Boehm v. Town of Sullivan's Island Bd. of Zoning Appeals
Decision Date | 28 March 2018 |
Docket Number | Appellate Case No. 2015-001230,Opinion No. 5546 |
Citation | 423 S.C. 169,813 S.E.2d 874 |
Court | South 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.
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 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.
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)
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).
T.Z.O. § 21-150(F) (emphasis added).
T.Z.O. § 21-150(A), (B) (emphasis added). 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).
The following relevant definitions are provided by the Town's zoning ordinance. T.Z.O. § 21-203.
Id. The definition for Residence simply states "See ‘Dwelling.’ " Id.
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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