Austin v. Board of Zoning Appeals, No. 3893.

• Court: Court of Appeals of South Carolina
• Writing for the Court: KITTREDGE, J.
• Citation: 362 S.C. 29,606 S.E.2d 209
• Docket Number: No. 3893.
• Decision Date: 22 November 2004
• Parties: Carolyn Songer AUSTIN, Appellant, v. BOARD OF ZONING APPEALS, Town of Hilton Head Island, South Carolina; W.J. Enterprises, Inc.; H.D.S. Builders, L.L.C.; Barbara M. Loebig, and National Bank of Commerce, Respondents.

362 S.C. 29
606 S.E.2d 209

Carolyn Songer AUSTIN, Appellant,
v.
BOARD OF ZONING APPEALS, Town of Hilton Head Island, South Carolina; W.J. Enterprises, Inc.; H.D.S. Builders, L.L.C.; Barbara M. Loebig, and National Bank of Commerce, Respondents

No. 3893.

Court of Appeals of South Carolina.

Submitted October 1, 2004.

Decided November 22, 2004.

362 S.C. 31

Mark Weston Hardee of Columbia, Matthew A. Gess of Beaufort, and Robert E. Austin, Jr., of Leesburg, FL, for Appellant

Drew A. Laughlin and Gregory Milam Alford, both of Hilton Head Island, for Respondents.

KITTREDGE, J.:

This is an appeal from a decision of the Town of Hilton Head Island to grant a building permit. The Town's Board of Zoning Appeals upheld the issuance of the permit, and, on appeal, the circuit court affirmed the Board's decision. We also affirm.

362 S.C. 32

FACTS AND PROCEDURAL HISTORY

In September 2002, the Town of Hilton Head Island issued a building permit for the construction of a single-family home on Lot 18 at the corner of Dune Lane and Jacana Street within the Town's corporate limits. The permit was approved for a structure that was set back twenty feet from Dune Lane and ten feet from Jacana Street. Carolyn Songer Austin, a neighboring property owner, believed the ten-foot setback on the Jacana Street side of Lot 18 was improper, and that the new home should be set back at least twenty feet from Jacana Street. She subsequently filed an application with the Town's Board of Zoning Appeals seeking rescission of that permit.

As part of the permitting process, the Town must ensure the proposed home site is designed with the appropriate setback distances from the street and neighboring property. These setback requirements are designed to preserve the aesthetic character of the surrounding neighborhood. As a general rule, the Town's Land Management Ordinance provides that single-family homes must be set back at least twenty feet from the street, but notes:

For all corner lots, the 20 ft. adjacent street setback may be reduced to 10 ft. on the side of the residence. The 20 ft. adjacent street setback shall apply to the street having the highest number of average daily vehicle traffic (ADT) as determined by the Administrator. If both streets have equal ADT, the property owner may choose which street to apply the 20 ft. adjacent street setback.

In this case, it was determined there was no evidence that either Dune Lane or Jacana Street had higher average daily traffic, so the decision as to which street to apply the ten-foot setback was left to the property owner.

Austin disagreed. She claimed Jacana Street — not Dune Lane — had more daily vehicle traffic, thereby requiring the new home on Lot 18 be set back twenty feet from Jacana Street rather than Dune Lane. The Town's Planning Department examined the matter and determined "[t]here is no evidence that indicates that Jacana Street has a higher traffic volume than Dune Lane," and therefore concluded "the application of a ten-foot setback to [the Jacana Street] side of the property is correct." After conducting a hearing, the Board

362 S.C. 33

accepted the Planning Department determination and informed Austin by letter that her request to rescind the building permit had been denied

Austin appealed the Board's decision to the circuit court. Several months after filing her petition, Austin filed two motions with the circuit court that are relevant to the present appeal: first, she filed a motion to amend her petition to add two new grounds; and, second, she moved to supplement the record on appeal to include an additional plat depicting Lot 18 and the surrounding property. The circuit court denied both of these motions and ultimately affirmed the Board's decision. This appeal followed.

STANDARD OF REVIEW

On appeal, we apply the same standard of review as the circuit court below: the findings of fact by the Board shall be treated in the same manner as findings of fact by a jury, and the court may not take additional evidence. S.C.Code Ann. § 6-29-840(A) (Supp.2003); see also Heilker v. Zoning Bd. of Appeals for City of Beaufort, 346 S.C. 401, 405, 552 S.E.2d 42, 44 (Ct.App.2001). In reviewing the questions presented by the appeal, the court shall determine only whether the decision of the Board is correct as a matter of law. Id. Furthermore, "[a] court will refrain from substituting its judgment for that of the reviewing body, even if it disagrees with the decision." Restaurant Row Assocs. v. Horry County, 335 S.C. 209, 216, 516 S.E.2d 442, 446 (1999). "However, a decision of a municipal zoning board will be overturned if it is arbitrary, capricious, has no reasonable relation to a lawful purpose, or if the board has abused its discretion." Id.

LAW/ANALYSIS

Austin raises five issues on appeal: She claims (1) the Board failed to set out its final decision in writing as required by statute; (2) the circuit court applied the wrong standard of review; (3) the circuit court improperly denied the motion to amend the petition for appeal; (4) the circuit court improperly denied the motion to supplement the record on appeal; and (5) the Board lacked subject matter jurisdiction to issue its decision.

362 S.C. 34

1. The Board's Final Decision

Austin first argues the circuit court erred in finding the Board's decision to deny her application was properly issued in writing as required by statute. We disagree.

South Carolina Code section 6-29-800 requires that "[a]ll final decisions and orders of the board must be in writing" and that "[a]ll findings of fact and conclusions of law must be separately stated ..." S.C.Code Ann. § 6-29-800(F) (Supp.2003). In the present case, the Board informed Austin of its decision by letter dated December 9, 2002, from the Town's Deputy Planning Director, David L. Recor. In relevant part, the letter advised Austin:

Pursuant to testimony in this matter, the Board of Zoning Appeals concluded and made the following written findings:

1. There is no evidence that indicates that Jacana Street has a higher traffic volume than Dune Lane and therefore it was correct for the Department of Building and Fire Codes to issue a building permit with a ten (10) foot setback on the Jacana Street side of the affected property.

The vote on the motion to uphold the administrative determination was 5-1 and therefore the appeal request was denied.

Austin contends this letter does not satisfy the statutory requirement that the Board's decision be in writing with findings of fact and conclusions of law separately stated. We find no reversible error. Though the statute does not specify the form the writing must take, it is well-settled that courts reviewing the decisions of zoning boards and other administrative agencies may look to written documents as well as records of proceedings as sufficient formats for final decisions. For example, in Vulcan Materials Co. v. Greenville County Board of Zoning Appeals, 342 S.C. 480, 536 S.E.2d 892 (Ct.App.2000), this court upheld a circuit court finding that a transcript of a zoning board hearing constituted a sufficient final written decision. On the question of whether the transcript alone could satisfy the statutory requirement of a written decision, the court opined that "[g]enerally, the format of a final decision is immaterial as long as the substance of the decision is sufficiently detailed so as to allow a reviewing court to

362 S.C. 35

determine if the decision is supported by the facts of the case." Id. at 494, 536 S.E.2d at 899; cf. Massey v. City of Greenville Bd. of Zoning Adjustments, 341 S.C. 193, 201, 532 S.E.2d 885, 889 (Ct.App.2000) (considering use of transcript but rejecting in part because it was virtually indecipherable)

In the present case, the evidence considered by the Board is clearly laid out in the transcript of the...