Talbot v. Myrtle Beach Bd. of Adjustment

• Decision Date: 12 August 1952
• Docket Number: No. 16659,16659
• Citation: 222 S.C. 165,72 S.E.2d 66
• Court: South Carolina Supreme Court
• Parties: TALBOT et al. v. MYRTLE BEACH BOARD OF ADJUSTMENT et al.

Page 66

72 S.E.2d 66

222 S.C. 165

TALBOT et al. v. MYRTLE BEACH BOARD OF ADJUSTMENT et al.

No. 16659.

Supreme Court of South Carolina.

Aug. 12, 1952.

Epps & Hoffman, J. Reuben Long, Conway, for appellant.

Long, Long & Thames, Myrtle Beach, for respondent.

STUKES, Justice.

The municipality of Myrtle Beach enacted in 1947 a zoning ordinance under the authority of Sections 7390 et seq. of the Code of 1942. At that time the appellants, who are husband and wife, owned and operated (and now do) a motor court at the northwest corner of 38th Avenue and U.S. Highway 17, commonly called the King's Highway and the principal thoroughfare of the town. The wife, the appellant Lula E. Talbot, owned vacant contiguous lots across 38th Avenue from the motor court which included, as described in the pleadings, lot No. 2 of block 11-K of King's Highway Extension and is the southwest corner of 38th Avenue and the highway. Record, folio 1072. The latter property, with which this litigation is concerned, was acquired in 1946 by deed containing a restrictive covenant limiting the use of it to residential, clubhouse or boarding house purposes. This proceeding is not to construe or enforce the covenant but the fact of it was in evidence. 'It is worthy of notice that a zoning law cannot constitutionally relieve land within the district covered by it from lawful restrictions affecting its use, imposed by covenants.' 58 Am.Jur. 942, Zoning, sec. 4.

The area which included the motor court was zoned by the ordinance as R-4, in which motor courts are expressly permitted; but the lots across 38th Avenue and thence South to 31st Avenue, on both sides of the King's Highway, were placed in Zone R-1, which is the most restricted residential zone. In this restricted residential area a public restaurant or dining room is not permitted. It was for the latter purpose that appellants sought a 'variance' from the terms of the ordinance. Such is authorized by Sec. 7396(3), quoting, 'as will not be contrary to the public interest, where owing to special conditions a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.' It is well-settled elsewhere, and there can hardly be contrary contention, that a restaurant is a business and as such is properly excluded from residential zones. State ex rel. Szodomka v. Gruber, 201 La. 1068, 10 So.2d 899; City of Lincoln v. Foss, 119 Neb. 666, 230 N.W. 592; People on Complaint of Fullam v. Milray Corp., 225 App.Div. 860, 233 N.Y.S. 860. Moreover, it is obvious that a public restaurant presents more features that are objectionable to neighboring residents than does a motor court. However, a motor court is not allowed in Zone R-1, under the ordinance.

The city authorities rejected appellants' application and the action was reviewed by the Court of Common Pleas by certiorari. The matter was referred to the Master as special referee who took testimony and recommended favorably to appellants, but the city's exceptions to the Master's report were sustained by the court, whence this appeal. The procedure followed is prescribed by the cited state--Code sec. 7396(3).

The appeal is upon the broad ground that enforcement of the ordinance with respect to the lot in question (the failure of the municipal authorities to grant a variance as to it) amounts to an unconstitutional deprivation of property, and is therefore invalid. Particularly, it is urged that the questioned regulation of the use of the subject property does not comply with the provision of Code sec. 7392, which follows: 'Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view of conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality.'

The regulation of the uses of property within municipalities, which is called zoning, began relatively late in this country, having had its beginning in France about a century ago under Napoleon III. Lewis, City Planning. Other European countries followed, and finally ours. The enabling statute of this State, which has been cited, has been in force since 1924 and several cases which arose under ordinances enacted pursuant to the authority of it have reached this court. They are conveniently collected and digested in 14 South Carolina Digest Municipal Corporations, k601, page 305. The subject is well treated under the topic, Zoning, in 58 Am.Jur. 935, et seq. and in the footnotes there are references to several A.L.R. annotations in which many relevant decisions are digested.

From the cited text the following presently applicable generalizations are taken:

'One of the most firmly established principles in the field of constitutional law is that the wisdom of legislation is a matter exclusively for legislative determination. This principle has been applied to zoning laws, and courts have been declared to have nothing to do with the question of the wisdom, expediency, propriety, or good policy thereof. The courts may not interfere with the enactment or enforcement of zoning provisions for the sole reason that they may be considered unwise, as long as their requirements may not be classified as unreasonable, or as long as there is an apparent legal reason for the enacted requirements.' 58 Am.Jur. 954, sec. 23.

'The matter is largely within the discretion of the legislative authority, which is presumed to have investigated and found conditions such that the legislation which it enacted was appropriate, so that if the facts do not clearly show that the bounds of that discretion have been exceeded, the courts must hold that the action of the legislative body is valid. In this respect, it has been declared that the municipal governing bodies are better qualified because of their knowledge of the situation to act upon those matters than are the courts, which will not substitute their judgment for that of the legislative body.' 58 Am.Jur. 956, 957, sec. 26.

'Zoning enabling statutes frequently authorize the division of municipalities into districts of such number, shape and areas as may be deemed suited for the purposes of the act. Under such a provision, the number and nature of districts created, as well as the boundaries thereof, are matters which lie within the discretion of the municipal legislative body, and the courts will not substitute their judgment for that of the legislature where there is a possible reason in support of the legislative zoning lines.' 58 Am.Jur. 960, sec. 32.

'However, the fact that property in a restricted area adjoins or is close to property in a nonrestricted area does not necessarily render the ordinance invalid, since, if there is to be zoning at all, the dividing line must be somewhere, with the result that certain desirable neighborhoods adjoin others less desirable. It is also a general principle that the courts will not substitute their judgment for that of the legislature where there is a possible reason in support of the legislative zoning lines.' 58 Am.Jur. 968, sec. 42.

'Under terms of particular zoning laws, restaurants are permitted in some specified zones, and prohibited in others. The validity of such a restriction or prohibition has been sustained.' 58 Am.Jur. 1001, sec. 105.

'Judicial relief from the action of a zoning board of appeals, review, or adjustment may be secured in a proper case, whether such action consists of the denial or grant of an exception or variation in the application of zoning restrictions. However, the authority of the zoning board in this respect is a discretionary one, and its decision is generally upheld, whether the application for the variation is granted or refused.' 58 Am.Jur. 1062, sec. 229.

A late and useful textbook is Yokley's Zoning Law and Practice, Michie, 1948. State and federal decisions are critically and succinctly reviewed. At pages 30, 31, the following is approvingly quoted from American Wood Products Co. v. City of Minneapolis, 8 Cir., 35 F.2d 657: 'Governing bodies of municipalities clothed with authority to determine residential and industrial districts being better qualified by their knowledge of the situation to act upon such matters than are the Courts, they will not be interfered with in the exercise of their police power to accomplish the desired and unless there is a plain violation of the constitutional rights of citizens.'

Illustrative of the fact that lines between zones must be fixed somewhere and there will always be nearby properties subject only to different uses, because in practice there is no 'no man's...