VULCAN MATERIALS v. GREENVILLE CTY. BD., No. 3237.

• Court: Court of Appeals of South Carolina
• Writing for the Court: CURETON.
• Citation: 536 S.E.2d 892,342 S.C. 480
• Parties: VULCAN MATERIALS COMPANY, Putnam Properties, Inc., Allen M. Knight, and The Timmerman Family Partnership, Respondents, v. GREENVILLE COUNTY BOARD OF ZONING APPEALS and the County of Greenville, Appellants.
• Docket Number: No. 3237.
• Decision Date: 07 August 2000

342 S.C. 480
536 S.E.2d 892

VULCAN MATERIALS COMPANY, Putnam Properties, Inc., Allen M. Knight, and The Timmerman Family Partnership, Respondents,
v.
GREENVILLE COUNTY BOARD OF ZONING APPEALS and the County of Greenville, Appellants

No. 3237.

Court of Appeals of South Carolina.

Heard December 8, 1999.

Decided August 7, 2000.

342 S.C. 483

Donald A. Harper and Cynthia Buck Brown, both of The Harper Law Firm, of Greenville, for appellants

Larry D. Estridge, of Womble, Carlyle, Sandridge & Rice; and Gregory J. English, of Wyche, Burgess, Freeman & Parham, both of Greenville, for respondents.

CURETON, Judge:

In this zoning appeal, the Greenville County Board of Zoning Appeals (Board) challenges the circuit court's order to issue Vulcan Material Company a Certificate of Occupancy so Vulcan may implement its mine development plan as a nonconforming use. We affirm.

342 S.C. 484

FACTS

In 1989, Vulcan began to explore the possibility of mining granite in Greenville County. To that end, Vulcan leased three tracts of land from three different owners: the Timmerman Family Trust, Allen Knight, and James Putnam.¹ Aggregately, the leased properties are known as the Princeton site.

To assess the quantity and quality of the Princeton site's granite deposit, Vulcan extracted 360 granite samples from the site beginning sometime in 1990. These samples were analyzed by geologists who produced an initial assessment of the deposit on January 24, 1992. Vulcan expended nearly a million dollars to extract and analyze the samples.

Vulcan's mining engineers utilized the geologist's assessment to prepare a mining development plan for the site. After several revisions and additional sampling, the mining plan was finalized in June or July of 1995.

While the mining plan was being developed, Vulcan simultaneously pursued the various permits and studies required by state and federal regulators to mine the site. These efforts produced the following results: (1) an archeological survey of the site, completed in June of 1996; (2) an air permit application, submitted in July of 1995;² (3) an NPDES³ draft discharge permit, obtained in November of 1995; (4) a protected species survey, completed in May of 1996; (5) a wetlands' delineation, approved in November of 1995; and (6) a draft wastewater treatment permit, issued in November of 1995. Additionally, Vulcan applied for a mine operating permit from the South Carolina Department of Health and Environmental Control (DHEC) in July of 1995. After reviewing the permit application, DHEC indicated it would issue Vulcan a mine operation permit as soon as this zoning litigation was resolved.

By 1994, Vulcan had identified a portion of the 585 acre Princeton site where it planned to extract granite. Naturally,

342 S.C. 485

the timber, topsoil, and rock layers which covered the granite deposit had to be removed before extraction could begin, so Vulcan arranged for the site's owners to harvest the timber from atop the deposit and for Thrift Brothers, Inc. to remove the covering layers of soil and rock, known as overburden. Ordinarily, Vulcan would have removed the overburden itself; however, in this case, Vulcan allowed Thrift to remove the overburden on Vulcan's behalf. The arrangement was mutually beneficial as Vulcan needed the overburden removed to expose the granite it sought and Thrift needed the extracted soil and rock in a near-by highway project. As both parties benefitted from the arrangement, no other compensation was exchanged

Thrift utilized the overburden to improve State Highway 25 pursuant to a contract with the South Carolina Department of Transportation. Because the excavation of rock and soil for a highway project, known as a borrow pit operation,⁴ does not require a mining permit, Thrift was able to remove the overburden before Vulcan obtained its mine operating permit.

Although Thrift's only concern was the operation of a borrow pit, Vulcan ensured Thrift's actions supported its mining operation. Originally, Thrift wanted to establish the borrow pit as close as possible to Highway 25 to reduce its transportation costs, but Vulcan insisted Thrift limit its borrow pit to that area which covered the granite deposit Vulcan planned to extract. Thrift operated the borrow pit from October, 1994 until August, 1995. In all, approximately fifteen acres of overburden were removed to a depth of between 25 to 35 feet. After the overburden was removed, Vulcan hired a contractor to grade the site and seed it to control erosion. Vulcan also established a retention pond and installed a siltfence around the borrow pit. By the end of this process, a pit of more than two acres remained with outcroppings of granite still exposed. By July of 1996, Vulcan had invested approximately $1,900,000 in the Princeton site.

342 S.C. 486

In early 1996, community opposition to the Princeton site began to develop. When DHEC conducted a public hearing on Vulcan's mine operating permit in April, 1996, local residents voiced their concern over the effects of the mine on the local groundwater. DHEC responded by ordering Vulcan to perform a hydrology study to predict the mine's impact on local groundwater elevations.⁵

On May 23, 1996, the Dunklin Homeowner's Association held a meeting to explore the possibility of prohibiting mining at the Princeton site by having the site zoned for residential use only. Jimmy Forbes, the executive director of the Greenville County Planning Commission, attended the homeowner's meeting and opined that zoning could not stop the mine because "Vulcan already had a vested interest in the [site]." Nevertheless, the homeowner's association initiated a campaign to have the site zoned residential. On August 6, 1996, the Greenville County Council imposed a moratorium on building permits at the Princeton site, thereby preventing Vulcan from constructing an office. In September, 1996, the Greenville County Planning Commission, working with the homeowner's association, recommended to County Council the area in which the Princeton site is located be zoned R-S for residential/suburban use only. County Council subsequently zoned the property R-S. However, the Commission noted that its "staff told the [homeowner's association] that zoning may not stop the rock quarry from occurring."

On November 11, 1996, Vulcan applied for a Certificate of Occupancy for a Nonconforming Use so it could mine the site despite the zoning. Peter Nokimos, the Greenville County Zoning Administrator, denied Vulcan's application on March 3, 1997. Vulcan appealed Nokimos's decision to the Board, which held a full hearing into the matter on July 16, 1997. At that hearing, Nokimos testified he denied Vulcan's application because he found no indication of any mining or occupancy at the site. The Board continued its deliberations until a subsequent hearing on August 13, 1997, at which time it voted to uphold Nokimos's refusal to issue the certificate.

342 S.C. 487

The Greenville County Code Enforcement Officer informed Vulcan of the Board's decision to uphold the denial of the Certificate of Occupancy in a letter dated August 18, 1997. Vulcan appealed the Board's decision to the circuit court on September 17, 1997. After Vulcan filed its appeal, the Board's chairman and secretary issued a document which purported to be the Board's "Final Decision and Order" in this matter. The document was dated October 23, 1997, and signed by the chairman and secretary.⁶

On February 19, 1998, the circuit court reversed the Board's decision and ordered it to issue Vulcan a certificate of occupancy. The court held that the "Board's decision is based upon numerous errors of law and there is no evidence to support any basis for denying Vulcan a Certificate of Occupancy." The Board appeals.

LAW/ANALYSIS

Standard of Review

In 1994, the Legislature enacted a new statutory scheme for local planning and zoning entities embodied in Title 6, Chapter 29, which replaced the existing scheme found in portions of Title 6, Chapter 7, and elsewhere. Act No. 355, § 2, 1994 S.C.Acts 4036, amended by Act No. 15, § 1, 1999 S.C.Acts 37. The new scheme imposed a standard of review whereby "[t]he findings of fact by the [zoning] board of appeals shall be treated in the same manner as a finding of fact by a jury ..." S.C.Code Ann. § 6-29-840 (Supp.1999). Local zoning programs could adopt the new standard promulgated by § 6-29-840 any time prior to December 31, 1999, after which time its adoption became mandatory. See Act No. 355 ("On or after December 31, 1999, all local planning programs must be in conformity with the provisions of this act. Until December 31, 1999, this act is cumulative and may be implemented at any time."). Section 6-29-840 differs textually from it predecessor, which treated "[t]he findings of fact by the [zoning] board of appeals [as] final and conclusive on ... appeal." S.C.Code Ann. § 6-7-780 (1977) (repealed 1999).

342 S.C. 488

We have repeatedly held that the old statute, § 6-7-780, imposed an "any evidence" standard of review. "The factual findings of the [b]oard (of zoning appeals) must be affirmed... if they are supported by any evidence...." Stanton v. Town of Pawleys Island, 317 S.C. 498, 502, 455 S.E.2d 171, 172 (1995) (emphasis added); accord Fairfield Ocean Ridge, Inc. v. Town of Edisto Beach, 294 S.C. 475, 366 S.E.2d 15 (Ct.App.1988); Bailey v. Rutledge, 291 S.C. 512, 354 S.E.2d 408 (Ct.App.1987). The new statute, § 6-27-840, is also very deferential to a board's findings of fact as it equates them to a jury's findings. "[T]he factual findings of the jury will not be disturbed unless a review of the record discloses that there is no evidence which reasonably supports the jury's findings." Sterling Dev. Co. v. Collins, 309 S.C. 237, 240, 421 S.E.2d 402, 404 (1992) (emphasis added) (citing Townes Assoc's, Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976)). The distinction, if any, between an "any...