Hampton v. Richland County , 292 S.C. 500 ( 1987 )

Goolsby, Judge:

This is an action in mandamus brought by the appellants A. G. Hampton and Krystal Company against the respondents Richland County, Richland County Council, and members of the Richland County Council to compel the rezoning of certain property, which is owned by Hampton and subject to a contract of sale to Krystal, as a C-3 General Commercial District. County Council rezoned the property as a C-l Office and Institutional District. The Circuit Court refused to require County Council to rezone the property as C-3. The dispositive issue is whether County Council’s action in rezoning the property as C-l was arbitrary, unreasonable, and capricious. We affirm.

Hampton and Krystal executed a contract for the sale of a tract of land on Garner’s Ferry Road just outside of the City of Columbia. The property adjoins property to the northwest zoned as C-3 and property to the southeast zoned as a RS-1 Single Family Residential District. Krystal hopes to build a fast-food restaurant on the property.

In 1982, Hampton and Krystal sought to have County Council rezone the subject property from a D-l Development District to C-3. County Council refused to do so. Hampton and Krystal then brought suit to compel County Council to rezone the property as requested.

After conducting a hearing in which testimony was taken and exhibits were offered, the Circuit Court, rather than require County Council to rezone the subject property as C-3, ordered County Council to exercise its discretion in changing the property’s classification from D-l to something else. The Circuit Court, however, reserved jurisdiction to determine the issue of reasonableness of the classification given the property by County Council upon rezoning it.

County Council changed the zoning classification of the subject property to C-l. It did so even though the Richland County Planning Commission recommended that the property be rezoned as C-3.

Because a C-l classification does not permit property to be used as a fast-food restaurant, Hampton and Krystal then renewed their demand that County Council be compelled to rezone the subject property as C-3, a classification which does permit such a use. They renewed their demand both by motion in their original action and by instituting another action.

The Circuit Court ordered the two actions consolidated since they raised the same issue. It later dismissed both actions, holding that County Council acted reasonably and within its sound discretion in rezoning the subject property as C-1.

Our Supreme Court stated in Rushing v. City of Greenville, 265 S. C. 285, 283, 217 S. E. (2d) 797, 799 (1975), that the action of a municipality regarding the rezoning of property will not be overturned by a court if the municipality’s decision is “fairly debatable.” This is because the municipality’s action is presumed to have been validly exercised and because it is not the court’s prerogative to pass upon the wisdom of the municipality’s decision. Only where the municipality’s action is “so unreasonable as to impair or destroy constitutional rights” [Rush v. City of Greenville, 246 S. C. 268, 276, 143 S. E. (2d) 527, 531 (1965) ] will the court declare the municipality’s action unconstitutional. Rushing v. City of Greenville, supra.

We hold that the action of County Council in declining to change the zoning classification of the Hampton property from D-1 to C-3 and in changing the zoning classification of the property to C-1 is not patently unreasonable.

Unlike the subject property in Rushing, the subject property in this case is not surrounded by commercial property. Rather, as the record shows, it lies next to property zoned commercial to the nortwest and adjoins property zoned residential to the southeast. The effect of County Council’s decision to reclassify the property as C-l is to create a buffer of sorts between the two zones it lies between. This decision strikes us as a “fairly debatable” one.

The record also discloses that within a C-1 zone an owner may locate upon his property offices, photography studios, art galleries, antique shops, ethical pharmacies, hospitals, nursing homes, legitimate theaters, funeral homes, schools, colleges, churches, and private clubs, among other things. Indeed, many of the uses allowed by a C-1 classification mirror those permitted by a C-3 classification. A C-1 classification, therefore, clearly permits a beneficial use of the subject property by its owner.

While the C-1 classification may not permit the most profitable use of the subject property, “a property owner is not entitled to have his property zoned for its most profitable use.” 101A C. J. S. Zoning & Land Planning § 47b at 173 (1979); see Ohoopee Land Development Corp. v. Mayor & Council of Wrightsville, 248 Ga. 96, 281 S. E. (2d) 529 (1981) (a zoning classification is not unconstitutional simply because a developer is deprived of a more profitable use of his property).

A classification of property should be upheld as constitutional, absent evidence that the classification is either unnecessary or confiscatory. See Golden v. Planning Bd. of Town of Ramapo, 30 N. Y. (2d) 359, 334 N. Y. S. (2d) 138, 285 N. E. (2d) 291, 63 A. L. R. (3d) 1157 (1972), appeal dismissed, 409 U. S. 1003, 93 S. Ct. 440, 34 L. Ed. (2d) 294 (1972) (ordinance limiting the use of property will not be held unconstitutional unless it is shown to be unreasonable in terms of necessity or to have caused such a diminution in value as to be tantamount to confiscation). Here, the owners, as it was their burden to do, offered no evidence that the classification suffered from either constitutional infirmity. See Bob Jones University v. City of Greenville, 243 S. C. 351, 133 S. E. (2d) 843 (1963), appeal dismissed, 378 U. S. 581, 84 S. Ct. 1913, 12 L. Ed. (2d) 1036 (1964) (burden of proving invalidity of zoning ordinance is on the party attacking it).

We are aware of the contention made by Hampton and Krystal that “the evidence is that the subject property would be valueless without the [C-3] classification.” The record does not show that the property can be beneficially used only if it is zoned as C-3. It does show, however, the following:

Q. Would you just turn to His Honor and tell him what that property’s value would be if it were not zoned commercial?

A. Essentially, there is no other use for the property other than that realistically speaking.

Q. And, in your opinion as a real estate broker, is there any other use other than commercial use for the subject property?

A. No, sir, there is not.

A C-1 classification, however, clearly permits property to be used for commercial purposes.

There is, moreover, no testimony or other evidence that the subject property would have no market value if it were classified as C-l. Hampton’s and Krystal’s expert real estate witness, Henry J. Ritmeester, Jr., was never asked his opinion regarding the fair market value of the property if it were classified as C-1. He was only asked whether it would have any market value zoned as D-1.

In view of the many commercial uses that a C-1 classification allows and the expert’s strong opinion that the subject property “essentially [has] no other use ... realistically speaking” other than as a commercial use, we seriously doubt that testimony or evidence that the property would be worthless zoned as C-1 would have credibility to any fair-minded fact finder, especially since many of the uses permitted by a C-1 classification duplicate those of a C-3 classification.

By showing that the subject property is adaptable to C-3 uses, Hampton and Krystal necessarily established that the property is adaptable to C-1 uses of identical character. Cf. Greenville County v. Stover, 198 S. C. 240, 17 S. E. (2d) 535 (1941) (proof of a plaintiff’s cause of action can be supplied by a defendant and a defendant’s defense can be established by the plaintiff).For instance, Richland County’s zoning laws make no distinction between an office built on property zoned as C-1 and an office built on property zoned as C-3. Also, a funeral home resting upon a C-1 tract is no less a funeral home than one situated upon a C-3 tract.

We therefore uphold the challenged rezoning ordinance.

Hampton and Krystal, however, would have the court and County Council view this controversy as a dispute simply “between a landowner and his neighbors as to what a single tract should be zoned.” They argue that “County Council should be [an] adjudicator and not take side[s] by simply disagreeing with a C-3 classification and then on its own motion ... zoning [the subject property] C-1.” More simply, they contend that a local governing body’s act of rezoning a single tract is not a legislative function but is a quasi-judicial function and that a rezoning decision must be supported by substantial evidence.

Irrespective of whether County Council’s act of rezoning the subject tract was a legislative function or a quasi-judicial function, we have already shown that there is substantial evidence that the land in question is susceptible to a reasonable and lawful use under the classification imposed.

Regarding the question of whether a local zoning authority’s rezoning of a single tract of land is a legislative or a quasi-judicial act, the concept of rezoning as a quasi-judicial act is frequently associated with a decision of the Oregon Supreme Court in Fasano v. Board of County Commissioners, 264 Or. 574, 507 P. (2d) 23 (1973), overruled in part, Neuberger v. City of Portland, 288 Or. 585, 607 P. (2d) 722 (1980). See N. Shortlidge, The “Fasano Doctrine”: Land Use Decisions as Quasi-Judicial Acts, INST. ON PLANNING, ZONING, AND EMINENT DOMAIN § 3.01[2] at 3-4 (1985). Several states have adopted the so-called Fasano doctrine. Id. § 3.03[2] at3-27 — 3-33. The majority of the jurisdictions, however, still consider rezoning a legislative act. Id. § 3.03[5] at 3-40. South Carolina lines up with the majority. See Conway v. City of Greenville, 254 S. C. 96, 104, 173 S. E. (2d) 648, 652 (1970) (action by landowner to have municipality rezone a portion of landowner’s property in which the Supreme Court stated that it “recognize[d] that the adoption of zoning ordinances is a legislative function.”).

We are aware that the Supreme Court in Rushing v. City of Greenville, supra, remarked, as it quoted from James v. City of Greenville, 227 S. C. 565, 585, 88 S. E. (2d) 661, 671 (1955), that “ ‘[i]n the final analysis the question of due process is a judicial, not legislative, one.’ ” But this statement cannot be stretched to mean that the Supreme Court favors the application of the Fasano doctrine in rezoning cases involving single tracts of land. The language is merely a reaffirmation by the Supreme Court that it will do its duty to declare an ordinance unconstitutional “where [the] ordinance is clearly violative of constitutional rights____” James v. City of Greenville, 227 S. C. at 585, 88 S. E. (2d) at 671. This duty exists, as the Supreme Court explained in Conway, because “the determination of whether [zoning] ordinances deprive a citizen of constitutional rights is a judicial function and not [a] legislative [function].” 254 S. C. at 104, 173 S. E. (2d) at 652.

In any case, we reject the Fasano doctrine.

An ordinance rezoning a particular piece of property, like an ordinance adopting a comprehensive zoning plan, is legislation, pure and simple. As such, it is entitled to the presumption of legislative validity. See Bob Jones University v. City of Greenville, supra, 243 S. C. at 360, 133 S. E. (2d) at 847 (in an action to void a rezoning ordinance, the ordinance “is presumably valid.”). To regard the act of adopting an ordinance rezoning a single tract as anything other than a legislative act would be to sanction an impermissible encroachment upon the presumption of legislative validity. Ed Zaagman, Inc. v. City of Kentwood, 406 Mich. 137, 277 N. W. (2d) 475 (1979).

Furthermore, to view the act of rezoning a single tract as a quasi-judicial act, as the Supreme Court of Michigan recognized in the last-cited case, would

only invite countless challenges, many of which must proceed to the courts for a dispositive adjudication. The net result of such a quasi-judicial scheme would most assuredly increase rather than relieve the burden on the courts; the burden on zoning bodies would likewise be unquestionably magnified.

Further, and perhaps more significant, the authority of a zoning body’s legislative action would likely be debased concomitantly to the extent that every affected property owner could challenge that authority, not on the basis of the value of the constitutionally valid zoning classification to the general public, but on the basis of that zoning determination’s value to the individual property owner regardless of the general welfare. Such consequence would undoubtedly destroy both the necessity and desirability of representative legislative action as well as reduce land use determination to a type of “what’s-in-it-for-me” or spot zoning scheme generally eschewed as not in the public interest.

Id., 406 Mich, at 163, 277 N. W. (2d) at 481-82. The case at hand vividly illustrates the concerns so well expressed by the Michigan court.

For the foregoing reasons, therefore, the judgment is

Affirmed.

Cureton, J., concurs. Gardner, J., dissents in separate opinion.