Main v. Thomason

• Decision Date: 14 August 2000
• Docket Number: No. 25182.,25182.
• Citation: 535 S.E.2d 918,342 S.C. 79
• Parties: Emory S. MAIN, Respondent, v. William Bonner THOMASON and Barbara Thomason, Appellants.
• Court: South Carolina Supreme Court

342 S.C. 79

535 S.E.2d 918

Emory S. MAIN, Respondent, v. William Bonner THOMASON and Barbara Thomason, Appellants.

No. 25182.

Supreme Court of South Carolina.

Heard March 7, 2000.

Decided August 14, 2000.

Rehearing Denied September 7, 2000.

Capers G. Barr, III, of Barr, Unger & McIntosh, LLC, of Charleston, for appellants.

Dennis J. Rhoad, of Charleston, and Stephen A. Spitz, of Columbia, for respondent.

Attorney General Charles M. Condon, and Senior Assistant Attorney General Kenneth P. Woodington, of Columbia, for Amicus Curiae State of South Carolina.

TOAL, Acting Chief Justice:

Dr. William Bonner Thomason and Barbara Thomason ("Thomasons") appeal the decision of the trial court and ask this Court to declare S.C.Code Ann. § 15-67-270 (Supp.1999) unconstitutional because it permits the taking of private property for private use and is unconstitutionally vague. We affirm the trial court.

FACTUAL/PROCEDURAL HISTORY

The Thomasons and Emory S. Main ("Main") are adjoining homeowners on South Battery Street in Charleston, South Carolina. The eastern side wall of Main's historic home lies on the "zero lot line," or the line dividing his property from the Thomasons' property to the east. In 1996, Main discovered that the frame of his historic home was rotten and in dire need of repair because it was on the verge of collapsing. To make the necessary repairs, Main needed access to the Thomasons' property because the eastern side of his house cannot be painted, repaired, improved, or maintained without access to the Thomasons' driveway and patio.

In downtown Charleston a considerable number of properties and historic homes are located on zero lot lines. The close proximity of these structures creates unique public safety concerns and increases the need to keep these structures in good repair. Acting to assure access for repair and renovation and to resolve any potential conflict between adjoining landowners, the South Carolina General Assembly passed S.C.Code Ann. § 15-67-270 (Supp.1999), which allows a neighbor temporary access to an adjoining landowner's property in order to make necessary repairs. The statute requires the neighbor who receives a temporary license to compensate the adjoining landowner in an amount to be determined by a lower court. The temporary license can only be granted when specific terms and conditions are satisfied, and only when numerous preconditions exist. After this law was enacted in 1998, Main wrote two letters to the Thomasons requesting access to their property. In a letter dated July 14, 1998, Mr. Thomason agreed to let Main access his property during the period from October 5, 1998 until October 30, 1998, but these conditions were never accepted by Main.

On July 6, 1998, Main filed a Summons and Complaint to petition for a court-ordered license pursuant to section 15-67-270. The Thomasons filed a Motion to Dismiss on the grounds that: (1) section 15-67-270 was an unconstitutional taking of private property for private purposes; (2) the action was barred by res judicata; (3) the action was not properly commenced by the service of a summons; and (4) the petition failed to state a claim under section 15-67-270. On August 28, 1998, the trial judge denied the motion and found section 15-67-270 was constitutional because there was no taking of private property.

On September 11, 1998, this case was tried by consent on its merits with the right of direct appeal to this Court. The Master-In-Equity granted a temporary license to Main that allowed him access to the Thomasons' driveway and patio to perform necessary and reasonable repairs. Main was granted access to the property for thirty-seven and one-half working days to make his repairs in exchange for the payment of $1,500 to the Thomasons. Main used the Thomasons' property beyond the thirty-seven and one-half working days originally granted. Main remained on the Thomasons' property from September 14, 1998 until January 29, 1999, a period of 138 days. The Master-In-Equity ordered Main to pay $4,000 for holding over on the Thomasons' property beyond the permitted thirty-seven and one-half days.

On April 13, 1999, the Thomasons appealed the trial court's decision. The issues before this Court are as follows:

I. Does section 15-67-270 permit the unconstitutional taking of private property for private use without the consent of the owner in violation of the Fifth Amendment to the United States Constitution and in violation of art. I, § 13 of the South Carolina Constitution?

II. Is section 15-67-270 unconstitutionally vague because it does not define what are "unreasonable conditions upon entry" imposed by a neighbor who consents to the entry of an adjoining landowner on his property?

LAW/ANALYSIS

I. Taking of Private Property

A. United States Constitution

The Thomasons argue that section 15-67-270 is unconstitutional because it authorizes a taking of private property in violation of the Fifth Amendment to the United States Constitution. We disagree.

Statutes are to be construed in favor of constitutionality, and this Court will presume a legislative act is constitutionally valid unless a clear showing to the contrary is made. State v. Brown, 317 S.C. 55, 451 S.E.2d 888 (1994). A legislative enactment will be declared unconstitutional only when its invalidity appears so clearly as to leave no room for reasonable doubt that it violates some provision of the Constitution. See Westvaco Corp. v. South Carolina Dep't of Revenue, 321 S.C. 59, 467 S.E.2d 739 (1995).

Section 15-67-270 allows a court of equity to issue a temporary license to an adjoining landowner for the purpose of improving his property only when it is otherwise impossible to accomplish the improvements and only after just compensation has been paid to the adjoining landowner. The statute is highly specific and only allows a license to be issued once particular requirements have been met. First, the statute requires that a petition be filed only after a good faith effort to obtain permission to enter the adjoining property has been made and the petitioner presents evidence of an actual request and denial of entry, or the imposition of unreasonable conditions upon entry. See S.C.Code Ann. § 15-67-270(B). Second, the statute requires the trial court to conduct an evidentiary hearing where a temporary license can be issued upon a finding:

(1) the entry upon the adjoining property does not irreparably or unreasonably damage the adjoining property;

(2) the grant of license is not an unreasonable encroachment or burden upon the adjoining property; and

(3) the license is reasonably necessary for the improvement or preservation of the petitioner's property.

S.C.Code Ann. § 15-67-270(D)(1)-(3). Further, section 15-67-270 requires the temporary license to specify the nature of the improvements, the dates of the operation of the license, the amount of compensation, that a copy of the court order will be provided to any person making improvements, and any other terms or conditions the trial court considers important. S.C.Code Ann. § 15-67-270(E)(1)-(6).

The government is empowered by the state and federal constitutions with the authority to legislate for the protection of the public health, welfare, and morals. State v. Langley, 236 S.C. 583, 115 S.E.2d 308 (1960). Courts will not interfere with the enforcement of regulations designed for the protection of health, welfare, and safety of citizens unless they are determined to be unreasonable. Richards v. City of Columbia, 227 S.C. 538, 88 S.E.2d 683 (1955). The exercise of police power is subject to judicial correction only if the action is arbitrary and has no reasonable relation to a lawful purpose. Town of Hilton Head Island v. Fine Liquors, Ltd., 302 S.C. 550, 397 S.E.2d 662 (1990).

"The individual's privilege to use property freely is always subject to a legitimate exercise of the police power under which new burdens and restrictions may be imposed when the public welfare demands." Peoples Program for Endangered Species v. Sexton, 323 S.C. 526, 529, 476 S.E.2d 477, 479 (1996). The State has a legitimate interest in preserving property and can properly exercise its police powers to do so. Section 15-67-270 ensures property does not fall into such disrepair as to threaten the health and safety of the public. We find that section 15-67-270 has a reasonable relation to the lawful purpose of property preservation and is a valid exercise of the Legislature's police power.¹

Although we find section 15-67-270 is a valid exercise of the State's police powers, we will address whether it authorizes an unconstitutional taking under both the federal and state tests. The Fifth Amendment to the United States Constitution provides that "private property shall not be taken for a public use without just compensation." U.S. Const. amend. 5. There are two main categories of takings: (1) where state law authorizes a permanent physical occupation of property; and (2) where state law so regulates property that it has lost all economic value. See generally Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992) (holding a taking occurs where the owner of real property has been called upon to sacrifice all economically beneficial use of property in the name of the common good); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982) (holding a permanent physical occupation authorized by the government is a taking without regard to the public interest it may serve). In this case, the temporary license did not authorize a permanent physical occupation because the license only allowed Main to enter the Thomasons' property for a temporary period, after fully compensating them for the intrusion. Further, the Thomasons did not lose all economic value in their property because they were still able to sell, rent, lease, and use their home despite the temporary...