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Croft v. Town of Summerville

Court of Appeals of South Carolina

October 9, 2019

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

          Heard February 15, 2018

          Appeal 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.

          G. Waring Parker, of G. Waring Parker Law Firm, LLC, of Summerville, and Timothy Alan Domin, of Clawson & Staubes, LLC, of Charleston, for Respondents.


          McDONALD, J.

         This 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), [1] and the Board erroneously issued a certificate of appropriateness for the project without considering public objections. We affirm.

         Facts and Procedural History

         On July 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.

         At an 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.

         The 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."

         The 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 feel."

         Professional 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.

         The 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.

         Referencing 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 meetings.

         By a 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.

         The 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.

         The 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.

         At its 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.

         The 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.

         One 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.

         The 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 law.

         After hearing arguments, the circuit court affirmed the Board's April 6, 2015 and May 11, 2015 decisions.[2]

         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)). "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 at 916.

         Law ...

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