Legal Update 2013

1. Legal Update 2013

2. Cases covered (Leah’s portion) • Belvivino • Kiawah Development • Bees Ferry • Hollywood • Dunes West • Orangeburg

3. Belvivino Belvivino et al. v. Town of Mount Pleasant Board of Zoning Appeals and Zoning Administrator, and SCE&G/SCANA S.C. Court of Appeals

4. History • Staff approved communications tower • SCE&G owns property in Mt. Pleasantleases to SCANA • Next to residential neighborhood • Zoned ED (Economic Development) • Telecommunications tower = conditional use • After approval, ZA notified neighbors “as a courtesy” and informed them of right to appeal his decision to BZA • No one responded • Tower constructed

5. History, cont. • Neighbors appealed to ZBA (Lincolns + Belvivino) • Safety, ugly • ZBA upheld ZA’s decision (4-2) • Lincolns, Belvivino, and other appellants file for review of ZBA’s decision in circuit court

6. Issue 1: Standing • Do neighbors have standing to go to circuit court? • Circuit Court said only Lincolns and Belvivino have standing b/c no one else appealed to BZA. • Court of Appeals said that’s wrong. • If you have a substantial interest in the BZA’s decision, you can appeal to circuit court. • Don’t have to appeal to ZBA first, or even speak at ZBA hearing. As long as you file w/ circuit court w/in the 30-day filing period, you’re good to go. (Newton v. ZBA for Beaufort County (2011))

7. Issue 2: BZA’s decision • Did BZA make arbitrary, capricious, or otherwise unreasonable decision? • Circuit court: No. • Court of appeals: No. • Decision supported by competent evidence as to tower safety, health • PE “fall zone plan,” construction drawings, FAA review, FCC review, OCRM review, etc. • Regarding its ugliness, area had mix of uses already and appellants offered only speculation about reduced property values.

8. Issue 3: Notice • Undecided, but interesting • SCANA: unfair for neighbors to be able to appeal to BZA after ZA had approved tower • Undecided b/c tower gets to stay

9. Why is this case important? • 1. Reaffirms idea that people can “come out of the woodwork” to appeal ZBA decision (“any substantial interest”). • 2. Court may consider in future whether it is appropriate for someone to be allowed to appeal decision of staff to ZBA about something that is already built.

10. Kiawah Development Kiawah Development Partners v. SCDHEC S.C. Supreme Court

11. Overview • Kiawah wants to build low-density residential in marsh area • Seeks permit from DHEC to build 2,983 feet of erosion control structures (bulkhead and block revetment) there • DHEC said OK, but just for 270 feet • Legal actions ensue. Result: • Administrative Law Court (ALC) grants permit for 2,983 feet • Supreme Court affirms (split vote)

12. Why is this case important? • Reminder that ALC can override agency decisions. • In a contested case, ALC is the ultimate fact finder and is not restricted by the findings of the agency. Sits de novo. • Different from circuit court/BZA relationship. • Coastal Zone Management Act: • Balances economic development and environmental interests. • Some adverse impact on public access OK (bulkhead/revetment OK if other sandy landing spots nearby). • DHEC’s authority ends at the “critical area” (here, the marsh). Cannot consider impacts outside the critical area (here, the high ground nearby). (Where would it stop?) • More development on Kiawah.

13. Grand Bees (Bees Ferry) Grand Bees Development, LLC v. SCDHEC S.C. Administrative Law Court

14. History • Charleston County applied to DHEC for permit to expand C&D landfill. DHEC granted permit. • Taller (74 feet above sea level to 168) • 5.5 acres larger • More than double capacity • Grand Bees Development owns adjacent property • Zoned PUD—planned for residential use • Site plan for 507 residential units approved • Part of larger development (Grand Oaks Plantation) w/ 1,500 existing homes

15. History, cont. • Grand Bees  ALC: “DHEC should not have granted permit.” • ALC: You are right b/c no special exception obtained. • County violated own ordinance. • County amended ordinance: special exception no longer necessary. Amended application with DHEC. • DHEC approves permit again.

16. History, cont. • Back to ALC. New judge. Reviews de novo. • Grand Bees is still right; DHEC should not have granted permit. • Permit must be consistent with local ordinances. Not consistent w/ lots of provisions: • Disposal sites must “conform w/ future development of area (noise, dust, aesthetics, traffic, etc.) • 100-foot buffer required w/ vegetation (used as access road) • Permit not consistent w/ state reg: • 1000-foot buffer required from “residence” (court counts future residences)

17. Why is this case important? • 1. Courts really want for you to follow your own ordinances. • Changing them after-the-fact to obtain your desired result is frowned upon. • 2. “Residence” to this court now means future as well as existing residences. • “Absurd” to think that if permit applicant “wins the race” and obtains permit prior to construction of house w/in the 1,000-foot buffer, that house should be ignored. • State reg: 1,000 feet required for landfill from residence, school, day care, church, hospital, or public park. Court probably wants DHEC to take planned ones of those into account, too.

18. Hollywood Town of Hollywood v. Floyd et al. (“developers”) S.C. Supreme Court

19. History • Developers want to subdivide their property into 17 lots for residential use. • Apply for rezoning. • PC: rezoning not necessary; come back with request to subdivide. • After tabling, public comments. (Curious) • Various constituents express concerns: drainage, traffic on narrow and dangerous road, etc. • Councilwoman: cutting throat “never going to happen” • ZA said he could approve project himself if developers applied for it in two phases. • Ordinance: ZA can approve minor subdivisions of 3 or fewer lots. • ZA approves the 17-lot subdivision.

20. History, cont. • Developers close on property. Developers start work. • Town issues stop-work order. Developers ignore. Town goes to court. • Town and developers agree to try the PC route again. • More constituent concerns voiced. • Application still incomplete. (needs traffic study, etc.) • Two years later, the Town and developers go back to court.

21. Circuit court • ZA did not have authority to approve the subdivision. Only PC does. • But, jury awards developers $450,000 on equal protection claim.

22. Supreme Court • ZA did not have authority to approve the subdivision. Only PC does. Developers knew they needed approval from PC, not ZA. • Even though Town could not produce ordinances (shame on Town), PC told developers that during first meeting. • Equal protection claim fails. Developers did not show how the PC treated them any different than other similarly situated developers. • Traffic study required here b/c on high-accident road; not required of other referenced projects b/c they are different (i.e., park and on different road) • “Throat cutting” motion by Councilwoman was not an issue preserved for appeal (and may not have been true).

23. Why is this case important? • 1. Courts want you to follow your own ordinances. • Don’t approve something administratively that is required to go to PC. • 2. It is OK for PC to distinguish between different situations when deciding to require/not require different items (i.e., traffic studies).

24. Dunes West Dunes West Golf Club v. Town of Mt. Pleasant S.C. Supreme Court

25. History • A few years ago, Town concerned about golf courses across coast being developed. • Adopts ordinance: creates Conservation Recreation Open Space district. • Rezones all golf courses in Town to this district. • District requires a rezoning to another district if desired to be developed. (public hearing, Town Council approval, etc.) • Dunes West Golf Club wanted to develop part of its golf course into residential homes. • Now zoned CRO, so must rezone to develop • Applies to rezone. Lots of community opposition. Withdraws. Reapplies. People still opposed. Council denies. Dunes West sues.

26. Dunes West’s claims • 1. Equal protection violation • 2. Substantive due process violation • 3. Taking

27. Equal protection claim • Dune West’s claim: • Town granted the rezoning request of a similarly situated golf course. No rational basis for the disparate treatment. • Sup. Ct: • The other golf course was different. • Request included assessment of potential impacts and was well-conceived. • Dune West’s plan was “a moving target” (i.e., referenced several different acreage amounts)

28. Substantive due process • Dune West’s claim: • Circuit court should have used “substantially advances” test instead of “arbitrary and capricious” test. • Sup. Ct: • Wrong. Court used proper test. • The substantially advances theory is embraced within the arbitrary and capricious framework. • The ordinance here is not arbitrary and capricious, and it advances several legitimate public interests.

29. Takings • Dune West’s claim: • The Town’s act of downzoning the golf course property amounts to an unconstitutional taking under two alternative theories: • A categorical taking under Lucas: because could have been used for residential development in the past, the rezoning eliminated all economically beneficial use of the land • A regulatory taking under Penn Central: when balance the three interests, the scale tips towards unreasonable interference with economic impact and investment-backed expectations

30. Takings, cont. • Sup. Ct.: • Under Lucas: All economically beneficial use of the land not deprived. • Can use as a golf course, sports’ facility, clubhouse, etc. • Under Penn Central: Still not a taking. • Preservation of open space and recreational opportunities is important. • Reduced market value does not tip the scale in the direction of a takings when these important interests are at stake. (impact on developer is “incidental”)

31. Why is this case important? • 1. Court will draw distinctions between developers who put forth an organized plan that takes the public interests into consideration and those who do not. It will favor the former. • 2. Downzoning is not a taking if done for good reason. • 3. Court could have gone the other way using Penn Centraltest: economic impact on developer too great. Since it did not, court probably would uphold this sort of zoning scheme to protect golf courses as recreational areas in any future cases, too. • 4. Good overview of what court looks at when deciding equal protection, due process, and takings cases.

32. Orangeburg Chakrabarti v. City of Orangeburg S.C. Court of Appeals

33. History • Chakrabartis buy fire-damaged house in Orangeburg. • Building Official sends letter: house unsafe, unfit for habitation. • For next 2 years, Chakrabartis obtain series of building permits for repair; their contractors do a little work but do not finish. City keeps extending deadlines for completion. • Finally, on June 13, 2005, City sends letter: house still unsafe, unfit for habitation, a public nuisance. You demo it in 1 month or City will. (Can appeal to Construction Board of Appeals.)

34. History, cont. • Chakrabartis do not demo house. Do not appeal to Construction Board. • City gives Chakrabartis a notice of condemnation and then demos house. • Chakrabartis sue. • Circuit court: • Demo = gross negligence (so Chakrabartis get $) • City does not get to claim sovereign immunity • Demo = inverse condemnation (so Chakrabartis get $)

35. Gross negligence • Gross negligence = • the absence of care that is necessary under the circumstances • Court: City was grossly negligent in demoing house without waiting the requisite time • Required time period: 2 years after the cessation of normal construction (from Int. Prop. Maintenance Code) • City issued a building permit for some repair work just 6 months prior to demo • House was actively being worked on until City demoed it • Damages awarded by circuit court ($165,000, or the approximate FMV of house) stand

36. Sovereign immunity • City asserted that it is immune to liability under S.C. Torts Claims Act. • Court: City is not immune to liability for gross negligence • It would make no sense to find City grossly negligent in a licensing decision, yet allow it to escape liability under Torts Claims Act.

37. Inverse condemnation Waiver and estoppel • City: circuit court wrong to decide that the demo amounted to inverse condemnation requiring just compensation. Chakrabartis concede this. • Court does not explain why. • Court: reversed the $85,000 judgment • City: Chakrabartis should not be allowed to recover for gross negligence b/c they did not appeal to Construction Board of Appeals. • Court: issue not preserved for review

38. Why is this case important? • 1. Courts want you to follow your own Building Code. • City should have waited requisite 2 years before demoing house. • 2. This may mean that a repair project on an unsafe house drags on for quite some time. • 2 years + 2 years • 3. City is not immune to suit for gross negligence (failure to exercise appropriate care under the circumstances).

39. Tyson Smith • attorney/planner • principal at White & Smith Planning and Law Group in Charleston