Newton v. Zoning Bd. of Appeals for Beaufort Cnty., 4907.

• Decision Date: 22 December 2011
• Docket Number: No. 4907.,4907.
• Citation: 396 S.C. 112,719 S.E.2d 282
• Court: South Carolina Court of Appeals
• Parties: Donald NEWTON, Jean Flagg–Newton and James C. Hudson, Plaintiffs,Of whom Donald Newton and Jean Flagg–Newton are, Appellants, v. ZONING BOARD OF APPEALS FOR BEAUFORT COUNTY, Respondent.

396 S.C. 112

719 S.E.2d 282

Donald NEWTON, Jean Flagg–Newton and James C. Hudson, Plaintiffs,Of whom Donald Newton and Jean Flagg–Newton are, Appellants,

v.ZONING BOARD OF APPEALS FOR BEAUFORT COUNTY, Respondent.

No. 4907.

Court of Appeals of South Carolina.

Heard Sept. 13, 2011.Decided Nov. 9, 2011.Rehearing Denied Dec. 22, 2011.

Arthur C. McFarland, and Veronica G. Small, both of Charleston, for Appellants.

Robert W. Achurch, III, Jason Franklin Ward, and Mary Bass Lohr, all of Beaufort, for Respondent.

PER CURIAM.

After the Zoning Board of Appeals for Beaufort County (Board) issued a special use permit for additional construction on the site of an existing convenience center ¹ (the DOC) on Daufuskie Island, Donald Newton and Jean Flagg–Newton (collectively the Newtons) appealed the Board's decision to the circuit court. The matter was referred to a master-in-equity, who affirmed the Board's decision. The Newtons appeal, arguing the master erred in affirming the Board's decision not to require a Community Impact Statement (CIS).² They contend the master erred in finding: (1) a CIS was not required; (2) the Beaufort County (County) ordinance governing convenience centers (section 106–1362) does not apply to uses within the Daufuskie Community Preservation District; (3) the Board knew the impact of the existing DOC and, therefore, did not need to consider a CIS; and (4) section 106–552 of the Beaufort County Code of Ordinances (Code) controlled the consideration for approval of the special use permit in this case. We affirm and modify the master's decision as discussed below.

FACTS

In 2009, a contractor acting on behalf of Beaufort County applied to the Board for a special use permit to perform additional construction on the site of the DOC, which is located within the Daufuskie Island Community Preservation District. The County proposed to bring the DOC into greater compliance with County requirements by installing a fence, a swale for stormwater runoff, and three trash compactors, thereby reducing the cost of hauling away the collected trash and making the site safer and cleaner.

On December 10, 2009, the Board held a public hearing at which the Newtons and others spoke. According to the County, the improvements required a special use permit because the DOC predated the County's zoning ordinances and did not conform to them. The Newtons opposed the issuance of a special use permit, arguing such a permit would constitute “spot-zoning,” did not comport with the County's comprehensive plan for development, and would conflict with the development of adjacent recreational property. Moreover, the Newtons expressed concern that the proposed construction would expand the DOC, making it a waste processing site for housing developments that had been handling their own waste disposal. In response to the Newtons' concerns, David Coleman of the County's Building and Engineering Department explained the proposed improvements would not expand the DOC but instead would utilize previously cleared land to surround the DOC with buffer zones as required by ordinance. In addition, the installation of compactors would enable the DOC to process the same amount of trash as before but would reduce the need for hauling by fifty to sixty percent. According to Coleman, an existing restriction against commercial dumping at the DOC would continue to prevent the dumping of waste collected within the island's housing developments.

The Board unanimously approved the request for a special use permit. On January 28, 2010, it issued the permit, subject to certain conditions, in accordance with “Article III, Subdivision IV, Special Uses, Section 106–554, of the Zoning and Development Standards Ordinance.” ³ Shortly thereafter, the Newtons appealed the Board's decision to the circuit court.

On May 19, 2010, the master heard arguments on the issues briefed by the parties. A month later, the master issued an order “deny[ing] the appeal,” in which he effectively affirmed the Board's decision. Specifically, the master found the ordinance governing convenience centers does not apply within Community Preservation districts. Rather, he determined the Board “only needed to consider the criteria for approval of a special use permit under [section] 106–552” and was not required to order a CIS because the impact of the existing DOC was already known. This appeal followed.

STANDARD OF REVIEW

Generally, appeal from a final order of the circuit court following its review of the zoning board's decision is to the court of appeals. S.C.Code Ann. § 6–29–850 (2004); Rule 203(d), SCACR. Appellate courts regard appeals from zoning decisions in the same manner as appeals from other circuit court judgments in law cases. Petersen v. City of Clemson, 312 S.C. 162, 169–70, 439 S.E.2d 317, 322 (Ct.App.1993) (citing Bishop v. Hightower, 292 S.C. 358, 360, 356 S.E.2d 420, 421 (Ct.App.1987)). Even if a court disagrees with a zoning board's decision, the court will refrain from substituting its judgment for that of the zoning board unless the decision “is arbitrary, capricious, has no reasonable relation to a lawful purpose, or if the [zoning] board has abused its discretion.” Rest. Row Assocs. v. Horry Cnty., 335 S.C. 209, 216, 516 S.E.2d 442, 446 (1999). “An abuse of discretion occurs when a trial court's decision is unsupported by the evidence or controlled by an error of law.” Cnty. of Richland v. Simpkins, 348 S.C. 664, 668, 560 S.E.2d 902, 904 (Ct.App.2002).

LAW/ANALYSIS

I. Preservation

As a threshold issue, the Board contends the Newtons' arguments on appeal are unpreserved because the Newtons failed to raise these arguments to the Board during the administrative process. We disagree.

The Board's argument overlooks the issue identification requirements of the statute governing appeals from decisions by zoning boards, as well as the non-adversarial nature of administrative proceedings. Appeal from a decision by a zoning board of appeals is to the circuit court. S.C.Code Ann. § 6–29–820 (Supp.2010). Any “person who may have a substantial interest in any decision” by the Board may initiate an appeal of that decision by filing with the circuit court a “petition in writing setting forth plainly, fully, and distinctly why the decision is contrary to law.” Id. The circuit court may not take additional evidence and “must determine only whether the decision of the board is correct as a matter of law.” S.C.Code Ann. § 6–29–840(A) (Supp.2010).

This procedure does not allow for issue identification,⁴ or even party identification, prior to the filing of a petition with the circuit court. The statute does not require the appellant to attend a public hearing on the Board's decision or even to communicate his concerns to the Board prior to filing his petition with the circuit court. Thus, the sole preservation requirement for a first-level appeal of a zoning board's decision is that an appellant must set forth his issues on appeal in a written petition and file that petition with the circuit court before the thirty-day filing period expires. Here, the Board rendered its decision on January 28, 2010. The Newtons filed their petition outlining the grounds for their appeal on February 26, 2010, which was within the thirty-day filing period. The Board does not contend that this petition failed to identify the grounds for appeal. Therefore, the grounds for appeal identified in the Newtons' petition were properly before the master.

II. Convenience Center Ordinance (Section 106–1362)

The Newtons assert the master erred in finding the requirements of the County ordinance governing convenience centers (section 106–1362, Article V, Division 2) do not apply to uses in the Daufuskie Community Preservation District. We disagree.

The standards governing limited and special uses in Article V, Division 2, cover uses “designated in the general land use table 106–1098. These standards are in addition to other standards required elsewhere in this chapter, as well as building code requirements, and further supersede certain standards in [A]rticle VI of this chapter.” Beaufort Cnty. Code of Ord. § 106–1126 (Art. V, Div. 2, Subdiv. I) (1999). The ordinance governing convenience centers appears in Article V, Division 2. See Beaufort Cnty. Code of Ord. § 106–1362 (Art. V, Div. 2, Subdiv. VIII) (2003) (describing limited and special use standards for convenience centers in “all applicable districts,” including types of waste accepted, buffer zones, lighting, and CIS requirement).

The general land use table in section 106–1098 (the Table) details standards for eleven distinct types of land use districts, each of which the Table classifies as either a Priority area or a Rural area. Beaufort Cnty. Code of Ord. § 106–1098 (Art. V, Div. 1) (2009). The Table does not describe standards for Community Preservation districts, Transitional Investment areas, or special districts. Id. A note following the Table indicates Community Preservation standards are located in one of the appendices to Chapter 106.⁵

We affirm the master's determination that the standards described in the Table, and consequently the provisions of section 106–1362, do not govern Community Preservation districts. Although the Newtons accurately assert the Code indicates in several places the coverage of its provisions is layered, we find no indication the coverage of Article V, Division 2, or of section 106–1362 specifically, extends to Community Preservation districts. As the master observed, section 106–1126 states that Article V, Division 2, applies to the land uses designated in the Table. However, no mention of Community Preservation standards appears within the body of the Table. Instead, a note appearing below the Table offers a reference for where a reader may locate those standards. § 106–1098. Because the Table itself does not include the standards for Community Preservation districts, the master correctly...