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STEVENSON ET AL. v. BD. OF ADJ.

January 17, 1957

DANIEL R. STEVENSON ET AL., APPELLANTS,
v.
BOARD OF ADJUSTMENT OF THE CITY OF CHARLESTON, AND THE FIRST BAPTIST CHURCH OF CHARLESTON, RESPONDENTS.



The opinion of the court was delivered by: Moss, Justice.

January 17, 1957.

The congregation of The First Baptist Church of Charleston was organized in the year 1683. The church is located on land acquired in 1699. The church building is on Church Street, situate between Tradd and Water Streets. It is said that the church building was designed by Robert Mills, famous early American architect, who designed many other buildings in South Carolina. The neighborhood, in which the church is located, is thoughtfully and beautifully described by Judge Henderson, Trial Judge, in the following language:

"The district known as Old and Historic Charleston is a residential area of great charm and beauty, of lovely walled gardens, artistic gateways, and stately old houses with wide verandas facing toward the sea. Many of the houses go back to colonial and Revolutionary days, and some have been occupied by the same families for many generations. On both sides of the church are residences which were built before the Revolution. Throughout the district there are buildings which call to mind the times of the colonial governors, of the signers of the Declaration, of Revolutionary patriots, or statesmen and soldiers of the early days of the state and of the republic. This section of the city may well be said to be the cradle of history of our state. Visitors from all parts of the nation come to see and admire the old buildings and to view the points of historic interest."

The church is located in an "A" Residence District, which said district is designated as "Old and Historic Charleston". The First Baptist Church had been in existence long prior to the enactment of the Zoning Ordinance of the City of Charleston.

The Charleston Zoning Ordinance, Article II, Section 6, provides:

"In an `A' Residence District, land may be used and buildings or structures may be erected, altered or used, only for the following:

"2. Church or other place of worship.

"3. School * * *:"

It is also provided in Article V, Section 19, under "Height and Area Regulations" that

"In any District, the maximum heights of buildings or structures, the minimum dimensions of yards, courts and other open spaces, the area of lot required per family housed thereon and the percent of lot to be occupied by buildings shall be as shown on the schedule of `Height and Area Regulations' accompanying this ordinance and hereby declared to be a part hereof."

By referring to the "Schedule of Heights and Area Regulations", it is to be seen that the principal buildings shall not occupy more than thirty-five per cent of the area of the lot upon which they are situated.

The Charleston Zoning Ordinance, under the "Schedule of Height and Area Regulations", provides:

"The total width of side yard space shall be at least 15 feet and a side yard at least 9 feet in width shall be provided adjacent to the side line of the lot which is most southerly or westerly."

It is also provided under said Zoning Ordinance, Article VIII, Section 34:

"In any residence district, principal buildings shall not occupy more than fifty (50%) per cent of the area of such lot upon which they are located."

Section 47-1007 of the 1952 Code of Laws of South Carolina, and Article XI of the Zoning Ordinance of the City of Charleston, provide for the appointment of a Board of Adjustment, and such Board has the power, in appropriate cases and subject to appropriate conditions and safeguards, to vary or make special exceptions to the terms of the Zoning Ordinance, in harmony with its general purpose and intent.

The evidence in the record shows that on January 10, 1947 and on January 18, 1951 the Board of Adjustment approved applications of the First Baptist Church of Charleston for occupancy of more than 35% of said area of the lot. The church, by such approval, was permitted to use 46.8% of said lot. This variance was granted in accordance with the authority given to the Board of Adjustment and there was no appeal by the nearby property owners, or others, from these decisions of the Board.

The record also shows that extensive hearings were held by the Board of Adjustment. The Board issued its order granting The First Baptist Church a building and occupancy permit, upon compliance with numerous specific conditions, one of which was that the maximum number of day students permitted to occupy the premises should not exceed Two Hundred Seventy (270) in number, this limitation being based upon the absence of any recreational ground on the premises, congestion of the grounds with existing buildings and the new proposed building, as well as the tombstones in the adjoining graveyard, and in order to lessen congestion in the streets; it being found from the uncontradicted testimony that during the passage of the children from the day school on the church premises to the city playground, and their return therefrom, as well as during the period when the school is opened and closed, a serious traffic jam is created, increasing the hazard of fire and the general safety and welfare of those residents immediately adjacent to the premises in question.

Both the church and the property owners appealed the decision of the Board of Adjustment. The appeal of the church related only to the condition imposed by the Board of Adjustment limiting the use of the building to two hundred seventy (270) day students. The appeal of the property owners contended that the decision of the Board of Adjustment was invalid because it resulted in allowing the occupancy of the lot to an extent greater than is permitted by the Zoning Ordinance, and that the Board of Adjustment was not authorized to grant the permit. They likewise contend that even if it lay within the discretionary power of the Board of Adjustment to grant the permit, its action constituted an abuse of ...


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