Harbit v. City of Charleston

Decision Date25 February 2009
Docket NumberNo. 4511.,4511.
Citation675 S.E.2d 776
CourtSouth Carolina Court of Appeals
PartiesJeffrey HARBIT, Thomas L. Harbit, Plaintiffs, of whom Jeffrey Harbit is Appellant, v. CITY OF CHARLESTON, City of Charleston Planning Department, Respondents.

Thomas R. Goldstein, of North Charleston, for Appellant.

Timothy Alan Domin, of Charleston, for Respondents.


In this appeal, Jeffrey Harbit (Harbit) argues that the circuit court improperly granted summary judgment in favor of the City of Charleston (the City) on several claims stemming from the City's refusal to rezone Harbit's single family residential property for limited commercial use. We affirm.


Harbit is the owner of property located at 7 Wesley Drive, which is within the City's limits. The property is on the corner of Wesley Drive and Stocker Drive. The house at 7 Wesley Drive faces Wesley Drive with a rear entrance and driveway accessible only from Stocker Drive. Wesley Drive is a five-lane thoroughfare, connecting Folly Road to Highways 17 and 61. Stocker Drive is a purely residential street, which may be accessed from the heavier-traveled Wesley Drive.

At all times pertinent to this appeal, this property has been zoned for single family residential purposes. Harbit purchased this property in 2003 for $180,000 from Truett Nettles (Nettles). Prior to selling the property to Harbit, Nettles attempted to rezone the property for limited commercial use as an attorney's office, but the City denied his request. Harbit was aware of the City's denial of Nettles' request for rezoning when he purchased the property from Nettles in 2003.

In 2005, Harbit applied for rezoning of the Wesley Drive property based on its location within the Savannah Highway Overlay Zone (the Zone). The Zone was created as a result of a comprehensive study of land surrounding the Ashley River Bridge in Charleston.1 Based on this study, the City developed the "Ashley Bridge District" plan, which identified the need to maintain residential communities in the Zone, despite increased commercialization. While highlighting the need to maintain residential uses in the Zone, the plan allows certain properties along Savannah Highway and Wesley Drive to be used for limited commercial purposes, including professional office use. Under the Ashley Bridge District plan, the other properties on Harbit's side of Wesley Drive within the Zone have been rezoned for limited commercial use.

On June 15, 2005, the City of Charleston Planning Commission (the Planning Commission) reviewed Harbit's application, at which time Harbit's counsel presented Harbit's position for rezoning the Wesley Drive property. The Planning Commission, however, voted to recommend denying Harbit's rezoning application, finding the request was in contradiction to the Ashley Bridge District plan and the overall neighborhood sentiment to retain the residential use of the structures within the area. On September 27, 2005, Charleston City Council (City Council) received the Planning Commission's recommendation and held a public hearing to address local zoning issues, including Harbit's application. Harbit's counsel was present for the City Council meeting. City Council denied Harbit's request, citing a concern over increased commercialization, loss of residential use, and the special location of the property at the entrance of a residential neighborhood, particularly its frontage on a purely residential street.

After City Council's denial of his application, Harbit appealed the zoning decision to the circuit court and asserted additional grounds for relief, including a request for a writ of mandamus and causes of action for due process and equal protection violations. The City filed a motion for summary judgment on all claims, which the circuit court granted. In its order, the circuit court found a writ of mandamus was inappropriate because zoning is not a ministerial act and thus cannot be mandated by the court.2 In dismissing Harbit's claims for procedural and substantive due process, the circuit court found Harbit was provided with sufficient notice to satisfy his procedural due process rights, and because he had no prior property interest in commercial zoning, his substantive due process rights were not violated. Regarding Harbit's equal protection claim, the circuit court found City Council had a rational basis for denying Harbit's application such that Harbit was afforded equal protection of the law. It is from this order that Harbit now appeals.


An appellate court reviews the grant of summary judgment under the same standard applied by the circuit court. David v. McLeod Reg'l Med. Ctr., 367 S.C. 242, 247, 626 S.E.2d 1, 3 (2006). The circuit court should grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), SCRCP; Russell v. Wachovia Bank, N.A., 353 S.C. 208, 217, 578 S.E.2d 329, 334 (2003). In determining whether any triable issues of fact exist, the evidence and all reasonable inferences must be viewed in the light most favorable to the non-moving party. Law v. S.C. Dep't of Corr., 368 S.C. 424, 434, 629 S.E.2d 642, 648 (2006). "The purpose of summary judgment is to expedite disposition of cases which do not require the services of a fact finder." George v. Fabri, 345 S.C. 440, 452, 548 S.E.2d 868, 874 (2001). Summary judgment is not appropriate when further inquiry into the facts of the case is desirable to clarify the application of the law. Englert, Inc. v. LeafGuard USA, Inc., 377 S.C. 129, 134, 659 S.E.2d 496, 498 (2008).


Do genuine issues of material fact exist on Harbit's claims such that the circuit court erred in granting summary judgment to the City as a matter of law?

A. "Fairly Debatable" Standard in Zoning Decisions

Harbit asserts that viewing the evidence in his favor, City Council's refusal to rezone Harbit's property is so unreasonable that this Court should invalidate City Council's decision. We disagree.

Rezoning is a legislative matter. Lenardis v. City of Greenville, 316 S.C. 471, 471, 450 S.E.2d 597, 597 (Ct.App.1994). The legislative body's decision in zoning matters is presumptively valid, and the property owner has the burden of proving to the contrary. Rushing v. City of Greenville, 265 S.C. 285, 288, 217 S.E.2d 797, 799 (1975). The authority of a municipality to enact zoning ordinances that restrict the use of privately owned property is founded in the municipality's police power. Rush v. City of Greenville, 246 S.C. 268, 276, 143 S.E.2d 527, 530-31 (1965). The governing bodies of municipalities clothed with authority to decide residential and industrial districts are better qualified by their knowledge of the situation to act upon these matters than are the courts, and their decisions will not be interfered with unless there is a plain violation of the constitutional rights of citizens. Id. As in this case, the determinative question is whether the city council's refusal to change the zoning of the owner's property is so unreasonable as to impair or destroy the owner's constitutional rights. Rushing, 265 S.C. at 288, 217 S.E.2d at 799. We cannot insinuate our judgment into a review of the city council's decision but must leave that decision undisturbed if the propriety of that decision is even "fairly debatable." Knowles v. City of Aiken, 305 S.C. 219, 223, 407 S.E.2d 639, 642 (1991).

Additionally, there is a strong presumption in favor of the validity of municipal zoning ordinances, and in favor of the validity of their application, and when the planning commission and the city council of a municipality have acted after reviewing all of the facts, the court should not disturb the finding unless such action is arbitrary, unreasonable, or in clear abuse of its discretion, or unless it has acted illegally and in excess of its lawfully delegated authority. Bob Jones Univ., Inc. v. City of Greenville, 243 S.C. 351, 360, 133 S.E.2d 843, 847 (1963). Likewise, the power to declare an ordinance invalid because it is so unreasonable as to impair or destroy constitutional rights is one which will be exercised carefully and cautiously, as it is not the court's function to pass upon the wisdom or expediency of municipal ordinances or regulations. Id.

We find that City Council's decision is "fairly debatable" because the City proffered several reasonable grounds for the denial of Harbit's rezoning application. First, the Planning Commission and City Council concluded that rezoning Harbit's property would not be in the community's best interests because the City has a vested interest in preserving the area's residential character and in minimizing commercialization. As stated in the Ashley Bridge District Plan, one of the major concerns in this area was increased commercialization due to rezoning. Further, both the Planning Commission and City Council cited concerns of neighborhood residents who feared loss of residential use in the area and the possibility that continued rezoning would create a domino effect. While all of the residents' concerns might not be well-founded, City Council's response to public opposition does not rise to the level of a constitutional violation. See Sunrise Corp. of Myrtle Beach v. City of Myrtle Beach, 420 F.3d 322, 329 (4th Cir.2005) (in finding the state court of appeals' decision was not res judicata of the developers' § 1983 due process and equal protection claims, the Fourth Circuit Court of Appeals determined the city council's improper denial of the zoning application in response to public opposition did not rise to the level of a constitutional violation because "matters of zoning are inherently political, and ...

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