Quail Hill, LLC v. County of Richland

• Decision Date: 06 June 2008
• Docket Number: No. 4407.,4407.
• Citation: 665 S.E.2d 194,379 S.C. 314
• Court: South Carolina Court of Appeals
• Parties: QUAIL HILL, LLC, Appellant, v. COUNTY OF RICHLAND, South Carolina, Respondent.

665 S.E.2d 194

379 S.C. 314

QUAIL HILL, LLC, Appellant, v. COUNTY OF RICHLAND, South Carolina, Respondent.

No. 4407.

Court of Appeals of South Carolina.

Heard April 9, 2008.

Decided June 6, 2008.

Rehearing Denied August 25, 2008.

Clifford O. Koon, Jr., and Paul D. de Holczer, of Columbia, for Appellant.

William H. Davidson, II, and Michael Wren, of Columbia, for Respondent.

HEARN, C.J.

Quail Hill, LLC (Buyer) brought this action against Richland County as the result of its purchase of a 72.5 acre tract in reliance upon representations by County officers and staff regarding its zoning. The circuit court granted summary judgment to County on Buyer's claims for equitable estoppel, negligence, negligent misrepresentation, and inverse condemnation. We believe genuine issues of material fact exist as to some of Buyer's claims and therefore affirm in part, reverse in part, and remand.

FACTS

In 2002, Buyer contacted a licensed real estate broker and authorized him to act as its agent in locating and purchasing a parcel suitable for development of a manufactured-home subdivision. Broker identified a 72.5-acre parcel as a potential site for Buyer's development.

At this time, the Richland County Planning Department, Development Services' website advised the public: "Since 1997 the department has performed the planning, zoning and land use management staff functions of county government.... The Development Services Counter is the key point of public contact for the planning and zoning functions of the County. It is the primary information resource of property owners and land use professionals who often need to know `What can and can not be done with a piece of property.'" (emphasis supplied).

Accordingly, in January 2003, Broker met with the Richland County Planning Department staff (Staff) to obtain the zoning classification and permitted uses for the parcel. County's subdivision coordinator, Carl Gosline, told Broker the parcel was zoned RU (rural), a classification that permits a manufactured-home subdivision. Additionally, County tax records listed the parcel's zoning as RU.

On March 13, 2003, Buyer purchased the parcel and then surveyed, platted, and prepared it for development. In September, Buyer filed an application with the County Planning Commission for site plan approval for his proposed subdivision. Buyer's site plan requested subdividing the parcel into twenty lots for manufactured homes. The Staff Report to the Planning Commission recommended approval of Buyer's subdivision plan and included the following findings: (1) the parcel was zoned RU, (2) the proposed project's impact on traffic was well within design capacity for the access road, (3) the proposed project was compatible with adjacent development, and (4) the project implemented objectives of the North Central Subarea Plan, including varied and low-density development initiatives. On October 6, 2003, the Planning Commission voted unanimously to approve Buyer's subdivision application and site plan. Thereafter, Buyer began marketing and selling lots for Brockington Acres.

Over a year later, after the first manufactured homes were already installed, community members contacted their county council representative and asked him to attend a neighborhood meeting at a church adjoining Brockington Acres. County's current zoning administrator, Geonard Price, accompanied the council member to the meeting, where neighbors inquired about zoning restrictions and expressed opposition to the development of Brockington Acres. Shortly thereafter, on November 14, 2004, Staff notified Buyer that Price had interpreted the official zoning map and found the parcel was zoned RS-1, a classification that prohibits manufactured homes.¹ Three days later, Price issued an order requiring Buyer to cease development of the subdivision.

On November 17, 2004, County issued its order stopping further development; however, since receiving final site plan approval from the Planning Commission in October 2003, Buyer had already sold five of the subdivision's twenty lots. Two purchasers had obtained County permits authorizing them to install manufactured homes and, in fact, two homes were already installed on the lots. Another purchaser had permits to install manufactured homes on three lots, but had not yet installed them when the County issued its order to cease development.

When Buyer contacted Staff about County's order to cease development at Brockington Acres, Staff told him to apply to county council for a zoning map amendment and assured him it would recommend approval of his request. However, just two weeks later the Staff Report recommended the Planning Commission deny Buyer's application for a zoning map amendment. At a meeting on December 2, 2004, the Planning Commission accepted the Staff Report and recommended county council deny Buyer's request for a zoning map amendment. Thereafter, county council voted unanimously to deny Buyer's application to amend the zoning map.

Buyer filed a complaint in circuit court requesting an injunction and alleging causes of action against County for equitable estoppel, negligence, negligent misrepresentation, and inverse condemnation. Buyer sought an order requiring County to change zoning of his parcel from RS-1 to RU. Alternatively, Buyer sought damages and attorney's fees. County moved for summary judgment, which the circuit court granted. This appeal followed.

STANDARD OF REVIEW

When reviewing the grant of a summary judgment, this court applies the same standard that governed the trial court; summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fleming v. Rose, 350 S.C. 488, 493, 567 S.E.2d 857, 860 (2002); see also Rule 56(c), SCRCP. "On appeal from an order granting summary judgment, the appellate court will review all ambiguities, conclusions, and inferences arising in and from the evidence in a light most favorable to the appellant, the non-moving party below." Willis v. Wu, 362 S.C. 146, 151, 607 S.E.2d 63, 65 (2004).

LAW/ANALYSIS

I. Validity of Zoning Ordinances

Initially Buyer contends there is a material issue of fact as to whether County validly enacted its 1978 zoning ordinances. We agree with the circuit court that Buyer is statutorily barred from challenging the validity of the zoning ordinance at this juncture.

It took County thirteen months to provide the minutes from the county council meetings in 1978 wherein the zoning on the subject property was purportedly granted. While Buyer asserts certain irregularities in connection with the approval of the zoning ordinances, the circuit court correctly held that Buyer may not now be heard to challenge the validity of the enactment of the ordinances. Section 6-29-760(D) of the South Carolina Code (2004) provides:

No challenge to the adequacy of notice or challenge to the validity of a regulation or map, or amendment to it, whether enacted before or after the effective date of this section, may be made sixty days after the decision of the governing body if there has been substantial compliance with the notice requirement of this section or with established procedures of the governing authority or the planning commission.

Accordingly, we find Buyer's argument is without merit.

II. Inverse Condemnation

Buyer next alleges the circuit court erred in granting summary judgment in favor of County on his claim for inverse condemnation. We disagree.

An inverse condemnation may result from the government's physical appropriation of private property, or it may result from government-imposed limitations on the use of private property. Byrd v. City of Hartsville, 365 S.C. 650, 656, 620 S.E.2d 76, 79 (2005). To prevail in an action for inverse condemnation, "a plaintiff must prove an affirmative, aggressive, and positive act by the government entity that caused the alleged damage to the plaintiff's property." WRB Ltd. P'ship v. County of Lexington, 369 S.C. 30, 32, 630 S.E.2d 479, 481 (2006).

The circuit court found there was "no evidence that the zoning designation [of Buyer's parcel] was changed, and at most, any representation of the zoning designation of the property by Mr. Gosline or contained in the Tax Assessor's records was a mistake." This finding is in line with Buyer's own complaint, which stated "the staff represented to [Buyer] that it had erroneously advised [Buyer] that the subject property was zoned `RU' and that records in the development staff offices and Tax Assessor's office differed from the official zoning map."

On appeal, Buyer puts forth two alternative arguments in support of its assertion that the circuit court erred in granting County's motion for summary judgment on the inverse condemnation claim. First, Buyer contends there has never been a valid, enforceable zoning map and that therefore, it was denied the ability to develop the property as it desired without being subject to zoning restrictions. As discussed above, because Section 6-29-760(D) bars Buyer's challenge, this contention is without merit. Next, Buyer contends that County's action in informing it the zoning of the property was RU constituted a sufficient showing of an affirmative, aggressive, and positive act to establish inverse condemnation.

However, the only evidence in the record indicates that County's informing Buyer of the zoning designation for the property was merely a mistake, caused primarily by incorrect record keeping in the tax assessor's office. We have found no reported case, and Buyer has cited none, which holds that a mistake may rise to the level of an affirmative, aggressive, and positive act sufficient to constitute inverse condemnation. Accordingly, the court's grant of summary judgment to County on this cause of action is affirmed.

III. Negligence and Negligent Misrepresentation

Buyer also contends the circuit court erred in granting summary judgment in...