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March 10, 1958


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

March 10, 1958.

This is an action in equity to require the City of Columbia to issue a building permit to the plaintiff to enable her to fulfill a contract with the Texas Company under which she agreed to raze the present residence on her property, build a service station and lease it to that company on a long term basis. Many of the facts were stipulated and most of those not stipulated, but developed by the testimony and exhibits, are not in dispute.

The property is located at the northeast corner of North Main Street and Hyatt Avenue, in the Eau Claire section of the City of Columbia; it measures 150' on North Main Street and 100' on Hyatt Avenue. The plaintiff purchased it in 1923, when it was a part of the Town of Eau Claire, and she and her husband built, and occupied until the fall of 1955, the present residence, which faces Hyatt Avenue and is identified as 1201 Hyatt. The section of North Main in which this property is located is the 4500 block.

The plaintiff's husband is a heating engineer, and from about 1931 on he maintained his office in their home and was so listed in the telephone directory, having a business telephone in the home. At all times pertinent to this case there was an Amoco service station directly across Hyatt Avenue from the plaintiff's residence, and a brick building directly across Main Street, the ground floor of which is occupied by a radio and television service establishment and the second floor by the Eau Claire Lodge, A.F.M. Adjacent to the Amoco Station on Main Street is the Eau Claire Laundry & Cleaners, and next to it is Zobel Tire Service.

On July 7, 1953, the Town of Eau Claire gave third and final reading to an ordinance which provided that "due to the need of zoning in the Town of Eau Claire * * * business shall be restricted to the following areas: (1) Main Street — Columbia City limits north to Town Limits on U.S. Highway No. 21 * * *." Certain areas of Main Street were excepted, but the 4500 block was not among the exceptions.

In the fall of 1954 the plaintiff was approached by a representative of Sinclair Oil Co. through a Columbia realtor to purchase the property for service station purposes. On December 17, 1954, the plaintiff gave that company an option to purchase at $21,500.00, but the option was not exercised because of lack of funds budgeted for that purpose. All three of these parties were under the impression that the property was zoned for business use, and were so informed upon inquiry at Eau Claire City Hall. The mayor, himself, so testified in this action.

In the spring of 1955 the plaintiff began negotiations with the Texas Company in which a long term lease arrangement was contemplated. This location was one of several recommended to the real estate representative of that company by the mayor, and once again, all parties concerned understood that it was zoned for business. On May 7, 1955, the plaintiff made an offer, and on September 6 a Memo. of Lease and a Lease were entered into with this company. She then procured a commitment for a $21,000.00 loan from the First National Bank of Atlanta, which is still in effect. She contracted with a builder to erect the station, purchased another home, and moved into it.

On October 18, 1955, the plaintiff applied to the Town Council of Eau Claire for what she thought would be the routine granting of a building permit under the 1953 ordinance, but numerous residents of the area appeared in opposition and the Council voted to reject the building permit "because the property faced Hyatt Avenue, which is zoned for residents (sic), and other reasons and objections."

Within two months thereafter the merger of the Town of Eau Claire with the City of Columbia was consummated and the property in question became part of the City of Columbia. When the plaintiff applied to Columbia for a building permit her application was denied on the ground that all newly annexed territory is considered residential in character. She then instituted the present action.

The defendant takes the position that the Eau Claire ordinance of July 7, 1953 is invalid because there was no public advertisement prior to its passage. It is true that the proposed ordinance was not advertised, but it was read three times in open meetings and was passed in the same manner as most other Eau Claire ordinances, according to the testimony of the former town clerk, now an employee of the defendant. The town operated under it and observed it for more than two years.

The foregoing statement of facts is taken from the very clear report of the Master of Richland County, to whom the case was referred generally. He concluded that the Eau Claire ordinance of 1953 was effective to zone the property for business purposes. The old residence faced Hyatt Avenue but had a greater frontage on Main Street which was zoned for business. Therefore, the Eau Claire council had no right to deny plaintiff's application and the maxim of equity is applicable that the court will regard as done that which ought to have been done. He held that plaintiff's lease and building contract, construction loan, and purchase of another residence converted her Main Street corner lot into a business property, even if it was not formerly such by reason of her husband's office in the residence. Doubt was expressed, which we affirm, whether the provision of the Columbia ordinance, whereby newly annexed territory automatically becomes zoned for residence purposes, is applicable to the merger of that city with another city; but regardless of that, the equities of this case are all with plaintiff and she should be granted relief.

The court confirmed the master's report, but on other grounds. The case was considered by the court as if it were a review of the action of the City of Columbia under sections 47-1014, 1015, of the Code of 1952; it was concluded that the right to variance was established under the terms of sec. 47-1009; and it was held that the action of the city was arbitrary and capricious, amounting to a discrimination against plaintiff which should not be upheld. It appears therefrom that the city has not been injured or its rights impaired by the procedure of which it belatedly complains. Instead, its position has received more, and more varied, consideration in the lower court than it deserved. We need not examine the foregoing conclusions of the court because this is not really a zoning case.

The city has appealed. Three of its five exceptions and much of its brief relate to the contention that the respondent was bound to pursue her administrative remedy by appeal to Columbia's Zoning Board of Adjustment, rather than prosecute this proceeding in equity. Sec. 47-1007 et seq. However, this was not alleged in the answer of the appellant and, therefore, will not be considered; it was not an issue under the pleadings. Moreover, as has been noted, no resulting prejudice to appellant appears; indeed, the contrary is the case.

We think that the decision of the master that the maxim of equity, that the court will regard as done that which ought to have been done, governs; and the controversy must be considered as if the Eau Claire council had issued the permit for which respondent applied and to which she was entitled under the ordinance of that municipality. Parrott v. Dickson, 151 S.C. 114, 148 S.E. 704, 63 A.L.R. 965. Compare Wilkie v. Philadelphia L. Ins. Co., 187 S.C. 382, 197 S.E. 375 (master's report). It is doubtful, at best, whether this conclusion of the master was challenged by the exceptions to his report; if not, it became the law of the case. White v. Livingston, 231 S.C. 301, 98 S.E.2d 534. Nevertheless, we have considered it and find it to be sound under all of the facts, some of which will be elaborated. Close on the heels of the unwarranted refusal of permit came the consolidation of Eau Claire and ...

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