Massey v. CITY OF GREENVILLE BD., 3184.

Citation532 S.E.2d 885,341 S.C. 193
Decision Date12 June 2000
Docket NumberNo. 3184.,3184.
PartiesMillicent MASSEY, Respondent, v. The CITY OF GREENVILLE BOARD OF ZONING ADJUSTMENTS and The City of Greenville, Appellant.
CourtCourt of Appeals of South Carolina

Assistant City Attorney Debra J. Gammons, of Greenville, for appellant.

Susan B. Covington, of Greenville, for respondent.

PER CURIAM:

The City of Greenville Board of Zoning Adjustments and the City of Greenville appeal the circuit court's grant of Millicent Massey's applications for uses permitted upon review. We reverse and remand.

FACTS

Massey owns four contiguous lots on Augusta Street, across from the intersection with Grove Road. One of the lots Massey owns is vacant. The other three have houses on them. The lots are in an area zoned RM-2, for multi-family residential use. The City's zoning ordinance permits the Board to authorize professional offices in a RM-2 area after public notice and hearing, and subject to appropriate conditions and safeguards. This exception is termed a "use permitted upon review" or "use on review."

On June 30, 1998, Massey applied for a use on review of her property at 1401 Augusta Street. In the application, she stated the proposed use was a law office. A public hearing was held on the application on July 23, 1998. The Board tabled the matter until August 27, 1998. Massey subsequently filed an application for a use on review for 1311 Augusta Street, which adjoins 1401 Augusta Street. She stated the proposed use for the adjoining lot was a professional office. The Board considered the two applications at the August hearing.

At the end of the August hearing, the Board voted to deny Massey's applications. On September 2, 1998, Bryan Wood, the zoning administrator, sent Massey a letter notifying her of the Board's denial of her applications. Massey appealed the Board's decision to the circuit court. In its return to the circuit court, the Board included a document entitled "Findings of Fact and Conclusions by the Greenville Board of Zoning Adjustments." The document was dated October 9, 1998 and signed by the Board's chairperson.

At the hearing, the trial court allowed Massey, over the City's objection, to present the additional testimony of several witnesses who had not testified before the Board. In response, the City called its zoning administrator as a witness.

Although the circuit court considered the October document, it relied on the conclusions set forth in the September 2, 1998 letter, finding the October document did not constitute the decision of the Board. The circuit court held the Board acted arbitrarily and unreasonably in denying Massey's applications. Accordingly, it reversed the Board's denial of the applications. This appeal followed.

LAW/ANALYSIS

A reviewing court should not disturb the findings of a zoning board of adjustment unless the board has acted arbitrarily or in an obvious abuse of discretion, or unless the board has acted illegally or in excess of its lawfully delegated authority. Bannum v. City of Columbia, 335 S.C. 202, 516 S.E.2d 439 (1999); Hartman v. City of Columbia, 268 S.C. 44, 232 S.E.2d 15 (1977).

Admission of Additional Testimony Before Circuit Court

The City argues the circuit court erred in allowing Massey to present testimony on appeal that was not presented at the Board's hearings. We agree.

The transcript of the Board hearing is clearly inadequate for review. The transcriber noted many portions of the hearing were inaudible. In many places, the transcript does not identify who is speaking, using "Man" and "Woman" to designate the speakers. However, the City argues, "The correct response under Section 6-29-840 is a remand to the Board for a rehearing." Instead of reversing and remanding, the circuit court allowed Massey to supplement the record with additional testimony pursuant to S.C.Code Ann. § 5-23-160 (1976).

The propriety of the court's allowing additional testimony hinges upon whether Title 5 or Title 6 is applicable to this case. Section 5-23-160 provides, "If, upon the hearing, it shall appear to the [reviewing] court that testimony is necessary for the proper disposition of the matter, it may take evidence ... which shall constitute a part of the proceedings upon which the determination of the court shall be made." In 1994, the General Assembly greatly revised the zoning statutes for local governments with the South Carolina Local Government Comprehensive Planning Enabling Act.1994 Act No. 355, as amended by 1999 Act No. 15, effective April 1, 1999. "Municipal governments could follow either set of the former provisions until their repeal ... and they could implement the 1994 Act at any time." I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 526 S.E.2d 716 at n. 3 (2000). The replacement statute, section 6-29-840 (Supp.1999), states, "The findings of fact by the board of appeals shall be treated in the same manner as a finding of fact by a jury, and the court may not take additional evidence."

Although Massey contends the circuit court properly heard additional testimony pursuant to S.C.Code Ann. § 5-23-160, Massey elected to proceed under Title 6. In Massey's petition on appeal to the circuit court, she stated that the applicable standard of review was found in S.C.Code Ann. §§ 6-7-780 & 6-29-840 (Supp.1999). The City stated in its return that Title 6 governed the appeal. In Massey's Memorandum in Opposition to the City's Return of Appeal, she "agree[d] ... that the statute governing this appeal and the standard of review to be applied is set forth in S.C.Code Ann. Section 6-29-840...." (emphasis added). In the circuit court's order, it found "the parties agree that this appeal is governed by S.C.Code Ann. § 6-29-840...." Because Massey elected to proceed under section 6-29-840, the circuit court's consideration of additional testimony under section 5-23-160 was error.1

Furthermore, even if Massey had elected to proceed under Title 5, the evidence before the circuit court exceeded the scope allowed by the statute. Section 5-23-160 "does not authorize a trial de novo; rather, it gives the reviewing court the authority to supplement the record to make an intelligent review of the actions of the board." Fontaine v. Peitz, 291 S.C. 536, 538, 354 S.E.2d 565, 566 (1987).

The circuit court allowed Massey to present testimony by a licensed real estate broker and real estate appraiser, a police officer, and Massey's estate planning attorney. None of these witnesses testified at the Board hearings. Although the police officer submitted a written memorandum, which was considered by the Board and contained the substance of his testimony before the circuit court, the other two witnesses presented evidence which was not before the Board when it reached its decision.

The testimony of Frank Dietz, the licensed real estate broker and appraiser who did not testify at the Board's hearing, is especially troublesome. Dietz's testimony included his extensive educational and experiential background. He opined that there was no reason to distinguish Massey's property from other properties which had been granted uses on review. He also testified that neither residential property values nor traffic would be affected if the requested use on review was granted. Furthermore, Dietz testified that Massey's property would be better used and more desirable as a business than a residence. None of this information was presented by anyone with Dietz's qualifications at the Board hearings. Dietz's testimony did not provide the circuit court with the information necessary for an intelligent review of the Board's actions. The testimony offered new information which was not considered by the Board, but was used as the basis for reversing the Board.

Because the circuit court impermissibly supplemented the record and the transcript of the Board hearing is insufficient for review, we reverse and remand the matter to the Board for rehearing.

Board's Final Order

The City also argues the circuit court erred in rejecting the October document's "Findings of Fact and Conclusions." As an initial matter, we note the circuit court did not reject the Findings of Fact and Conclusions. The circuit court considered the October document, but held it did not constitute the Board's final decision. We agree with the circuit court's determination that the October document was not the Board's final decision.

The Board denied Massey's application for a use permitted upon review at its August 27, 1998 Board Hearing. Bryan Wood, the zoning administrator, mailed Massey a letter explaining the Board's decision. Relying upon this letter, Massey filed her notice of appeal on September 25, 1998. After Wood mailed Massey the letter, Wood listened to the audio tapes of the hearing and prepared a document entitled, "Findings of Fact and Conclusions." This document was signed by the Board's chairperson after being reviewed by the chairperson and another Board member. The remaining Board members never reviewed the document. The "Findings of Fact and Conclusions" document is dated October 9, 1998.

The trial court refused to use the "Findings of Fact and Conclusions" as the Boards's decision because (1) "there [was] no evidence or other indication that the members of the Board who voted against Massey's application considered or assented to the October document," and (2) the document, "drafted one and a half months after the August hearing, is materially different from the decision set forth in the July and August transcripts." Instead, it considered the letter Wood mailed Massey as the Board's final decision.

"All final decisions ... of the board [of zoning appeals] shall be in writing and be permanently filed in the office of the board as a proper record." S.C.Code Ann. § 6-7-740 (Supp. 1999). The final decision must contain separately stated "findings of fact and conclusions of law...." Id.

Although the conclusions set forth...

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2 cases
  • Austin v. Board of Zoning Appeals, 3893.
    • United States
    • South Carolina Court of Appeals
    • 22 Noviembre 2004
    ...if the decision is supported by the facts of the case." Id. at 494, 536 S.E.2d at 899; cf. Massey v. City of Greenville Bd. of Zoning Adjustments, 341 S.C. 193, 201, 532 S.E.2d 885, 889 (Ct.App.2000) (considering use of transcript but rejecting in part because it was virtually In the presen......
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    • South Carolina Court of Appeals
    • 9 Octubre 2019
    ...not constitute the zoning board's final decision because only two of the five board members had seen the document. 341 S.C. 193, 200, 532 S.E.2d 885, 888 (Ct. App. 2000). As the hearing transcript was also inadequate, the matter was remanded to the board of zoning appeals to promulgate and ......

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