Lominick v. City of Aiken, 18183

• Decision Date: 12 March 1964
• Docket Number: No. 18183,18183
• Citation: 135 S.E.2d 305,244 S.C. 32
• Court: South Carolina Supreme Court
• Parties: Robert L. LOMINICK, Appellant, v. CITY OF AIKEN, Helen Reilly Schwerin and Mary Jane Twekesbury, in their own right and as representatives of the class of persons similarly situated, of whom Helen Reilly Schwerin is, Respondent.

Page 305

135 S.E.2d 305

244 S.C. 32

Robert L. LOMINICK, Appellant, v. CITY OF AIKEN, Helen Reilly Schwerin and Mary Jane Twekesbury, in their own right and as representatives of the class of persons similarly situated, of whom Helen Reilly Schwerin is, Respondent.

No. 18183.

Supreme Court of South Carolina.

March 12, 1964.

Lybrand, Simons & Rich, Aiken, Thomas H. Pope, Newberry, for appellant.

Garvin, Williamson & Grant, Aiken, for respondent.

BUSSEY, Justice.

This action for relief by way of declaratory judgment arose out of the following facts. The plaintiff-appellant, a young registered pharmacist residing and employed in Aiken, in the year 1962 conceived the idea of buying a lot in that city, located at the intersection of Richland Avenue and Waterloo Street, for the purpose of erecting thereon a drug store. Richland Avenue, which passes in front of the property, is one of the most heavily traveled roads in the state as both U. S. Highway No. 1 and Highway No. 78 empty their traffic into it.

The lot is in what is known as a professional zone or P zone under the Zoning Ordinance of the City of Aiken, and thereupon at the time was a rented residence. There are other residences in the area, but right across the street from the property is the hospital; nearby is a building housing the offices of numerous doctors, and within a two block radius of the property there are located the Health Department, TB Association, a tire recapping place, a service station, a Western Auto type store, etc.

Section Xa of the Zoning Ordinance of the City of Aiken reads as follows:

'The following regulations shall apply in the P Zone:

'A. Permitted Uses:

'1. Any permitted use in the 'R' Zones may be permitted in the P Zone.

'2. Physicians, lawyers, accountants, engineers, architects and similar professional people who may occupy an entire building or group of buildings. Veterinarians are specifically excluded from the P. Zone.

'3. Business which are incidental to the above professional practices, e. g. prescription shops, optical sales, etc.

'4. Insurance offices, realtors' officers, etc. where the nature of the business is primarily one of personal service.

'5. Radio and television stations where transmitting towers are not on the same property.'

Prior to taking any steps to actually acquire the real property, appellant and/or his attorney, during the month of August 1962, had numerous conversations with various officials of the City of Aiken, including the Mayor, the City Manager, and the City Attorney, with respect to whether under the Zoning Ordinance appellant could upon purchase of said property construct thereon a drug store. Under date of August 24, 1962, appellant's attorney submitted to the City Manager a formal request as to whether such a store woul be consistent with the Zoning Ordinance. On September 25, 1962, appellant wrote to the City Manager of Aiken a letter which, with respect to his proposal, contained the following:

'The property on which the building is proposed to be constructed is located approximately midway between office building(s) which were built and are being used for offices for several medical doctors and the Aiken County Hospital. The general area, within a two-block radius, contains the aforesaid doctors' offices and the Aiken County Tuberculosis Association and the proposed new center of the Aiken County Crippled Children and Adults Association.

'The building which I propose to build will be of old brick and of a colonial type architecture. It will be approximately thirty-five (35) feet by seventy (70) feet, and the property will be landscaped so as to provide adequate parking facilities for customers and shrubbery to complement the property and the neighborhood.

'The primary business of the proposed structure will be the selling and dispensing of prescriptive drugs and hospital supplies. A small soda fountain, sufficient in size to accommodate ten (10) stools, will be loated in the building. It is contemplated that tobacco, magazines and small gifts will be sold.'

On September 27, 1962, the City Attorney gave an opinion in writing addressed to the City Manager wherein he said:

'In my opinion the proposed building and business intended to be carried on therein are incidental to the professional practices set forth in the comprehensive Zoning Ordinance, and a permit therefor should be issued.'

Thereafter, acting on the assurances of the officials of the City of Aiken, appellant on October 8, 1962, at substantial sacrifice to himself, as well as at least one other member of his family, acquired the lot in question for a consideration of fourteen thousand dollars. As a result of his enterprise, he was promptly fired by his employer, but proceeded with his plans. He notified the tenants in the property to vacate which they did, so that he could demolish the residence thereon. The property rented for ninety dollars a month and at the time of the hering on March 26, 1963, the property was still vacant and appellant, a married man with a family was still without a permanent job. Appellant completed detailed plans and specifications for the proposed drug store and filed the same with the Building Inspector for the City of Aiken, who, on October 30, 1962, issued Permit Number 56 authorizing the construction of the drug store in accordance with the proposal of the appellant.

Although, apparently out of an abundance of precaution, appellant and his attorney sought the advice of various officials of the City of Aiken before proceeding, including the City Attorney, it is clear that the administration of the Zoning Ordinance of the City of Aiken is vested in the Building Inspector. Applicable portions of Section XV of the Zoning Ordinance read as follows:

'ADMINISTRATION AND ENFORCEMENT.

'A. Enforcement by Building Official:

'It shall be the duty of the Building Inspector of the City of Aiken, South Carolina, to enforce the provisions of this Ordinance within the police jurisdiction of the City of Aiken in the manner and form and with the powers provided in laws of the State of South Carolina and in the City Charter of the City of Aiken.

'Every official and employee of the City of Aiken, South Carolina, who is vested with the duty or authority to issue a Building Permit shall conform to the provisions of this Ordinance and shall not issue a permit or license for any use, building or purpose if the same is in conflict with any provision of this Ordinance.

'Any permit or license or certificate issued in conflict with the provisions of this Ordinance shall be null and void.'

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'After submitting plans and specifications to the Building Inspector, and upon issuance of a Building Permit, the applicant shall have complied with this Ordinance for all purposes, provided said building is constructed in accordance with approved plans and specifications and the applicable codes of the City of Aiken.'

Section XVI of the Zoning Ordinance creates a Zoning Board of Adjustment for the City of Aiken and contains the following with respect to appeals thereto:

'B. Appeals, How Taken

'1. Appeals to the Zoning Board of Adjustment may be taken by any person aggrieved, or by any officer, department, board or bureau of the City affected by the decision.

'2. Such appeal shall be taken within ten (10) days after notice of the filing of the order, requirement or decision complained of by filing with the officer from whom the appeal is taken and with the Board of Adjustment a notice of appeal specifying the grounds thereof.

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'C. Powers

'The Zoning Board of Adjustment shall have the following powers:

'1. Review. The Board of Adjustment shall hear and decide appeals where it is alleged that there is error in any order, requirement, decision or determination made by an administrative official charged with the enforcement of the regulations established by this ordinance.'

The same Section of the Ordinance provides for appeal from any decision of the Board of Adjustment to the Court of Common Pleas on questions of law only by any person aggrieved or by any taxpayer, or any officer, department, board or bureau of the municipality.

It is stipulated that respondent Schwerin and all other interested parties had actual knowledge of the issuance of the permit in question on November 1, 1962. It is undisputed that no appeal was taken by any one to the Board of Adjustment from the action of the Building Inspector in issuing the permit in question. The respondent Schwerin, however, and one Mary Jane Tewkesbury complained to City Council, rather than appealing to the Board of Adjustment, about the issuance of the permit. The respondent Schwerin owns and occupies a residence next door to the lot in question, facing on Richland Avenue. Mary Jane Twekesbury was also the owner of residence somewhere nearby.

As a result of the complaints of Schwerin and Twekesbury, City Council of Aiken, at a regular meeting of council on November 12, heard protests about the issuance of the building permit but adjourned consideration of the matter to the regular meeting on November 26, 1962, at which meeting City Council, on a mere motion, voted to revoke Building Permit Number 56 which had been issued on October 30, 1962, but the appellant refused to surrender such permit. Thereafter, appellant, in an apparent effort to exhaust any possible administrative remedy available to him, on December 6, 1962, filed with the Zoning Board of Adjustment a notice and grounds of appeal from the action of City Council, following which, on December 26, the City Attorney advised the Board of Adjustment by letter that the appeal be dismissed, sending a copy of said letter to the plaintiff.

Thereafter, appellant commenced this action against the City of Aiken, the respondent Mrs. Helen Reilly Schwerin and Mary Jane Twekesbury, as individuals and as representatives of a class of persons similarly situated, seeking relief as...