pulte Home Corp., Maryland, 909 F.3d at 693 (explaining that absent an
allegation of a deprivation of a fundamental right or discrimination based on suspect
classification, the court need only determine if distinctions are “rationally related to a
legitimate state interest”). However, the court need reach the question of whether there
was a rational basis for the decision to deny Long Pt. Cooper’s request for sewer services

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because the court finds that Long Pt. Cooper has not identified any similarly situated
properties that received sewer services.
For a plaintiff to succeed on this type of equal protection claim, she must “allege
[ ] that she has been intentionally treated differently from others similarly situated and
that there is no rational basis for the difference in treatment.” Vill. of Willowbrook v.
Olech, 528 U.S. 562, 564 (2000). “Similarly situated” means that the others are “are in
all relevant respects alike” to the plaintiff. Nordlinger v. Hahn, 505 U.S. 1, 10 (1992).
When a plaintiff provides no evidence that it was treated differently from others who are
similarly situated, the plaintiff’s equal protection claim must fail. Tri Cty. Paving, Inc. v.
Ashe Cty., 281 F.3d 430, 440 (4th Cir. 2002). For example, in Tri Cty. Paving, Inc., the
plaintiff brought an equal protection claim against Ashe County, North Carolina when the
county did not issue a building permit for the plaintiff’s proposed asphalt plant. Id. at
433. The Fourth Circuit held that the plaintiff’s equal protection claim failed in part
because the plaintiff only showed that other businesses in Ashe County were granted
building permits while the plaintiff’s permit was denied. Id. at 440. The court went on to
explain that the fact that the county granted permits to other companies was irrelevant
because the plaintiff did not show that those companies applied for a building permit to
construct a facility with the same environmental and safety concerns as the plaintiff’s
facility. Id. In other words, the plaintiff did not show that the facilities that received
building permits were similarly situated to the plaintiff’s facility.
Here, Long Pt. Cooper has failed to present evidence of properties that are
similarly situated to the Properties and that have received sewer services. Indeed, Long
Pt. Cooper has not identified any other properties that withdrew their annexation petitions

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and then subsequently received sewer services from MPW. Long Pt. Cooper compared
its treatment to two other properties: Leland Park and The Farm at Oyster Point. 3
However, the annexation petitions for these properties were denied, while Long Pt.
Cooper withdrew its petitions. Therefore, these properties are not “in all relevant aspects
alike” because the status of their annexation petitions, which dictates the provision of
sewer services, is different. The only evidence presented about any properties that are “in
all relevant aspects alike” to the Properties is that no such property exists. Duffie’s
testimony reflects that he is unaware of another property that has received sewer services
after withdrawing its annexation petition:
Q: You were asked a number of questions earlier in the deposition about
your knowledge, since you’ve been in this business for quite a long time, of
various properties. So I want to ask you, do you have knowledge of any
contiguous property where the property owner withdrew an annexation
petition and then subsequently received sewer services?
A: I do not.
ECF No. 45-8 at 43. All three members of Long Pt. Cooper were asked the same
question and could not provide any examples of this scenario. ECF No. 45-8 at 18–19,
33, 81. Like the plaintiff in Tri Cty. Paving, Inc., Long Pt. Cooper simply points to other
properties that received sewer services without considering the difference between the

3

The Town argues that its decision about Leland Park occurred after this lawsuit
was filed, and therefore it cannot be used as evidence of differential treatment. See
Patterson v. Strippoli, 639 F. App’x 137, 143 (3d Cir. 2016) (finding that evidence of
similar treatment after the plaintiffs filed their lawsuit did not defeat their claim that they
were treated differently); Gonzales v. Police Dep’t, City of San Jose, Cal., 901 F.2d 758,
761 (9th Cir. 1990) (explaining that in Title VII cases, “other circuits have recognized
that the fact that improvements or advancements undertaken after lawsuits have been
initiated drastically reduces the probative value of such evidence”). However, these cases
do not go as far as stating that post-lawsuit evidence cannot be used. Instead they just
question how convincing the evidence would be. Therefore, the court can properly
consider the evidence about Leland Park.
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properties. As such, there is no genuine issue of material fact as to whether Long Pt.
Cooper was treated differently than similarly situated properties, and summary judgment
is warranted for the equal protection claim.
As an additional note, the comparison Long Pt. Cooper makes between the
Properties and the other properties relates to how the Town treated the other properties’
petitions containing their annexation and zoning requests, not the provision of sewer
services, which is the basis of its equal protection claim. See ECF No. 49 at 21 (“The
evidence supports an inference that the Town treated the annexation application
differently than all others by illegally cherry picking the requested approvals.” (emphasis
added)). With both Leland Park and The Farm at Oyster Point, the Town Council denied
the annexation petition because the accompanying zoning request was not approved.
Indeed, all of the evidence to which Long Pt. Cooper cites relates to the Town Council’s
process of considering the properties’ annexation and zoning requests. This would be a
meaningful distinction if Long Pt. Cooper brought an equal protection claim against the
Town for its treatment of Long Pt. Cooper’s petitions. But Long Pt. Cooper alleges that
defendants denied Long Pt. Cooper its right to equal protection when they “refus[ed] to
provide sewer service to the Properties.” ECF No. 1-1 at 41. With the alleged violation
relating to sewer service, the point of comparison must be whether other properties were
provided sewer service, not whether other properties’ annexation petitions were treated
differently. 4 Therefore, the court grants summary judgment as to the equal protection
claim.

4

To this point, Long Pt. Cooper also cites to various deposition testimony about
the Town’s alleged nefarious motives for granting Long Pt. Cooper’s annexation requests
but denying the zoning requests. Long Pt. Cooper alleges that the Town Council’s plan
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D. 42 U.S.C. § 1983
MPW argues that the court should grant summary judgment on Long Pt. Cooper’s
§ 1983 claim because Long Pt. Cooper cannot assert a § 1983 claim that is independent
from its equal protection and substantive due process claims. The court must “separate
two different issues when a § 1983 claim is asserted against a municipality: (1) whether
plaintiff’s harm was caused by a constitutional violation, and (2) if so, whether the city is
responsible for that violation.” Collins v. City of Harker Heights, Tex., 503 U.S. 115,
120 (1992). Long Pt. Cooper concedes that its § 1983 claim is based on its equal
protection and substantive due process claims. As discussed above, the court grants
summary judgment on those claims; therefore, the court also grants summary judgment
on the § 1983 claim.
E. Writ of Mandamus, Permanent Injunction, and Damages
The remaining causes of action need only be considered briefly. For a court to
issue a writ of mandamus,
the party seeking the writ must demonstrate that (1) he has a clear and
indisputable right to the relief sought; (2) the responding party has a clear
duty to do the specific act requested; (3) the act requested is an official act
or duty; (4) there are no other adequate means to attain the relief he desires;
and (5) the issuance of the writ will effect right and justice in the
circumstances.

was to create a situation in which Long Pt. Cooper could not develop its properties and
then force them to sell the Properties so the Town could build a park. ECF No. 49 at 24.
Long Pt. Cooper also cites deposition testimony about the Town Council planned to only
approve Long Pt. Cooper’s annexation request and not its zoning request, despite
questioning the legality of doing so. ECF No. 49 at 6–7. However, this evidence all
relates to the Town’s process and ultimate decision to approve the annexation and deny
the zoning request, not the provision of sewer services. And Long Pt. Cooper’s claims
relate to the refusal to provide sewer services, not to the Town’s decision-making process
or its actual decision. Therefore, while this evidence is certainly suspicious, it plays no
role in the issues before the court.
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U.S. ex rel. Rahman v. Oncology Assocs., P.C., 198 F.3d 502, 511 (4th Cir. 1999). “A
writ of mandamus is a drastic remedy and should be granted only in those extraordinary
situations when no other remedy is available.” United States v. Moore, 9 F. App’x 275,
275 (4th Cir. 2001). Here, even if the court had found that the Town’s treatment of Long
Pt. Cooper’s petitions was a de facto denial, Long Pt. Cooper would still not have a “clear
and indisputable right” to sewer services. Section 51.092 clearly states that “sanitary
sewer services may be provided by” MPW. ECF No. 1-1 at 38. The provision of sewer
services is discretionary; therefore, Long Pt. Cooper would not have a “clear and
indisputable right” to sewer services. As a result, the court grants summary judgment for
the writ of mandamus claim.
Long Pt. Cooper’s claim for a permanent injunction compelling MPW to provide
sanitary sewer services is equally unsuccessful. Like a writ of mandamus, “[a]n
injunction is a drastic and extraordinary remedy, which should not be granted as a matter
of course.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010). To obtain
a permanent injunction,
[a] plaintiff must demonstrate: (1) that it has suffered an irreparable injury;
(2) that remedies available at law, such as monetary damages, are
inadequate to compensate for that injury; (3) that, considering the balance
of hardships between the plaintiff and defendant, a remedy in equity is
warranted; and (4) that the public interest would not be disserved by a
permanent injunction.
Christopher Phelps & Assocs., LLC v. Galloway, 492 F.3d 532, 543 (4th Cir. 2007).
Long Pt. Cooper’s claim fails because as discussed above, it is not currently entitled to
sewer services. Long Pt. Cooper withdrew its petitions before they could be approved or
denied as required by § 51.092 of the Town’s ordinances. Therefore, it is simply not
entitled to the relief it seeks, and the court grants summary judgment on this claim. And
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for all of the reasons stated above, Long Pt. Cooper is not entitled to damages. As a
result, the court grants summary judgment for the damages claim.
IV. CONCLUSION
For the reasons set forth above, the court grants the motions for summary
judgment.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
April 8, 2019
Charleston, South Carolina

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