Rutter v. City of Columbia Design/Development Review Comm'n
| Decision Date | 30 June 2021 |
| Docket Number | Unpublished Opinion No. 2021-UP-242,Appellate Case No. 2018-001194 |
| Parties | G. Allen Rutter, Respondent, v. City of Columbia Design/Development Review Commission, Appellant. |
| Court | South Carolina Court of Appeals |
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
Appeal From Richland County
Jocelyn Newman, Circuit Court Judge
REVERSED
M. McMullen Taylor, of the Columbia City Attorney's Office, for Appellant.
Benjamin C. Bruner and Chelsea Jaqueline Clark, of Bruner Powell Wall & Mullins, LLC, of Columbia, for Respondent.
A City of Columbia architectural review board denied a homeowner's request to make changes to a house in an architectural conservation district. The homeowner sought review of that denial in circuit court. The circuit court reversed the board's decision after finding the board violated the homeowner's right to procedural due process. The court also found the City's historic preservation guidelines were contradictory and vague.
We reverse. The homeowner never objected during the board's review procedure, and even if he had objected, the record shows the homeowner received procedural due process. The City's guidelines are also straightforward with respect to the activities at issue here: painting exterior brick, removing exterior windows, and removing exterior doors. Indeed, there is not even an argument the guidelines are vague or contradictory with respect to windows and doors.
Allen Rutter—the homeowner—bought a two story Tudor-style house in the Melrose Heights/Oak Lawn Architectural Conservation District in Columbia. His plan for the house included painting the first-floor brick, removing several doors and windows, and converting the house from a duplex into a single family residence.
In September 2016, about a month before purchasing the house, Rutter apparently called the City of Columbia's Planning and Preservation Department, asked about painting the house's unpainted brick, and was told he could not make changes to the exterior of the property unless the changes complied with the Historic Preservation and Architectural Review Ordinances and the Melrose Heights/Oak Lawn Architectural Conservation District Design Guidelines.
At the circuit court level, Rutter disputed this conversation occurred. Yet, his agent did not dispute the conversation when it was mentioned (three times) during the hearing before the City's Design/Development Review Board.
In early November 2016, not long after Rutter purchased the home, the City issued a "stop work" order after receiving reports that Rutter was painting the house. Later that month, Rutter filed an application with the board requesting permission to paint.
Over time, and after another stop work order, the City learned Rutter intended to remove several doors and windows. Rutter's request to make these changes went before the board in an administrative hearing held pursuant to section 6-29-890 of the South Carolina Code (Supp. 2020) ().
The hearing on Rutter's application lasted approximately forty minutes. Five people "presented" on the application: a City staff member, Rutter's realtor (whom Rutter had designated as his agent), and three neighbors opposing Rutter's application.
The board denied Rutter's request to paint the brick and denied his request to remove the home's historical windows and doors. Other parts of Rutter's request were granted with conditions. The board also required Rutter to remove the unapproved paint within sixty days.
Rutter appealed. After a hearing, the circuit court issued a written order reversing the City's decision. As noted above, the circuit court found that Rutter was not afforded procedural due process and that the City guidelines were vague.
The circuit court identified several things as procedural defects including that Rutter was given less than ten minutes to present his case, that he had no right to counsel, and that he had no opportunity to cross-examine the City staff member who presented the matter to the board. The circuit court also found homeowners like Rutter did not have notice of the relevant City guidelines because the guidelines do not appear in a property's chain of title or in the City's ordinances.
Three months after the notice of appeal was served, and after the City filed its initial brief, Rutter filed a motion to dismiss this appeal. Rutter claims he completed all of the work at issue in the thirty-day period between the circuit court's order and the City's notice of appeal; making this dispute moot. We denied the motion but instructed that we would consider mootness once briefing was complete.
1. Whether the circuit court erred in finding a procedural due process violation.
2. Whether the circuit court erred in finding the City guidelines to be vague.
3. Whether this appeal is moot.
The finding of a procedural due process violation was error for two reasons. First, neither Rutter nor his agent lodged any objection to the procedure the board employed before or during the board's hearing. Agencies (and, by extension, executive boards) may not adjudicate facial constitutional challenges to statutes and regulations. See Travelscape, LLC v. S.C. Dep't of Revenue, 391 S.C. 89, 108-09, 705 S.E.2d 28, 38-39 (2011). Even so, we do not think this overcomes the requirement that a complaining party lodge some sort of objection before complaining of an error on appeal. See I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 422, 526 S.E.2d 716, 724 (2000).
Second, the record shows Rutter was given due process. Kurschner v. City of Camden Planning Comm'n, 376 S.C. 165, 171-72, 656 S.E.2d 346, 350 (2008) (citation omitted). Due process does not require local architectural boards or other similar boards to adopt the procedures used in circuit court. We have watched the video of Rutter's board hearing. It is evident Rutter received "notice, an opportunity to be heard in a meaningful way, and judicial review." Id. at 171, 656 S.E.2d at 350.
At the end of its due process analysis, the circuit court found property owners did not have actual or constructive notice of the City's historic preservation guidelines. One ordinance creates the City's architectural conservation districts. See Columbia, South Carolina, Municipal Code § 17-681 (last updated Jan. 15, 2021). Other ordinances explain the "certificate of design approval" requirement and enact temporary guidelines that apply until City Council has approved other guidelines. See Columbia, South Carolina, Municipal Code § 17-655, 17-674 (last updated Jan. 15, 2021). This is the definition of constructive notice. See Labruce v. City of N. Charleston, 268 S.C. 465, 467, 234 S.E.2d 866, 867 (1977) (). We are not aware of authority supporting the proposition that the Municipal Code's reference to external guidelines amounts to a failure of procedural due process. It is also worth mentioning, as noted above, the record suggests Rutter had actual notice of the...
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