Conway v. City of Greenville, 19040
| Citation | 173 S.E.2d 648,254 S.C. 96 |
| Decision Date | 10 April 1970 |
| Docket Number | No. 19040,19040 |
| Court | United States State Supreme Court of South Carolina |
| Parties | Dera R. CONWAY, Appellant, v. The CITY OF GREENVILLE, S.C., David G. Traxler, Mayor of the City ofGreenville; and Gus M. Smith, Joe F. Jordan, Thomas O. Lawton, W. ThomasBrockman, Reginald C. White, Jr., and J. Kenneth Cass, Members of the CityCouncil of the City ofGreeville, S.C., Respondents. |
Wofford & Snyder, Greenville, for appellant.
W. H. Arnold, Greenville, for respondents.
Plaintiff-appellant seeks in this action to require The City of Greenville, South Carolina, to rezone a portion of her property so as to permit the construction and operation of a shopping center thereon--a nonconforming use under the zoning ordinances of the city. Her claim is based mainly upon the contention that the property was being used for commercial purposes, consistent with her present application, at the time of its annexation to the city and that she thereby acquired a vested right to continue to so use it. The issues were referred to the Master in Equity for Greenville County, who, after a hearing, filed a report recommending that the relief sought be granted. On exceptions to the circuit court, the report of the Master was reversed and the complaint dismissed. This appeal by the landowner followed. The material facts are not in dispute.
Appellant, between 1953 and 1957, purchased several adjoining tracts of land which, when consolidated, made a tract of approximately sixteen (16) acres fronting on By-Pass Highway No. 291 in Greenville County. When acquired, the back portion of approximately six (6) acres was located within the limits of the City of Greenville; but the front portion, situated adjacent to Highway No. 291 and consisting of approximately ten (10) acres, was not in the city limits. This appeal involves only the portion of the property lying outside the city limits when purchased.
The property, according to appellant's testimony, was acquired for the purpose of operating thereon, a construction business in which she and her husband (now deceased) were engaged. After the first purchases were made, they began the operation of their business on the land under the name of Conway Construction Company and it was later used by an affiliated company, the Conway-Calmes Construction Company. In 1954, an office building was completed on the property and subsequently two warehouses were constructed. In addition, a lake of approximately three or four acres in size was developed and two residences constructed adjacent thereto for use by members of the family. Other than these two residences for members of the owner's family, no other residential use has ever been made of the area involved in this appeal.
Appellant and her husband were engaged in a heavy steel erection and construction business. The business was a sizable operation, employing as many as two hundred (200) employees and owning considerable heavy equipment including motor and crawler cranes, draglines, air compressors, welding machines, trucks of various sizes, concrete pouring equipment, and equipment to repair boilers. In addition, heavy materials in considerable quantities were apparently accumulated in the operation of the business. While some equipment and materials could be stored in the warehouses, most of the equipment and some of the materials were too large and had to be parked or placed in the open on the property. Much of the suitable portions of the area were used at various times for the storage of materials and equipment, and most of the business activity was concentrated in the area next to Highway 291 and along the southern border on both sides of a street designated as Greenland Drive. This use extended along both sides of Greenland Drive to the full depth of the property. While, admittedly, all of the tract was not actually used for business purposes, the dimensions of such use were indefinite.
While the property was being used in the manner hereinabove related, the area involved in this appeal was annexed to the City of Greenville on September 24, 1963. Upon annexation to the city, the property was, pursuant to the zoning ordinances, automatically zoned for use in an 'A--1 Single-family dwelling district.' Shortly thereafter appellant applied to the city for a rezoning of all of her tract of land. On May 12, 1964 the City Council rezoned the front portion, along Highway 291, to a depth of 250 feet into an 'H Light industrial district'; but otherwise denied the application that all of the tract be so rezoned, leaving the remainder zoned in the 'A--1 Single-family dwelling district.' No appeal was taken from this action of the city. However, appellant, without interference by the city, continued to use the tract for the operation of the construction business just as it had been used prior to annexation.
Appellant later negotiated an agreement with interested parties for the construction of a shopping center fronting on Highway 291, which necessitated the use for such purpose of all of the area formerly lying outside the city limits. The plans for the shopping center will necessitate the removal of the residences occupied by the owner and the elimination of the lake. The portion of this area fronting on Highway 291 to a depth of 250 feet was already zoned 'H Light industrial' under which a shopping center was a permitted use. This area however was too small for the construction of the planned shopping center and, in order to proceed, it was necessary to have the additional area rezoned for commercial use. Appellant accordingly filed an application for the rezoning of the required area. She asked that the area, upon which the shopping center was to be located, be rezoned into an 'E--1 Shopping center district' which was a more restricted classification than the 'H Light industrial' classification into which the front 250 feet of the required property had been previously zoned.
While appellant's application for rezoning included a small area of her property which was located in the city limits at the time of its purchase by her, in view of the findings of the lower court and the exceptions, her right to use such area for commercial purposes is not involved in this appeal. The issues here, as previously noted, concern only the area located outside the city limits at the time of the purchase by appellant.
Appellant's rezoning application first went before the City Planning and Zoning Commission which unanimously recommended that it be granted and the property be rezoned as requested. Thereafter, the City Council rejected the application and recommendation of the zoning commission by a three to two vote. This action was thereafter timely brought by appellant.
The first and basic question to be decided concerns the right of appellant to use the entire property involved for business purposes.
We have held that, while a municipality has authority in the exercise of the police power to enact zoning ordinances restricting the use of privately owned property, such power is not unlimited and does not permit a municipality to impair or destroy vested property rights acquired prior to the annexation of property to the city. James v. City of Greenville, 227 S.C. 565, 88 S.E.2d 661. It was stated in the concurring opinion in the cited case that such power to restrict the use of privately owned property 'does not extend to the suppression or removal from a residence district of a lawful business already established there, in the absence of a factual showing that the continuance of such business would be detrimental to the public health, safety, morals or general welfare.'
The city agrees that under the foregoing principle appellant had the right to continue the operation of the construction business on the property after it was annexed to the city. The parties disagree however as to whether such commercial use is to be regarded as extending to the entire area annexed to the city. This is the issue which we must resolve.
The city contends that the business use of appellant's property was confined to a limited area and should not be extended to cover the entire tract. Appellant's position is that the nature of the business use of the land prior to its annexation to the city was such that she acquired a vested right to use the...
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...ordinance is clearly violative of constitutional rights, it is the duty of the court to so hold.") (quoting Conway v. City of Greenville, 254 S.C. 96, 101, 173 S.E.2d 648, 650 (1970)), rev'd on other grounds, 344 S.C. 43, 543 S.E.2d 538 (2001); Historic Charleston Found. v. Krawcheck, 313 S......
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