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Church v. Beaufort County

Court of Appeals of South Carolina

May 8, 2019

Grays Hill Baptist Church, Respondent,
v.
Beaufort County, and The Beaufort County Zoning Board of Appeals, Defendants, and The United States of America, Defendant-Intervenor, Of which Beaufort County and The United States of America are the Appellants. Appellate Case No. 2016-000687

          Heard April 12, 2018

          Appeal From Beaufort County Marvin H. Dukes, III, Master-in-Equity

          Mary Bass Lohr, of Howell Gibson & Hughes, PA, of Beaufort, for Appellant Beaufort County; David M. Wunder, of Camp Lejeune, North Carolina, and Lee Ellis Berlinsky, of Charleston, both for Appellant The United States of America.

          H. Fred Kuhn, Jr., of Moss Kuhn & Fleming, PA, of Beaufort, for Respondent.

          McDONALD, J.

         In this consolidated appeal, Beaufort County and the United States of America (collectively, Appellants) argue the master-in-equity erred in reversing the Beaufort County Planning Commission's decisions requiring Grays Hill Baptist Church (the Church) to apply for a new development permit and denying the Church's subsequent application for the permit to construct a fellowship hall. Appellants contend the Church's 1997 development permit did not allow the Church to pursue additional development ten years later, and the County's 2006 ordinances addressing areas near the Beaufort Marine Corps Air Station proscribed approval of the Church's new development application. Appellants further argue the master erred in finding the Beaufort County Zoning Board of Appeals (the Zoning Board) erroneously denied the Church's request for a zoning variance. We reverse the decisions of the master and reinstate the orders of the Planning Commission and Zoning Board.

         Facts and Procedural History

         On December 4, 1996, the Church applied for a development permit from Beaufort County. The application narrative detailed that "Phase I of the development will consist of a 15, 872 [square foot] church with 25, 250 [square feet] of asphalt and concrete paving. Phase II of the development will consist of an 11, 250 [square foot] building shown on the enclosed plans as the building south of the church."

         On January 7, 1997, the Beaufort County Zoning and Development Administration issued the Church a development permit, which indicated: "All permits expire two (2) years from the date of approval unless substantial improvement has occurred or final Subdivision plat has been recorded." On February 27, 1997, the Beaufort County Department of Inspections issued the Church a construction permit for a 15, 280 square foot building. The proposed use for the construction was "assembly," with a construction cost of $632, 800. The Beaufort County Development Division issued a certificate of compliance on December 17, 1997, after the work listed on the construction permit had been completed.

         In 2006, the Beaufort County Council (County Council) enacted ordinances for an "Airport Overlay District" (the AO District), creating "accident potential zones" (APZ) and "noise zones" in areas surrounding Beaufort's Marine Corps Air Station (MCAS-Beaufort). Certain land uses and building expansions are restricted within the AO District. Although the AO District ordinances (the Ordinances) prohibited places of worship, they allowed "non-conforming places of assembly and worship [to] expand [ ] by up to 15% in accordance with Table 106-9[1] provided that the expansion does not increase the occupant load of the building."

         In 2007, the Church applied for a permit to build its fellowship hall. The Church contends it applied for a construction permit, but the County required it to first obtain a development permit. On June 29, 2007, the County notified the Church that the Beaufort County Development Review Team had reviewed the Church's application and determined it needed to seek a variance from the Zoning Board because the fellowship hall would increase the occupant load of the building and expand its area by more than fifteen percent, in violation of the AO District ordinance.

         On October 10, 2007, the County notified the Church of the Review Team's staff recommendation to disapprove the project because the Church's proposed construction would increase the floor area by sixty percent. The Ordinances limit any increase to fifteen percent; further, such an increase must not "substantially increase the occupant load of the site." The Review Team subsequently disapproved construction of the fellowship hall, finding the Church's proposed construction did "not meet the intent of the [AO] District" because it would double the occupancy load.

         The Church appealed the Review Team's decision to the Planning Commission. Following a hearing, the Planning Commission unanimously denied the Church's appeal.[2] The Church appealed the Planning Commission's decision to the circuit court pursuant to S.C. Code Section 6-29-820.[3]

         At a hearing before the master-in-equity, the parties agreed "that it would be in the best interest of justice" for the master to hold the appeal in abeyance to allow the County to review a variance request from the Church. The Church later applied for a variance, stating, "The Church seeks the construction of a fellowship hall as originally permitted, which would be a larger than 15% expansion of the existing building size." The Church asserted the fellowship hall would not increase the occupant load for the site.

         The Board denied the variance request, finding the request did not meet the criteria for a variance under the Beaufort County Zoning and Development Standards Ordinance. The Church appealed the Zoning Board's decision; however, due to the lack of a record from the 2007 Planning Commission hearing, the master remanded the matter to the Commission for a de novo hearing on the question of whether the proposed fellowship hall would increase the Church's occupant load.

         At the Planning Commission's December 5, 2011 hearing on the permit application, the Church explained it planned to build a fellowship hall as part of the 1997 development plan shown on the plat it submitted with the application for a development permit, but financial constraints delayed the construction of the hall. The Church claimed it contacted the County when it learned of the Ordinances, and the County informed the Church its development would not be impacted by the new restrictions. The Church further asserted the fellowship hall would not increase the occupant load because the fellowship hall and sanctuary would never be used at the same time.

         The County argued the Church's 1997 permits did not cover the fellowship hall. It noted the narrative attached to the Church's application for the 1997 development permit divided the development into two phases. The County "closed out" the 1997 permit with a final inspection in December 1997 after it issued a certificate of compliance.[4] The County further noted the Church was not entitled to a new development permit because the fellowship hall would increase the occupant load of the site, explaining, "[W]hat the [C]ounty is tasked with isn't what the practical application is going to be; it's what the potential is for increasing. They have to look at not what representations are made because this building . . . may not always belong to the [C]hurch."

         The County emphasized that regardless of whether the construction of the fellowship hall exceeded fifteen percent of the disturbed area or build area, the fellowship hall would increase the occupant load of the site. Occupant load is based on the potential number of people that could be present on the site, not the number the Church believes would be there.

         The Church stated the only evidence it had showing the County had assured it that the new ordinances would not affect its development was a letter from its pastor to the board of trustees describing his conversation with county officials. The County objected to the letter as hearsay.

         By a vote of six to two, the Planning Commission found the Development Review Team did not err in reviewing the Church's application for a permit or in determining the requested development would increase the occupant load. The Planning Commission found the construction of the fellowship hall would significantly increase the potential occupancy load for the site and provided the Church with a letter of its written findings.

         The master-in-equity reversed the decisions of the Planning Commission and the Zoning Board, holding the County erred in requiring the Church to obtain a new development permit. The master found the 1997 permit encompassed the fellowship hall; construction of the fellowship hall would not increase the occupant load; and the Planning Commission applied an incorrect expansion standard under the AO Ordinances. Finally, the master found the Zoning Board's denial of the Church's request for a variance was unsupported by the evidence.

         After the County filed its Rule 59(e), SCRCP, motion to reconsider, the Church and the County asked the master to take the motion under advisement so the parties could continue negotiating in an attempt to resolve the matter. When the parties informed the master they could not reach an agreement, the master denied the County's motion to reconsider.

         Standard of Review

         "The appellate court gives 'great deference to the decisions of those charged with interpreting and applying local zoning ordinances.'" Arkay, LLC v. City of Charleston, 418 S.C. 86, 91, 791 S.E.2d 305, 308 (Ct. App. 2016) (quoting Gurganious v. City of Beaufort, 317 S.C. 481, 487, 454 S.E.2d 912, 916 (Ct. App. 1995)). "By statute, the trial court must uphold a decision by the Planning Commission unless there is no evidence to support it." Town of Hollywood v. Floyd, 403 S.C. 466, 476, 744 S.E.2d 161, 166 (2013) (citing S.C. Code Ann. § 6-29-840(A) (Supp. 2005)). "A court will refrain from substituting its judgment for that of the reviewing body, even if it disagrees with the decision." Furr v. Horry Cty. Zoning Bd. of Appeals, 411 S.C. 178, 184, 767 S.E.2d 221, 224 (Ct. App. 2014) (quoting Clear Channel Outdoor v. City of Myrtle Beach, 372 S.C. 230, 234, 642 S.E.2d 565, 567 (2007)). "However, a decision of a municipal zoning board will be overturned if it is arbitrary, capricious, has no reasonable relation to a lawful purpose, or if the board has abused its discretion." Austin v. Bd. of Zoning Appeals, 362 S.C. 29, 33, 606 S.E.2d 209, 211 (Ct. App. 2004) (quoting Rest. Row Assocs. v. Horry Cty., 335 S.C. 209, 216, 516 S.E.2d 442, 446 (1999)).

         "On appeal, we apply the same standard of review as the [special] circuit court below: the findings of fact by the Board shall be treated in the same manner as findings of fact by a jury, and ...


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