Faye P. Croft, Personally and as Trustee of the James A. Croft Trust; James A. Croft Trust; William A. Harbeson; Heyward G. Hutson; James Stephen Greene, Jr.; South Carolina Public Interest Foundation; Summerville Preservation Society; and Dorchester County Taxpayers Association, individually, and on behalf of all others similarly situated, Appellants,
Town of Summerville and Town of Summerville Board of Architectural Review, Respondents. Appellate Case No. 2015-002199
February 15, 2018
From Dorchester County Edgar W. Dickson, Circuit Court Judge
Michael T. Rose, of Mike Rose Law Firm, PC, of Summerville,
and W. Andrew Gowder, Jr., of Austen & Gowder, LLC, of
Charleston, for Appellants.
Waring Parker, of G. Waring Parker Law Firm, LLC, of
Summerville, and Timothy Alan Domin, of Clawson &
Staubes, LLC, of Charleston, for Respondents.
appeal addresses two decisions issued by the Town of
Summerville Board of Architectural Review (the Board) in its
consideration of a mixed-use development project proposed for
downtown Summerville. Appellants contend the circuit court
erred by (1) considering new evidence submitted after
Appellants appealed the Board's decisions, (2) failing to
remand the case for the parties to develop a sufficient
record, and (3) approving the decisions despite the
Board's failure to adopt, develop, and comply with
established rules of procedure as required by town ordinance.
Appellants further assert the Board's decisions lacked
the necessary factual support, the Board held meetings in
violation of the South Carolina Freedom of Information Act
(FOIA),  and the Board erroneously issued a
certificate of appropriateness for the project without
considering public objections. We affirm.
and Procedural History
9, 2014, the Town of Summerville and Town of Summerville
Redevelopment Corporation entered into a public-private
partnership agreement (the Agreement) with Applegate &
Co. (the Developer) to develop 1.58 acres in downtown
Summerville. The proposed mixed use development (the
Project), to be called "The Dorchester," included a
conference center, parking deck, hotel, restaurant with
rooftop bar, and condominiums. The Developer subsequently
applied to the Board for design approval.
October 6, 2014 Board meeting, Architect Hank D'Antonio
presented the Project's conceptual plan. D'Antonio
explained that although some elements were not yet fully
designed, he believed the design as a whole emulated the
surrounding buildings of historic downtown Summerville and
Summerville's other residential areas. He emphasized the
Developer sought only conceptual design approval at that
point and would consider the Board's comments and
concerns in rendering the final design.
Board expressed concerns about the height, mass, and scale of
the Project, specifically noting the proposed hotel seemed
too large for the space. In discussing the aesthetics of the
Project, Board members contended the design did not
"represent Summerville" and the hotel looked too
much like a commercial building. The Board took public
comments, and the chairman explained that each speaker would
be limited to three minutes. Members of the public raised
concerns similar to those of the Board, providing comments
about mass, scale, height, aesthetics, and traffic. Although
some commenters liked the overall concept of the Project,
they expressed that modifications were needed to make the
Project more compatible with downtown Summerville. Faye
Croft, an appellant in this case, complained that people in
the residential units would be able to look into her house.
Ultimately, the Board chose not to vote at the October 2014
meeting; the chairman explained, "[T]his is not unusual
. . . . [E]very large project that we've had in the Town
of Summerville, we've gone through a series of meetings
with the architect and developers to come up with a plan that
works for Summerville."
Board again discussed the Project at its November 3, 2014
meeting. In response to the concerns previously raised by the
Board and the public, the Developer presented certain design
changes, including the following alterations to the design of
the hotel: a reduction in scale and height, modifications to
the cornice, and changes to the top of the building.
According to the Developer, the design of the Project as a
whole was modified to achieve a more "residential
engineer Rick Reif presented a traffic study, which found
"the location of [the] [P]roject meets all the
applicable SCDOT standards for spacing along [the
s]treet." Although the traffic study found the affected
intersections would continue to "operate at an
acceptable level of service," the Board expressed
concern about the Project's potential impact on traffic.
Board acknowledged the design improvements to the hotel were
significant and more representative of the downtown area.
However, it expressed continued concern about the height,
mass, and scale of the residential units, specifically
referencing Croft's comment that people in the
residential units would be able to see into her home. Several
members of the public spoke about the Project's impact on
traffic and parking and agreed with the Board's concern
that the proposed design for the residential units was
incompatible with the historic area.
the Agreement, the Board reiterated that many of the traffic
and parking concerns were not within its jurisdiction and
recommended that concerned citizens contact the town council.
The president of the Summerville Preservation Society raised
questions regarding the demolition needs of the Project,
which would require the demolition of an older home within
the historic district. He preferred that the house be cleaned
up, or in the alternative, moved. The Board deferred ruling,
stating it was still in "the negotiating stage"
with the Developer. Still, the Board encouraged the Developer
to revisit the design to address the concerns raised at the
vote of five to one, the Board preliminarily approved the
Project design at its January 5, 2015 meeting. Prior to the
vote, the Developer noted it had again made significant
changes to the Project. The Developer reported it had
contracted to purchase a neighboring property-which would
provide for an additional driveway-in an effort to allay
traffic and parking concerns. The Developer explained the
additional property also allowed it to address the height,
mass, and scale objections to the Project by redesigning the
conference center to one story and reducing the height of the
residential units. The Board expressed concerns about the
size and appearance of one large "block" building,
but the Developer explained it was infeasible to break up the
building because the parking garage was located behind it.
Board also discussed demolition needs for the Project and
approved demolishing an old gas station. The Developer
advertised four other structures it proposed to demolish so
interested parties could move the structures elsewhere, as
one property owner proposed to do. However, the Developer had
not received commitments from anyone to move the structures,
and two different companies found this would be very
difficult to accomplish. The Developer agreed, upon the
Board's suggestion, to contact salvage companies to
inspect the structures for the purpose of saving historic
materials and to have two of the structures inspected for
potential relocation. The Board did not take public comment
at this meeting.
Board approved demolition of the structures upon final
approval of the Project at a January 12, 2015 meeting. The
Board emphasized there would be an ongoing opportunity for
the structures to be moved and materials to be salvaged.
April 6, 2015 meeting, the Board discussed concerns about
siding and window materials, the transition area between the
residential units and hotel, and the overall design of the
project. The Board also raised questions about the materials
and colors used for the exterior, particularly the use of
HardiePlank siding and vinyl windows. The Developer agreed to
build a wall sample and allow the Board to inspect the color
samples once the Project was built, but prior to painting it.
The Board disagreed about whether it should require the
Developer to create a scale model. At the close of the April
meeting, the Board gave the Project conditional final
approval, subject to the Board's further review of the
exterior materials and color, by a vote of five to one.
Appellants petitioned the circuit court for review of the
Board's decision on May 5, 2015.
Board gave the Project final approval at its May 11, 2015
meeting, again by a vote of five to one. The Developer
presented a revised design based on the concerns raised at
the April meeting. When members of the public again
questioned the Project's use, the chairman explained,
"The zoning is B-3. I have no control over that . . .
it's been that way for a long time." Another Board
member moved for a vote stating,
I move that we proceed with the final approval based upon the
fact that we did conditional final approval. And I feel that
the contractor-or the [D]eveloper has answered the questions
we asked him to answer and provided us with material choices
that we asked him to deliver to us.
Board member explained, "I did have some initial issues
about the plan, but all those were answered by the architect
tonight." On May 22, 2015, after the Board issued a
certificate of appropriateness for the Project, Appellants
again petitioned the circuit court for review.
Board adopted an order setting out its findings of fact and
conclusions of law at its August 3, 2015 public meeting. The
Board found the Project was "appropriate in terms of
aesthetics, design, architecture, height, mass, scale,
proportion, arrangement, texture and material, and is
compatible with the general character of its immediate
neighborhood within the historical district of the Town of
Summerville." The Board also filed a memorandum in
opposition to Appellants' petitions on August 3, 2015. On
August 5, 2015, the Board filed and served a certified copy
of the Board proceedings, which included a transcript of
matters heard before the Board as well as the Board's
decision adopting its findings of fact and conclusions of
hearing arguments, the circuit court affirmed the Board's
April 6, 2015 and May 11, 2015 decisions.
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)). "The appellate court is not free to
substitute its judgment for that of the [Board]. Accordingly,
we will not reverse the circuit court's affirmance of the
[Board] unless the [Board's] findings of fact have no
evidentiary support or the [Board] commits an error of
law." Gurganious, 317 S.C. at 487, 454 S.E.2d