Venture Eng'g v. Horry Cnty. Zoning Bd. of Appeals
| Decision Date | 12 May 2021 |
| Docket Number | Appellate Case No. 2018-001221,Opinion No. 5819 |
| Citation | 858 S.E.2d 638 |
| Court | South Carolina Court of Appeals |
| Parties | In re: VENTURE ENGINEERING, agent FOR DT LLC, Respondent, v. HORRY COUNTY ZONING BOARD OF APPEALS, Appellant. |
Matthew R. Magee, of Thomas & Brittain, P.A., of Myrtle Beach, for Appellant.
Robert S. Shelton, of Bellamy, Rutenberg, Copeland, Epps, Gravely & Bowers, P.A., of Myrtle Beach, for Respondent.
Appellant Horry County Zoning Board of Appeals (the Board) challenges the circuit court's order in consolidated appeals from two Board decisions. The circuit court reversed both decisions, which (1) prohibited a client of Respondent Venture Engineering (Venture) from receiving construction and demolition debris from outside sources for recycling and (2) denied Venture's request for three variances from the zoning ordinances governing concrete recycling businesses. The Board argues the circuit court erred by failing to properly apply the appropriate standard of review to each appeal. The Board also argues the circuit court erred by (1) consolidating the two appeals and (2) considering material outside the respective records on appeal. We reverse the circuit court's order allowing Venture's client to receive demolition debris from outside sources as well as its order granting costs to Venture.1
In January 1981, Arthur Thompkins, Jr. established Thompkins & Associates, Inc. (Thompkins) for the purpose of operating heavy equipment for construction and demolition projects.2 Thompkins maintained its equipment and office at 310 Piling Road in Myrtle Beach (the Property) within the historic Pine Island Residential District.3 Another business operated a concrete plant next to the Property but ceased operating at some point before the Board considered the two cases now before the court.
When Thompkins began operating in 1981, the Property was not zoned. According to the Board, in 1987, Horry County enacted its first zoning ordinance and designated the zone in which the Property was located as Limited Industrial (LI), which allows light industrial uses that are "not significantly objectionable in terms of noise, odor, fumes, etc., to surrounding properties." Horry County Code of Ordinances § 717. This zoning classification prohibits "noise, vibration, smoke, gas, fumes, odor, dust, fire hazards, dangerous radiation or any other conditions [that] constitute a nuisance beyond the premises." Horry County Code of Ordinances § 717.1(P).
According to Thompkins, since it began operating in 1981, the Construction & Demolition (C&D) division of its business "has crushed, processed, and/or recycled both: (1) C&D material from Thompkins’ own demolition projects; and (2) C&D material received from outside sources." Most of the material received from outside sources was from demolished buildings that had "block and reinforced concrete." The business accepted only concrete and masonry for recycling. Also, according to Thompkins, (1) in 2007, it was "required to apply for a business license in order to continue operating in its new zoning district"; (2) the license approved of the recycling activity as an accessory use to what was designated on the license as the principal use of the Property,4 "Construction Heavy Equipment"; and (3) in 2014, a potential investor in the business sought a "zoning compliance letter" from the Horry County Zoning Administrator, Rennie Mincey, to ensure Thompkins was complying with the County's zoning requirements.
In response to the request of Thompkins’ investor, the Zoning Administrator determined that because the recycling activity on the Property was approved as an accessory use only, Thompkins was not authorized to accept construction materials from outside contractors for recycling. Thompkins appealed this determination to the Board, which heard the appeal over the course of four meetings in 2015. At the conclusion of its April 13, 2015 meeting, the Board voted to overturn the Zoning Administrator's determination. It is undisputed that this vote would not have been final until the Board could approve the April meeting minutes at its next meeting on May 11, 2015. However, at the beginning of the May meeting, before approving the April minutes, the Board entertained a motion to reconsider the April 13 vote.
The motion had not been included as an agenda item in the public notice of the May meeting, but the County's planning director had telephoned Thompkins’ counsel to advise him that it would be considered at the meeting. During the meeting, several individuals residing in the surrounding community testified to express their concerns. All of the residents who testified at the May 2015 meeting were under the mistaken impression that a landfill was going to be located on the Property. Some of these residents also expressed dissatisfaction with noise and dust in the community, but it is unclear whether they were referring to Thompkins’ operations or the concrete plant's operations next-door.
The Board ultimately upheld the Zoning Administrator's determination. Thompkins then filed a notice of appeal of the Board's May 11, 2015 order with the circuit court. Several months later, the circuit court issued a consent order for a six-month continuance of the final hearing so that Thompkins could seek a resolution of its dispute with the Board by way of a variance petition. Subsequently, Thompkins, through counsel, retained Venture to assist with the submission of the variance petition to the Board. Venture filed a variance petition with the Board on Thompkins’ behalf, and the Board heard the petition on March 14, 2016.
At the hearing, Venture's President, Steve Powell, testified that in 1985, his firm had taken demolition materials from another contractor to Thompkins’ business for recycling, adding: "So, I can state from personal experience that materials have been going to this site since well before the zoning was adopted in 1987." Powell later stated: "It was the only site that almost any contractor in building demolitions could take material to for recycling," and "they've been doing that here continuously since 1981." He explained that when Thompkins had to apply for a business license in 2007, no one recognized the significance of the accessory use designation on the license and it was "completely different from what [they had] done."
Some residents disputed Powell's testimony. Janice Dowe testified Powell's claim that Thompkins had been accepting material from other contractors for thirty-five years was "false" because she had lived in the surrounding community for the same amount of time and the community "didn't have this crushing when [she] originally [moved] out there." Wesley Finley testified:
The Board issued an order denying the variance petition, and Venture appealed this order. On April 5, 2018, the circuit court reversed the Board's order upholding the Zoning Administrator's determination as well as the Board's order denying Venture's variance petition. The circuit court later denied the Board's motion for reconsideration and granted Venture's motion for costs. This appeal followed.
In reviewing a decision of a zoning board of appeals, this court applies the same standard of review as the circuit court. Boehm v. Town of Sullivan's Island Bd. of Zoning Appeals , 423 S.C. 169, 182, 813 S.E.2d 874, 880 (Ct. App. 2018). Section 6-29-840 of the South Carolina Code (Supp. 2020) requires the circuit court to treat the findings of fact by a zoning board of appeals "in the same manner as a finding of fact by a jury," and "[i]n determining the questions presented by the appeal, the court must determine only whether the decision of the board is correct as a matter of law." In other words, the decision of a zoning board of appeals must not be disturbed if there is supporting evidence in the record. Rest. Row Assocs. v. Horry Cty. , 335 S.C. 209, 215, 516 S.E.2d 442, 446 (1999) ; Boehm , 423 S.C. at 182, 813 S.E.2d at 880. Further, a court must not substitute its judgment for that of the board, "even if it disagrees with the decision." Rest. Row Assocs. , 335 S.C. at 216, 516 S.E.2d at 446.
Nonetheless, a reviewing court "may rely on uncontroverted facts [that] appear in the record, but not in a zoning board's findings." Vulcan Materials Co. v. Greenville Cty. Bd. of Zoning Appeals , 342 S.C. 480, 491, 536 S.E.2d 892, 898 (Ct. App. 2000). Moreover, a board's decision "will be overturned if it is arbitrary, capricious, has no reasonable relation to a lawful purpose, or if the board has abused its discretion." Rest. Row Assocs. , 335 S.C. at 216, 516 S.E.2d at 446. "An abuse of discretion occurs when a [tribunal's] decision is unsupported by the evidence or controlled by an error of law." Boehm , 423 S.C. at 182, 813 S.E.2d at 880 (quoting Newton v. Zoning Bd. of Appeals for Beaufort Cty. , 396 S.C. 112, 116, 719 S.E.2d 282, 284 (Ct. App. 2011) ).
The Board asserts that the circuit court failed to give deference to the Board as required by the respective standards of review for each appeal. We agree.
In its decision upholding the Zoning Administrator's determination, the Board found that Thompkins’ recycling business was approved in 2007 as an accessory use "to the existing construction heavy equipment business that was located on the site in 1981." The Board restated the Zoning Administrator's determination that the recycling of construction material "is approved as an accessory use to a construction and heavy equipment business that was approved on the site prior to zoning of [the Property]." The Board also found that the recycling business could continue as an accessory use but was not permitted to receive materials from other...
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