Decision Date03 May 2004
Docket NumberNo. 3791.,3791.
Citation358 S.C. 655,596 S.E.2d 380
CourtSouth Carolina Court of Appeals
PartiesSEABROOK ISLAND PROPERTY OWNERS ASSOCIATION, Appellant, v. MARSHLAND TRUST, INC., Orangehill Plantation, LLC and Michael Casa, Respondents.

David B. Wheeler & Edward T. Fenno, of Charleston, for Appellant.

Timothy A. Domin, of Charleston, for Respondents.


Seabrook Island Property Owners Association (the "Association") brought this action against Michael Casa and his development companies, Marshland Trust, Inc., and Orangehill Plantation, LLC, (collectively, "Developers"), to prevent construction of a bridge from Seabrook Island to two nearby marsh islands. The circuit court found the Association did not have the right to deny the construction and denied the Association's request for an injunction. The Association appeals. We affirm.


Seabrook Island is a restricted-access resort community in Charleston County, South Carolina. In 1972, the subdivision of Seabrook Island was zoned as a planned unit development ("PUD") for Charleston County, which allowed for multiple zoning uses without the need to obtain separate zoning approval for each use. Seabrook Island formed the Association to enforce the restrictive covenants within the PUD. In 1987, the incorporation of the Town of Seabrook Island shifted control of the area from the county to the Town, and the Town adopted the county's PUD provisions.

Casa owned two lots in Seabrook Island in Area 6 of the PUD. Area 6 was zoned mixed commercial and residential. One of the lots was located in the commercial area and another lot, Lot 5, was located in a primarily residential area known as Marsh Creek. Casa intended to develop patio homes on Lot 5. Marsh Creek is subject to the Association's Covenants.

In 1995, Developers outbid the Association and purchased from the United States Bankruptcy Trustee two islands, Islands A and B, located in the marsh near Seabrook Island. Developers originally sought a permit from the South Carolina Office of Ocean and Coastal Resource Management (OCRM) to build two bridges to access the islands—one 350 foot bridge from Lot 5 to Island B and a 750 foot bridge from Casa's commercial lot to Island A. Developers changed their proposal to using Lot 5 as the jumping off point for a bridge or "driveway" to both islands. A single 290 foot bridge, emanating from Lot 5, would go to Island B, and a 600 foot bridge would emanate from Island B to Island A.1

After receiving permit approval from the OCRM for the single bridge proposal, Developers submitted an application to the Association's Architectural Review Board ("ARB") for permission to install a curb cut on Lot 5 for access to Islands A and B. The ARB denied Developers' proposal, believing the islands were located outside the PUD.2 The ARB informed Developers that it had no authority to approve a curb cut for access to property outside the PUD. The ARB denied Developers' appeal, stating it would continue to deny any plans showing an easement across Lot 5 to access the islands.

The Association then filed suit seeking: (i) a declaratory judgment on its right to regulate use of Lot 5; (ii) a permanent injunction against Developers from using Lot 5 or any other property within the Seabrook Island Development to access Islands A and B; and (iii) an injunction against Developers from using Lot 5 for any other nonresidential purpose. The circuit court found the Association did not have the right to deny Developers' use of Lot 5 as a "jumping off point" for the islands and denied injunctive relief. The judge stated although ARB approval is required for the bridge, Developers should be allowed to use Lot 5; other-wise, access to the islands would be unreasonably restricted. The judge based his decision on favoring Developers' free use of property. The Association appeals.


A declaratory judgment action is neither legal nor equitable in nature, but it takes on the tenor of the underlying action. Gordon v. Colonial Ins. Co. of California, 342 S.C. 152, 155, 536 S.E.2d 376, 378 (Ct.App.2000). "An action to enforce restrictive covenants by injunction is in equity." Kneale v. Bonds, 317 S.C. 262, 265, 452 S.E.2d 840, 841 (Ct.App.1994). On appeal from an action at equity, tried by the judge alone without a reference, the appellate court has jurisdiction to find facts in accordance with its view of the preponderance of the evidence. In re Thames, 344 S.C. 564, 571, 544 S.E.2d 854, 857 (Ct.App.2001). "However, this broad scope of review does not require the appellate court to ignore the findings below when the trial court was in a better position to evaluate the credibility of the witnesses." Id.



The Association argues the restrictive covenants convey upon it and the ARB the right to deny Developers' plan to construct a bridge to Islands A and B. The Association further argues the circuit court erred in relying upon a zoning ordinance to supersede the authority found in the restrictive covenants. We disagree.


The language of a restrictive covenant is to be construed according to the plain and ordinary meaning attributed to it at the time of execution. Taylor v. Lindsey, 332 S.C. 1, 4, 498 S.E.2d 862, 863 (1998). "[A]s voluntary contracts, restrictive covenants will be enforced unless they are indefinite or contravene public policy." Houck v. Rivers, 316 S.C. 414, 416, 450 S.E.2d 106, 108 (Ct.App.1994). Restrictions on the use of property will be strictly construed with all doubts resolved in favor of free use of the property, although the rule of strict construction should not be used to defeat the plain and obvious purpose of the restrictive covenant. Taylor, 332 S.C. at 4,498 S.E.2d at 864. Although an architectural review board has discretion regarding approval of proposed construction, that discretion is "constrained only by reasonableness and good faith." River Hills Prop. Owners Ass'n v. Amato, 326 S.C. 255, 259, 487 S.E.2d 179, 181 (1997); O'Shea v. Lesser, 308 S.C. 10, 15, 416 S.E.2d 629, 632 (1992).

The Association first argues: (1) the Covenants apply to Lot 5, the Covenants give the Association broad discretion to reject the bridge proposal, and (2) it is reasonable for the Association to deny construction of the bridge. As explained below, we agree with the circuit court that it is unreasonable for the Association to deny construction of the bridge on Lot 5.

Developers' counsel admitted, and Casa testified at trial, that Lot 5 was subject to the Association's Covenants. Further, the deed to Lot 5 provided that the property was subject to the Covenants. The Covenants grant the Association the right to adopt and enforce regulations pertaining to "planning, construction and design of improvements on property or alterations thereto." Association Covenants § 2. The Covenants give sole discretion to the Board or the ARB to approve or disapprove of plans "based upon any ground, including purely aesthetic conditions." Id. at § 19. The sections of the Covenants pertinent to this appeal provide as follows:

"No building of any kind or description, fence, swimming pool, or other structure, shall be erected, placed, or altered on any Lot in the Seabrook Island Development, until the proposed building plans ... shall have been approved in writing by the ... [Association's] Architectural Review Board...." Association Covenants § 19.
"The design and location of [bridges] on Property which is... subject to these Covenants, must be approved by the ARB." Id. § 25.

The circuit court held the islands were listed within the County's original PUD, which was adopted by the Town of Seabrook Island. The court found Lot 5 was subject to the restrictions in the Covenants, but the restrictions conflicted with the mixed commercial/residential use permitted in Area 6. Although the court found that the "driveway"/bridge from Lot 5 to the islands would be a "building ... or other structure" subject to the ARB's approval under Covenant § 19, Developers were nevertheless entitled to use Lot 5 as a driveway to the island. The court found that otherwise, "access to the islands would be unreasonably restricted, and [Developers] would be ... unjustifiably denied the free use of its property."

Reviewing the restrictive covenants and strictly construing them in favor of free use of the property, we find the circuit court did not commit error. The Covenants grant the ARB the right to approve or disapprove building plans, even for purely aesthetic reasons. Lot 5, as admitted by Developers and pursuant to deed, is subject to those restrictions. However, to outright deny building a driveway/bridge from Lot 5 would deny access to the islands. Although the ARB had the power to generally approve or disapprove of specific bridge plans "on any grounds," to outright deny the building of a bridge that would give access to the islands would be an unreasonable exercise of that power. Based on a preponderance of the evidence, the circuit court correctly held that it would not grant the Association a declaratory judgment finding the Association had the authority to deny Developers' request to build a bridge.


In its next argument, the Association states the circuit court erroneously relied upon a "zoning ordinance" to supersede the effect of the Covenants. The Association, however, essentially argues the court erred in relying upon the permitted uses of the PUD for Area 6. We find the circuit court did not commit error.

The Covenants appear to restrict their residential provisions to residential property. Covenant § 5 provides that "[a]ll property shown in the PUD as residential property which is now or...

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