Staubes v. City of Folly Beach

• Court: South Carolina Court of Appeals
• Writing for the Court: ANDERSON.
• Citation: Staubes v. City of Folly Beach, 331 S.C. 192, 500 S.E.2d 160 (S.C. App. 1998)
• Decision Date: 27 April 1998
• Docket Number: No. 2834.,2834.
• Parties: Vernon STAUBES, Appellant, v. CITY OF FOLLY BEACH, City of Folly Beach Zoning Board of Adjustments, Tommy Bolus, Harvey Wittschen, Cindy Newman, Mrs. Schwacke, and Betty Minchew, of whom City of Folly Beach is, Respondent.

331 S.C. 192

500 S.E.2d 160

Vernon STAUBES, Appellant, v. CITY OF FOLLY BEACH, City of Folly Beach Zoning Board of Adjustments, Tommy Bolus, Harvey Wittschen, Cindy Newman, Mrs. Schwacke, and Betty Minchew, of whom City of Folly Beach is, Respondent.

No. 2834.

Court of Appeals of South Carolina.

Heard April 7, 1998.

Decided April 27, 1998.

Rehearing Denied June 19, 1998.

Timothy A. Domin, of Clawson & Staubes, Charleston, for Appellant.

Thomas J. Wills, IV, and James E. Reeves, both of Barnwell, Whaley, Patterson & Helms, Charleston, for Respondent.

ANDERSON, Judge:

Vernon Staubes brought this action to recover damages he allegedly sustained due to the City of Folly Beach's refusal to grant him a permit to repair his duplex. The trial court granted the City's motion for summary judgment holding the City's actions did not (1) result in a taking of Staubes's property; (2) violate Staubes's right to due process; or (3) violate 42 U.S.C. § 1983. Additionally, the court found Staubes's negligence action was barred by the South Carolina Tort Claims Act.¹ We affirm in part, reverse in part, and remand.²

FACTS/PROCEDURAL BACKGROUND

The background of this case is reported in Staubes v. City of Folly Beach, Op. No. 94-UP-138 (S.C. Ct.App. filed April 27, 1994), as follows:

Vernon Staubes owns a two-story rental apartment building on Folly Beach. The building was damaged by Hurricane Hugo. Prior to being damaged, the building had a fair market value of $45,772.00.

After Hugo, Staubes secured a building permit from the City of Folly Beach to repair the building. The record reveals that, on Folly Beach, if the cost of repairing a damaged building equals or exceeds 50 per cent of the building's market value before it sustained damage, then the owner is prohibited from making repairs unless the existing building meets the requirements for new construction.

Harris Crowley, a licensed engineer, inspected the building and found its structural damage to be "in excess of fifty (50) per cent of the original design." Thereafter, the City of Folly Beach issued a condemnation order requiring Staubes to meet the City of Folly Beach's new construction standards.

Later, the County of Charleston took over the duties of building inspector for the City of Folly Beach. Staubes subsequently applied to the County of Charleston for another permit, and the County of Charleston granted it. Two months later, however, the County of Charleston revoked Staubes's permit after it learned the City of Folly Beach had revoked Staubes's first permit.

Staubes appealed to the City of Folly Beach Zoning Board of Adjustment. The Board upheld the revocation of the building permit, and Staubes appealed to the circuit court. The circuit court affirmed the Board's decision.

On appeal, Staubes contended the trial court erred in affirming the Board's decision to uphold the revocation of his building permit. This Court agreed and reversed, finding the evidence did not support the Board's finding the cost of repairs exceeded fifty percent of the building's market value. Staubes, supra. The Court noted only Staubes submitted evidence of the cost of repairs. He submitted three bids, which were all less than fifty percent of the building's pre-Hugo market value. The Supreme Court dismissed the writ of certiorari as improvidently granted. Staubes v. City of Folly Beach, Op. No. 95-MO-209 (S.C. Sup.Ct. filed June 14, 1995).

After the Supreme Court dismissed the petition for certiorari, Staubes brought the present action against the City alleging the City's actions prevented him from performing any repairs on the property, leaving the property uninhabitable and unrentable during the appeal process. He averred the City's conduct deprived him of all beneficial use of the property without just compensation. In addition, Staubes claimed the City's action left the building open to the elements causing further damage to the structure. The trial court granted summary judgment to the City.

ISSUES

I. Did the trial court err in granting summary judgment to the City as to the temporary taking issue?

II. Did the trial court err in granting summary judgment to the City as to the claim for deprivation of Staubes's due process rights pursuant to 42 U.S.C. § 1983 (Supp.1997)?

III. Did the trial court err in granting summary judgment to the City as to the negligence cause of action?

STANDARD OF REVIEW

Summary judgment is appropriate when it is clear there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Summer v. Carpenter, 328 S.C. 36, 492 S.E.2d 55 (1997); Rule 56(c), SCRCP. See also Standard Fire Ins. Co. v. Marine Contracting and Towing Co., 301 S.C. 418, 392 S.E.2d 460 (1990)(motion for summary judgment shall be granted if pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact and moving party is entitled to judgment as matter of law). In determining whether any triable issue of fact exists, as will preclude summary judgment, the evidence and all inferences which can be reasonably drawn therefrom must be viewed in the light most favorable to the nonmoving party. Koester v. Carolina Rental Ctr., Inc., 313 S.C. 490, 443 S.E.2d 392 (1994). See also Bates v. City of Columbia, 301 S.C. 320, 391 S.E.2d 733 (Ct.App.1990)(in determining whether to grant summary judgment, pleadings and documents on file must be liberally construed in favor of nonmoving party who must be given benefit of all favorable inferences that might reasonably be drawn from record). If triable issues exist, those issues must go to the jury. Rothrock v. Copeland, 305 S.C. 402, 409 S.E.2d 366 (1991).

Summary judgment is not appropriate where further inquiry into the facts of the case is desirable to clarify the application of the law. Tupper v. Dorchester County, 326 S.C. 318, 487 S.E.2d 187 (1997); Baugus v. Wessinger, 303 S.C. 412, 401 S.E.2d 169 (1991). Even when there is no dispute as to evidentiary facts, but only as to the conclusions or inferences to be drawn from them, summary judgment should be denied. Tupper, supra; Koester, supra. However, when plain, palpable, and indisputable facts exist on which reasonable minds cannot differ, summary judgment should be granted. Trico Surveying, Inc. v. Godley Auction Co., 314 S.C. 542, 431 S.E.2d 565 (1993). All ambiguities, conclusions, and inferences arising from the evidence must be construed most strongly against the movant. Tupper, supra; Baugus, supra.

LAW/ANALYSIS

I. Temporary Taking

Staubes argues the trial court erred in granting the City's motion for summary judgment because the actions of the City resulted in an unconstitutional temporary taking. We disagree.

The City asserts the South Carolina Supreme Court's decision in Gasque v. Town of Conway, 194 S.C. 15, 8 S.E.2d 871 (1940), overruled on other grounds by McCall v. Batson, 285 S.C. 243, 329 S.E.2d 741 (1985), is controlling in the present case. Gasque signed a contract with the Gulf Refining Company to build a filling station upon his lot and lease the property, with the building, to Gulf for a monthly rental fee. He then applied for a permit to build the filling station. The Town Council refused to issue the permit. After Gasque obtained a writ of mandamus compelling issuance of the permit, he brought a takings action against the Town for the loss of rent and other damages he sustained due to the rejection of his application. The court found no taking had occurred. The Supreme Court held:

In the case at bar, the town made no entry of any kind upon [Gasque's] lot. Nor did it subject the land to any burden or easement. All that the town did was to refuse to grant [Gasque] a permit to erect a filling station. In our opinion, by this negative act [the Town] did not "take" or appropriate [Gasque's] property for public use in a constitutional sense. To hold otherwise would be an unjustifiable extension of the meaning of the word, and would go far beyond its plain, natural and usual import. It seems evident that where the [T]own has made no entry on [Gasque's] lot, subjected it to no easement, nor placed it under any servitude, it has not taken the lot nor deprived [Gasque] of it.

...

... Ordinarily the constitutional provision under consideration contemplates compensation for a "taking" or for damage which is permanent or presumably of a permanent nature, and growing out of a positive act or aggressive step. It was never intended to furnish a cause of action for every error of judgment committed or wrongful act perpetrated by a town council.

Gasque, 194 S.C. at 22-23, 8 S.E.2d at 874. The linchpin of Gasque is no constitutional taking because there was no deprivation of a "permanent nature."

The United States Supreme Court subsequently recognized a "taking" may be temporary. Temporary takings are as protected by the Constitution as are permanent ones. See First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987); Kirby Forest Indus., Inc. v. United States, 467 U.S. 1, 104 S.Ct. 2187, 81 L.Ed.2d 1 (1984); United States v. Dow, 357 U.S. 17, 78 S.Ct. 1039, 2 L.Ed.2d 1109 (1958); Kimball Laundry Co. v. United States, 338 U.S. 1, 69 S.Ct. 1434, 93 L.Ed. 1765 (1949). In First English Evangelical Lutheran Church, supra, the Court discussed "whether the Just Compensation Clause requires the government to pay for `temporary' regulatory takings." Id. at 313, 107 S.Ct. at 2384, 96 L.Ed.2d at 263. The Court explained: "`[Temporary' takings which ... deny a landowner all use of his property, are not different in kind from permanent takings, for which the Constitution clearly requires compensation." Id. at 318, 107 S.Ct. at 2388, 96 L.Ed.2d at 266 (emphasis added). The Court thus held "that where the government's activities have already worked a taking of all use of property, no...