Moore v. Sumter County Council

• Decision Date: 08 December 1989
• Docket Number: No. 23130,23130
• Citation: 300 S.C. 270,387 S.E.2d 455
• Parties: Samuel F. MOORE, Jr. and Bonnie S. Moore, Appellants, v. SUMTER COUNTY COUNCIL and its Members in their capacity as members of said council, Respondents. . Heard
• Court: South Carolina Supreme Court

Page 455

387 S.E.2d 455

300 S.C. 270

Samuel F. MOORE, Jr. and Bonnie S. Moore, Appellants, v. SUMTER COUNTY COUNCIL and its Members in their capacity as

members of said council, Respondents.

No. 23130.

Supreme Court of South Carolina.

Heard Dec. 8, 1989.

Decided Jan. 8, 1990.

Samuel F. Moore, Dalzell, pro se.

George C. James, Jr., Sumter, for respondents.

TOAL, Justice:

The sole issue presented in this appeal is whether one must exhaust administrative remedies before one pursues judicial relief from an allegedly invalid zoning ordinance.

FACTS

On June 9, 1987, Sumter County Council enacted the Airfield Landing Zone Ordinance, which places various restrictions on the development and use of certain property in the vicinity of Shaw Air Force Base. The appellants, Samuel Moore, Jr. and Bonnie Moore, own property located within a zoned area entitled the "Airfield Landing Zone."

The Moores commenced this action against the Sumter County Council, alleging that the ordinance does not allow best-use development of their property and constitutes an unconstitutional taking of their property without just compensation. The Moores freely admit that they have not pursued any available administrative remedies. They assert that any attempt to do so would be tiresome and too costly.

The Circuit Court Judge granted summary judgment to the respondent, and the Moores now appeal.

LAW/ANALYSIS

The Airfield Landing Zone Ordinance was passed pursuant to authority granted to Sumter County by S.C.Code Ann. § 6-7-710, et seq. (Law.Co-op.1976). Section 6-7-750 provides for an appeal from an adverse, final administrative decision to the Circuit Court, and § 6-7-790 provides for an appeal from the Circuit Court to this Court.

The Moores contend that the Airfield Landing Zone Ordinance operates to amount to a regulatory taking of their property without just compensation. A regulatory takings claim has two elements: (1) the property owner must demonstrate that the regulation has in substance "taken" his property; and (2) the property owner must demonstrate that any proffered compensation is not "just". MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 348, 106 S.Ct. 2561, 2565, 91 L.Ed.2d 285 (1986). Here, the Moores have failed to establish the first element.

As an initial matter, it appears that, under the ordinance, there are many permitted uses applicable to the Moores' land. Industrial and manufacturing uses which are permitted involve: (1) food and kindred products; (2) textiles; (3) apparel; (4) lumber and wood products; (5) furniture and fixtures; (6) paper and allied products; (7) stone, glass and clay products; (8) primary metal industries; and (9) fabricated metal products. Other uses permitted are: (1) railroad; (2) motor vehicle transportation; (3) aircraft transportation; (4) auto parking; (5) utilities; (6) wholesale trade; (7) automotive, marine and aviation retail; (8) furniture and home furnishings retail; (9) apparel and accessories retail; (10) general merchandise retail; (11) finance, insurance, or real estate services; (12) business services; (13) warehousing and storage services; (14) cemeteries; (15) personal services; (16) repair services; (17) legal and other professional services; (18) nature exhibitions; (19) outdoor sports activities; (20) water based recreation areas; (21) agriculture related activities; (22) mining; (23) forestry; and (24) fishing and related activities. ¹ We list these permissible uses to illustrate that the ordinance in question does not render the Moores' property worthless. ²

The Circuit Court judge granted summary judgment to the respondent on the basis that the Moores had failed to exhaust their administrative remedies, and that their claim for judicial relief was therefore premature. We agree. The United States Supreme Court has held that, "[u]ntil a property owner has 'obtained a final decision regarding the application of the zoning ordinance and subdivision regulations to its property,' 'it is impossible to tell whether the land retain[s] any reasonable beneficial use or whether [existing] expectation interests ha[ve] been destroyed.' " Id. (quoting Williamson Planning Comm'n. v. Hamilton Bank, 473 U.S. 172, 186, 190 n. 11, 105 S.Ct. 3108, 3116, 3118 n. 11, 87 L.Ed.2d 126 (1985)). Furthermore, this Court has stated, "[t]he impact of [a] zoning ordinance upon [a given] property cannot be determined [when] the landowner has failed to pursue his administrative remedies by applying for a variance." Dunbar v. City of Spartanburg, 266 S.C. 113, 221 S.E.2d 848 (1976).

The record discloses two administrative remedies which are readily available to the Moores. Under the ordinance itself, the Moores may apply for a permit to make a material change in the use of their land; to erect or alter a structure; or to replace, substantially alter, or rebuild an existing nonconforming use. Secondly, the Moores may apply for a variance under S.C.Code Ann. § 6-7-740 (Law.Co-op.1976). Hence, until the administrative remedies available to the Moores have been exhausted, a judicial determination of whether they have suffered a "taking" is impossible. The final impact of the ordinance on the property in question is uncertain.

The Moores assert that they should be excused from exhausting these remedies, because to do so would be too time-consuming and tiresome. A party is not excused from seeking administrative relief because he feels that he will encounter...