Wyndham Enters., LLC v. City of N. Augusta

• Decision Date: 05 September 2012
• Docket Number: No. 5030.,5030.
• Citation: 735 S.E.2d 659,401 S.C. 144
• Court: South Carolina Court of Appeals
• Parties: WYNDHAM ENTERPRISES, LLC and Rodney Wyndham, Individually, Appellants, v. The CITY OF NORTH AUGUSTA and The City of North Augusta Board of Zoning Appeals, Respondents. Appellate Case No. 2010–167368.

401 S.C. 144

735 S.E.2d 659

WYNDHAM ENTERPRISES, LLC and Rodney Wyndham, Individually, Appellants,

v. The CITY OF NORTH AUGUSTA and The City of North Augusta Board of Zoning Appeals, Respondents.Appellate Case No. 2010–167368.

No. 5030.

Court of Appeals of South Carolina.

Heard June 6, 2012.

Decided Sept. 5, 2012.

Stephen Peterson Groves, Sr., of Nexsen Pruet, LLC, of Charleston, and Stevens Bultman Elliott, of Columbia, for Appellants.

Carmen V. Ganjehsani and Charles E. Carpenter, Jr., of Carpenter Appeals & Trial Support, LLC, of Columbia; and Kelly F. Zier, of Zier Law Firm, LLC, of North Augusta, for Respondents.

LOCKEMY, J.

Wyndham Enterprises, LLC and Rodney Wyndham (Appellants) appeal the circuit court's affirmation of The City of North Augusta Board of Zoning Appeals' (the BZA) denial of Appellants' special exception request to sell fireworks. Appellants argue the BZA acted outside the scope of its authority, and its decision was arbitrary, capricious, and violated Appellants' right to equal protection. We reverse.

FACTS/PROCEDURAL BACKGROUND

On September 1, 2009, Appellants purchased a 0.91 acre parcel of land (the property) in the City of North Augusta (the City). The property is located in Aiken County (the County) off Exit 1 of I–20 near the Georgia and South Carolina border. Appellants intended to build a 5,000 square foot structure on the property to house a Halloween Express retail store which would sell costumes, decorations, and novelty items. The property was zoned General Commercial under the North Augusta Development Code (the Code). Pursuant to the Code, the sale of fireworks is designated as a special exception use in General Commercial zoning districts.

On September 23, 2009, Appellants submitted an application to the BZA requesting a special exception to sell fireworks on the property. In an October 30, 2009 memorandum, Skip Grkovic, the City's Director of the Department of Economic and Community Development (DECD), recommended the BZA approve the special exception request subject to certain conditions which Appellant agreed to meet. In its minor site plan, the DECD stated Appellants' application met the development and zoning standards of the Code for a retail sales use in a General Commercial District. However, the DECD noted the sale of fireworks must be approved as a special exception by the BZA.

On November 5, 2009, the BZA held a public hearing on Appellants' request for a special exception. At the hearing, Mr. Wyndham testified the business would operate as the Halloween Express store for approximately twelve weeks per year and a fireworks retail store from Memorial Day to Labor Day. Mr. Wyndham indicated the fireworks store would not necessarily be open every day during the period of time the business was not operating as the Halloween Express. Also at the hearing, fourteen residents of nearby residential neighborhoods testified against the special exception. Residents' concerns included increased traffic, decreased property values, and a negative image of the community due to multiple fireworks retailers in the same area.¹

At the conclusion of the hearing, the BZA unanimously voted to deny Appellants' special exception request. Pursuant to section 18.4.5.4.3(b) of the Code, the BZA must evaluate permits for special exceptions on the basis of the following criteria:

1. That the special exception complies with all applicable development standards contained elsewhere in this Chapter and with the policies contained in the Comprehensive Plan. (Rev. 12–1–08; Ord. 2008–18)

2. That the special exception will be in substantial harmony with the area in which it is to be located.

3. That the special exception will not discourage or negate the use of surrounding property for use(s) permitted by right.

Pursuant to the minutes of the November 5, 2009 BZA meeting, the BZA determined the special exception did not comply with the second and third criteria. The BZA found the special exception was “not in harmony with nearby residential developments” and would have “a detrimental impact on existing and proposed residential development in the area.”

Subsequently, Appellants appealed the BZA's decision to the circuit court, arguing the BZA's decision was arbitrary and capricious, a violation of the Equal Protection Clause, and a contravention of statutory law. A hearing was held before the circuit court on May 26, 2010. In a July 1, 2010 order, the circuit court affirmed the BZA's denial of Appellants' special exception request. This appeal followed.

STANDARD OF REVIEW

On appeal, the findings of fact by the Board shall be treated in the same manner as findings of fact by a jury, and the court may not take additional evidence. S.C.Code Ann. § 6–29–840(A) (Supp. 2011). “In reviewing the questions presented by the appeal, the court shall determine only whether the decision of the Board is correct as a matter of law.” Austin v. Bd. of Zoning Appeals, 362 S.C. 29, 33, 606 S.E.2d 209, 211 (Ct.App.2004). Furthermore, “[a] court will refrain from substituting its judgment for that of the reviewing body, even if it disagrees with the decision.” Restaurant Row Assocs. v. Horry Cnty., 335 S.C. 209, 216, 516 S.E.2d 442, 446 (1999). “However, a decision of a municipal zoning board will be overturned if it is arbitrary, capricious, has no reasonable relation to a lawful purpose, or if the board has abused its discretion.” Id.

LAW/ANALYSISArbitrary and Capricious

Appellants argue the circuit court erred in affirming the BZA's decision to deny Appellants' special exception request because the BZA's decision was arbitrary and capricious. We agree.

Pursuant to section 18.4.5.4.3(b) of the Code, the BZA must evaluate permits for special exceptions on the basis of the following criteria:

1. That the special exception complies with all applicable development standards contained elsewhere in this Chapter and with the policies contained in the Comprehensive Plan. (Rev. 12–1–08; Ord. 2008–18)

2. That the special exception will be in substantial harmony with the area in which it is to be located.

3. That the special exception will not discourage or negate the use of surrounding property for use(s) permitted by right.

Furthermore, the BZA, “[i]n making quasi-judicial decisions, ... must ascertain the existence of facts, investigate the facts, hold hearings, weigh evidence and draw conclusions from them, as a basis for official action, and exercise discretion of judicial nature.” North Augusta Development Code § 5.1.4.5(a). Decisions of the BZA must be supported by “competent, substantial, and material evidence.” Id.

Here, the BZA determined the special exception did not comply with the second and third criteria. Although the hearing transcript indicates the BZA voted to deny the special exception request based on the third criterion, the minutes of the meeting state the BZA found both the second and third criteria were not satisfied. The minutes normally constitute the BZA's final findings. S.C.Code Ann. § 6–29–800(F) (“All final decisions and orders of the board must be in writing and be permanently filed in the office of the board as a public record. All findings of fact and conclusions of law must be separately stated in final decisions or orders of the board which must be delivered to parties of interest by certified mail.”). But the transcript can constitute the final findings if the minutes are found invalid. See Vulcan Materials Co. v. Greenville County Bd. of Zoning Appeals, 342 S.C. 480, 493–94, 536 S.E.2d 892, 899 (Ct.App.2000). Here, the circuit court considered the minutes to constitute the BZA's findings, and those findings included a denial based upon the second and third criteria.

Appellants contend the BZA's decision to deny their special exception was based solely on opinion and conjecture. Appellants point out the memorandum prepared by the DECD, which recommended the BZA grant the special exception, explained that DECD staff discussed the proposed fireworks use with the City's traffic consultant and determined the proposed use would not generate a significant amount of traffic. Respondents contend the BZA's decision was supported by the evidence, complied with the Code's requirements for granting a special exception, and was neither arbitrary nor...