Gurganious v. City of Beaufort, 2304

• Court: Court of Appeals of South Carolina
• Citation: 317 S.C. 481,454 S.E.2d 912
• Decision Date: 07 December 1994
• Docket Number: No. 2304,2304
• Parties: Jessie GURGANIOUS, Sr., Appellant, v. CITY OF BEAUFORT and City of Beaufort Board of Architectural Review, Respondents. . Heard

Page 912

454 S.E.2d 912 317 S.C. 481 Jessie GURGANIOUS, Sr., Appellant,
v.
CITY OF BEAUFORT and City of Beaufort Board of Architectural
Review, Respondents. No. 2304. Court of Appeals of South Carolina. Heard Dec. 7, 1994.
Decided Feb. 13, 1995.
Rehearing Denied March 15, 1995.
Certiorari Denied November 6, 1995.

Page 913

James H. Moss and H. Fred Kuhn, Jr., both of Moss & Kuhn, Beaufort, for appellant.

William B. Harvey, III, of Harvey & Battey, Beaufort, for respondents.

HOWARD, Acting Judge:

Jessie Gurganious, Sr., appeals from a circuit court order upholding the decision of the Board of Architectural Review (BOAR) for the City of Beaufort, which denied Gurganious's application for a certificate of appropriateness to erect a chain link fence on property in the Historic District. We affirm.

Gurganious owns a corner lot in the City's Historic District at the intersection of Boundary and Charles Streets. Prior to August 1, 1988, a home was located on the lot, and a fence surrounded the back portion of the lot, joining two corners of the home.

On August 1, 1988, fire destroyed the home and the fence. From August 1, 1988 until April 1991 there was no fence on the northern and western boundaries of the lot.

Gurganious operates a taxicab business and wrecker service from a building on a lot adjacent to the subject property. In 1991, the City notified Gurganious of complaints of wrecked and inoperable cars left on the right-of-way of Charles Street. In April 1991, Gurganious built a 6 to 8 foot high chain link fence, with a roll-back gate, along the northern and western boundaries of the property. Gurganious had neither a City building permit nor a certificate of appropriateness from the BOAR to erect the chain link fence.

On May 7, 1991, Michael DuBois, director of the Beaufort Department of Codes Enforcement, notified Gurganious that the fence violated the City's zoning laws. Gurganious wrote DuBois stating he had erected the fence as a replacement for the one destroyed when the home burned and he would have the fence "screened" as soon as possible. Gurganious also requested a ninety day extension in which to resolve the problem. Eighty-three days later DuBois wrote Gurganious and enclosed an application to the BOAR for Gurganious to seek approval of the fence. On August 5, 1991, Gurganious applied to the BOAR for an after-the-fact approval and certificate of appropriateness for the fence.

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The BOAR wrote Gurganious on September 12, 1991, advising him the application was denied "because the chain link fence doesn't fit the guidelines of the Beaufort Preservation Manual and Supplement." The BOAR advised Gurganious to remove the fence immediately.

Gurganious petitioned the circuit court for review of the decision. Because the record was incomplete and did not allow for adequate review, the court remanded the case to the BOAR for a hearing de novo. The court ordered the BOAR to create a record and prepare an order, with findings of fact and conclusions of law, which would enable the court to intelligently review the case on appeal.

Following remand, the BOAR conducted a hearing and again denied Gurganious's application. In its letter to Gurganious, the BOAR outlined the following reasons for denying his application:

(1) Even if the fence replaced an existing fence which had been destroyed, the prior fence was destroyed over one year prior to the construction of the new fence, so that the nonconforming use lost its "grandfathered" status under § 5-6108(2) of the City Ordinance.

(2) The new fence was located in a different place than the prior fence, so that it was a "new construction."

(3) Gurganious did not obtain permission from the BOAR or a building permit to construct the fence. Even if DuBois had told Gurganious he could build the fence (which DuBois denied), he would have had no authority to issue a permit because the fence violated § 5-6120 of the City Ordinances in that it obstructed driver vision between the heights of three and ten feet within twenty-five feet of the intersection of the street right-of-way. In any event, the BOAR found as a fact DuBois made no such representation.

(4) The existing fence was accordingly constructed without a building permit and without a certificate of appropriateness from the BOAR. The Beaufort Preservation Manual (Milner Report) and its Supplement, which the BOAR uses as a guideline for its considerations, do not recommend use of chain link fences at corner properties within the Historic District. The BOAR held the guideline should be followed in this case.

Accordingly, the BOAR ordered Gurganious to remove the fence.

Gurganious once again sought judicial review of the BOAR's decision. The court affirmed the BOAR's conclusion that the fence was not a grandfathered nonconforming use, noting that whatever fence existed prior to April 1991 had been destroyed over one year before. The court also noted a factual dispute existed over whether DuBois told Gurganious and his son they could construct a replacement fence. The court added that even if DuBois had made this representation, construction still required a building permit and under § 5-6120 DuBois could not have issued one for the fence. The court also found the BOAR based its decision on the Milner Report's recommendation against chain link fences. The court concluded the BOAR's action was supported by substantial evidence and had a legal basis, and accordingly the decision was affirmed. This appeal followed.

I.

Initially, Gurganious argues the trial court used an improper standard of review. South Carolina Code Ann. § 5-23-340 (1976) allows the circuit court to issue a writ of certiorari to review a decision by a board of architectural review. Gurganious correctly notes the scope of review under this process includes the authority to correct errors of law, as well as findings of fact which are not supported by the evidence. Gurganious asserts the trial court employed a higher standard which he claims is only applicable to zoning legislative action, whereby a decision is reversed only if it is found to be arbitrary

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and unreasonable, and the decision of the board must be upheld as long as it is "fairly debatable." See Knowles v. City of Aiken, 305 S.C. 219, 407 S.E.2d 639 (1991).

In Talbot v. Myrtle Beach Bd. of Adjustment, 222 S.C. 165, 72 S.E.2d 66 (1952), the seminal case addressing review of zoning decisions in this state, the Supreme Court reviewed a circuit court decision based upon a writ of certiorari. There, the court recognized the wide discretion granted to zoning boards and ruled the boards' decisions should not be interfered with unless arbitrary. Id. In Hodge v. Pollock, 223 S.C. 342, 348, 75 S.E.2d 752, 754-55 (1953), in which the Supreme Court similarly reviewed a circuit court decision based on a writ of certiorari to a zoning board, the court quoted 58 Am.Jur. Zoning Section 231, saying, "[T]he decision of the zoning board will not be upheld where it is based on errors of law, or fraud, or where there is no legal evidence to support it, or where the board acts arbitrarily or unreasonably, or in a discriminatory manner or where, in general, the board has abused its discretion." More recently, in Fontaine v. Peitz, 291 S.C. 536, 538, 354 S.E.2d 565,...