Bailey v. Rutledge
| Decision Date | 24 February 1987 |
| Docket Number | No. 0902,0902 |
| Citation | 291 S.C. 512,354 S.E.2d 408 |
| Parties | William J. BAILEY, Respondent, v. J.D. RUTLEDGE, Lucille Battle, William Steele, Paul H. Shelton, Jr., and Alvin Gainey, as Members of the Board of Adjustment of the City of Seneca, Appellants. . Heard |
| Court | South Carolina Court of Appeals |
John W. Fields, Seneca, and Alexander S. Macauley, of Miley & Macaulay, P.A., Walhalla, for appellants.
N. Gruber Sires, Jr., Seneca, and Theodore A. Snyder, Jr., Walhalla, for respondent.
In this zoning appeal, the circuit court reversed a decision of the Board of Adjustment of the City of Seneca which denied respondent William J. Bailey's request for a variance to the City's zoning ordinance to permit an addition to his child care facility. We reverse.
In 1978, a child care center was established on the lot involved in this appeal. Effective January 1, 1984, the City of Seneca revised its zoning ordinance so that the day care center was placed in a R-15 (one-family residential) zone. Child care centers are not permitted in R-15 zones; however, the ordinance permitted the child care center to continue to operate in the zone as a nonconforming use.
Bailey purchased the center in September 1984. In 1985 he applied to the Board of Adjustment for a variance for permission to enlarge "a nonconforming use for [the] addition [of] 1 classroom 24' times 36'." After a hearing, the Board of Adjustment denied Bailey's request. Bailey then appealed to the circuit court.
In his appeal to the circuit court, Bailey contended that as a matter of law he had a vested right to construct the addition to his child care facility as part of a prior nonconforming use. He also contended that the action of the Board of Adjustment in denying the variance was arbitrary and capricious. The Board responded to Bailey's appeal and petition for review of its actions by alleging that under the City's zoning ordinance a nonconforming use could not be enlarged or altered without a variance, and that the variance had been properly denied.
Relying on the case of Conway v. City of Greenville, 254 S.C. 96, 173 S.E.2d 648 (1970), the trial court held that Bailey had acquired a vested right to use his entire lot for child care purposes, because the facts demonstrated that the entire lot had been appropriated to child care use before the zoning ordinance was amended.
We are asked first to decide whether an owner who purchases property after the effective date of a change to a zoning ordinance acquires a vested right to enlarge a nonconforming use in violation of the zoning ordinance. To properly focus on this issue, we note that the issue here presented does not involve the right of a land owner to continue a nonconforming use as in James v. City of Greenville, 227 S.C. 565, 88 S.E.2d 661 (1955). Nor does it involve a factual determination whether a property owner was using all of his property for a specific purpose prior to the advent of zoning as was the case in Conway v. City of Greenville, supra. Rather, Bailey's application for a variance, the minutes and transcript of the Board's proceedings, and the Board's decision, all indicate that the sole issue before the Board was whether the granting of the requested variance amounted to an enlargement of a nonconforming use.
In general, the policy of the law is to look with disfavor on the continuation of nonconforming uses. It has been frequently pointed out that nonconforming uses are inconsistent with the purpose of zoning regulations to confine certain classes of uses and structures to certain locations. 82 Am.Jur.2d Zoning and Planning Section 191 (1976). As stated in Christy v. Harleston, 266 S.C. 439, 223 S.E.2d 861 (1976), "the intention of all zoning laws, as regards a nonconforming use of property, is to restrict and gradually eliminate the nonconforming use."
Under Section 6-7-720, Code of Laws of South Carolina, 1976, the City of Seneca is authorized to enact legislation regulating the continuation of nonconforming uses. In accordance with this authority the City enacted Section 708 of its zoning ordinances which provides:
Nonconforming buildings or land uses are declared by this Ordinance to be incompatible with permitted uses in the districts involved. However, to avoid undue hardship, the lawful use of any building or land uses at the time of the enactment of this Ordinance may be continued ..., except that the nonconforming building or land use or portions thereof, shall not be:
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e) Enlarged or altered in a way which increases its nonconformity.
The extent of judicial review of the...
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Heilker v. Zoning Bd. of Appeals
...added); accord Fairfield Ocean Ridge, Inc. v. Town of Edisto Beach, 294 S.C. 475, 366 S.E.2d 15 (Ct.App.1988); Bailey v. Rutledge, 291 S.C. 512, 354 S.E.2d 408 (Ct.App.1987). The new statute, § 6-27-840, is also very deferential to a board's findings of fact as it equates them to a jury's f......
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City of Myrtle Beach v. Juel P. Corp.
...it is generally recognized that nonconforming uses detract from the public purpose to be achieved by the plan. Bailey v. Rutledge, 291 S.C. 512, 354 S.E.2d 408 (Ct.App.1987). As such, they are not favored, and they should be made conforming as soon as reasonably possible. See id. While a pr......
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...it is generally recognized that nonconforming uses detract from the public purpose to be achieved by the plan. Bailey v. Rutledge, 291 S.C. 512, 354 S.E.2d 408 (Ct.App.1987). As such, they are not favored, and they should be made conforming as soon as reasonably possible. See id. While a pr......