Boehm v. Town of Sullivan's Island Bd. of Zoning Appeals

Decision Date28 March 2018
Docket NumberAppellate Case No. 2015-001230,Opinion No. 5546
Citation423 S.C. 169,813 S.E.2d 874
CourtSouth Carolina Court of Appeals
Parties Paul BOEHM, Respondent, v. TOWN OF SULLIVAN'S ISLAND BOARD OF ZONING APPEALS and Town of Sullivan's Island, Appellants.

George Trenholm Walker and John Phillips Linton, Jr., Charleston, both of Walker Gressette Freeman & Linton, LLC, of Charleston, for Appellants.

Alice F. Paylor, Charleston, of Rosen Rosen & Hagood, LLC, of Charleston, for Respondent.

KONDUROS, J.:

The Town of Sullivan's Island (the Town) and the Town of Sullivan's Island Board of Zoning Appeals (BZA) (collectively, Appellants) appeal the circuit court's order reversing the BZA's decision to affirm the zoning administrator's denial and limitation of permits requested by Paul Boehm to make certain alterations to his building and nearby structures. Appellants contend the circuit court erred in determining (1) Boehm's building was a second principal building, rather than an accessory structure and (2) Boehm could expand the building. We affirm.

THE TOWN'S ZONING ORDINANCES

The application of the Town's zoning ordinances to Boehm's property is a tortured one involving multiple requests for alterations, building inspectors, and zoning reviews. To aid in application to the facts, we provide the relevant portions of those ordinances before discussing the facts.

(1) Principal Building Coverage Area. The Lot Area covered by the Principal Building measured vertically downward from the Principal Building's exterior walls to the ground (also known as the building footprint area), but excludes areas covered only by:
(a) accessory structures not readily useable as living space;
(b) exterior porches and decks; and,
(c) exterior stairs.
(2) Principal Building. A building or buildings in which the principal use of the lot is conducted. The term also specifically applies to multiple dwellings located on the same lot, including an historic structure used as an accessory dwelling unit.

Town of Sullivan's Island, S.C., Zoning Ordinance (T.Z.O.) § 21-25(A) (2007). "No Principal Building shall be erected, altered or moved so as to exceed thirty-eight (38) feet in overall height." T.Z.O. § 21-54(A)

"Accessory structures shall.... [n]ot exceed 15 feet in height, except that the height may be extended to 18 feet where the pitch of the accessory structure[']s roof is not less than seven on twelve (7/12)...." T.Z.O. § 21-138(A)(3)(a). The Zoning Ordinances provide an accessory structure cannot have a separate electric meter or be connected to the sewer system. T.Z.O. § 21-138(A)(7).

In the event that two or more Principal Buildings occupy a single lot, said occupancy shall constitute a nonconforming use. One structure shall be designated conforming and the other(s) shall be non-conforming under the following procedure:
(1) If a request to improve the property is received, the Zoning Administrator shall designate the Principal Building with the greatest livable square footage, including porches, as a conforming use and the other Principal Buildings as non-conforming.
(2) The designation of conforming and non-conforming Principal Buildings shall be recorded on the Certificate of Occupancy that is on file in the Town Hall.
(3) A Building Permit for improvements to the designated conforming Principal Building may be considered favorably, provided all other requirements of the Town Ordinances are met. The non-conforming structure(s) shall be regulated in accordance with Subsections A-E.

T.Z.O. § 21-150(F) (emphasis added).

"A Nonconforming Use is a land use that was legally established but that is no longer allowed by the use regulations of the Zoning District in which it is located.... A Nonconforming Use shall not be expanded except to eliminate or reduce the nonconforming aspects ." T.Z.O. § 21-150(A), (B) (emphasis added). "A Nonconforming Structure is any building or structure that was legally established but no longer complies with the density, lot coverage, floor area, height and dimensional standards of this Zoning Ordinance. Nonconforming Structures may remain, subject to the regulations of this Article." T.Z.O. § 21-151(A). For nonconforming structures, "[s]tructural alterations, including enlargements, are permitted if the structural alteration does not increase the extent of nonconformity ." T.Z.O. § 21-151(B)(1) (emphasis added).

(1) Incidental repairs and normal maintenance necessary to keep a Nonconforming Structure in sound condition are permitted unless such repairs are otherwise expressly prohibited by this Zoning Ordinance.
(2) Nothing in this Article will be construed to prevent Structures from being structurally strengthened or restored to a safe condition, in accordance with an official order of a public official.

T.Z.O. § 21-149(F).

The following relevant definitions are provided by the Town's zoning ordinance. T.Z.O. § 21-203. "Principal Use. The specific, primary purpose for which land or a building is used."

Id. "Building, Principal. [ ]A building in which the principal use of the lot is conducted." Id. "Accessory Use or Structure. A use or structure subordinate to the Principal Building on a lot and used for purposes customarily incidental to the main or principal use or building and located on the same lot." Id. "Garage, private. An accessory building or portion of a Principal Building used only for the private storage of motor vehicles, campers, boats, boat trailers and lawn mowers, as an accessory use." Id.

Dwelling. A building or portion of a building arranged or designed to provide living quarters for a single family, with no structural features impeding free access throughout the entire structure by all members of the family.
....
Dwelling, Single Family. A detached Principal Building other than a mobile home designed for or occupied exclusively by a single family on a single lot.
Dwelling, Upper Story. An attached dwelling constructed as an integral part of a non-residential Principal Building located on the second floor.

Id. The definition for Residence simply states "See ‘Dwelling.’ " Id.

Nonconforming Structure. Any building or structure that was legally established but no longer complies with the density, lot coverage, floor area, height and dimensional standards of this Zoning Ordinance.
Nonconforming Use. A land use that was legally established but that is no longer allowed by the use regulations of the Zoning District in which it is located.
Nonconformities. Uses, structures, lots, signs and other situations that came into existence legally and continued to exist as a legal nonconforming use until the time of the adoption of this ordinance but that do not conform to one or more requirements of this Zoning Ordinance.

Id.

FACTS/PROCEDURAL HISTORY

This case involves structures on real property Boehm bought in 2001 located at 2720 Goldbug Avenue on Sullivan's Island, South Carolina. In addition to the principal residential building (main house), Unit B is a building with a garage on the ground level and an apartment located above the garage. Unit B is completely separate from the main house, has its own electric meter, and is connected to the sewer system. It received a certificate of occupancy on November 20, 1989.1

In 2001, the Town issued Boehm a permit to build a "slat house"2 immediately adjacent, but not attached, to Unit B. In 2003, Boehm divided the property into two condominiums. Boehm conveyed ownership of the main house to his son but retained ownership of Unit B. In 2009, Boehm applied for a variance to attach the slat house roof to the walkway at the back of Unit B, but the building official denied it and the BZA affirmed the denial.

In 2013, Boehm requested a building permit to increase the roof height of Unit B by two feet. The Town's zoning administrator denied Boehm's request. The zoning administrator noted: "Because accessory structures are permitted a maximum height of 18 feet, the detached garage/unit is already exceeding the maximum height allowed (22-24 feet), and therefore would not allow your requested height increase of two feet." The zoning administrator granted Boehm a permit to establish a roof overhang to cover the outside steps to the entrance of the apartment portion of Unit B. However, the administrator later determined the posts for the roof were outside of the building footprint and issued a stop work order. He additionally observed alterations to the back deck—including connecting the slat house to Unit B, removing handrails, and installing built-in furniture and planters. The administrator determined Boehm had not obtained permits for those alterations and issued citations.

Boehm appealed the zoning administrator's decisions to the BZA, which held a public hearing on the matter. At that hearing,3 Boehm testified that when he was considering buying the property at 2720 Goldbug, he discussed the property with the zoning administrator at that time, Kent Prause. Boehm provided he asked Prause what it meant to have the two structures on one property. He contended Prause informed him "the larger of the two dwellings would be the conforming dwelling[ ] and the smaller of the two dwellings ... would be the nonconforming dwelling."4 Boehm further asserted he relied on Prause's statements in deciding to purchase the property. Boehm also indicated he has had a rental license every year he has owned Unit B and has rented it out, first to his son and later to regular tenants. He maintained he does not park vehicles in the bottom part; he instead uses it to store furniture and "junk." He stated that to the best of his knowledge, it had never been used by the main house as a garage.

Boehm also testified that in 2001, Prause advised him to build the slat house as an accessory structure to Unit B to serve as a deck. According to Boehm, Prause explained a slat house was a garden structure that if it was the same height as the existing deck/walkway, would serve the purpose of the...

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