Challenges to Local Government Zoning and Land Use Decisions in South Carolina, 1115 SCBJ, SC Lawyer, November 2015, #24

• Author: William C. Dillard Jr., J.

Challenges to Local Government Zoning and Land Use Decisions in South Carolina

Vol. 27 Issue 3 Pg. 24

South Carolina BAR Journal

November, 2015

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 William C. Dillard Jr., J.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Can someone in your neighborhood rezone his property to convert a single-family residence into a tattoo parlor? Will the county prevent you from building a small grocery store on a vacant lot surrounded by rural tracts of land? South Carolina’s counties and municipalities are vested with substantial discretion to resolve just these types of issues. Nonetheless, local government land use and zoning decisions can be challenged in circuit court in a variety of ways. Familiarity with the applicable procedures and theories is essential when representing a client with an interest in a land use decision or advising a local government body on maintaining legally proper decision making processes.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Land use planning in South Carolina

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0“Building zone laws are of modern origin.”¹ “[W]ith the great increase and concentration of population, problems have developed, and constantly are developing, which require … additional restrictions in respect of the use and occupation of private lands in urban communities.”² By way of the state’s police power, “[s]uch regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations.”³ Regulatory ordinances are the most easily recognizable mechanism of land use planning, “[t]he deliberate, systematic development of real estate through methods such as zoning, environmental-impact studies, and the like.”⁴

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In South Carolina, the General Assembly has devolved legislative control over most types of land use decisions to the local governing bodies of counties and municipalities.⁵ In turn, pursuant to the South Carolina Local Government Comprehensive Planning Enabling Act of 1994,⁶ municipal and county councils are authorized to create subsidiary bodies to assist with the land use planning process.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0A local planning commission may be established to consider and advise the governing council on zoning ordinances and adoption of a comprehensive land use plan for guidance in future land use decisions.⁷ A planning commission can also be authorized to approve or deny land development and subdivision applications.⁸ The primary routine function of a planning commission is to hold hearings and make recommendations to council regarding zoning map changes requested by individual property owners. The county or municipal council then has final legislative prerogative to adopt or reject the proposed zoning change.⁹

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0A local government may also create a board of zoning appeals to hear and determine appeals from administrative decisions of the official charged with enforcement of the zoning ordinance.¹⁰ Boards of zoning appeals hear challenges to the zoning administrator’s interpretation of zoning regulations, requests for variances (i.e., authorized nonconformity with a land use restriction where “strict application of the provisions of the ordinance would result in unnecessary hardship”¹¹ ), and requests for special exceptions (i.e., authorized nonconformity with certain land use restrictions based on specific criteria set forth in the zoning district ordinance). An entity known as a board of architectural review may be authorized to fulfill similar duties with regard to ordinances intended to preserve the character of historically or architecturally valued neighborhoods.¹²

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Which cause of action?

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Different types of land use decisions are challenged in circuit court using different forms of action. A challenge to a local government’s decision on a rezoning issue is brought not as a direct appeal to circuit court but, instead, in the form of a declaratory judgment action seeking a determination that the land use decision violates due process or some other constitutional or statutory requirement.¹³ A challenge to the validity of a properly noticed zoning map amendment must be brought within 60 days after the decision of the governing council.¹⁴ Additionally, where a zoning decision is sufficiently burdensome to trigger constitutional entitlement to just compensation for deprivation of property, a claim may be brought under a regulatory taking (or inverse condemnation) theory. Claims for declaratory relief and just compensation are sometimes included in the same action.¹⁵

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0On the other hand, some types of land use decisions are subject to direct appeal. A challenge to a decision of a board of zoning appeals or architectural review board takes the form of a statutorily authorized appeal to circuit court within 30 days after the decision is issued.¹⁶ A planning commission’s decision on a land development or subdivision application can be appealed using similar procedures.¹⁷ Where a decision is subject to a direct appeal, an inverse condemnation claim will not be ripe until all appellate remedies have been exhausted.¹⁸

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0On review of the propriety of a land use decision, the record is limited to the evidence that was before the local governing council, board or commission.¹⁹ The S.C. Court of Appeals has stated in dicta that it is inappropriate to present testimony from individual council members in an attempt to invalidate the collective decision of the council.²⁰ A challenge to the validity of a zoning ordinance requires a showing by clear and convincing evidence.²¹

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Who has standing?

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Generally, the owner of a property that is the subject of a land use decision will have no problem establishing standing. While owners of adjoining properties have statutory standing to challenge zoning map amendments,²² owners of nearby but non-adjoining tracts are required to establish standing through demonstration of particularized injury.²³ On the other hand, any party “who may have a substantial interest” in a variance or ordinance enforcement issue has statutory standing to appeal decisions of a zoning board of appeals or architectural review board.²⁴

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0A claim that a zoning or variance decision pertaining to a nearby property will result in business competition is insufficient to create standing.²⁵ Likewise, a generalized assertion that a zoning decision is important to the public does not satisfy the “public importance” exception to traditional standing requirements.²⁶ However, an organization such as a neighborhood association or conservation group can acquire “associational standing” where one or more of its members have individual standing based on particularized injuries and “the interests at stake are germane to the organization’s purpose.”²⁷

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0“Fairly debatable”

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Zoning classification decisions are legislative acts entitled to a presumption of validity,²⁸ and where a local government “[has] acted after considering all of the facts, the Court should not disturb the finding unless such action is arbitrary, unreasonable, or in obvious abuse of its discretion, or unless it has acted illegally and in excess of its lawfully delegated authority.”²⁹Stated differently, a court will not declare a zoning decision invalid “so long as the decision is ‘fairly debatable.’”³⁰A similarly deferential standard is used for review of decisions of a board of zoning appeals or architectural review board.³¹

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0One specific application of the fairly debatable standard involves the issue of spot zoning, “[the] process of singling out a small parcel of land for use classification totally different from that of the surrounding area.”³²A spot zoning decision is subject to being struck down as arbitrary and capricious if a court finds that it is inconsistent with the comprehensive plan or enacted for the private gain of a single property owner to the detriment of the surrounding area.³³

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0An important exception to use of the fairly debatable standard is that “a broader and more independent review is permitted when the issue concerns the construction of an ordinance.”³⁴This distinction is based on the idea that, although local government bodies are better placed to legislatively determine how to achieve the ends of their own land use planning programs,³⁵ordinance interpretation and determination of legislative intent are matters of law for the courts.³⁶

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0For example, in Mikell v. County of Charleston the S.C. Supreme Court held that the county council violated its own general zoning ordinance when it rezoned a tract of land from a low density agricultural designation to a higher density Planned Development District (PDD) allowing one home per every 2.4 acres.³⁷Declaring the action invalid, the Court interpreted the county’s general zoning ordinance to limit the use of planned development zoning by setting a maximum density of one home per every five acres on tracts rezoned from agricultural to PDD,³⁸notwithstanding that the Planning Enabling Act of 1994 did not require the county to restrict its use of the planned development process in this way.³⁹Although a local government of course has authority to amend its ordinances, the Court declined to defer to the county’s attempt to selectively override its own self-imposed restrictions on the use of PDD zoning by enacting a zoning map amendment for a specific piece of land.⁴⁰The Court looked to the county’s comprehensive plan to find a legislative intent to promote preservation of...