Bob Jones University, Inc. v. City of Greenville, 18139

• Decision Date: 11 December 1963
• Docket Number: No. 18139,18139
• Citation: 133 S.E.2d 843,243 S.C. 351
• Court: South Carolina Supreme Court
• Parties: BOB JONES UNIVERSITY, INC., Appellant, v. The CITY OF GREENVILLE, South Carolina, Gerald W. Shaw, City Manager, and James H. Ward, Building Commissioner, Respondents.

Page 843

133 S.E.2d 843

243 S.C. 351

BOB JONES UNIVERSITY, INC., Appellant, v. The CITY OF GREENVILLE, South Carolina, Gerald W. Shaw, City Manager, and James H. Ward, Building Commissioner Respondents.

No. 18139.

Supreme Court of South Carolina.

Dec. 11, 1963.

C. S. Bowen, Greenville, Watkins, Vandiver, Freeman & Kirven, Anderson, for appellant.

W. H. Arnold, Greenville, for respondents.

MOSS, Justice.

Bob Jones University, Inc., the appellant herein, owns and operates a liberal arts college in the northeastern section of the City of Greenville. The appellant owns about one hundred and fifty acres of land bounded generally by U. S. Highway No. 29, known also as Wade Hampton Boulevard; State Highway No. 291; East North Street; and White Oak Drive. There are located upon this said tract of land residences, dormitories, classrooms, and other buildings used in connection with the university.

It appears that a comprehensive zoning ordinance was adopted by the city council of the City of Greenville in 1952, pursuant to the statutory law of South Carolina, which is now codified as Sections 47-1001 to 47-1017, inclusive, 1962 Code of Laws of South Carolina. It appears that pursuant to the aforesaid comprehensive zoning ordinance the City of Greenville was divided into different zones or districts and the property with which we are here concerned, known as the Wilson property, and containing approximately sixteen acres, was zoned as 'A-1 Residential.' The record shows that on December 4, 1961, the Wilsons made application to the city council for the rezoning of their property and such was referred to the Planning and Zoning Commission of said city. This commission, after hearings, recommended that the Wilson property be rezoned from an A-1 residential classification to an E-1 retail shopping center classification. Thereafter, the city council, after public hearings, and in the manner provided for by law, did, on July 10, 1962, adopt an ordinance whereby it rezoned certain real property situate in said city, and being a portion of the land located in the block bounded by Wade Hampton Boulevard, White Oak Drive, Beuna Vista Street and Karen Drive.

This action was instituted by the appellant for the purpose of having the court declare the rezoning ordinance null, void and of no effect, and to enjoin the City of Greenville, its City Manager and Building Commissioner, the respondents herein, from according the said rezoning ordinance any validity and from issuing any building permits thereunder.

The pleadings present for determination the validity of the ordinance of the City of Greenville undertaking to amend the comprehensive zoning ordinance by rezoning lands commonly known as the Wilson property, from a residential zone into a retail shopping center classification. Invalidity is asserted on the ground that the rezoning ordinance is arbitrary and unreasonable and in contravention of the constitution and the enabling statute empowering municipal corporations to zone and rezone property and the adoption of such ordinances was an abuse of discretion.

This case, by agreement, was referred to the Master in Equity for Greenville County, with instructions to take the testimony and report the same to the Court with his findings of fact and conclusions of law. The Master held three references, at which voluminous testimony was taken and many exhibits were offered in evidence. The Master, on January 3, 1963, filed his report, wherein he recommended that the complaint of the appellant be dismissed and the action of the Greenville City Council, rezoning the property in question from residential to business, be upheld in every respect. The appellant filed numerous exceptions to the report of the said Master, and these exceptions are substantially the same as now presented to this Court. The appeal was heard by the Honorable James Hugh McFaddin, Presiding Judge, and, on April 12, 1963, he confirmed the report of the Master and made it the judgment of the Court. The appellant, within due time, filed notice of intention to appeal to this Court.

The Wilson property is located on the southern side of Wade Hampton Boulevard, otherwise known as U. S. Highway 29, which is a four lane divided superhighway between Greenville and Spartanburg. Just east of the Wilson property and also fronting on Wade Hampton Boulevard is the property of the appellant. However, these two properties are separated by a street known as White Oak Drive, of a width of approximately fifty feet. Just west of the Wilson property, also on Wade Hampton Boulevard, is a recently constructed shopping center referred to as Wade Hampton Shopping Center, located on a tract of land containing twelve acres. The Wilson property and the Wade Hampton Shopping Center property are separated by Karen Drive, a street fifty feet in width.

There is evidence from which it can be concluded that all of the property along Wade Hampton Boulevard, from Main Street in the City of Greenville to the appellant's property, has been zoned for business purposes, with the exception of the Wilson property and certain property across Wade Hampton Boulevard. A map in evidence shows that along Wade Hampton Boulevard and extending towards the main street of the City of Greenville, much of the property is designated as local commercial and light industrial. A further examination of this map shows that a greater portion of the property across Wade Hampton Boulevard and immediately in front of the property of the appellant is classified as local commercial. A portion of appellant's property lying on the northeast corner and at the intersection of State Highway No. 291 with Wade Hampton Boulevard is likewise so classified. It is undisputed from the record that immediately across State Highway No. 291, which is the northeastern boundary of appellant's property, there is located the Lake Forest Shopping Center, consisting of approximately fifteen stores. However, it should be stated that this property does not lie within the corporate limits of the City of Greenville and, hence, is not subject to zoning. It further is an admitted fact that the appellant built on its own property a supermarket, which it leases as a Winn-Dixie Store. A witness for the appellant admitted that beyond its property is a Drive-In Restaurant, furniture business, a Howard Johnson restaurant, a bank building, and a filling station, all in close proximity to Bob Jones University, and that immediately across Wade Hampton Boulevard and directly in front of appellant's property, as it heretofore stated, there are some six to eight stores of various kinds, including a large warehouse owned by a trucking company.

It appears from the record that the Planning and Zoning Commission of the City of Greenville and the city council had what is referred to as the 'Hoyt Report', which had to do with a market survey made on the Wilson property; and the 'Hamer Report', which was a like study made in connection with rezoning of the property now occupied by the Wade Hampton Shopping Center, and in the latter report, a recommendation was made that additional property adjacent to the tract occupied by the Wade Hampton Shopping Center be obtained for future expansion.

The appellant presented a number of witnesses who testified that the rezoning of the Wilson property would materially affect the value of the properties adjacent thereto. There was testimony in behalf of the respondents that the rezoning of the Wilson property was proper and for the best interest of the City of Greenville, and would not affect the market value of the property on the north side of Wade Hampton Boulevard. One of the witnesses for the respondents testified that the property on the northern side of Wade Hampton Boulevard had already been damaged, not by virtue of the Wade Hampton Shopping Center, or any other shopping center, but because of the commercial nature of Wade Hampton Boulevard. This witness also testified that you would have to go beyond State Highway No. 291 before you could classify property as residential, but from this highway towards the City of Greenville practically all of it was commercial property.

We have not recited all of the testimony in detail but have attempted to summarize the evidence bearing on the issues made by the pleadings.

Based upon the record, the Master concluded, 'The rezoning of the land in question is for the public good, the morals, and the general welfare of the City of Greenville and its citizens', and 'That to deny the rezoning of the 'Wilson property' would be unreasonable, arbitrary, and not in conformity with the general principles of zoning and the rights of a property owner.' The Master also found that the area here involved has essentially changed and, as a result, the property in question should be rezoned, citing the fact that only recently there was a rezoning in order to allow the erection of a building for the First Federal Savings and Loan Association and for a filling station, both on the northern side of Wade Hampton Boulevard, and the shopping center designated as the Wade Hampton Shopping Center, immediately west of the property in question and on the southern side of Wade Hampton Boulevard.

Section 47-1001 of the Code authorizes the zoning of property within a municipality for the purpose of promoting health, safety, morals and the general welfare of the community therein. Section 47-1005 authorizes municipalities to amend such regulations, restrictions and boundaries after a public hearing in the manner authorized by Section 47-1004 of the Code. Hence, a municipality has the legislative power to amend its general zoning ordinance and rezone small areas, so long as its action is not arbitrary or unreasonable. Momeier v. John McAlister, Inc., 231 S.C. 526, 99 S.E.2d 177. In amending its zoning ordinance, as it pertains to the Wilson property, the city council has complied with all...