Scott v. Greenville County, 82-2053

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtBefore WINTER, Chief Judge, ERVIN, Circuit Judge, and BRYAN; HARRISON L. WINTER
Citation716 F.2d 1409
PartiesG.T. SCOTT, Appellant, v. GREENVILLE COUNTY: C. Daniel Riddle; I.H. Gibson; Mike Fair; Melvin Pace; John L. Bauer; W. Bentley Hines; Johnnie M. Smith; W. Shannon Linning; Larry H. McCalla; Marshall L. Cason; J. Harlon Riggins; W.B. Bennett; Charles F. Styles; Clyde E. Morgan, individually and as members of Greenville County Council; Robert T. Ashmore; E.A. Peddycord and W.S. Farmer, Jr., individually and as members of Buxton Subdivision, Garden Terrace Community, Crestwood Drive Community and the State Park Road Community, Manly Drive, Deamlany Way and Hillandale Circle, Appellees.
Docket NumberNo. 82-2053,82-2053
Decision Date14 September 1983

Page 1409

716 F.2d 1409
G.T. SCOTT, Appellant,
GREENVILLE COUNTY: C. Daniel Riddle; I.H. Gibson; Mike
Fair; Melvin Pace; John L. Bauer; W. Bentley Hines;
Johnnie M. Smith; W. Shannon Linning; Larry H. McCalla;
Marshall L. Cason; J. Harlon Riggins; W.B. Bennett;
Charles F. Styles; Clyde E. Morgan, individually and as
members of Greenville County Council; Robert T. Ashmore;
E.A. Peddycord and W.S. Farmer, Jr., individually and as
members of Buxton Subdivision, Garden Terrace Community,
Crestwood Drive Community and the State Park Road Community,
Manly Drive, Deamlany Way and Hillandale Circle, Appellees.
No. 82-2053.
United States Court of Appeals,
Fourth Circuit.
Argued April 14, 1983.
Decided Sept. 14, 1983.

Page 1411

Keith M. Babcock, Columbia, S.C. (William F. Austin, A. Camden Lewis, Austin & Lewis, Columbia, S.C., on brief), for appellant.

J.D. Todd, Jr., Greenville, S.C. (Leatherwood, Walker, Todd & Mann, William M. Grant, Jr., Ward Benjamin McClain, Jr., Haynsworth, Perry, Bryant, Marion & Johnstone, Joseph H. Earle, Jr., Greenville County Atty. and Charles Richard Stewart, Staff Atty., Greenville, S.C., on brief), for appellees.

Before WINTER, Chief Judge, ERVIN, Circuit Judge, and BRYAN, Senior Circuit Judge.


When plaintiff Scott, a real estate developer, sought a building permit to construct low-income apartments in an area of Greenville County, South Carolina, zoned for the density of the project that he wished to build, the County Council halted issuance of the permit pending consideration of a rezoning of the proposed building site. Plaintiff obtained a state trial court ruling declaring the Council's action illegal and ordering immediate issuance of the permit, but an appeal taken by intervening private landowners opposed to the project effectively tied up the permit for over sixteen months more. Scott subsequently brought this suit under 42 U.S.C. Sec. 1983 seeking damages for the alleged deprivations of various constitutional rights by the County, its Council, and the intervening landowners. He appeals from the district court's grant of summary judgment in favor of all defendants on numerous grounds. For the reasons that follow, we affirm in part, reverse in part, and remand this case to the district court for further proceedings.


The district court made no specific findings of fact, but since the court granted summary judgment for defendants, plaintiff "is therefore entitled ... to have the credibility of his evidence as forecast assumed, his version of all that is in dispute accepted, all internal conflicts in it resolved favorably to him, the most favorable of possible alternative inferences from it drawn in his behalf; and, finally, to be given the benefit of all favorable legal theories invoked by the evidence so considered." Charbonnages de France v. Smith, 597 F.2d 406, 414 (4 Cir.1979); see also Chastain v. Litton Systems, Inc., 694 F.2d 957, 959 n. 2 (4 Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 2454, 77 L.Ed.2d 1334 (1983); Smith v. University of North Carolina, 632 F.2d 316, 338 (4 Cir.1980). We

Page 1412

therefore state the facts in accordance with these principles:

G.T. Scott, a real estate developer since 1960, early in 1976 became interested in developing a particular parcel of land in Greenville County, South Carolina, into a multi-family low-income housing complex. During the subsequent two years Scott worked out the arrangements necessary towards building 156 units on the approximately thirteen-acre site, which throughout that time was zoned for multi-family dwellings. As of March 1978, Scott had acquired a purchase option for the land; had put together a partnership to pursue the project; and had obtained the earmarking of federal subsidy funds by the Department of Housing and Urban Development. 1 In addition, by the end of 1977, Scott had submitted detailed plans of the proposed apartment complex to the staff of the county planning commission. During January 1978, following what one top planning staff official described as a common "unofficial courtesy review" of a developer's plans prior to a formal permit application, the county planning commission staff found Scott's project to conform to the then-existing density, dimensional and parking requirements of Sec. 6:14 of the Greenville County Zoning Ordinance applicable to the site. The next step in the development process was therefore the formal application for a building permit.

In mid-March 1978, however, Scott began to hear informally of local opposition to his apartment complex proposal. He arranged with Royce J. Carter, then Acting Executive Director of the County Planning Commission, to meet with two of the private defendants (who were leaders of the citizen opposition), a state senator, one of the County Council defendants, and Carter. Some of the private citizens present raised questions about the desirability of housing minority and low-income residents in the designated neighborhood; aside from airing differences, nothing was resolved at the meeting.

The next night, March 21, the Greenville County Council held its regularly scheduled meeting, and Scott's development proposal again sparked much debate. At the time of this meeting, Scott's building site was within an area zoned "RM" for multi-family dwellings such as that proposed by Scott. Consequently, the leaders of the several hundred county residents opposing Scott's plan in attendance at the meeting called on the County Council to rezone the area to R-15, a classification permitting only single family homes. The Council Chairman referred the rezoning matter to the Council's Public Service, Planning and Development Committee. The next day Scott applied for a building permit on the basis of the plans previously reviewed informally.

At the same time, the Council committee considering rezoning was formulating a plan to instruct the County Zoning Administrator to direct that the planning commission and other relevant officials halt all processing of building permits for the area in question, i.e., Scott's, which was the only one pending. The committee members, at their March 23 meeting, were informed by Carter that Scott's plans had already been submitted for planning staff review. In addition, the minutes of the meeting show,

Page 1413

the county attorney "discussed the ministerial roles of the Planning staff and Zoning Administrator." Nonetheless, the committee, acting for the Council, issued its permit "freeze" order, which was transmitted to lower level officials on March 24. The moratorium on building permits for the area of Scott's project was to continue at least until a planned April 17 hearing on the proposed rezoning. According to Carter's later testimony, this was the only occasion on which he had ever been instructed not to process a designated building permit.

One week later Scott filed suit in the Court of Common Pleas for Greenville County seeking an order requiring the issuance of a building permit. Named as defendants were Carter and two other administrative officials. After a hearing before him, Judge Frank Eppes on April 13 issued an order requiring that the permit "immediately issue" to Scott. Judge Eppes found that a permit normally would have been processed and issued in ten days, and that all necessary reviews had been either satisfactorily completed or waived prior to the time of the court hearing on the matter. He went on to note that under the express terms of the zoning ordinance in existence since May 19, 1970, the County Council was barred from involvement in the issuance of particular permits, concluding that there was "no legal basis for the intrusion by the County Council into the zoning certificate and building permit process."

An appeal was taken from the ruling by the private defendants in this current action. They were interested landowners in the area who had intervened in the state court suit individually and as representatives of a class of property owners in the vicinity of the proposed apartments. Pursuant to the appeal, the private landowners obtained a Writ of Supersedeas from the Chief Justice of the South Carolina Supreme Court on April 14--the day after Judge Eppes's order--which again suspended the issuance of the permit.

On August 15, 1979, nearly seventeen months after Scott's original application, the South Carolina Supreme Court upheld the trial judge's order, adopting it verbatim as the majority opinion for the court. Scott v. Carter, 273 S.C. 509, 257 S.E.2d 719 (1979). 2 In the interim between the trial court order and its affirmance, though, Scott's plans had fallen through, due to the pall cast over the project by the uncertainties of the state court litigation. Scott eventually sold his remaining interest in the project and the site for $162,000.00, a sum which he claims only partially offset several hundred thousand dollars in actual expenses and lost profits. He then filed this action.


In the instant suit Scott alleged that the actions of the County Council in conspiracy with the private landowner defendants violated 42 U.S.C. Sec. 1983 as invasions of his Fifth and Fourteenth Amendment rights. He grounded his complaint on three basic constitutional theories: that the withholding of the permit was motivated by a racially discriminatory intent to prevent him from building housing for and renting to members of racial minorities, in violation of the equal protection clause; that, even aside from any racially discriminatory motivation, the withholding of the permit was a deprivation of property without due process; and, that the permit was property, which was taken without just compensation. 3 As relief, he seeks judgment against the County, the Council members individually, and the private landowners in the amount of $300,000.00, a figure representing Scott's estimated losses attributable not only to the initial...

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