Fontaine v. Peitz, No. 22699

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtNESS; GREGORY, FINNEY, JJ., and LAWRENCE E. RICHTER, Jr.; CHANDLER
Citation291 S.C. 536,354 S.E.2d 565
PartiesWilliam A. FONTAINE, Appellant, v. H. Quinn PEITZ, Jr., Zoning Administrator, City of Charleston Board of Adjustment, Leonard Krawcheck, Henry B. Fishburne Jr., F. Daniel Batten, III, James J. Bailey, Sandra Campbell, Yvonne Evans, in their official capacity as Members of the Board of Adjustment and the City of Charleston, South Carolina, Respondents. . Heard
Decision Date21 January 1987
Docket NumberNo. 22699

Page 565

354 S.E.2d 565
291 S.C. 536
William A. FONTAINE, Appellant,
v.
H. Quinn PEITZ, Jr., Zoning Administrator, City of
Charleston Board of Adjustment, Leonard Krawcheck, Henry B.
Fishburne Jr., F. Daniel Batten, III, James J. Bailey,
Sandra Campbell, Yvonne Evans, in their official capacity as
Members of the Board of Adjustment and the City of
Charleston, South Carolina, Respondents.
No. 22699.
Supreme Court of South Carolina.
Heard Jan. 21, 1987.
Decided April 6, 1987.

Page 566

[291 S.C. 537] Nancy D. Hawk, Charleston, for appellant.

Robert G. Clawson, Jr. of Clawson and Staubes, Charleston, for respondents.

NESS, Chief Justice:

This is an appeal from an order which upheld the Charleston Board of Adjustment's denial of a zoning variance requested by appellant Fontaine. We remand for further proceedings.

Fontaine bought a home at 37 State Street in Charleston in 1958. Through the years, Fontaine occasionally rented rooms to visitors on a "bed and breakfast" arrangement. In 1984, the City of Charleston adopted a zoning ordinance which required a business license for the operation of bed and breakfast establishments.

Fontaine applied for a business license, asserting he qualified under the provisions of the ordinance permitting a bed and breakfast operation in a structure used by the owner as his primary residence. In the alternative, he sought a variance from the ordinance based on his prior [291 S.C. 538] nonconforming use of the property.

After a hearing, the board of adjustment denied Fontaine's applications, finding 37 State Street was not Fontaine's primary residence, and any prior nonconforming use had been interrupted. Based on the record before him, the trial judge affirmed the decision of the board.

Fontaine asserts the trial judge erred in failing to consider his request to offer additional testimony.

A review of the decision of a zoning board is by writ of certiorari to the circuit court. S.C.Code Ann. Section 5-23-150 (1976). A writ of certiorari is appellate in nature when used for purposes of reexamining the action of an inferior tribunal. Moses v. South Carolina Highway Department, 258 S.C. 233, 187 S.E.2d 888 (1972).

However, upon review of a decision of the board of adjustment, the court may take testimony if it appears necessary. S.C.Code Ann. Section 5-23-160 (1976). The statute does not authorize a trial de novo; rather, it gives the reviewing court the authority to supplement the record to make an...

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44 practice notes
  • Williamson v. Middleton, No. 4243.
    • United States
    • Court of Appeals of South Carolina
    • 7 Mayo 2007
    ...of fact, an appeal will not prevail if the findings 649 S.E.2d 62 of fact are supported by any competent evidence."); Fontaine v. Peitz, 291 S.C. 536, 538, 354 S.E.2d 565, 566 (1987) ("An abuse of discretion occurs when the judge's ruling is based upon an error of law or when based upon fac......
  • Creighton v. Coligny Plaza Ltd., No. 2909.
    • United States
    • Court of Appeals of South Carolina
    • 30 Noviembre 1998
    ...an appellant shows that the lower court's conclusion is based upon an error of law or without evidentiary support. Fontaine v. Peitz, 291 S.C. 536, 354 S.E.2d 565 (1987). "When a trial judge is vested with discretion, but his ruling reveals no discretion was, in fact, exercised, an error of......
  • Ex Parte Capital U-Drive-It, Inc., No. 26147.
    • United States
    • United States State Supreme Court of South Carolina
    • 8 Mayo 2006
    ...exercised; or when the ruling does not fall within the range of permissible decisions applicable in a particular case. Fontaine v. Peitz, 291 S.C. 536, 539, 354 S.E.2d 565, 566 (1987); S.E.C. v. TheStreet.Com, 273 F.3d 222, 229 n. 6 (2d In a case raising a novel question of law, the appella......
  • Fields v. REGIONAL MEDICAL CTR. ORANGEBURG, No. 25939.
    • United States
    • United States State Supreme Court of South Carolina
    • 14 Febrero 2005
    ...conclusion that is without evidentiary support. Carlyle v. Tuomey Hosp., 305 S.C. 187, 193, 407 S.E.2d 630, 633 (1991); Fontaine v. Peitz, 291 S.C. 536, 538, 354 S.E.2d 565, 566 (1987). A trial court's ruling on the admissibility of an expert's testimony constitutes an abuse of discretion w......
  • Request a trial to view additional results
44 cases
  • Williamson v. Middleton, No. 4243.
    • United States
    • Court of Appeals of South Carolina
    • 7 Mayo 2007
    ...of fact, an appeal will not prevail if the findings 649 S.E.2d 62 of fact are supported by any competent evidence."); Fontaine v. Peitz, 291 S.C. 536, 538, 354 S.E.2d 565, 566 (1987) ("An abuse of discretion occurs when the judge's ruling is based upon an error of law or when based upon fac......
  • Creighton v. Coligny Plaza Ltd., No. 2909.
    • United States
    • Court of Appeals of South Carolina
    • 30 Noviembre 1998
    ...an appellant shows that the lower court's conclusion is based upon an error of law or without evidentiary support. Fontaine v. Peitz, 291 S.C. 536, 354 S.E.2d 565 (1987). "When a trial judge is vested with discretion, but his ruling reveals no discretion was, in fact, exercised, an error of......
  • Ex Parte Capital U-Drive-It, Inc., No. 26147.
    • United States
    • United States State Supreme Court of South Carolina
    • 8 Mayo 2006
    ...exercised; or when the ruling does not fall within the range of permissible decisions applicable in a particular case. Fontaine v. Peitz, 291 S.C. 536, 539, 354 S.E.2d 565, 566 (1987); S.E.C. v. TheStreet.Com, 273 F.3d 222, 229 n. 6 (2d In a case raising a novel question of law, the appella......
  • Fields v. REGIONAL MEDICAL CTR. ORANGEBURG, No. 25939.
    • United States
    • United States State Supreme Court of South Carolina
    • 14 Febrero 2005
    ...conclusion that is without evidentiary support. Carlyle v. Tuomey Hosp., 305 S.C. 187, 193, 407 S.E.2d 630, 633 (1991); Fontaine v. Peitz, 291 S.C. 536, 538, 354 S.E.2d 565, 566 (1987). A trial court's ruling on the admissibility of an expert's testimony constitutes an abuse of discretion w......
  • Request a trial to view additional results

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