Bannum, Inc. v. City of Columbia, 24943.

• Decision Date: 07 May 1999
• Docket Number: No. 24943.,24943.
• Citation: 516 S.E.2d 439,335 S.C. 202
• Court: South Carolina Supreme Court
• Parties: BANNUM, INC., a Kentucky Corporation with a principal place of business in Largo, Florida, Appellant, v. CITY OF COLUMBIA, a municipality with a principal place of business in Columbia, South Carolina and City of Columbia Zoning Board of Adjustments, an appointed agency of the City of Columbia, Respondents.

335 S.C. 202

516 S.E.2d 439

BANNUM, INC., a Kentucky Corporation with a principal place of business in Largo, Florida, Appellant, v. CITY OF COLUMBIA, a municipality with a principal place of business in Columbia, South Carolina and City of Columbia Zoning Board of Adjustments, an appointed agency of the City of Columbia, Respondents.

No. 24943.

Supreme Court of South Carolina.

Heard February 18, 1999.

Decided May 7, 1999.

P. Benjamin Zuckerman, of Lewis, Babcock and Hawkins, L.L.P., of Columbia, for appellant.

Thomas E. Ellenburg, of Columbia, for respondents.

PER CURIAM:

Bannum, Inc. (Bannum) appeals a circuit court order affirming the Zoning Board of Adjustment's (ZBA) denial of a "special exception" permit to use 1608 Westminster Drive as a residential care facility for federal ex-offenders. We reverse.

FACTS

Bannum provides residential "halfway houses" for persons recently released from federal prison. In February, 1997, the Bureau of Prisons (BOP) issued a request for proposals (RFP) to construct and manage a 24 bed residential care facility in Columbia.¹ Bannum inquired of the City Zoning Administrator as to zoning requirements for such residential care facilities, and was advised by the Administrator, in March 1997, that such facilities having more than 9 occupants are allowed in C-3 districts upon obtaining a "special exception" permit.² In April, 1997, Bannum leased the property at 1608 Westminster Drive.³ Thereafter, the BOP awarded Bannum a contract for the halfway house, contingent on Bannum obtaining all necessary local permits by Dec. 1, 1997. On Aug. 13, 1997, Bannum sought a special exception permit. At a hearing on Sept. 9, 1997, the ZBA determined, contrary to the opinion of its Administrator, the halfway house was not a "residential care facility." Accordingly, the ZBA denied Bannum's request for a special exception. Thereafter, the ZBA decided the proposed facility was, in fact, a "residential care facility," and granted a rehearing. After its October 14, 1997 rehearing, the ZBA denied Bannum's request for a special exception, holding the halfway house would have a negative impact on traffic and vehicular and pedestrian safety. The circuit court affirmed the ZBA's denial of the permit.

ISSUE

Did the circuit court err in upholding the ZBA's denial of a special exception permit?

STANDARD OF REVIEW

This Court will not disturb the findings of the Board of Adjustment unless such findings or decision resulted from action of the Board which is arbitrary, an abuse of discretion, illegal, or in excess of lawfully delegated authority. Brock v. Board of Adjustment and Appeals of City of Rock Hill, 308 S.C. 539, 419 S.E.2d 773 (1992); Fontaine v. Peitz, 291 S.C. 536, 354 S.E.2d 565 (1987). See also Condor, Inc. v. Board of Zoning Appeals, 328 S.C. 173, 493 S.E.2d 342 (1997)

.

DISCUSSION

Bannum contends ZBA's denial of its permit was arbitrary. We agree.

The ZBA either discounted or disregarded every single bit of evidence put up by Bannum.⁴ Instead, it based its holding on the four factors submitted by opponents: 1) testimony as to traffic counts on Forest Drive, 2) testimony that Westminster Drive is used as a "cut through" street, 3) testimony that any increase in traffic would adversely impact vehicle and pedestrian safety, and 4) a Government Accounting Office (GAO) study concerning recidivism rates of ex-offenders.

As to numbers 1-3, although there was evidence concerning existing traffic on Forest Drive, and speculation that the halfway house residents will use Westminster as a cutthrough, there was simply no evidence presented the proposed use will generate greater use than the existing mental health facility. On the contrary, the evidence was to the effect that the proposed use would likely decrease traffic as the majority of halfway house residents will not own automobiles but will utilize public transportation. Although neighboring residents testified they felt the halfway house would increase traffic, there is simply no concrete evidence to support this fact. Accordingly, the ZBA's finding that any increase in traffic would adversely impact vehicle and pedestrian safety is irrelevant as there is no evidence of an increase.

The only piece of evidence which arguably supports the ZBA's decision is a GAO (General Accounting Office) study concerning "Trends in Community Supervision of Federal Offenders." The ZBA relied on the GAO report for the premise that a certain number of the halfway house residents will be recidivists, which will adversely affect the safety of pedestrians in the area by "having potentially recidivist violent individuals and drug users in the area." However, according to Bannum's attorney, Mr. Zuckerman, and the affidavit of Bannum's president, David Lowry, the GAO study is simply inapplicable to halfway houses such as Bannum's.

Moreover, even assuming the GAO report concerns halfway houses such as Bannum's, it does not justify the ZBA's decision in this...