Dolive v. J.E.E. Developers, Inc., 1811

• Decision Date: 09 March 1992
• Docket Number: No. 1811,1811
• Citation: 418 S.E.2d 319,308 S.C. 380
• Parties: Earl DOLIVE and the City of North Myrtle Beach, SC, a municipal Corporation, Appellants, v. J.E.E. DEVELOPERS, INC., and the Zoning Board of Appeals of the City of North Myrtle Beach, Billy Smith, Eddie Williams and Jim Grappo, Respondents. . Heard
• Court: South Carolina Court of Appeals

Page 319

418 S.E.2d 319

308 S.C. 380

Earl DOLIVE and the City of North Myrtle Beach, SC, a municipal Corporation, Appellants, v. J.E.E. DEVELOPERS, INC., and the Zoning Board of Appeals of the City of North Myrtle Beach, Billy Smith, Eddie Williams and Jim Grappo, Respondents.

No. 1811.

Court of Appeals of South Carolina.

Heard March 9, 1992.

Decided May 11, 1992.

Louis M. Cook, North Myrtle Beach, and Roy D. Bates, Columbia, for appellants.

Preston B. Haines, III and Howell V. Bellamy, Jr., Myrtle Beach, for respondents.

SHAW, Judge:

The North Myrtle Beach Zoning Board of Appeals granted J.E.E. a variance in offsite parking requirements for commercial use of a beachfront lot and the circuit court affirmed. Dolive and the City of North Myrtle Beach appeal. We affirm.

The issues before us on appeal are whether the circuit court erred in (1) allowing additional matters into the record on appeal from the Zoning Board and (2) affirming the Zoning Board's decision as it was an error as a matter of law and was unsupported by the evidence. ¹

J.E.E. owns property in North Myrtle Beach on which it planned to build an 80 unit motel. However, the 1988 Beachfront Management Act was subsequently passed resulting in the loss of approximately 62 feet of the property in question. This loss of 62 feet prevented J.E.E. from complying with the North Myrtle Beach Zoning Ordinance which mandated a minimum of 75 percent of required parking be on-site. Thereafter, J.E.E. applied for a variance, seeking to construct a 56 unit motel with 39 percent on-site parking and the remainder of the required parking located on a lot directly across the street. ²

Following a hearing on the matter, the Board found J.E.E. had purchased the property prior to the enactment of the Beachfront Management Act and, at that time, could have located 75 percent of the required parking on-site. However, the Act's set-back requirement reduced the depth of the lot by 62 feet, forcing J.E.E. to lose the space for most of the required parking. The Board found this caused an unnecessary hardship on J.E.E. and voted to grant the variance upon certain conditions.

Dolive and the City appealed. The circuit court signed a form order affirming the Board. Appellants timely filed a notice of intent to appeal and the respondents timely filed a motion under Rule 59(e), SCRCP requesting reconstruction of the record and a full written order. ³ J.E.E. asserted the full factual evidence presented to the Board was not included in the record through a clerical error. At a hearing before the court, J.E.E.'s counsel indicated the record of the proceedings before the Zoning Board did not contain any of the evidentiary presentation made before the Board because of some problem in the recording of the testimony presented. He indicated portions of the tape were incapable of being transcribed and asked that he be allowed to reconstruct the record. The court requested affidavits from the Board's chairman and witnesses who testified. The appellants suggested a remand for a hearing de novo, but the court declined to do so and instructed J.E.E. to obtain the affidavits and give them to the appellants for objections, allowing the appellants to get counter-affidavits. The court agreed to allow J.E.E. to reconstruct the record.

J.E.E. submitted the affidavit of Cary McLeod, former Board chairman. The court ruled this affidavit satisfied the deficiency in the record certified to the court. The affidavit contained the following:

1. J.E.E. was impacted by the Act which, in effect, reduced the property available for parking;

2. Any decision reached for J.E.E. would have no effect on other requested variances;

3. In considering extraordinary and exceptional conditions, witnesses testified they were extraordinary and exceptional to this property because the Act effectively reduced the land available for use by over 60 feet;

4. Witnesses testified application of the 75 percent on- site parking would cause unnecessary hardship to J.E.E. because the Act had caused J.E.E. to reduce its project twice from 80 units to the proposed 56 units;

5. J.E.E. provided evidence of the purchase price of the property, its current value, and the various expenses already incurred in attempting to use the property, and as to the fact that a parking deck was not economically feasible;

6. Witnesses indicated the Act's application to this lot was unique in that it caused the lot to lose 60 feet of the oceanmost portion of land;

7. In considering whether the variance would cause substantial detriment to the public good, J.E.E. provided evidence that the area was zoned as a motel area consistent with J.E.E.'s proposed use, J.E.E.'s proposed building would increase the value of adjacent property, and there would be little if no impact on traffic and safety considerations given the geography of the area.

Appellants first contend the circuit court erred in allowing...