Dewberry 334 Meeting St. LLC v. City of Charleston, 2021-UP-360

• Court: Court of Appeals of South Carolina
• Writing for the Court: PER CURIAM
• Parties: Dewberry 334 Meeting Street, LLC, Respondent, v. City of Charleston and Board of Zoning Appeals-Zoning, Appellants.
• Decision Date: 20 October 2021
• Docket Number: Appellate Case 2018-000378,2021-UP-360

Dewberry 334 Meeting Street, LLC, Respondent,
v.
City of Charleston and Board of Zoning Appeals-Zoning, Appellants.

No. 2021-UP-360

Appellate Case No. 2018-000378

Court of Appeals of South Carolina

October 20, 2021

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

Heard September 15, 2020

Appeal From Charleston County J. C. Nicholson, Jr., Circuit Court Judge

Frances Isaac Cantwell and Daniel Simmons McQueeney, Jr., both of Charleston, for Appellants.

John Phillips Linton, Jr. and George Trenholm Walker, both of Walker Gressette Freeman & Linton, LLC, of Charleston, for Respondent.

PER CURIAM

The City of Charleston (City) and Board of Zoning Appeals-Zoning (BZA) (collectively, Appellants) appeal the order of the circuit court vacating the BZA's decision and declaring Dewberry 334 Meeting Street, LLC

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(Dewberry) has the legal right to certain accessory uses on the eighth floor of its hotel. We reverse.

1. We agree with Appellants' argument that the circuit court erred in holding the City's zoning ordinances did not prohibit Dewberry from adding new accessory uses to the hotel building without first obtaining BZA approval.

"Issues involving the construction of ordinances are reviewed as a matter of law under a broader standard of review than is applied in reviewing issues of fact." Mitchell v. City of Greenville, 411 S.C. 632, 634, 770 S.E.2d 391, 392 (2015). "The cardinal rule of statutory interpretation is to ascertain and effectuate the legislative intent whenever possible." Id. "When interpreting an ordinance, legislative intent must prevail if it can be reasonably discovered in the language used." Id. "An ordinance must receive a practical, reasonable, and fair interpretation consonant with the purpose, design, and policy of the lawmakers." Id. "The statutory language must be construed in light of the intended purpose of the statute." Florence Cnty. Democratic Party v. Florence Cnty. Republican Party, 398 S.C. 124, 128, 727 S.E.2d 418, 420 (2012). The appellate court "will not construe a statute in a way which leads to an absurd result or renders it meaningless." Id. "[I]t is well-settled that statutes dealing with the same subject matter are in pari materia and must be construed together, if possible, to produce a single, harmonious result." Beaufort County v. S.C. State Election Comm'n, 395 S.C. 366, 371, 718 S.E.2d 432, 435 (2011). "[W]here two provisions deal with the same issue, one in a general and the other in a more specific and definite manner, the more specific prevails." Mikell v. County of Charleston, 386 S.C. 153, 160, 687 S.E.2d 326, 330 (2009).

According to section 54-220 of the City of Charleston Code of Ordinances (2016), ^[1]accommodation uses were only allowed in the A Overlay Zone^[2] and only with approval of the BZA. The ordinance explained the intent of the City as follows: "The City places a high value on the preservation of the character of its residential neighborhoods. Potential negative impacts affecting residential neighborhoods shall be avoided or minimized to the greatest extent possible." Section 54-220 required an applicant to provide site plans, floor plans, building elevations, and a detailed written assessment report to the BZA for its consideration. This information must have included "the proximity of residential neighborhoods to the

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facility" and "the accessory uses proposed for the facility in terms of the size, impact on parking, and impact on traffic generation[.]" In addition, section 54-925 of the City of Charleston Code of Ordinances (2016) provided, "In granting an exception or a variance, the [BZA] may attach to it such conditions regarding the location, character or other features of the proposed building, structure, or use as the [BZA] may consider advisable to protect established property values in the surrounding area, or to promote the public health, safety, or general welfare."

The zoning ordinances clearly authorized the BZA to consider all of the plans for a hotel, including all of the accessory uses. In addition, the ordinances authorized the BZA to place conditions on accessory uses. This authorization would have been meaningless if a hotel could add or change accessory uses without seeking BZA approval for such alterations. Under the circuit court's interpretation of the ordinances, a hotel, such as Dewberry, could submit plans for a special exception that did not include any objectionable accessory uses and then, after receiving BZA approval, include in the construction a use the BZA would not have approved. We find such an interpretation does not comport with the intent of the zoning ordinance, which had the stated goal of preserving the character of the City's residential neighborhoods and sought to avoid or minimize potential negative impacts affecting residential neighborhoods to the greatest extent possible.

We find the circuit court erred in holding that a property owner was entitled to all accessory uses that accompanied a principal use. The circuit court relied on section 54-203 of the City of Charleston Code of Ordinances (2016), which addressed permitted principal uses and provided, "Accessory uses, which for the purposes of this Chapter are defined as uses of land or of a building or portion thereof which are customarily incidental and subordinate to a principal use located on the same lot or parcel, are allowed . . . ." This definition was in the general ordinance concerning permitted principal uses. The more specific ordinances concerning special exceptions for accommodation uses and granting the BZA authority over accessory uses prevail over this general definition. See Mikell, 386 S.C. at 160, 687 S.E.2d at 330 (stating "where two provisions deal with the same issue, one in a general and the other in a more specific and definite manner, the more specific prevails").

We agree with Appellants' argument that the circuit court erred in interpreting the 2011 special exception permit and conditions contained therein as tacit permission for Dewberry to add new accessory uses to the eighth floor and rooftop. The circuit court stated, "If the BZA desired to condition its accommodations use for this location at 334 Meeting Street on the prohibition of uses like a function,

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reading room, pantry or small bar/restaurant inside the eighth floor, then it could have crafted such a condition as part of its approval." As stated above, the zoning ordinance charged the BZA with the authority to review site plans, floor plans, building elevations, and a detailed written assessment report. This information must include "the accessory uses proposed for the facility in terms of the size, impact on parking, and impact on traffic generation." The BZA evaluated an application based on the detailed information the applicant provided to it. It was not charged with anticipating any and all possible accessory uses and prohibiting uses it was not asked to consider.

While the circuit court correctly found that a hotel would not be irrevocably bound by the conceptual floor plans presented to the BZA, Appellants never advocated such an inflexible position. Appellants explain in their brief to this court that although "the Zoning Administrator referred to the approved uses shown on the floor plans as being 'set in stone,' . . . this comment was qualified several times with explanations that changes would be locked in unless Dewberry received an amended special exception for the completely new accessory uses." The BZA's approval of a rooftop pool did not require Dewberry to complete an unfeasible project. However, before Dewberry could construct alternative accessory uses, it was required to submit its revised plans to the BZA to allow the BZA the opportunity to exercise its authority as granted in the ordinances. We find Appellants' interpretation reasonable. See Mitchell, 411 S.C. at 634, 770 S.E.2d at 392 ("An ordinance must receive a practical, reasonable, and fair interpretation consonant with the purpose, design, and policy of the lawmakers.")

We therefore hold the circuit court erred...