Hodge v. Pollock
| Decision Date | 04 May 1953 |
| Docket Number | No. 16740,16740 |
| Court | South Carolina Supreme Court |
| Parties | HODGE v. POLLOCK et al. |
Lyles & Lyles, Spartanburg, for appellant.
John G. Galbraith and Paul L. Taylor, Spartanburg, for respondents.
The question presented on this appeal is whether, upon the record in this case, there are shown the requisite elements which would authorize the Board of Adjustment to grant a variance in the application of a zoning regulation of the City of Spartanburg providing that no building shall be constructed closer to the side line of a lot than six feet, so as to permit a property owner to construct an office building within three and a half feet of such line.
Under the terms of the zoning ordinances of Spartanburg, the Board of Adjustment is authorized to grant 'such variance from the terms of this ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of this ordinance will result in unnecessary hardship, and so that the spirit of this ordinance shall be observed and substantial justice done.' The power thus conferred upon the Board of Adjustment is in accord with the enabling statute. Section 47-1009(3) of the Code of 1952.
Respondents, Drs. Henry E. Plenge and Ruth S. Plenge, are radiologists. In March, 1949, they purchased a lot in the City of Spartanburg, fronting 50 feet on the south side of Catawba Street, and having an average depth of approximately 190 feet. Under the zoning ordinances enacted on April 14, 1950, the above lot was included in an area zoned as a 'Residence 1 District', and in such a district it was provided that the 'least dimension of a side yard shall not be less than six feet.' Although zoned for residential purposes, the building inspector has permitted doctors to erect office buildings on Catawba Street across from the Spartanburg General Hospital. Respondents decided to construct on their lot a building in which to carry on their profession. From a multitude of plans used in various parts of the country, they prepared and sent to the General Electric Company, which manufactures X-ray and other equipment used by radiologists, a rough drawing of the type of building desired. There is no evidence, however, that the Company was informed of the zoning requirements. In July, 1952, the General Electric Company submitted to respondents plans and specifications deemed suitable for their purposes under which the building would front 35 3/4 feet on Catawba Street. Respondents then applied to the building inspector of Spartanburg for a permit in which it was stated that the proposed building would be located 3 1/2 feet from the eastern side line and 10 3/4 feet from the western side line, enabling respondents to have a driveway on the western side of the building. The building inspector declined to issue the permit because the proposed location would violate the side line requirement of six feet. Respondents then filed a petition with the Board of Adjustment seeking a variance. This was opposed by Dr. G. B. Hodge, a surgeon of Spartanburg, who owned and had his offices in a building located on a lot adjacent to the eastern side of respondents' lot. A hearing was had before the Board of Adjustment, at which all parties were represented by counsel and considerable testimony taken. The Board voted unanimously in favor of granting the requested variance but stated no reasons for its conclusion. In due course, Dr. Hodge filed a petition for a writ of certiorari and the matter was heard by the Resident Judge of the Seventh Circuit on the testimony taken before the Board of Adjustment. He affirmed the decision of the Board. From this order, Dr. Hodge, who claims that his property would be injuriously affected by the variance, has appealed.
The only witness for respondents was Dr. Ruth S. Plenge who, when examined by Mr. Dodge, a member of the Board of Adjustment, testified as follows:
'Mr. Dodge: May I ask what inconvenience it would be if the building were made about two and a half feet smaller?
'Mr. Dodge: What we have to decide, solely, is upon the harm it does to the abutting property owners; and if you could elaborate on the inconvenience, I think it would be very good to get into the record.
Dr. Plenge was cross-examined at length by counsel for appellant but the foregoing is the only testimony on the issue of unnecessary hardship. No witness from the General Electric Company, or other expert, testified that the building plans could not be rearranged so as to conform to the zoning requirements. Appellant offered several witnesses to the effect that by making the longer dimensions of the rooms run perpendicular to instead of parallel with Catawba Street, a building with the same facilities could be erected without the necessity of violating the side yard requirement. Among these witnesses was a radiologist who testified: ...
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...must be guided by standards which are specific in order to prevent the ordinance from being invalid and arbitrary. Hodge v. Pollock, 223 S.C. 342, 75 S.E.2d 752 (1953); Schloss Poster Adv. Co. v. City of Rock Hill, 190 S.C. 92, 2 S.E.2d 392 (1939). "The concept of vagueness or indefinitenes......
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...scope of an agency's express or implied powers and in accordance with the standards prescribed by statute or ordinance.' Hodge v. Pollock, 223 S.C. 342, 75 S.E.2d 752. In the Harbin case, supra, 226 S.C. 585, 86 S.E.2d 466, the legislation provided that the Highway Department exercise its d......
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Gurganious v. City of Beaufort
...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......
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