Brock v. Board of Adjustment and Appeals of City of Rock Hill, 23686

• Decision Date: 20 May 1991
• Docket Number: No. 23686,23686
• Citation: 419 S.E.2d 773,308 S.C. 539
• Parties: Annie BROCK, Benita Howey, Mr. and Mrs. F.M. Duckworth and Mrs. Oma Barnes, Respondents, v. BOARD OF ADJUSTMENT AND APPEALS OF the CITY OF ROCK HILL, the City of Rock Hill and Sister Help Program, of which Sister Help Program is Petitioner. Petition of SISTER HELP PROGRAM. . Heard
• Court: South Carolina Supreme Court

Page 773

419 S.E.2d 773

308 S.C. 539

Annie BROCK, Benita Howey, Mr. and Mrs. F.M. Duckworth and Mrs. Oma Barnes, Respondents, v. BOARD OF ADJUSTMENT AND APPEALS OF the CITY OF ROCK HILL the City of Rock Hill and Sister Help Program, of which Sister Help Program is Petitioner Petition of SISTER HELP PROGRAM.

No. 23686.

Supreme Court of South Carolina.

Heard May 20, 1991.

Decided July 13, 1992.

Mitchell K. Byrd and Dan M. Byrd, Jr. of Byrd & Byrd, Rock Hill, for petitioner.

Robert M. Jones, Rock Hill, for respondents.

FINNEY, Justice:

We granted certiorari to review the reversal of the circuit court by the Court of Appeals which held that the initial permit granted Petitioner Sister Help Program had expired after one year, and that petitioner had not received the four-vote majority required for issuance of a subsequent permit. See Brock v. Board of Adjustment and Appeals of the City of Rock Hill, 302 S.C. 512, 397 S.E.2d 253 (S.C.App.1990). We reverse.

In late 1985, petitioner applied to the City of Rock Hill for utilities hook-up and a permit to renovate one of two residences for use as a shelter for victims of domestic abuse. The Zoning Administrator denied the permit on the ground that shelters were not listed as a permitted use in an RG-0 district, defined as a transitional district between commercial or industrial and a residential area. The petitioner requested administrative review by the Board of Adjustment and Appeals (Board of Adjustment), contending that neither were shelters of the kind proposed shown on a list of uses prohibited in an RG-0 district and that their proposed shelter was similar to boarding houses or rooming houses permitted within the district.

At a meeting on December 10, 1985, the Board of Adjustment reviewed the application and, by a vote of four-to-one, granted the permit for one year during which the Planning Commission and City Council would conduct a review to determine whether and in what districts shelters should be specified in the Code. It was further provided that if, after one year, the Code had been changed to exclude such use in RG-0 areas or if sufficient problems arising from the shelter had caused hardships on the neighbors, the shelter would be required to relocate.

On April 29, 1986, the district in which the shelter was provisionally permitted was rezoned RS-3, a more restrictive residential designation. In January of 1987, the Board of Adjustment postponed a final disposition of the one-year review pending regulatory action by City Council. On January 26, 1987, City Council passed an ordinance defining group homes and designating them "Use Permitted on Review" in districts zoned RG-0 and RS-3. The ordinance also required group homes within the districts to be separated by a distance of 3,000 feet. Petitioner's shelter was located 1,650 feet from another group home.

At the February 1987 meeting, disposition of the review was again postponed until March of 1987 when the Board of Adjustment reconsidered the matter and voted on two questions: 1) Whether the Code had been changed to exclude group homes from RG-0 districts; and 2) whether there had been sufficient hardships in the neighborhood to require the shelter to move. The vote on each issue was three "yes" and three "no." The Chairman ruled that the Board of Adjustment had failed to make a definitive finding by a majority vote on either question; therefore, the shelter was permitted to remain on the initial site.

The record reflects that prior to the meeting at which the vote was taken, the Board of Adjustment considered complaints of hardships from the neighbors consisting of vehicles occasionally blocking driveways to adjacent dwellings, one instance of the police being called when an unattended infant was inadvertently locked inside the shelter, their concern about the shelter's negative impact on property values, and the potential for violence from relatives and friends of shelter occupants.

Respondents Annie Brock, Benita Howey, Mr. and Mrs. F.M. Duckworth and Mrs. Oma Barnes, residents of the neighborhood in which the shelter is located, petitioned the circuit court for a writ of certiorari pursuant to S.C.Code Ann. § 5-23-150 (1976). Certiorari was granted and after a hearing, the circuit court affirmed the action of the Board of Adjustment based upon the following conclusions:

1. That when the questions were not answered in the affirmative, the relief granted temporarily by a four-to-one vote in December, 1985, became permanent;

2. That the Board of Adjustment acted lawfully, within its discretion, and within its legal authority; and

3. That the conduct of the Board of Adjustment was not arbitrary or clearly erroneous.

Respondents again petitioned for a writ of certiorari. Their exceptions before the Court of Appeals were that the Board of Adjustment and Appeals erred: 1) In reversing the Zoning Administrator's decision when no hardship was alleged by the applicant; 2) in granting a provisional permit when the use requested by the applicant was not a permitted use listed under the RG-0 classification; 3) in not applying the 3,000 feet spacing requirement of Section 250.082 of the Group Home Ordinance to the applicant; 4) in that the Chairman ruled that a tie vote of three-to-three was in favor of the applicant; and 5) in allowing the applicant to stay on the site when there was a showing by the neighbors of hardships caused by the applicant's presence.

The petitioner filed an additional sustaining ground for the order of the circuit court asserting that the four-vote statutory minimum requirement for Boards of Adjustment to grant relief was impliedly repealed by the amendment to S.C.Code Ann. § 47-1007 (1962) as reflected in S.C.Code Ann. § 5-23-70 (Supp.1991) reducing the minimum number of members on such Boards from five to three.

The Court of Appeals reversed the circuit court, holding 1) that the initial permit granted the use for one year only and expired in December of 1986; 2) that in January of 1987, prior to any further action on petitioner's renewal, City Council enacted the ordinance requiring permits for group homes to be granted only upon review by the Board of Adjustment; and 3) that the applicable state statute and city ordinance require four concurring votes in favor of permitting the use in order to grant a permit. This review followed.

The issues before this Court concern whether or not the Court of Appeals erred: 1) In reversing the circuit court on grounds not raised by proper exceptions; 2) in considering an administrative review of a subordinate employee's action and applying to such review the more rigorous standards required of the Board of Adjustment when granting a zoning variance or a "use permitted on review" permit; and 3) in requiring four concurring votes in order to grant the petitioner a subsequent permit.

The petitioner asserts that respondents failed to frame proper exceptions in that they attributed no error to the circuit court, but merely attacked the Board of Adjustment's decision.

While the issue was raised and briefed by the Board of Adjustment and the City of Rock Hill, neither of which appealed the decision of the Appeals Court, the petitioner...