A Guide to South Carolina Zoning Law
By
By
F. Patrick Hubbard[1]*
Zoning in the United States received an impetus from the U.S. Department of Commerce in the 1920s. Herbert Hoover, the Commerce Secretary at the time, was interested in land-use control and planning and pushed for the adoption of a standard State Zoning Enabling Act (SZEA). An initial draft was printed in mimeo form in August 1922.[2] Printed versions were published in 1926 and 1928. By 1925, the SZEA was used by nineteen states in drafting zoning enabling statutes.[3] From the beginning, the SZEA reflected a “progressive” approach to land-use regulation which favored “rational” comprehensive planning. It is interesting to note two things: (1) many of these developments occurred before the United States Supreme Court held that zoning was constitutional in 1926,[4] and (2) because the first draft of SZEA was released in August 1922, the SZEA is now 100 years old.[5]
The SZEA authorizes local governments to use zoning to regulate land use and development. However, it also requires that these regulatory schemes be based on planning and that procedural rights protect owners and the public. In terms of planning, the basic foundation is the preparation and adoption of the “comprehensive plan.”[6]
Where zoning is involved, the 1926 version stated that zoning “regulations should be made in accordance with a comprehensive plan.”[7] The current South Carolina Enabling Act states that zoning “regulations must be made in accordance with the comprehensive plan for the jurisdiction, and be made with a view to promoting the purposes set forth throughout this chapter.”[8] Similarly, land development regulations should be “in harmony with the comprehensive plan[].”[9]
South Carolina initially adopted a version of the SZEA in 1924[10] and has updated its act numerous times. At one time, South Carolina had two different statutory schemes addressing zoning. One scheme was contained in Title 5, ch. 23 of the 1976 Code. The other was contained in Title 6. In 1984, the Court of Appeals concluded:
After comparing the two statutes, we hold that they exist harmoniously and are designed to the same end. Both chapters result in (1) the appointment of a commission to study zoning laws, future growth, etc. (2) the formation of a comprehensive plan and (3) the requirement that zoning (sign) ordinances be adopted in accordance with a comprehensive plan. We hold that the two statutes are consistent with each other.[11]
The current Enabling Act is divided into seven Articles. The following five of these Articles are particularly important:
Less important are Article 9, which addresses educational requirements for zoning officials and employees, and Article 13, which addresses federal defense facilities.
One way to view the Enabling Act is in terms of rules for a “game” concerning land development where three different types of “players” can be involved: (1) a local government entity with authority to make the decision; (2) an applicant seeking an approval of some sort; and (3) members of the public. In many cases, there are no members of the public involved. Where there is public involvement, there may be no public consensus on positions concerning the approval at issue.
Applications vary enormously—ranging from an application for a small setback variance[12] to an application for approval of a large multi-million dollar project.[13] Not surprisingly, an applicant with a large project can afford to hire experts and, if needed, attorneys to structure presentations and to litigate denials. The individual applicant with a minor request is usually substantially less able to afford experts and attorneys. Similarly, advocates for the public tend to lack resources for presenting an opposition position at a public hearing and for litigation. In short, the relative strength of most applicants and members of the public is generally less than that of well-financed applicants. This advantage is clear to all three types of players, including city and county councils and members of regulatory boards and commissions.
To a considerable extent, the “officials” in this game—i.e., citizen members of boards, commissions, and councils—are not particularly skillful at applying complex regulatory schemes to difficult cases. As a result, for example, property owners are frequently granted permission to do things that are clearly forbidden by the rules.[14] In addition, because issues in land regulation are frequently arcane, even judges can be challenged.
The Enabling Act is similar to a constitution in that it grants powers and imposes limits and procedural rights that must be respected. A failure to respect limits and rights can result in successful challenges to the exercise of regulatory power.[15]
The adoption of land regulations is based on decisions by the Planning Commission and the city or county council for the jurisdiction involved.[16] As a result, each municipality or county will have its own unique set of ordinances. Though zoning ordinances are similar in structure, the details in individual zoning schemes can be very different. This variation is a challenge because, for example, an expert in the zoning for the city of Columbia will need to master a different zoning code if the Richland County scheme applies.
Numerous judgment calls are involved in adopting plans and regulations and in applying those regulations. Each elected council member will exercise discretion in a personal manner; staff and members of boards and commissions will do the same. As a result, a zoning lawyer will need to have a workable sense of how these individuals will approach the exercise of discretion.
Zoning staff are central players, and their guidance and goodwill are important. If a substantial project is involved, it may help to “Google” the members of boards and commissions to determine things like, “Is a member a real estate agent in his ‘day job’?” Remember, zoning is an administrative system, and you need to develop a strong administrative record so that denials (or challenges to approvals) are not fatal to the application.
In the early years of zoning, the techniques of zoning were fairly simple. A local government would adopt a scheme of uses—e.g., Residential (single family, multifamily), Commercial, Industrial, and Institutional. The area where each applied would be designated on a map. The text of the ordinance would then impose rules applying to each of the classification of uses. This type of system is often referred to as “Euclidean zoning” because this system was involved in Euclid v. Ambler Realty Co., in which the Court held that this approach to regulation of land use was constitutional.[17]
Under the Enabling Act, zoning restrictions can address a wide range of purposes.[18] In addition, zoning ordinances are permitted to use a wide range of schemes to further these purposes. For example, zoning can use approaches like the following: (1) cluster development in order to preserve substantial open space,[19] (2) planned development districts for mixed use projects,[20] (3) overlay zones to impose (or relax) requirements on the underlying zone,[21] impact fees,[22] and development agreements.[23]
The implementation of the Enabling Act relies on four main governmental decision-makers: (1) the Planning Commission, (2) the Board of Zoning Appeals, (3) the Board of Architectural Review, and (4) the City Council or County Council.
In order to have zoning and land development regulations, a city or county council must create a Planning Commission because the Planning Commission has five roles in planning, zoning, and land regulation. First, as the name suggests, the Planning Commission is charged with undertaking studies and developing plans.[24] Second, the Planning Commission recommends zoning regulations to the city or county council.[25] Third, pursuant to Article 1, the Planning Commission recommends subdivision regulations to the council and administers these regulations.[26] Fourth, it maintains an official map and addresses landscaping ordinances, capital improvements, and policies and procedures.[27] Fifth, the Planning Commission approves street names.[28]
Sections 6-29-350, -360, -370, and -380 of the Enabling Act address the mechanics of establishing, organizing, and funding the Planning Commission.
The Enabling Act contains a number of provisions concerning studies and plans that grant power to and impose duties on the Planning Commission. For example, subsection 6-29-340(A) of the Enabling Act provides:
It is the function and duty of the local planning commission, when created by an ordinance passed by the municipal council or the county council, or both, to undertake a continuing planning program for the physical, social, and economic growth, development, and redevelopment of the area within its jurisdiction. . . . Specific planning elements must be based upon careful and comprehensive surveys and studies of existing conditions and probable future development and include recommended means of implementation.
(emphasis added). Subsection 6-29-340(B) provides:
In the discharge of its responsibilities, the local planning commission has the power and duty to:
(emphasis added).
The most important function of the Planning Commission may be the preparation of a “Comprehensive Plan” to be adopted by the city or county council. Subsection 6-29-510(A) of the Enabling Act provides: “The local planning commission shall develop and maintain a planning process which will result in the systematic preparation and continual re-evaluation and updating of those elements [of a Comprehensive Plan] considered critical, necessary, and desirable to guide the development and redevelopment of its area of jurisdiction.” (emphasis added).
A complete comprehensive plan must have at least ten elements addressing the following topics: (1) population, (2) economic development, (3) natural resources, (4) cultural resources, (5) community facilities, (6) housing, (7), land use, (8) transportation, (9) a priority investment analysis of funds and public investments, and (10) a resiliency element addressing natural hazards.[29] For each of these elements, the planning process must include the following: (1) inventory of existing conditions; (2) a statement of needs and goals; and (3) implementation strategies with time frames.[30] A Comprehensive Plan can be done as a complete package or in separate increments.[31]
Subsection 6-29-501(E) of the Enabling Act, which imposes a duty of continuous study, review, and updating, provides:
The local planning commission shall review the comprehensive plan or elements of it as often as necessary, but not less than once every five years, to determine whether changes in the amount, kind, or direction of development of the area or other reasons make it desirable to make additions or amendments to the plan. The comprehensive plan, including all elements of it, must be updated at least every ten years.
(emphasis added).
Subsection 510(E) also states: “All planning elements must be an expression of the planning commission recommendations to the appropriate governing bodies with regard to the wise and efficient use of public funds, the future growth, development, and redevelopment of its area of jurisdiction, and consideration of the fiscal impact on property owners.” (emphasis added). Because of this section’s use of the mandatory term “must,” the court in McClanahan v. Richland County Council held that a local “[c]ouncil cannot approve the plan until the Commission has recommended the plan.”[32]
Given the diversity of cities and counties in South Carolina, it is not surprising that approaches to the required studies and planning vary enormously. At one end of the spectrum, a larger city might hire an outside consultant to prepare a new or revised comprehensive plan. Consultants are also helpful for larger local governments that have a planning staff because the staff may be busy with day-to-day administration. Outside consultants also have the advantage that they can “speak truth” to the governing council with less concern about consequences than the planning employees of the local government. The City of Columbia recently used a consultant group in a successful major revision to its comprehensive plan and to its zoning and land development regulations.[33] Though smaller local governments can use this consultant approach, their smaller budgets may impact how it is done.
As with any profession, planners have an association, the American Planning Association (APA), to address concerns like education and certification.[34] The APA has 40,000 members in 90 countries.[35] The American Institute of Certified Planners (AICP) is the part of the APA that is responsible for certification of professional planners.[36] Because of this professional framework, planners may resist approaches that do not comply with their professional norms concerning best practices.
In addition to its roles under Article 3 and Article 5 of the Enabling Act, the Planning Commission has a major role under Article 7 in regulating land development. This role has two components: (1) preparation of and recommendation of plans, policies, and regulations for land development to the local government council, and (2) administration of the system of land development regulation.
Subsection 6-29-1130(A) of the Enabling Act states:
When at least the community facilities element, the housing element, and the priority investment element of the comprehensive plan as authorized by this chapter have been adopted by the local planning commission and the local governing body or bodies, the local planning commission may prepare and recommend to the governing body or bodies for adoption regulations governing the development of land within the jurisdiction.
The first role is addressed in subsections 6-29-340(B)(2)(a), (b), (c), and (d) of the Enabling Act, which state that the Planning Commission has “the power and duty to prepare and recommend”: (1) “regulations for the subdivision and development of land”; (2) an “official map”; (3) “a landscaping ordinance”; (4) “a capital improvement program”; and (5) “policies or procedures to facilitate implementation of planning elements.”[37] In order to adopt land development regulations, the city or county must have adopted “at least the community facilities element, the housing element, and the priority investment element of the comprehensive plan.”[38] As in zoning, the Enabling Act includes the same concern for the role of the Comprehensive Plan. Subsection 6-29-1120(5) authorizes land development regulations for a number of purposes, including “to assure, in general, the wise and timely development of new areas, and redevelopment of previously developed area in harmony with the comprehensive plans of municipalities and counties.” (emphasis added).
The legislative purposes of these regulations are set forth in Section 6-291120 of the Enabling Act. The content of these regulations is addressed in Section 6-29-1130 of the Enabling Act as follows:
The adoption of these regulations is addressed in Section 6-29-1130(B) as follows:
The government authority of the municipality and the governing authority of the county are given the power to adopt and to amend the land development regulations after a public hearing on it, giving at least thirty days’ notice of the time and place by publication in a newspaper of general circulation in the municipality or county.
Because this provision does not include the term “must” that was involved in McClanahan,[39] it is not clear whether this language grants the Council the power to amend the recommendations of the Planning Commission.
The second role of the Planning Commission involves its duty to oversee the administration of this land regulation system. Subsections 6-29-1150(A), -(B) state:
(emphasis added).
The Enabling Act defines “land development” very broadly as “the changing of land characteristics through redevelopment, construction, subdivision into parcels, condominium complexes, apartment complexes, commercial parks, shopping centers, industrial parks, mobile home parks, and similar development for sale, lease, or any combination of owner and rental characteristics.”[40]
“Subdivision” is also defined very broadly. Subsection 6-29-1120(4) of the Enabling Act states:
Section 6-29-1145 of the Enabling Act appears to require the “local planning agency” to determine the existence of a restrictive covenant and to deny a permit unless the covenant has been released. However, subsection 6-29-1145(C) adopts definitions which negate the required determination.
Appeals to the Commission: The role of the staff of the Commission is addressed in subsection 6-29-1150(C) as follows:
Staff action, if authorized, to approve or disapprove a land development plan may be appealed to the planning commission by any party in interest. The planning commission must act on the appeal within sixty days, and the action of the planning commission is final. [41]
Appeals from the Commission: Under general principles of exhaustion of administrative procedures before filing an appeal in court,[42] any appeal from a staff decision must be addressed by an administrative appeal to the Commission in order to preserve the right to appeal to circuit court.
Subsection 6-29-1150(D)(1) states that “[a]n appeal from the decision of the planning commission must be taken to the circuit court within thirty days after actual notice of the decision.” (emphasis added). In terms of record on appeal, the court in Austin v. Board of Zoning Appeals held that the requirement of “final decisions and orders” could be satisfied by “written documents as well as records of proceedings.”[43]
Issues concerning docketing of the appeal and concerning jury versus nonjury treatment of the appeal are addressed in Section 6-20-1150(D)(3) and Section 6-29-1150(D)(4). There is also a right of the property owner whose land is the subject of a Board decision to seek pre-litigation mediation. The procedure for pre-litigation mediation is addressed in Section 6-29-1150(D) and Section 6-29-1155.
Subsection 6-29-780(A) of the Enabling Act authorizes local government to establish a Board of Zoning Appeals. Subsection 6-29-780(B) addresses the appointment and terms of Board members, removal for cause of members, authorizes the local government to grant compensation to members, and prohibits members from holding office or position in the county or municipality. Section 6-29-860 addresses financing the Board.
The Board addresses three types of matters: (1) Appeals from a decision of administrative staff, (2) the determination of whether to grant a variance, and (3) the determination of whether to grant a special exception. As to final orders addressing any of the three matters addressed by the Board, subsection 6-29-800(F) states:
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.[44]
(emphasis added).
In terms of record on appeal, the court in Austin v. Board of Zoning Appeals held that the requirement of “final decisions and orders” could be satisfied by “written documents as well as records of proceedings.”[45]
Section 6-29-790 addresses organizational and procedural matters as follows:
The board shall elect one of its members chairman, who shall serve for one year or until he is re-elected or his successor is elected and qualified. The board shall appoint a secretary who may be an officer of the governing authority or of the zoning board. The board shall adopt rules of procedure in accordance with the provisions of an ordinance adopted pursuant to this chapter. Meetings of the board must be held at the call of the chairman and at such other times as the board may determine. Public notice of all meetings of the board of appeals shall be provided by publication in a newspaper of general circulation in the municipality or county. In cases involving variances or special exceptions conspicuous notice shall be posted on or adjacent to the property affected, with at least one such notice being visible from each public thoroughfare that abuts the property. The chairman or, in his or her absence, the acting chairman, may administer oaths and compel attendance of witnesses by subpoena. The board shall keep minutes of its proceedings, showing the vote of each member upon each question, or if absent or failing to vote, indicating that fact, and shall keep records of its examinations and other official actions, all of which must be immediately filed in the office of the board and must be a public record.
The powers granted the Commission include the option of seeking a penalty of contempt.[46]
The procedure for appeals from staff decisions is set forth in subsections 6-29-800(A)(4) (addressing remand), 6-29-800(B), (C), (D), and (E). Particular attention should be focused on the notice requirements and the time limits. Subsection 6-29-800(C) addresses stays pending appeal to the Board and use of restraining order in case of “imminent peril to life and property.”
In order to exhaust administrative remedies, the right to appeal from a staff decision must be appealed to the Board.[47]
The rules concerning variances are set forth in subsection 6-29-800(A)(2), which grants the Board the power:
to hear and decide appeals for variance from the requirements of the zoning ordinance when strict application of the provisions of the ordinance would result in unnecessary hardship. A variance may be granted in an individual case of unnecessary hardship if the board makes and explains in writing the following findings:
(i) The board may not grant a variance, the effect of which would be to allow the establishment of a use not otherwise permitted in a zoning district, to extend physically a nonconforming use of land or to change the zoning district boundaries shown on the official zoning map. The fact that property may be utilized more profitably, if a variance is granted, may not be considered grounds for a variance. Other requirements may be prescribed by the zoning ordinance.
A local governing body by ordinance may permit or preclude the granting of a variance for a use of land, a building, or a structure that is prohibited in an given district, and if it does permit a variance, the governing body may require the affirmative vote of two-thirds of the local adjustment board members present and voting. Notwithstanding any other provision of this section, the local governing body may overrule the decision of the local board of adjustment concerning a use variance.[48]
(ii) In granting a variance, the board may attach to it such conditions regarding the location, character, or other features of the proposed building, structure, or use as the board may consider advisable to protect established property values in the surrounding area or to promote the public health, safety, or general welfare.
The statutory standard for a variance appears to be a narrow “safety valve” that is very hard to satisfy. However, this standard is generally applied more flexibly in practice.[49] For example, a study by Clemson University of zoning decisions in South Carolina in 2002 found that 76% of variance requests were granted.[50] Given this pattern, an individual applying for a typical variance in height or in set-back from boundary should get letters of support from adjoining and nearby neighbors and, if there is a neighborhood association, get a vote of support from the association.
The Enabling Act addresses special exceptions in subsection 6-29-800(3), which simply states that the Board has the power “to permit uses by special exception subject to the terms and conditions for the uses set forth for such uses in the zoning ordinance.” Given this limited language, it is clear that issues concerning a special exception must be addressed by referring to the zoning code of the governmental unit involved.
Appeals from the Board are addressed in Sections 6-29-820, -825, -830, -840, and -850. Subsection 9-29-820(A) states:
A person who may have a substantial interest in any decision of the board of appeals or an officer or agent of the appropriate governing authority may appeal from a decision of the board to the circuit court in and for the county, by filing with the clerk of the court a petition in writing setting forth plainly, fully, and distinctly why the decision is contrary to law. The appeal must be filed within thirty days after the decision of the board is mailed.
(emphasis added).
A property owner whose land is the subject of a Board decision may also seek pre-litigation mediation. The procedure for pre-litigation mediation is addressed in Sections 6-29-820(B), -(C) and Section 6-29-825.
Subsection 6-29-820(C) addresses docketing.
Subsection 6-29-830 (A) contains a requirement that:
the clerk of the circuit court must give immediate notice of appeal to the secretary of the board and within thirty days from the time of the notice, the board must file with the clerk a duly certified copy of the proceedings held before the board of appeals, including a transcript of the evidence heard before the board, if any, and the decision of the board including its findings of fact and conclusions.
(emphasis added).
In terms of record on appeal, the court in Austin v. Board of Zoning Appeals held that the requirement of “final decisions and orders” could be satisfied by “written documents as well as records of proceedings.”[51] In a lengthy or complicated case, this time limit might be difficult to satisfy. Therefore, the Board might request a reasonable delay in providing the record.
Subsection 6-29-830(B) states:
The filing of an appeal in the circuit court from any decision of the board does not ipso facto act as a supersedeas, but the judge of the circuit court may in his discretion grant a supersedeas upon such terms and conditions as may seem reasonable and proper.
Subsection 6-29-840(A) addresses several points. First, it provides:
At the next term of the circuit court or in chambers, upon ten days’ notice to the parties, the presiding judge of the circuit court of the county must proceed to hear and pass upon the appeal on the certified record of the board proceedings.
As with the filing of the record, this provision may require some flexibility. Second, the subsection addresses the standard of review as follows:
The finding of fact by the board of appeals must be treated in the same manner as a finding of fact by a jury, and the court may not take additional evidence. . . . In 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.
(emphasis added). Third, the subsection provides: “In the event the judge determines that the certified record is insufficient for review, the matter may be remanded to the zoning board of appeals for rehearing.” (emphasis added). Fourth, the subsection states: “In the event that the decision of the board is reversed by the circuit court, the board is charged with the costs, and the costs must be paid by the governing authority which established the board of appeals.”
Subsection 6-29-840(B) addresses issues concerning the right to trial by jury.
Section 6-29-850 simply states: “A party in interest who is aggrieved by the judgment rendered by the circuit court upon the appeal may appeal in the manner provided by the South Carolina Appellate Court Rules.” (emphasis added).
Section 6-29-860 addresses financing of the board of zoning appeals.
Section 6-29-870 of the Enabling Act addresses the establishment of a Board of Architectural Review. It is common to distinguish between review addressing historical buildings and areas vis à vis districts based on a concern for design.
Subsection 6-29-870(B) states:
The board shall consist of not more than ten members to be appointed by the governing body of the municipality or the governing body of the county which may restrict the membership of the board to those professionally qualified persons as it may desire. The governing authority or authorities creating the board may remove any member of the board which it has appointed.
The final sentence in this subsection is problematic because it undermines the quasi-judicial nature of the Board.
Subsection 6-29-870(C) addresses possible compensation of Board members and prohibits members of the Board from holding any other position in the municipality of county. Subsection 6-29-870(D) addresses organizational matters such as election of chair, adoption of rules of procedure, scheduling of meetings of the Board, minutes, and records. It also states that the chair or acting chair “may administer oaths and compel attendance by subpoena.”
Section 6-29-880 establishes a right of review by the Board where “there is an alleged error in any order, requirement, determination, or decision.”
Section 6-29-890 addresses appeals to the Board. Subsection 6-29-890(A) addresses appeal by “any person aggrieved.” Appeals to the Board must be done “within a reasonable time, as provided by the zoning ordinance or rules of the board, or both, by filing with the officer from whom the appeal is taken and with the board of architectural review notice of appeal specifying the grounds of it.”[52] The officer whose action is appealed must immediately “transmit to the board all the papers constituting the record upon which the action appealed from was taken.”[53]
Remand is an option unless the Board determines that the record is sufficient for review.[54] Where a remand is involved:
The board must set a rehearing on the remanded matter without further public notice for a time certain within sixty days unless otherwise agreed to by the parties. . . . [and] must maintain a list of persons who express an interest in being informed when the remanded matter is set for rehearing, and notice of the rehearing must be mailed to these persons prior to the rehearing.[55]
Subsection 6-20-890(B) provides that an appeal stays all legal proceedings concerning the action appealed unless the officer from whom the appeal is taken that a stay would cause imminent peril to life and property by “a restraining order which may be granted by the board or by a court of record on application, upon notice to the officer from whom the appeal is taken, and on due case shown.”
In order to exhaust administrative remedies, the right to appeal from a staff decision must be appealed to the Board.[56]
Subsection 6-29-890(C) states:
The board must fix a reasonable time for the hearing of the appeal or other matter referred to it, and give public notice of the hearing, as well as due notice to the parties in interest, and decide the appeal or other matter within a reasonable time. At the hearing, any party may appear in person, by agent, or by attorney.
Section 6-29-900 addresses appeals from the Board to the circuit courts. Subsection 6-29-900(A) states:
A person who may have a substantial interest in any decision of the board of architectural review or any officer, or agent of the appropriate governing authority may appeal from any decision of the board to the circuit court in and for the county by filing with the clerk of court a petition in writing setting plainly, fully, and distinctly why the decision is contrary to law. The appeal must be filed within thirty days after the affected party receives actual notice of the decision of the board of architectural review.
(emphasis added).
Subsection 6-29-900(B) addresses the right of the property owner to appeal pursuant to subsection (A) or to seek pre-litigation mediation. The procedure for pre-litigation mediation is addressed in subsections 6-29-900(B)–(C) and section 6-29-925.
Section 6-29-910 states:
In case of contempt by a party, witness, or other person before the board of architectural review, the board may certify the fact to the circuit court of the county in which the contempt occurs and the judge of the court, in open court or in chambers, after hearing, may impose a penalty as authorized by law.
Sections 6-29-920. -930, and -940 address details concerning an appeal from the Board. Section 6-29-920 states:
(emphasis added). In terms of “proceedings,” a “transcript,” and a “decision,” the court in Austin v. Board of Zoning Appeals held that the requirement of “final decisions and orders” could be satisfied by “written documents as well as records of proceedings.”[57]
Section 6-29-930 provides:
(emphasis added).
As with the Board of Zoning Appeals, the short time-lines of subsections 6-29-920(A) and 6-29-930(A) may necessitate a reasonable delay to prepare and file the certified copy and to address the merits.
Section 6-29-940 states: “A party in interest who is aggrieved by the judgment rendered by the circuit court upon the appeal may appeal in the manner provided by the South Carolina Appellate Court Rules.” (emphasis added).
As indicated above at Section I.A.1, the Comprehensive Plan plays a foundational role in adopting zoning regulations and land development regulations. For zoning regulations, it is not necessary to adopt a complete Comprehensive Plan in order to adopt zoning regulations. Instead, local government is only required to have “adopted at least the land use element of the comprehensive plan.”[58] Similarly, land development regulations only require the adoption of the community facilities element, the housing element, and the priority investment element of the Comprehensive Plan.[59] Because of the McClanahan decision,[60] the various elements of the Comprehensive Plan cannot be approved until the Planning Commission has recommended them.
Both zoning and land development regulations are subject to a requirement of being made in a way that is consistent with the Comprehensive Plan. For zoning, this requirement is stated as follows: “The regulations must be made in accordance with the comprehensive plan for the jurisdiction, and be made with a view to promoting the purposes set forth throughout this chapter.”[61] For land development regulations, the requirement is stated as follows: “The regulation of land development . . . is authorized for the following purposes among others: . . . (5) to assure, in general, the wise and timely development of new areas, and redevelopment of previously developed areas in harmony with the comprehensive plans of municipalities and counties.”[62]
Unfortunately, the application of these requirements is unclear. Arguably, use of the term “must” in subsection 6-29-720(B) indicates a mandatory requirement to follow the Comprehensive Plan. However, the phrases “in accordance with” and “to assure . . . harmony” have presented problems of precise application.[63]
Since adopting its first version of the SZEA in 1924, South Carolina has consistently required that local governments engage in studies and planning to adopt zoning regulations “in accordance with the comprehensive plan”[64] and land development regulations “in harmony with the comprehensive plans.”[65] Given these two requirements, the ideal scenario for zoning decisions would involve: (1) thorough studies of conditions and goals by professional planners who assist the local government in planning in accordance with Sections 6-29-340 and 6-20-510,[66] and (2) conscientious concern by the planning commission and the city or county council to adopt zoning regulations that are in accordance with the comprehensive plan.
However, instead of this ideal scenario, “pragmatic” city and county councils (as well as boards, commissions, and planners) may prefer to be “flexible” concerning the need for studies and planning and for limiting zoning options to those in accordance with the comprehensive plan. There are several strategies that can be used to achieve flexibility in dealing with the two-fold requirements of study and conformity.
One approach is to disregard the Enabling Act where the likelihood of litigation is low. A second option is to amend the comprehensive plan at the same time a zoning change is adopted.[67] The problem with this approach is that the requirement of studying and planning likely has not been followed. However, the low possibility of litigation could also play a role here.
A third approach is to adopt a comprehensive plan with numerous goals and projections of future developments.[68] This approach provides opportunities to pick and choose among goals and projections in search of a “balance” among concerns. This approach was upheld in a denial of a requested rezoning of property for multifamily housing.[69]
However, implementing this approach requires cooperation between the city or county council and the planners drafting the comprehensive plan. Problems can arise because, as indicated above,[70] planners often view themselves as independent professionals. Consequently, the planners may resist cooperating with the council’s desire to adopt a plan with sufficient internal conflicts that the plan contains no meaningful limits and thus provides excessive flexibility in satisfying the requirement of zoning “in accordance with the comprehensive plan.”
Article 11 of the Enabling Act addresses “vested rights” and can be cited as the “Vested Rights Act.”
Section 6-29-1550 addresses the nature and scope of a vested right as follows:
A vested right pursuant to this section is not a personal right, but attaches to and runs with the applicable real property. The landowner and all successors to the landowner who secure a vested right pursuant to this article may rely upon and exercise the vested right for its duration subject to applicable federal, state, and local laws adopted to protect public health, safety, and welfare including, but not limited to, building, fire, plumbing, electrical, and mechanical codes and nonconforming structure and use regulations which do not provide for the grandfathering of the vested right. This article does not preclude judicial determination that a vested right exists pursuant to other statutory provisions. This article does not affect the provisions of a development agreement executed pursuant to the South Carolina Local Government Development Agreement Act in Chapter 31 of Title 6.
Similar language concerning items like building codes is contained in Section 6-29-1540(11).
Section 6-29-1530 states:
(emphasis added).
If the local government wants to limit the extent of vested rights, it must adopt an amendment that satisfies the language in the last part of subsection 6-29-1530(A)(2)(b). The following selection from the City of Columbia Zoning Code indicates one way to limit the scope of vested rights:
Sec. 17-19 Vested Rights
If a local government does not adopt a provision like this, the default approach of Section 6-29-1560 will apply.
In determining whether a “landowner”[72] has a vested right, it is important to consider the definitions in Section 6-29-1520, the conditions and limitations of the extent of the right in Section 6-29-1550 and Section 6-29-1560(A), and the definitions of “affirmative government acts” in Section 6-29-1560(B).
Section 6-29-730 of the Enabling Act states:
The regulations may provide that land, buildings, and structures and the uses of them which are lawful at the time of the enactment or amendment of zoning regulations may be continued although not in conformity with the regulations or amendments, which is called a nonconformity. The governing authority of a municipality or county may provide in the zoning ordinance or resolution for the continuance, restoration, reconstruction, extension, or substitution of nonconformities. The governing authority also may provide for the termination of a nonconformity by specifying the period or periods in which the nonconformity is required to cease or be brought into conformance, or by providing a formula where the compulsory termination of nonconformities may be so fixed as to allow for the recovery or amortization of the investment in the nonconformity.
South Carolina follows a reasonableness standard for assessing the validity of an amortization period.[73] Under this test, the challenger has the burden of showing that “its loss [of the nonconforming use] outweighs the public gain.”[74]
The South Carolina Local Government Development Agreement Act is designed to provide assurance and predictability where large developments are involved.[75] One reason for the statute was the resistance of many courts to the use of contracts rather than legislation to address land regulation.[76]
Subsections 6-31-50(A) imposes the following procedural requirements on the adoption of the Agreement:
Subsection 6-31-50(C) addresses the need for specificity in terms of when the local government and developer must perform their obligations.
In order to address possible objections, the Act provides safeguards to structure the process of adopting a Development Agreement. Section 6-31-30 provides: “A local government may establish procedures and requirement, as provided in this chapter, to consider and enter into development agreements with developers. A development agreement must be approved by the governing body of a county or municipality by the adoption of an ordinance.” (emphasis added).
Section 6-31-40 addresses the length of an agreement in terms of the following sizes:
A local government may enter into a development agreement with a developer for the development of property as provided in this chapter provided the property contains twenty-five acres or more of highland. Development agreements involving property containing no more than two hundred fifty acres of highland shall be for a term not to exceed five years. Development agreements involving property containing one thousand acres or less of highland but more than two hundred fifty acres of highland shall be for a term not to exceed ten years. Development agreements involving property containing two thousand acres or less of highland but more than one thousand acres of highland shall be for a term not to exceed twenty years. Development agreements involving property containing more than two thousand acres and development agreements with a developer which is a redevelopment authority created pursuant to the provisions of the Military Facilities Redevelopment Law, regardless of the number of acres of property involved, may be for such term as the local government and the developer shall elect.
(emphasis added).
Subsection 6-31-60(A) contains a list of items an Agreement must contain. Subsection 6-31-60(B) addresses matters concerning items that may be included and guides to interpretation. The final sentence of this subsection states: “A major modification of the agreement may occur only after public notice and a public hearing by the local government.”[77] The final two subsections state:
Section 6-31-70 states: “A development agreement and authorized development must be consistent with the local government’s comprehensive plan and land development regulations.” (emphasis added).
Section 6-31-80 addresses the applicability of laws in effect at the time of the execution of the Agreement as follows:
Subsection 6-31-80(C) states: “This section does not abrogate any rights preserved by Section 6-31-140 herein or that may vest pursuant to common law or otherwise in the absence of a development agreement.”
Section 6-31-90 addresses compliance issues. Subsection 6-31-90(A) states:
Procedures established pursuant to Section 6-31-40 must include a provision for requiring periodic review by the zoning administrator, or, if the local government has no zoning administrator, by an appropriate officer of the local government, at least every twelve months, at which time the developer must be required to demonstrate good faith compliance with the terms of the development agreement.
(emphasis added).
Subsections 6-31-90(B)–(C) address the handling of a breach by the developer as follows:
Section 6-31-100 states that “[a] development agreement may be amended or canceled by mutual consent of the parties to the agreement or by their successors in interest.”
Section 6-31-110 addresses the approach for dealing with newly annexed formerly unincorporated territory.
Section 6-31-120 requires the developer to record the agreement and provides that the “burdens of the development agreement are binding upon, and the benefits of the agreement shall inure to, all successors in interest to the parties to the agreement.”
Section 6-31-130 addresses later enacted state and federal laws as follows:
In the even state or federal laws or regulations, enacted after a development agreement has been entered into, prevent or preclude compliance with one or more provisions of the development agreement, the provisions of the agreement must be modified or suspended as may be necessary to comply with the state or federal laws or regulations.
(emphasis added).
Section 6-31-140 provides: (1) Suppliers of utilities are not affected by the agreement and (2) there is no intent “to grant to local governments or agencies any authority over property lying beyond their corporate limits.” Section 6-31-150 reinforces this concern in Section 6-31-140 by stating:
If Section 6-31-140 or any provision therein or the application of any provision therein is held invalid, the invalidity applies to this chapter in its entirety, to any and all provisions of the chapter, and the application of this chapter or any provision of this chapter, and to this end the provisions of Section 6-31-140 of this chapter are not severable.
Section 6-31-145 states that local government must comply with legal procedures concerning any debt obligations of the local government.
Section 6-31-160 states that subsequently adopted “building, housing, electrical, plumbing and gas codes” cannot be superseded or contravened by the agreement.
The “South Carolina Development Impact Fee Act” establishes a framework for imposing “impact fees” on new developments.[79] The Act explicitly states that a “governmental entity may not impose an impact fee, regardless of how it is designated, except as provided in this article.”[80]
The definitions in Section 6-1-920 are extremely important because they structure the scheme for computing the amount of the impact fees for a development. It is important to note: (1) Schools and public services are not included in the definition of “public service” in subsection 6-1-920(18) even though these include major public expenditures, and (2) Section 6-1-1070 authorizes impact fee agreements between a government entity and a school district.
Section 6-1-930 contains several requirements for imposing a development impact fee. First, the governmental unit must have either a comprehensive plan[81] or “a capital improvements plan which substantially complies with the requirements of Section 6-1-960(B).”[82] (emphasis added).
Second “[a]n impact fee may be imposed and collected by the governmental entity only upon the passage of an ordinance approved by a positive majority, as defined in Article 3 of this chapter.”[83] This ordinance must:
(a) establish a procedure for timely processing of applications for determinations by the governmental entity of development impact fees applicable to all property subject to impact fees and for the timely processing of applications for individual assessment of development impact fees, credits, or reimbursements allowed or paid under this article; (b) include a description of acceptable levels of service for system improvements; and (c) provide for the termination of the impact fee.[84]
Third, “[b]efore imposing a development impact fee on residential units, a governmental entity shall prepare a report which estimates the effect of recovering capital costs through impact fees on the availability of affordable housing within the political jurisdiction of the governmental entity.”[85]
The content of the ordinance imposing the fee is addressed in several parts of the Act. Section 6-1-930(b)(2) states the “amount of the development impact fee must be based on actual improvement costs or reasonable estimates of the costs, supported by sound engineering studies.” (emphasis added). Similar language is found in other parts of the Act.[86]
In addressing the amount of the impact fee ordinance, subsections 6-1-940(1) and (2) provide:
A government entity imposing an impact fee must provide in the impact fee ordinance the amount of impact fee due for each unit of development in a project for which an individual building permit or certificate of occupancy is issued. The governmental entity is bound by the amount of impact fee specified in the ordinance and may not charge higher or additional impact fees for the same purpose unless the number of service units increases or the scope of the development changes and the amount of additional impact fees is limited to the amount attributable to the additional service units or change in scope of the development. The impact fee ordinance must: (1) include an explanation of the calculation of the impact fee, including an explanation of the factors considered pursuant to this article; (2) specify the system improvements for which the impact fee is intended to be used.
(emphasis added).
Subsections 6-1-940(3)–(4) also impose an obligation to inform the developer/payor of certain rights. More specifically, the ordinance must inform the developer/payor of his rights to pursue alternate approaches to addressing the costs of impact on system improvements.[87] These subsections provide:
(a) he may negotiate and contract for facilities or services with the governmental entity in lieu of the development impact fee as defined in Section 6-1-1050;
(b) he has the right of appeal as provided in Section 6-1-1030;
(c) the impact fee must be paid no earlier than the time of issuance of the building permit or issuance of a development permit if no building permit is required.[88]
(emphasis added).
Section 6-1-950 establishes the process for initiating an impact fee scheme. This section provides:
(emphasis added).
Subsection 6-1-960(A) provides:
The local planning commission shall recommend to the governmental entity a capital improvements plan which may be adopted by the governmental entity by ordinance. The recommendations of the commission are not binding on the governmental entity, which may amend or alter the plan. After reasonable public notice, a public hearing must be held before final action to adopt the ordinance approving the capital improvements plan.
(emphasis added). This subsection also addresses notice requirements. Section 6-1-960(B) states that the capital improvements plan must contain nine specific items. Subsection 6-1-960(C) states: “Changes in the capital improvements plan must be approved in the same manner as approval of the original plan.”
Several sections of the Act address the amount of an impact fee. Subsection 6-1-930(D) states:
Payment of an impact fee may result in an incidental benefit to property owners or developers within the service area other than the fee payor, except that an impact fee that results in benefits to property owners or developers within the service area, other than the fee payor, in an amount which is greater than incidental benefits is prohibited.
Section 6-1-980 imposes the following requirements for calculating the fee to be imposed:
(emphasis added).
Section 6-1-990 contains a detailed list of requirements to be considered in determining the amount of the impact fee.
Section 6-1-1000 states:
A developer required to pay a development impact fee may not be required to pay more than his proportionate share of the costs of the project, including the payment of money or contribution or dedication of land, or to oversize his facilities for use of others outside of the project without fair compensation or reimbursement.
Subsection 6-1-930(C) provides: “A governmental entity shall prepare and publish an annual report describing the amount of all impact fees collected, appropriated, or spent during the preceding year by category of public facility and service area.”
Section 6-1-1010 imposes requirements for addressing accounting and expenditures.
Refunds of impact fees are addressed in Section 6-1-1020, which lists requirements for refunds and explicitly grants standing to sue where there has not been a timely payment of a refund.
Collection of fees is addressed in Section 6-1-1040.
Appeals are addressed in Section 6-1-1030, which provides:
(emphasis added).
Section 6-1-970 contains a list of exemptions from the imposition of impact fees.
Section 6-1-1080 states that the Act does not apply to water or waste water facilities. This section also contains requirements for imposing an impact fee for these facilities.
Section 6-1-1050 authorizes the use of development agreements to address developmental impacts. The section states: “An impact fee may not be imposed on a fee payor or developer who has entered into an agreement as described in this section.”[91]
Section 6-1-1060 states that the Act will not affect certain existing laws and that “property for which a valid building permit or certificate of occupancy has been issued or construction has commenced before the effective date of a development impact fee ordinance is not subject to additional development impact fees.”
Section 6-1-1070 addresses agreements among governmental units.
Section 6-1-1090 addresses annexations by municipalities.
Section 6-1-2000 states: “This article shall not create, grant, or confer any new or additional taxing or revenue raising authority to a political subdivision which was not specifically granted to that entity by a previous act of the General Assembly.”
Section 6-1-2010 states: “Compliance with any requirement for public notice or public hearing in this article is considered to be in compliance with any other public notice or public hearing requirement otherwise applicable including, but not limited to, the provisions of Chapter 4, Title 30, and Article 3 of this chapter.”
The South Carolina Supreme Court addressed a challenge to the adoption of an impact fee scheme in Charleston Trident Home Builders v. Town Council of Town of Summerville.[92] The court held that Trident had standing,[93] that Trident was not required to exhaust administrative remedies,[94] that the capital improvements plan substantially complied with the Act,[95] and that the fee calculation in the ordinance was proper.[96]
In terms of the fee calculation, the court found that the methodology for calculating the fee was based on reasonable estimates by the Town’s engineer and that Trident had not shown that cost estimates would have been different if specific engineering studies had been conducted,[97]
South Carolina adopted the “South Carolina Religious Freedom Act” in 1999.[98] Section 1-32-40 of the Act provides:
The State may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability, unless the States demonstrates that application of the burden to the person is: (1) in furtherance of a compelling state interest; and (2) the least restrictive means of furthering that compelling state interest.
Section 1-32-50 provides:
If a person’s exercise of religion has been burdened in violation of this chapter, the person may assert the violation as a claim or defense in a judicial proceeding. If the person prevails in such a proceeding, the court shall award attorney’s fees and costs.
Section 6-29-715 of the Enabling Act also addresses religious freedom. This section provides:
The provisions of the Freedom of Information Act are scattered through a number of Titles in the South Carolina Code. In terms of zoning, the most important provisions are contained in Sections 3-4-15 (Findings and purpose), 3-4-20 (Definitions), 3-4-60 (Open meetings), 30-4-70 (Closed meetings), 30-4-80 (Notice of meetings), 30-4-80 (Minutes of meetings), 30-4-100 (Remedies; costs and attorney’s fees), and 30-4-110 (Penalties).
Although these provisions are relatively easy to understand, there are occasional examples of failure to follow the procedures. Examples such as the following can easily occur: (1) a city council member will ask the city attorney form a legal opinion during a public hearing (Such an opinion in an open meeting would negate the confidentiality secured by going into executive session.); (2) a staff member will hold an unadvertised “information retreat” and ask members of the board to vote on an “advisory opinion,” and (3) a board member will tell the public what the city attorney had advised the board in executive session in order to avoid blame for a vote.[99]
The South Carolina Ethics Act defines a “public official” as “an elected or appointed official of the State, a county, a municipality, or a political subdivision thereof, including candidates for the office.”[100] This definition includes members of zoning boards and commissions.[101] The Act defines “official responsibility” as “the direct administrative or operating authority, whether intermediate or final and whether exercisable personally or through subordinates, to approve, disapprove, or otherwise direct government action.”[102] Because of this provision, staff members are subject to the Ethics Act.
The best approach for dealing with the Ethics Act is: (1) prepare fill-in-the-blank forms for staff and board/commission members to recuse themselves, and (2) occasionally remind board/commission members of the Act’s prohibition of conflict of interest.
Section 6-1-110 addresses the use of a moratorium regarding construction. This section provides:
No municipality or county may adopt an ordinance which imposes a moratorium on a construction project for which a permit has been granted without giving a two-week notice in a newspaper of general circulation in the county in which the project is located. No moratorium may be imposed without at least two readings which are a week apart.
Section 15-77-300 of the South Carolina Code authorizes the allowance of attorney fees where:
The agency is presumed to be substantially justified in pressing its claim against the party if the agency follows a statutory or constitutional mandate that has not been invalidated by a court of competent jurisdiction.
The judge must make a specific written finds regarding each factor listed above in making the award of attorney’s fees. However, in no event shall a prevailing party be allowed to shift attorney’s fees pursuant to this section that exceed the fees the party has contracted to pay counsel personally for work on the litigation.
Subsection 6-29-840 (A) of the South Carolina Code contains a provision stating: “In the event that the decision of the board [of zoning appeals] is reversed by the circuit court, the board is charged with the costs, and the costs must be paid by the governing authority which established the board of appeals.”
South Carolina has provisions for initiative and referendum.[103] The court in I’on, LLC v. Town of Mt. Pleasant held that this approach could not be used to address zoning because the protections of the zoning process set forth in Title 6 would not be provided by the initiative/referendum approach.[104]
It is useful to keep in mind the impact of the “pending ordinance” doctrine, which grants an ordinance legal validity if the ordinance is “legally pending,” but not yet adopted, where “the governing body has resolved to consider a particular scheme of rezoning and has advertised to the public its intention to hold public hearings on the rezoning.”[105] Because of this validity, a request for a permit would need to satisfy the pending ordinance.
Another doctrine is the “equal dignity” doctrine, which provides that an “ordinance must be either repealed or succeeded by another ordinance or an instrument of equal dignity” as the ordinance or resolution itself.”[106] Thus, for example, if two readings are required for adoption of a zoning ordinance, any change in that ordinance also requires two readings. For procedures concerning adoption of ordinances, see S.C. Code Sections 4-9-120, 4-9-130 (counties), and S.C. Sections 5-7-260, 5-7-270 (municipalities).
Kurschner v. City of Camden Planning Commission[107] addressed the nature of the due process rights in a zoning hearing. The court rejected Kurschner’s claim to a right to “trial like” rights.[108] Instead, the court adopted a lesser standard of “a meaningful opportunity to be heard.”[109] Under this standard, due process was satisfied.[110]
In order to perfect an appeal from the Planning Commission, the Board of Zoning Appeals, or the Board of Architectural Review, it is necessary to exhaust administrative procedures by appealing an adverse staff decision to the Board or Commission involved.[111]
Appeals of administrative decision by Planning Commission staff are addressed in Section 6-29-1150(C), which provides:
Staff action, if authorized, to approve or disapprove a land development plan may be appealed to the planning commission by any party in interest. The planning commission must act on the appeal within sixty days, and the action of the planning commission is final.
(emphasis added).[112]
Appeals of administrative decisions by Board of Zoning Appeals staff are addressed in Sections 6-29-800(A)(4) (addressing remand), 6-29-800(B), -(C), -(D), -(E). Particular attention should be focused on the notice requirements and the time limits. Subsection 6-29-800(C) addresses stays pending appeal to the Board and use of restraining order in case of “imminent peril to life and property.”
Appeals of administrative decisions by Board of Zoning Appeals staff are addressed in Sections 6-29-880 and 6-29-890.
Subsection 6-29-1150(D)(1) states that “[a]n appeal from the decision of the planning commission must be taken to the circuit court within thirty days after actual notice of the decision.” (emphasis added).
Subsection 9-29-820(A) states:
A person who may have a substantial interest in any decision of the board of appeals or an officer or agent of the appropriate governing authority may appeal from a decision of the board to the circuit court in and for the county, by filing with the clerk of the court a petition in writing setting forth plainly, fully, and distinctly why the decision is contrary to law. The appeal must be filed within thirty days after the decision of the board is mailed.
(emphasis added).
Subsection 6-29-900(A) states:
A person who may have a substantial interest in any decision of the board of architectural review or any officer, or agent of the appropriate governing authority may appeal from any decision of the board to the circuit court in and for the county by filing with the clerk of court a petition in writing setting plainly, fully, and distinctly why the decision is contrary to law. The appeal must be filed within thirty days after the affected party receives actual notice of the decision of the board of architectural review.
(emphasis added).
For third-party claims in a zoning case, the court in Spanish Wells Property Owners Association, Inc. v. Board of Adjustment of the Town of Hilton Head held that the permittee in a zoning appeal was a necessary party to the appeal under Rule 19, SC Rules of Civil Procedure (SCRCP).[113] Given this holding, the failure to serve the permittee within the relevant time frame will result in dismissal of the appeal, because “the timeliness of an appeal from a zoning board’s decision is a jurisdictional requirement and, as such, may be raised at any time by either party or sua sponte by” the court.[114]
As a general rule, the permittee is the owner of the property involved.[115] It is common for an agent of the owner—for example, a real estate agent or a developer—to handle the application process. The application file should indicate who is the owner and, if there is an agent of the owner for purposes of the application, the identity of the agent. If there is uncertainty as to the permittee, it may be prudent to include all possible permittees in the complaint.
Section 6-29-760 states:
No challenge to the adequacy of notice or challenge to the validity of a regulation or map, or amendment to it, whether enacted before or after the effective date of this section, may be made sixty days after the decision of the governing body if there has been substantial compliance with the notice requirements of this section or with established procedures of the governing authority or the planning commission.
This provision was recently applied by the South Carolina Supreme Court to bar a suit challenging an ordinance adopted by Myrtle Beach.[116]
Section 62-29-760 does not apply where a governmental entity engages in an ultra vires act; the remedy for an ultra vires act is to void the act involved.[117] A similar approach applies where the governmental action is unconstitutional.[118]
In terms of record on appeal, the court in Austin v. Board of Zoning Appeals held that the requirement of “final decisions and orders” could be satisfied by “written documents as well as records of proceedings.”[119] Given the similarity in proceedings before a Planning Commission and a Board of Architectural Review, it is likely that the approach of Austin would apply to these two entities.
The standard of review of a decision by the Planning Commission is the “any evidence standard . . . that is consistently utilized in these types of cases.”[120]
The standard of review in an appeal of a decision by a Board of Zoning Appeals is set forth in Section 6-29-840(A) as follows:
The findings of fact by the board of appeals must be treated in the same manner as a finding of fact by a jury, and the court may not take additional evidence . . . . In 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.
The Standard of Review for a decision by an Architectural Board of Review is set in Section 6-29-930(A) as follows:
The findings of fact by the board of architectural review are final and conclusive on the hearing of the appeal, and the court may not take additional evidence. In the event the judge determines that the certified record is insufficient for review, the matter must be remanded to the board of architectural review for rehearing. In 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.
The application of the type of standard of review involved with the Planning Commission, the Board of Zoning Appeals, and the Board of Architectural Review is summarized in Blind Tiger, LLC v. City of Charleston as follows:
In reviewing a decision by a board of architectural review, the circuit court should act when the board abuses its discretion by committing errors of law or bases its decision on finding of fact that are not supported by evidence. Furthermore, our standard of review of a board of architectural review’s decision is the same as that of the trial court.[121]
The standard of review for a City Council or County Council is more complex. In some cases, a failure to comply with the Enabling Act has resulted in a reversal of a County Council adoption of an ordinance.[122] In cases where no failure to comply with the Act is involved, judicial review tends to be more deferential.[123]
South Carolina recognizes several categories of standing. The starting point in analysis is whether a person has a sufficient interest in the outcome of litigation to warrant consideration of the individual’s position by a court.[124] The party must have a real, material, or substantial interest in the outcome of litigation.[125] Absent such an interest, there is no “case or controversy.”[126]
In terms of zoning and planning, the governmental entity approving or denying a request for approval and the permittee[127] have standing. Standing for third parties can be more problematic because of variations in facts among the cases.
Four cases indicate the importance of specific facts. All of these cases involved the doctrine of associational standing. Under this doctrine,
[A]n organization has associational standing to bring suit on behalf of its members when (1) at least one member would otherwise have standing (statutory, constitutional, or otherwise) to sue in his or her own right, (2) the interests at stake are germane to the organization’s purpose, and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.[128]
The dispute in each case focused on whether any member of the association involved had standing.
The associations in Preservation Society of Charleston v. South Carolina Department of Health & Environmental Control were:
[seeking] a contested case hearing in the administrative law court (ALC) to challenge the propriety of state environmental authorizations issued by the South Carolina Department of Health and Environmental Control (DHEC) for a project relocating and expanding the passenger cruise facility at the Union Pier Terminal (the Terminal) in downtown Charleston. Petitioners maintain they have standing to seek this hearing as “affected persons” under section 44-1-60 (G) of the South Carolina Code (2018). The ALC concluded Petitioners did not have standing and granted summary judgment to Respondents.[129]
The Supreme Court decision focused on the first standing requirement—i.e., on whether any member of the petitioning organizations had standing as individuals under the statutory term of “affected persons.” In addressing this issue, the Court noted:
Petitioners are community and neighborhood organizations comprised primarily of members who own property near the proposed passenger cruise facility. . . . [T]he court of appeals acknowledged Petitioners presented affidavits from individual members expressing concern over their reduced quality of life arising from the effects upon them individually, such as pollution and health effects, traffic congestion, property values, effects on their businesses in the area, and effects on the historical integrity of the area where they resided. . . . Nevertheless, the court of appeals, relying on Carnival Corp. [v. Historic Ansonborough Neighborhood Association, 407 S.C. 67, 753 S.E.2d 846 (2014)], agreed with the ALC that the claims of possible environmental and personal harm were purely speculative or were merely generalized grievances equally affecting the public as a whole.[130]
The Supreme Court concluded that the associations’ “allegations of potential harm to members in nearby neighborhoods, through affidavits and other filings, are not speculative.”[131] The proximity of the members of the associations to the terminal involved play a role in this conclusion. The court noted:
While geographic proximity may not be a determinative factor in every case, it is highly relevant to our analysis in this case. Here members would suffer the environmental consequences Petitioners allege the project will create, such as breathing problems and other adverse health effects; increases in hazardous diesel soot; and increases in noise, traffic, and water pollution.[132]
Citizens for Quality Rural Living, Ins., v. Greenville County Planning Commission addressed the issue of standing in the context of an appeal from a decision by a planning commission.[133] The Court held that Section 6-29-1150 of the Enabling Act granted “any party in interest” a right to appeal from a decision of a planning commission.[134] In terms of the meaning of the term “party in interest,” the court adopted the approach of Bank of America, N.A. v. Draper,[135] which defined “a real party in interest for purposes of standing as ‘a party with a real, material, or substantial interest in the outcome of the litigation’”[136] Citizens for Quality Rural Living also noted that the association involved had a substantial interest, and thus standing, because “its members include persons who own property and live in the immediate vicinity of the proposed subdivision.”[137] Like Preservation Society of Charleston, Citizens for Quality Rural Living focused on: (1) the fact that plaintiffs owned property in a defined neighborhood that was in the immediate vicinity of the proposed subdivision at issue in the case, and (2) members of the neighborhood “will be impacted by the additional traffic” and by the incompatibility of the subdivision with the surrounding rural community.[138]
Carnival Corp. v. Historic Ansonborough Neighborhood Association and Beaufort Realty Co. v. Beaufort County represent examples of cases where standing did not exist.[139]
Carnival Corp. involved a suit brought by two neighborhood associations, a historic preservation society, and the Coastal Conservation Society.[140] The alleged injuries involved were essentially public nuisance claims.[141] Because the plaintiffs lacked the special injury required for bringing a public nuisance claim, the court held that the plaintiffs lacked standing.[142] The court also held that public importance standing did not apply because of the nature of the claims involved and because the claims could be brought by persons who could show the required injuries.[143]
Beaufort Realty Co. involved a challenge to a decision by the County Zoning Administrator that plats filed for a subdivision were exempt from the need for approval.[144] The court held that the League did not have standing because there was no evidence of harm to individual members and that a “severe concern” for potential harm was, by itself, inadequate to satisfy the standard of concrete particular harm.[145]
The South Carolina Supreme Court has held that “a court may confer standing upon a party when an issue is of such public importance as to require its resolution for future guidance.”[146] The approach for addressing a claim of public importance standing was addressed in South Carolina Public Interest Foundation v. South Carolina Department of Transportation as follows:[147]
[W]hen deciding whether to confer public importance standing, courts must take these competing policy concerns [of citizen access to courts and a need to achieve judicial economy and freedom from frivolous suits] into consideration, and must also determine whether the party presents an issue of public importance and whether future guidance on that issue is needed.
Federal law has numerous constitutional, statutory, and judicial doctrines that are relevant to zoning. This section addresses a selection of important concerns that need to be considered.
Before deciding to file a zoning case in federal court, you should consider whether doctrines limiting access to federal courts will affect access to federal courts.
Federal courts have abstained from deciding land use cases implicating “sensitive issues of social policy” where state court adjudication remained available.[148] Pullman abstention has been held to be appropriate where:
Burford v. Sun Oil Co. involved a challenge to an order by the Texas Railroad Commission granting a permit to drill for oil in a certain oil field.[150] Because of the need for uniform regulation of competing claims to common pools of oil and gas, Texas had given the commission exclusive regulatory authority and had vested authority to review the commission’s orders in a single set of state courts.[151] The Supreme Court held that the federal courts sitting in equity could decline to exercise jurisdiction out of “proper regard for the rightful independence of state governments in carrying out their domestic policy.”[152] The Court stressed that the thorny nature of oil and gas regulation, the demonstrated need for uniform regulation, and the detrimental impact of conflicts that already had developed as a result of federal review of commission orders all justified abstention.[153]
In Pomponio v. Fauquier County Board of Supervisors, the court held: “In cases in which plaintiff’s federal claims stem solely from construction of state or local land use or zoning law, not involving the constitutional validity of the same and absent exceptional circumstances not present here, the district courts should abstain under the Burford doctrine to avoid interference with the State’s or locality’s land use policy.”[154]
The Court in Younger v. Harris held that a federal court should not enjoin an ongoing state criminal proceeding absent “extraordinary circumstances.”[155] The Younger doctrine has been extended to require the federal courts to abstain from hearing a federal claim against a state (or its agents) if the state has an action pending in the state courts that seeks to exercise coercive power over the federal plaintiff.[156] The lower courts occasionally invoke Younger in land use cases.[157]
The Rooker-Feldman doctrine, articulated in Rooker v. Fidelity Trust Co.[158] and District of Columbia Court of Appeals v. Feldman,[159] holds that a party cannot appeal an adverse state court decision to a federal court, but must instead petition for a writ of certiorari from the U.S. Supreme Court.[160] Some lower federal courts interpreted that to mean that the federal courts could not address federal takings claims where the state courts have rejected a state takings claim based on the same facts. In 2005, the Supreme Court sharply limited the Rooker-Feldman doctrine, confining it to “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.”[161]
One approach to preserve takings claims in federal court is to file in federal court and then file an “England reservation” to preserve a federal claim and also proceed with the state claim.[162]
A takings challenge to a federal regulation must proceed under the Tucker Act[163] in the U.S. Court of Federal Claims. The jurisdictional basis for a challenge to a federal regulation based on due process, equal protection, or civil liberties claim is 28 U.S.C. Section 1331(a). Where a challenge is based on a claimed violation of the federal Constitution or federal laws, jurisdiction can be based on 42 U.S.C. Section 1983. Jurisdiction for the Section 1983 claim can be based on 28 U.S.C. Section 1331(a) or 28 U.S.C. Section 1343.
The best way to avoid problems with possible violations of the right to free speech is to stick to neutral “time/manner/place” restrictions. However, this approach can become complicated when dealing with “sexually oriented businesses” (SOBs).[164] Several points are important to keep in mind when addressing SOBs.
First, as the following quotation indicates, erotic materials have a lesser level of protection than political debate:
[E]ven though we recognize that the First Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value, it is manifest that society’s interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate that inspired Voltaire’s immortal comment. Whether political oratory or philosophical discussion moves us to applaud or to despise what is said, every schoolchild can understand why our duty to defend the right to speak remains the same. But few of us would march our sons and daughters off to war to preserve the citizen’s right to see “Specified Sexual Activities” exhibited in the theaters of our choice.[165]
Second, the use of the concept of “secondary effects” to justify restrictions is, to a considerable extent, a “legal fiction.” Justice Kennedy’s concurring opinion in City of Los Angeles v. Almeda Books, Inc. noted:
In [City of] Renton [v. Playtime Theatres, Inc.], the Court began by noting that a zoning ordinance is a time, place, or manner restriction. The Court then proceeded to consider the question whether the ordinance was “content based.” . . . The Court appeared to recognize, however, that the designation was something of a fiction, which, perhaps, is why it kept the phrase in quotes. After all, whether a statute is content neutral or content based is something that can be determined on the face of it; if the statute describes speech by content then it is content based. And the ordinance in Renton “treat[ed] theaters that specialize in adult films differently from other kinds of theaters.” The fiction that this sort of ordinance is content neutral—or “content neutral”—is perhaps more confusing than helpful . . . .[166]
Third, SOBs have had some success in presenting evidence to counter the secondary effects argument.[167]
Fourth, City of Renton addressed the requirement of “reasonable alternative avenues of communication” and determined that “[adult theatre sites] must fend for themselves in the real estate market.”[168] This approach does not address the question of “relevant market.” For example, if there are no sites available in the City of Columbia, can Columbia argue that sites in Richland County provide adequate outlets?
Regulating signs can be challenging because of the temptation of going beyond “time/manner/place” restrictions. In addition, there are multiple levels of protection for different types of speech. As indicated below in the discussion of SOBs, erotic speech has a lesser degree of protection. A lesser amount of protection is also granted in the case of commercial speech.[169]
Many billboards are subject to a form of federal preemption because of the Highway Beautification Act of 1965.[170] Under the Act, a state that fails to control outdoor advertising signs near the primary system of federally assisted highways is to suffer a 10 percent reduction in federal highway funding.[171] The Act also requires that just compensation be paid to the owner of any sign ordered removed.[172] Federal funds, if appropriated, are to reimburse lower-level government for 75 percent of the compensation due.[173] In order to avoid losing 10 percent of its federal highway funding, states adopted controls. During the 1980s, Congress ceased appropriating funds for the 75 percent federal share of the compensatory payments, and billboard-removal efforts along federally assisted highways were largely suspended.[174] In addition, “phony” commercial/industrial districts along the rural highways enabled billboard interests to evade statutory prohibitions.[175]
In City of Ladue v. Gilleo, the Court held that a local sign ordinance was unconstitutional because it prohibited virtually any sign in Ladue’s front yard.[176] The decision stressed the unique nature of residential signs in terms of things like cost and speaker identification.[177] Based on such concerns, courts have repeatedly held that the First Amendment bars stringent local restrictions on the posting of political campaign signs at the poster’s home or place of business.[178]
Congress enacted the Religious Freedom and Restoration Act (RFRA) in 1993.[179] RFRA was declared an unconstitutional restriction on the states in 1997.[180] In response, Congress adopted the Religious Land Use and Institutionalized Persons Act (RLUIPA) in 2000.[181]
The provisions in the South Carolina Religious Freedom Act and in Section 1-32-50 of the Enabling Act would also be relevant to a challenge based on interference with religion.[182]
The Court in Village of Belle Terre v. Boraas held that an ordinance restricting housing to one family dwellings was not unconstitutional.[183] The Court noted:
The word “family” as used in the ordinance means, “[o]ne or more persons related by blood, adoption, or marriage, living and cooking together as a single housekeeping unit, exclusive of household servants. A number of persons but not exceeding two (2) living and cooking together as a single housekeeping unit though not related by blood, adoption, or marriage shall be deemed to constitute a family.”[184]
The Court noted:
A quiet place where yards are wide, people few, and motor vehicles restricted are legitimate guidelines in a land-use project addressed to family needs. This goal is a permissible one . . . . The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.[185]
In McMaster v. Columbia Board of Zoning Appeals, the South Carolina Supreme Court rejected a challenge to the Columbia ordinance limiting the number of unrelated persons in a single unit to three.[186] Relying on Village of Belle Terre and cases in other jurisdictions, the court upheld the ordinance.[187]
The definition of family was also involved in Moore v. City of East Cleveland, Ohio.[188] The ordinance involved in Moore used a definition of “family” that excluded some persons actually related to other members of the household.[189] Justice Powell’s opinion stressed the importance of freedom of choice in family matters.[190] Justices Brennan and Marshall also stressed this freedom of choice.[191] Justice Stevens emphasized the right to use property as one saw fit.[192]
The Fair Housing Act was originally adopted in 1968. It has been amended several times. Currently, the Act forbids discrimination based on race, color, religion, national origin, disability, familial status, and gender.[193] A full discussion of the Act is beyond the scope of this Article. South Carolina Appleseed has published a useful guide to the Act, entitled An Advocate’s Guide to the Fair Housing Act. This Guide is available without charge on the internet.[194] For a South Carolina example of application of this Act, see County of Charleston v. Sleepy Hollow Youth, Inc.[195]
The Noerr-Pennington doctrine was set forth by the United States Supreme Court in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc.[196] and United Mine Workers v. Pennington.[197] Under this doctrine, private entities are immune from liability under the antitrust laws for attempts to influence the passage or enforcement of laws, even if the law they advocate for would have anticompetitive effects.[198] The doctrine is grounded in the First Amendment protection of political speech, and “upon a recognition that the antitrust law, ‘tailored as they are for the business world, are not at all appropriate for application in the political arena.’”[199] In Noerr, the Court held that “no violation of the [Sherman] Act can be predicated upon mere attempts to influence the passage or enforcement of laws.[200] Similarly, the Court wrote in Pennington that “[j]oint efforts to influence public officials do not violate the antitrust laws even though intended to eliminate competition.”[201] California Motor Transport Co. v. Trucking Unlimited added that “the right to petition extends to all departments of the Government [and] [t]he right of access to the courts is indeed but one aspect of the right to petition.”[202]
In National Association for the Advancement of Colored People v. Button, the Court held that: (1) the activities of “the NAACP, its affiliates, and legal staff are modes of expression which are protected by the First and Fourteenth Amendments”; and (2) Virginia had failed to justify those parts of its regulatory scheme for attorneys which interfered with the protected rights.[203]
A governmental entity may not impose an impact fee, regardless of how it is designated, except as provided in this article. However, a special purpose district or public service district which (a) provides fire protection services or recreation services, (b) was created by act of the General Assembly prior to 1973, and (c) had the power to impose development impact fees prior to the effective date of this section is not prohibited from imposing development impact fees. ↑
The local planning commission shall prepare and adopt its recommendations for a comprehensive plan as provided in Article 3, Chapter 29, Title 6, except as otherwise provided in this article. The commission shall review and update the capital improvements plan and impact fees in the same manner and on the same review cycle as the governmental entity’s comprehensive plan or elements of it.
(emphasis added). ↑