Historic Charleston Found. v. City of Charleston

• Decision Date: 05 December 2012
• Docket Number: No. 27181.,27181.
• Citation: 400 S.C. 181,734 S.E.2d 306
• Court: South Carolina Supreme Court
• Parties: HISTORIC CHARLESTON FOUNDATION and Preservation Society of Charleston, Respondents, v. The CITY OF CHARLESTON, The City of Charleston City Council and Library Associates, LLC, Appellants. Appellate Case No. 2010–179087.

400 S.C. 181

734 S.E.2d 306

HISTORIC CHARLESTON FOUNDATION and Preservation Society of Charleston, Respondents,

v.The CITY OF CHARLESTON, The City of Charleston City Council and Library Associates, LLC, Appellants.

Appellate Case No. 2010–179087.

No. 27181.

Supreme Court of South Carolina.

Heard Nov. 3, 2011.

Decided Oct. 17, 2012.

Rehearing Denied Dec. 5, 2012.

Timothy Alan Domin, of Clawson & Staubes, of Charleston, and Frances Isaac Cantwell, of Regan and Cantwell, of Charleston, for Appellants.

Samia Hanafi Nettles and Edward K. Pritchard, III both of Pritchard & Elliott, of Charleston, and Lindsay Kathryn Smith–Yancey, Daniel Simmons McQueeney, Jr., and George Trenholm Walker, all of Pratt–Thomas Walker, of Charleston, for Respondents.

Justice PLEICONES.

This is an appeal from a master's order invalidating a City of Charleston zoning ordinance ¹ on the ground it constituted illegal spot zoning. We reverse.²

FACTS

Appellant Library Associates purchased the building located at 404 King Street (404 King) which was formerly the main branch of the Charleston County Public Library. 404 King is bounded by King Street to the west, Tobacco Street to the south, and Hutson Street to the north, and backs to the Old Citadel on the east. The Old Citadel and 404 King are separated from Marion Square by Tobacco Street, an unopened right-of-way/pedestrian walkway that forms the north boundary of Marion Square, an approximately five acre park in the historic heart of Charleston. Marion Square is bordered on the west by King Street, on the south by Calhoun Street, and on the east by Meeting Street.

404 King faces King Street, but is visible in profile when looking north from Marion Square. Viewed in this way, the back of the property abuts the Old Citadel, which faces the park.

404 King was split-zoned: approximately 60% of the building, that part located towards King Street, was zoned 3X, permitting a building on that site to be 105 feet tall. The interior of the building that lies towards the Old Citadel was zoned 55/30, meaning the height could not exceed 55 feet nor could it be less than 30 feet high. The Old Citadel is also zoned 55/30, and is now the site of an Embassy Suites Hotel. Across King Street from 404 King are a number of buildings, including St. Matthews German Lutheran Church, a parking garage, and the Francis Marion Hotel. All properties are zoned 3X in the 400 block of King Street, meaning their maximum height is three times the distance from the facade of the building to the center of King Street. The evidence in the record indicates that St. Matthews' spire is 297 feet tall, that the parking garage is approximately 60 feet tall, and that the Francis Marion Hotel is around 165 feet tall.

404 King and the Old Citadel are bounded on the north by Hutson Street. Property along King Street north of Hutson is split zoned 55/30 towards King Street and 80/30 towards the interior on the 404 King side, and 55/30 on the opposite side. In mirror image fashion, the property bordering Meeting Street north of Hutson is also split zoned. North of Marion Square along the Meeting Street corridor, the property lying on the west side of Meeting, that is towards King, is split zoned 55/30 facing Meeting and 80/30 towards the interior. The property on the east side of Meeting is zoned 55/30. This split-zoning scheme continues south of the square below the 400 block of King Street, and along Meeting Street south of the square, with the King/Meeting block split zoned and the property across the street zoned 55/30. 404 King was an anomaly in the area in that it was zoned taller towards King Street than towards its interior.

Charleston City Council adopted Zoning Ordinance 2007–147, which rezoned the entire 404 King property 3X. Respondents then brought this action challenging the ordinance's legality. The master invalidated the ordinance finding it was unlawful spot zoning. We reverse.

DISCUSSION

We have defined spot zoning as the “process of singling out a small parcel of land for use classification totally different from that of the surrounding area, for the benefit of the owners of that property and to the detriment of other owners.” Bob Jones Univ. v. City of Greenville, 243 S.C. 351, 361, 133 S.E.2d 843, 848 (1963) cited with approval in Knowles v. City of Aiken, 305 S.C. 219, 407 S.E.2d 639 (1991). It is not unlawful spot zoning if “the proposed change is from one use to another and there is already a considerable amount of property adjoining the property to be reclassified falling within the proposed classification.” Id. at 362, 133 S.E.2d at 848. For purposes of this opinion, we accept that although our cases speak in terms of “use classification” a variance in height classification may also constitute unlawful spot zoning.³

The question therefore is whether the extension of the 3X height zoning designation from 60% of the 404 King property to 100% is unlawful spot zoning. It is true that ordinance 2007–147 singles out a small parcel of land, and that the rezoning benefits the owner who sought it. However, the application of the 3X height to the “back” 40% of 404 King is not a change from the property that literally adjoins it, that is, the front 60%. It is a change, however, from the Old Citadel zoning, which abuts the rear of 404 King. However, since every other property in the 400 block of King Street is zoned 3X, there is “a considerable amount of property adjoining ... falling within the proposed classification” and thus the change to 3X for 404 King is not “totally different from the surrounding area.” Ordinance 2007–0147 rezoning 404 King 3X is not spot zoning. Knowles, supra;Bob Jones Univ., supra.

Even if we were to find the ordinance constituted spot zoning, we must exercise judicial restraint before declaring it unlawful, keeping in mind the particular circumstances of the case. Knowles, supra. Zoning ordinances are presumed valid and the person attacking one bears the burden of showing the zoning decision is arbitrary, unreasonable, and unjust. Bob Jones, supra. In passing on the validity of a zoning ordinance, it is not within a court's prerogative to pass upon the wisdom or expediency of the municipality's decision. Rush v. City of Greenville, 246 S.C. 268, 276, 143 S.E.2d 527, 531 (1965) citing Bob Jones, supra. Respondents did not meet their heavy burden here.

CONCLUSION

The order finding ordinance 2007–147 invalid is

REVERSED.

BEATTY, J., and Acting Justice JAMES E. MOORE, concur.

HEARN, J., dissenting in a separate opinion in which Acting Justice ALEXANDER S. MACAULAY, concurs.

Justice HEARN.

In my opinion, the majority gives short shrift to the history of historic preservation in the City of Charleston and the Upper King Street neighborhood, thereby ignoring the City's steady march away from excessively permissive height designations and towards zoning classifications that are in accord with its uniquely historic fabric. Because the ordinance in question here changes the zoning of a single piece of property to a classification not consonant with the surrounding area and completely at odds with the City's central planning documents, I would affirm the master-in-equity's finding that the ordinance constitutes illegal spot zoning. I therefore respectfully dissent.⁴

I.

Library Associates, LLC purchased property located at 404 King Street, in the Upper King neighborhood of Charleston, which currently houses the old Charleston County Library.⁵ 404 King Street sits prominently on the northern boundary of Marion Square, a five-acre public park in the heart of downtown Charleston. The park lies at the intersection of three major thoroughfares in the City: King Street, Meeting Street, and Calhoun Street. Marion Square also is the former Citadel parade grounds. Consequently, the Old Citadel building—which is now an Embassy Suites Hotel—sits adjacent to 404 King Street on the park's northern boundary. It too directly faces Marion Square.

Standing on the southern edge of Marion Square and looking north, one has a direct and unimpeded view of 404 King Street and the Old Citadel over the open park. Directly across King Street from 404 King is St. Matthew's Lutheran Church, which opened its doors in 1872 and whose spire extends some 297 feet into the air. Heading south towards Calhoun Street, one finds a municipal parking garage and the Francis Marion Hotel, a narrow building circa 1924 which rises 165 feet.

I now pick up where the majority leaves off, which is with the history of zoning regulation in Charleston. Prior to 2006, much of the Upper King neighborhood was zoned 3X with no cohesive scheme in mind. Under 3X zoning, the maximum height of a building on the property is three times the distance from the façade of the building to the center of the right-of-way in front of it. For some properties in Upper King, this could permit heights up to a couple hundred feet. The City began its efforts to address this problem in 1982, when it first started planning for the redevelopment of Marion Square. At the time, the City advocated containing the square with building walls, but those buildings were to be no higher than four to six stories. In 1989, City planning documents expressly recognized “[i]t is important that the traditional scale of Charleston be maintained along Calhoun Street. Carefully designed building massing, height, and location with respect to the street can maintain the corridor's visible and traditional scale.” Accordingly, low-frame buildings ranging from two to four stories were prevalent, and “[h]igher structures were reserved for symbolic features like steeples, towers, or cupolas.”

In 1991, the City officially adopted the Charleston 2000 plan as the City's central planning document. In it, the City noted that the 3X height designation is “too permissive” and needed to be reevaluated. Indeed, one of the specific goals of Charleston 2000 was to “[f]oster development of a city with...