City Ice Delivery Co. v. Zoning Bd. of Adjustment for Charleston County, 19780

• Decision Date: 04 March 1974
• Docket Number: No. 19780,19780
• Citation: 203 S.E.2d 381,262 S.C. 161
• Court: South Carolina Supreme Court
• Parties: CITY ICE DELIVERY COMPANY, Respondent, v. ZONING BOARD OF ADJUSTMENT FOR the COUNTY OF CHARLESTON et al., Appellants.

Page 381

203 S.E.2d 381

262 S.C. 161

CITY ICE DELIVERY COMPANY, Respondent, v. ZONING BOARD OF ADJUSTMENT FOR the COUNTY OF CHARLESTON et

al., Appellants.

No. 19780.

Supreme Court of South Carolina.

March 4, 1974.

Ben Scott Whaley and Leonard L. Long, Jr., Charleston, for appellants.

Cody W. Smith, Jr., of Solomon, Solomon, Kahn & Roberts, Charleston, for respondent.

LEWIS, Justice:

The question to be decided is whether the respondent is prohibited by the Charleston County Zoning Ordinance from selling gasoline in connection with the operation of a food store at 2388 Otranto Road, Charleston Heights, South Carolina.

The County of Charleston adopted a zoning ordinance on August 3, 1971, effective August 15, 1971. Respondent purchased the lot in question by deed dated August 4, 1971, approximately eleven (11) days prior to the effective date of the ordinance. The property is located in an area zoned for single-family residential use.

Admittedly, respondent obtained a building permit for the construction of a food store on its property and began construction of the building prior to the effective date of the zoning ordinance, thereby entitling it to operate the food store as a legal non-conforming use in the residential area. However, after the effective date of the ordinance, respondent began the installation of facilities for the self-service sale of gasoline on the premises, which resulted in this litigation. The Building Inspector refused to permit respondent to install gasoline pumps at the food store, taking the position that the sale of gasoline was not a part of the operation of a food store, but constituted a separate, non-conforming use in violation of the zoning ordinance.

Upon the refusal of the Building Inspector to permit the installation of the gasoline pumps, respondent filed a formal appeal to the Zoning Board of Adjustment on December 28, 1972, in which it sought the right to install gasoline facilities, alleging that the sale of gasoline was an integral part of the business operation planned for the location as evidenced by the original plot plan, and that the building permit was issued by the county authorities with knowledge of the fact that respondent intended to so use the premises. Respondent contends that, under all of the facts, it acquired, prior to the effective date of the zoning ordinance, a vested property right to use the premises for the sale of gasoline. In the alternative, respondent petitioned the Zoning Board of Adjustment for a variance to permit such use of the premises.

The Zoning Board of Adjustment heard the appeal on February 7, 1972 and denied the same 'on the grounds that the store is a non-conforming use and the addition of gas pumps would be an extension of this use and would be illegal under the zoning ordinance.' In addition, the Board held that it was without authority to grant respondent's alternative request for a variance.

Upon respondent's appeal to the circuit court, the decision of the Board of Adjustment was reversed and respondent was granted authority to proceed with the installation of self-service gasoline facilities at its food store. The lower court did not consider respondent's alternate request for a variance and, although argued, it has not been preserved as an issue in this appeal.

The Zoning Board of Adjustment, together with The Charleston County Planning Board and the Building Inspector for the county, against whom this action is prosecuted, have appealed from the decision of the lower court.

The extent of judicial review of the decision of the Board of Adjustment is governed by statute. Section 14--379, 1962 Code of Laws, as amended, provides for the hearing of appeals by the circuit court and states:

'. . . The finding of fact by the board of adjustment shall be final and conclusive on the hearing of such appeal. In determining the questions presented by the appeal the court shall determine only whether the decision of the board of adjustment is correct as a matter of law.'

Therefore, the factual findings of the Board of Adjustment must be affirmed if there is any evidence to support them and are not influenced by an error of law.

There can be no doubt that the operation of a food store and the sale of gasoline are separate uses within the meaning of the zoning ordinance and that both are non-conforming uses in the area zoned for residential purposes.

The evidence sustains the specific factual findings of the Board that no gasoline pumps or tanks had been installed, no specific permission had been obtained to install gasoline tanks, and no electrical plans had been submitted by respondent for the wiring of gasoline pumps, prior to August 15, 1971, the effective date of the zoning ordinance. There is also evidence that no gasoline tanks or equipment were purchased by respondent prior to the above date.

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