James v. City of Greenville

• Decision Date: 20 July 1955
• Docket Number: No. 17034,17034
• Citation: 88 S.E.2d 661,227 S.C. 565
• Parties: J. C. JAMES, Appellant, v. The CITY OF GREENVILLE, Respondent.
• Court: South Carolina Supreme Court

Page 661

88 S.E.2d 661

227 S.C. 565

J. C. JAMES, Appellant, v. The CITY OF GREENVILLE, Respondent.

No. 17034.

Supreme Court of South Carolina.

July 20, 1955.

J. D. Lanford, William I. Bouton, Greenville, for appellant.

W. H. Arnold, Greenville, for respondent.

BAKER, Chief Justice.

This appeal arises under the Zoning Ordinances of the City of Greenville. Said City, in July, 1944, adopted a plan of zoning in conformity with the state law. At that time the real estate here involved was not within its corporate limits.

Petitioner purchased his property located at No. 3000 Augusta Road in the year 1945, and commenced the operation of a trailer court thereon in February, 1947. What is ordinarily referred to in Greenville as the Augusta Road area, which includes Petitioner's property, was annexed to the City of Greenville as of January 1, 1948.

The City rezoned the Augusta Road area February 14, 1950, and Petitioner's property was placed in the 'A', Single Family District. This is the most restricted district, permitting only single family residences. As we go down the alphabet designating the various Zoning Districts, the restrictions become less. A trailer court, under the Zoning Ordinances, is not permitted until the 'G' Business District is reached.

Petitioner was notified May 11, 1950, by the City Building Commissioner, who was administering the Ordinance, that the use of his property constituted a non-conforming use and that such use would have to be discontinued after February 14, 1951. Petitioner was subsequently notified by the Building Commissioner on August 28, 1950, that any addition or improvement to any building or trailer would have to be removed by February 14, 1951.

Petitioner appealed from the action of the Building Commissioner to the Board of Adjustment which had been created pursuant to Section 7396 of the 1942 Code, Sections 47-1007 to 47-1015 of the 1952 Code, and this Board, on December 21, 1950, sustained the action of the Building Commissioner.

Petitioner then appealed to the Court of Common Pleas, and also filed his Summons and Petition with the Court of Common Pleas under the authority of the above stated Code Section, and on April 12, 1951, Honorable E. H. Henderson, the then Presiding Judge, under the provision of Section 7396 of the 1942 Code, referred the matter to the Master for Greenville County 'to take testimony and to hear and determine all issues of law and fact with leave to report and recommend his findings to this Court.' The Master duly heard the matter and by his Report dated May 27, 1953, recommended that the Petition and Appeal be dismissed and that such Decree as may be necessary to discontinue his trailer court business be handed down.

Petitioner filed Exceptions to the Report of the Master, which Exceptions were substantially the same as the Exceptions now presented to the Court. The Appeal was heard by Honorable J. Robert Martin, J., and on July 19, 1954, he confirmed the Report of the Master and made it the judgment of the Court and ordered Petitioner to discontinue the operation of his trailer court on or before August 23, 1954. Within due time, Petitioner filed a Notice of Intention to Appeal to this Court from the Order of Judge Martin. The Petitioner contends in substance that he was operating a legitimate business before the Augusta Road area was annexed to the City of Greenville, and the application and administration of the Zoning Ordinance in question is arbitrary and amounts to a taking of his property without just compensation or without due process of law, and that the zoning in question amounted to what is commonly referred to as spot zoning. The Respondent denies all of the contentions of Petitioner and contends that the Zoning Ordinance is reasonable and the action of the City officials proper.

The Petition of appellant appearing on pages 5, 6 and 7 of the Transcript of Record will be reported with this opinion; and immediately preceding the taking of testimony before the Master in Equity for Greenville County, there appears the following:

'Pursuant to an Order of the Court in the above entitled case, a reference was held before me this 26th day of June 1951, and the following testimony was taken. By consent the testimony was taken in shorthand by Mary F Howard, signatures of witnesses dispensed with, and her reasonable charges therefor to be taxed as a part of the costs in the case.

'By Mr. Lanford: As this matter now stands, it is boty by way of Appeal from the Adjustment Board, created under the Ordinance of the City of Greenville Zoning Commission, to the Court of Common Pleas and also enlarged by additional allegations to which a Summons was attached. But since the matter has been referred and this being a Trial De Novo pertaining to one and the same subject matter and without waiving any rights given the Petitioner under the Ordinance by an Appeal, the Petitioner does agree to waive irregularities in the manner of hearing before it and the conduct of its hearing.

'By Mr. Walker: As this matter now stands and as we go forward, it is a Trial De Novo on all issues raised in your Appeal and the Master will hear the matter as a Trial De Novo.

'I certainly do not interpret this to be any other than one action.

'Any irregularities of procedure are waived, but the Petitioner does not waive any of his legal rights, with regard to the Zoning Law of the City of Greenville or its application to this matter.'

At the date of the taking of the testimony in this case, June 26, 1951, the appellant was a man 72 years of age. His life work had been that of a farmer until 1946. The land here involved contains a little more than one acre, and is known as 3000 Augusta Road. In 1945, appellant purchased this property, at which time there was situate thereon a two story wooden residence, for the sum of $9,000. He converted this residence, after adding two rooms thereto, into three complete apartments, which have been rented at all times, and in June, 1951, were netting him $125 per month. In the fall of 1946, at an expense to him of approximately $3,300 he equipped and established on the remainder of the property a trailer court which will accommodate twenty-five trailers, nine of the trailers being owned by appellant, and the remaining trailers are owned by the people who occupy them. When there are unoccupied spaces, he rents to tourists who own their trailers, but not otherwise, except 'sometimes when they get in a pinch' he will let a transient come on the court with his trailer for one night, but such transient is not furnished water. The income from this trailer court nets him between $300 and $400 per month, which is in addition to the $125 per month he received from the apartments thereon.

Appellant's trailer court meets every requirement of the State Board of Health, of which fact respondent has been advised, but notwithstanding this, and without any claim on the part of respondent that it is not properly conducted or in anywise creates an unsanitary situation, or, that is, there is no testimony in the record to this effect, respondent through its officers demands that he abandon the present usage of his property due to a zoning ordinance passed by respondent in 1945, as amended on February 14, 1950.

There is testimony of expensive residences in the vicinity of appellant's property, but no testimony that the appellant's trailer court affects the value of those residences. In fact, on cross-examination of the appellant, and nowhere else in the record does anything thereabout appear, is the following:

'Q. The operation of this trailer court in the vicinity would tend to effect (affect?) the value of those residences?

'A. I don't think so. We don't bother them, no more than the looks--but what are you going to do with the ugly man, you can't cut his head of----'

Nor does the record disclose when these expensive residences were built, whether prior to the establishment of appellant's trailer court and his conversion of the dwelling which was situate thereon into three apartments, or thereafter, although the only reasonable inference from the testimony as a whole is that some were built thereafter; and the record is likewise devoid of any testimony that the general welfare, morals or health of any resident of the respondent is injuriously affected. Yet, the Master's report to the Circuit Court, which was approved and adopted by the Judge thereof, makes this positive finding of fact, and we quote: 'I find further under all of the facts and surrounding circumstances that it would be contrary to the general welfare and the morals of the people in that neighborhood to permit this trailer court to continue operation.' And later in this report is a finding of fact 'that the action of Respondent in requiring Petitioner to discontinue the operation of his trailer court business is proper and reasonable, and to the best interest of the general health and welfare of the inhabitants of Respondent and particularly those in the surrounding neighborhood.'

In the paragraph immediately preceding the one from which the first quotation above is taken, appears a statement in the report of the Master reading: 'By consent of counsel I viewed the premises in question, although I have been familiar generally with the area for a great many years'; and presumably the statements in the Master's report above referred to represent merely his conclusion thereabout. But such does not constitute testimony where he would be subject to cross-examination, and rebuttal testimony could be offered. He offers no basis for such conclusion, and it is therefore only his personal opinion after viewing the premises. As to 'general health and welfare,' the Master's opinion thereabout is more than offset by the fact that after a thorough inspection of these premises, an investigator for the State Board of Health found absolutely to the contrary, and we can well assume that such...