Central Realty Corp. v. Allison

• Decision Date: 29 January 1951
• Docket Number: No. 16457,16457
• Citation: 218 S.C. 435,63 S.E.2d 153
• Parties: CENTRAL REALTY CORPORATION v. ALLISON, Building Inspector, City of Greenville.
• Court: South Carolina Supreme Court

Page 153

63 S.E.2d 153

218 S.C. 435

CENTRAL REALTY CORPORATION v. ALLISON, Building Inspector, City of Greenville.

No. 16457.

Supreme Court of South Carolina.

Jan. 29, 1951.

Love, Thornton & Blythe, Greenville, for appellant.

Wesley Walker and Mann, Arnold & Mann, all of Greenville, for respondent.

LIDE, Acting Associate Justice.

This action was brought in the Greenville County Court to determine the validity of an amendment to the zoning ordinance of the City of Greenville, by which all limitations as to the height of buildings and density of population were removed from the area in question. The action was commenced on July 10, 1950; and after the joinder of issue the cause was by agreement of counsel heard on its merits before Hon. W. B. McGowan, County Judge, without a jury, on July 17, 1950; and thereafter, to wit, on July 28, 1950, he handed down his order to the effect that the amended is valid, and that the complaint should be dismissed with costs. The case comes before us upon appeal from that order.

There was no oral testimony given at the hearing before the trial Judge, since the evidence consists mainly of matters of record, and is really undisputed. Our decision depends upon the application, to the admitted facts, of the zoning law contained in the statutes and in the ordinances of the City of Greenville. A recital of the relevant statutes and ordinances, as well as the basic facts, will clarify the issues.

The statutory law relating to the zoning of municipalities will be found in Sections 7390 to 7398, both inclusive, in the 1942 Code; and reference will now be made to some of the provisions of this appropriate legislation. Authority is thereby given to the legislative bodies of cities and incorporated villages, for the promotion of the general welfare of the community, to regulate and restrict in certain respects, by ordinance, the location and use of buildings, structures and land for trade, industry, residence or other purposes; and to this end, the local legislative body may divide the municipality into districts of such number, shape and area, as may be deemed best suited to effectuate the purposes of the zoning statute.

It is further provided (in Section 7392) that such regulations 'shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view of conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality.'

It is also provided (in Section 7393) that the legislative body of any such municipality shall provide for the manner in which such regulations and restrictions shall be determined, established and enforced, and that the same may from time to time be amended, supplemented or changed; and it is further provided in this section as follows: 'However, no such regulation, restriction or boundary shall become effective until after a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. At least fifteen days' notice of the time and place of such hearing shall be published in an official paper, or a paper of general circulation, in such municipality.'

The whole of Section 7394 is also quite material in the consideration of the case before us, and is therefore quoted in full as follows: 'Such regulations, restrictions and boundaries may from time to time be amended, supplemented, changed, modified or repealed. In case, however, of a protest against such change signed by the owners of twenty per cent. or more either of the area of the lots included in such proposed change, or of those immediately adjacent in the rear thereof, or of those directly opposite thereto, such amendment shall not become effective except by the favorable vote of three-fourths of all the members of the legislative body of such municipality. The provisions of the previous section relative to public hearings and official notice shall apply equally to all changes or amendments.'

There are other provisions in the statutory zoning law, to which brief reference will now be made. Section 7395 provides for the appointment, by the legislative body of the municipality, of a zoning commission; stating that where a city plan commission already exists, it may be appointed as the zoning commission. And Section 7396 provides for the appointment of a board of adjustment; and also clearly contemplates the appointment of an administrative officer with important official duties; and this section expressly provides that appeals may be taken to the board of adjustment from any decision of such administrative officer.

Pursuant to the statutory zoning law aforesaid, the City Council of the City of Greenville on July 25, 1944, duly enacted a comprehensive and well prepared zoning ordinance, which is before the Court, under the stipulation of counsel as contained in the record. This ordinance, among many other things, divided the city into various districts, including the particular district involved in this litigation, which is described as 'H' Light Industrial; and it is provided with reference to this district that no building shall exceed six (6) stories or seventy-five (75) feet in height; and that lots upon which multiple apartment buildings are located shall contain an area of not less than 1,500 square feet per family; this latter provision being commonly referred to as the density of population regulation.

On March 23, 1948, Article XIX of the city zoning ordinance was amended by adding the following paragraph relating to a written protest, for which provision had previously been made in accordance with the statute, signed by the owners of twenty per cent. or more of the property affected by the proposed change. 'The written protest, as provided for, shall be filed with the City Clerk not later than five days before the date set in the notice for the public hearing before the City Council in order that the City Engineering Department may have an opportunity to check the percentage of frontage in the three above named locations owned by those protesting.'

The city zoning ordinance also provides in Article XX, Section 1: 'It shall be the duty of the building inspector to enforce this ordinance.' And it is further provided in this section that appeal from the decision of the building inspector may be made to the Board of Adjustment as previously provided in Article XIV.

While the zoning ordinance contains no such amendment, the transcript of record shows that at a special meeting of the City Council held March 17, 1948, a motion which may be deemed a resolution was adopted to the effect 'that in the future when property in the City is rezoned, the City Clerk and Treasurer be instructed to notify all property owners affected by such change in order that they may appear for or against the proposed amendment to the Zoning Ordinance.' And the resolution was amended so as also to provide that the 'Secretary of the Zoning Commission notify those affected by the contemplated change in the Zoning Ordinance.'

The record shows that the 'City Planning and Zoning Commission recommended an amendment to said zoning ordinance relating to said area to the extent of removing said restrictions as to height of buildings and density of population.' And the record also shows that the City Council caused to be published in The Greenville Piedmont on May 25, 1950, a notice to the effect that a public hearing would be held in the City Council Chambers at 7:30 P.M. on the 13th day of June, 1950, 'at which time all interested parties, residents and property owners would be heard for and against the proposed amendment.' And the notice accurately described the area concerned, and set out in detail the particular proposed amendment, to wit: 'the removal of the regulation as to the height of buildings and density of population.' This advertised notice was the only notice given.

Pursuant to this notice the meeting was held on June 13, 1950, as advertised, at which persons opposing or favoring the proposed amendment were duly heard by the City Council. The hearing, however, was not concluded at this time, but was adjourned to June 20th, at 7:30 P.M., when the hearing, pro and con, with reference to the proposed amendment, was completed; after which the amendment was passed by a majority vote on the first reading. Subsequently, and in due course, the amendment was passed as second and third readings upon a majority vote, and thereupon became effective. The amendment, however, was not adopted on any of the readings by a three-fourths vote of all the members of the legislative body.

No written protest was filed five days before the date set in the notice for the public hearing, to wit, June 13, 1950; and in fact no such protest was filed until June 20, 1950, when at 4 P.M. on that day such a protest was filed with the City Clerk, and the same appears to have been signed by considerably more than twenty per cent. of the owners affected. This protest, not having been timely filed, as required by law, was deemed by the City Council to be ineffective for the purpose of requiring a three-fourths favorable vote of all the members of the municipal legislative body.

After the happenings above recounted, this action was brought by the plaintiff, which owns real estate in the area affected by the amendment in question, and the same purports to be brought on behalf of itself and all others similarly situated, who shall come in; but none seems to have done so. The complaint sets forth the pertinent facts, and indicates that the plaintiff contends that the action taken by the City Council was invalid because no proper notice was given of the public hearing, and also that the written protest was duly and timely filed, under a proper construction of the applicable law, and hence that the amendment could not be effective, because it was not...