Town of Sullivans Island v. Byrum, 1741

• Decision Date: 17 September 1991
• Docket Number: No. 1741,1741
• Citation: 306 S.C. 539,413 S.E.2d 325
• Court: South Carolina Court of Appeals
• Parties: TOWN OF SULLIVANS ISLAND, Appellant, v. James H. BYRUM, J. Harold Byrum, Juanita T. Byrum, and Two Thousand Fourteen Corporation, Respondents. . Heard

Page 325

413 S.E.2d 325

306 S.C. 539

TOWN OF SULLIVANS ISLAND, Appellant, v. James H. BYRUM, J. Harold Byrum, Juanita T. Byrum, and Two

Thousand Fourteen Corporation, Respondents.

No. 1741.

Court of Appeals of South Carolina.

Heard Sept. 17, 1991.

Decided Jan. 6, 1992.

Rehearing Denied Jan. 23, 1992.

Certiorari Denied April 22, 1992.

John P. Algar, Charleston, and Lawrence A. Dodds, Jr., of Dodds & Hennessy, Mount Pleasant, for appellant.

Morris D. Rosen, of Rosen, Rosen & Hagood, Charleston, for respondents.

PER CURIAM:

The Plaintiff, Town of Sullivans Island (Town), sought to enjoin the Defendants, ¹ Byrums, from using part of their residence as a "Bed & Breakfast" boarding house. The Town also sought to enjoin the Byrums' use of a garage apartment for human habitation. The Town argued that both uses violated the applicable zoning ordinances. The trial judge refused the requested injunctions, and the Town appealed. We reverse and remand for the entry of an order granting both injunctions.

A fire damaged the Byrums' residence in 1983. The Byrums decided to renovate the house and use part of it as a Bed & Breakfast. As a result, the repair work went far beyond the fire damage, including the development of six separate bedrooms and baths. Nothing indicates that the Byrums told the Town of their intended use during the repair process.

At the time of the renovations, § 21-3 of the Town's zoning ordinances defined "permitted home occupation uses" as follows:

Any use conducted entirely within a dwelling and carried on by the occupants thereof, which use is clearly incidental and secondary to the use of the dwelling for residential purposes and does not change the character thereof, and no person, not a resident of the premises is employed specifically in connection with the activity. Provided, further, that no mechanical equipment is installed or used except such as is normally used for domestic or professional purposes, and that not over twenty-five (25%) percent of the total floor space of any structure is used for home occupation.

This is the second time these parties have been before this Court regarding the Byrums' Bed & Breakfast operation. In the first case, the Byrums' sought a variance from the twenty-five (25%) per cent limitation on "home occupation" uses. The Board of Adjustment denied the variance on two grounds: (1) a Bed & Breakfast is not a home occupation; and (2) the operation exceeded the twenty-five (25%) per cent limitation on structural usage for home occupations. The Circuit Court reversed both findings on appeal. This Court reversed the Circuit Court and reinstated the Board's denial of the variance, concluding that the Bed & Breakfast operation exceeded the twenty-five (25%) per cent limitation. Byrum v. Board of Adjustment, 294 S.C. 114, 362 S.E.2d 890 (Ct.App.1987) (Byrum I). This Court did not discuss the first issue.

During the pendency of the appeal before the Circuit Court in Byrum I, the Town amended its "home occupation" ordinance and specifically prohibited the use of a residence as a boarding house. At the time of this amendment, the Byrums continued to use more than twenty-five (25%) per cent of the residence in the Bed & Breakfast operation contrary to both the original and the amended ordinance.

After this Court's decision in Byrum I, the Byrums continued to operate the Bed & Breakfast but allegedly reduced the structure usage to less than twenty-five (25%) per cent. They applied to the Town for a license, and the Town denied their application. They continued to operate the Bed & Breakfast, and the Town commenced the present action.

The present case raises several issues:

(1) In Byrum I, did this Court decide whether a Bed & Breakfast operation is a "home occupation use" permitted under the then-existing zoning ordinance? If so, what did it rule? If not, is a Bed & Breakfast a home occupation?

(2) Assuming a Bed & Breakfast is a "home occupation," does the present operation exceed the twenty-five (25%) per cent limitation?

(3) Assuming a Bed & Breakfast is a "home occupation," is the Byrums' operation "grandfathered in" as a non-conforming use so that the amended ordinance does not apply to the Byrums' operation? If not, is the Town estopped from raising this issue?

(4) Is the Town estopped from challenging the use of the garage as an apartment?

The trial judge ruled as follows:

(1) Byrum I held that a Bed & Breakfast operation is a home occupation.

(2) The present operation does not exceed the twenty-five (25%) per cent limitation.

(3) The Town is estopped from relying on the amended ordinance and its prohibition of boarding houses, because the Town told the Byrums during Byrum I that their use was not permitted regardless of the percentage of use.

(4) The Town is estopped from challenging the use of the garage as an apartment because it knew the apartment was being built but never challenged it.

The trial judge also held that the Byrums could use the garage apartment for family use only. The Byrums do not appeal this ruling.

In Byrum I, this Court did not decide the home occupation issue. We only decided the more narrow issue of whether the Byrums were exceeding the twenty-five (25%) per cent limitation. We now decide that a Bed & Breakfast is not a home occupation.

The zoning ordinance defined home occupation as quoted herein above. We conclude that the Bed & Breakfast operation is not "clearly incidental and secondary" to the residential use of the property, and that it changed the character of the residence.

The Byrums' renovation of the property included the construction of an apartment within the house where Mr. and Mrs. Byrum would live. This apartment had its own kitchen, bathroom, bedroom, and a small living room.

After the renovation, there were five other bedrooms which were used for the Bed & Breakfast. Each bedroom had its own bathroom, water heater, air conditioner, and heater. The second (large) kitchen was used primarily for the preparation of continental breakfasts for the boarders.

Under these facts, it is clear that the Bed & Breakfast operation dominated the character and use of the residence and, therefore, it is not a home occupation. It is more like a boarding house than a traditional home occupation, such as a craft shop or dressmaker. The Pennsylvania Commonwealth Court recently reached the same result in a remarkably similar case. Reynolds v. Zoning Hearing Board of Abington Township, 134 Pa.Commw. 382, 578 A.2d 629 (1990).

In calculating the percentage of use, the trial judge erred in excluding the square footage of the upstairs hallway or foyer. The record clearly demonstrates that all of the upstairs rooms are part of the present Bed & Breakfast operation. Thus, the only use of the hallway is for the Bed & Breakfast operation. When the square footage of the hallway is added into the trial judge's calculations, the present use clearly exceeds the twenty-five (25%) per cent limitation.

Even if the Bed &...