Todd Olds v. Berkeley County ( 2022 )

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Todd Olds, Appellant,
v.
Berkeley County and Berkeley County Planning
Commission, Respondents.
Appellate Case No. 2020-001118
Appeal From Berkeley County
M. Dawes Cooke, Jr., Special Referee
Unpublished Opinion No. 2022-UP-402
Submitted October 1, 2022 – Filed November 9, 2022
AFFIRMED
Thomas R. Goldstein, of Belk Cobb Infinger &
Goldstein, PA, of Charleston, for Appellant.
John Samuel West, of West Law Firm, LLC, of Moncks
Corner, for Respondents.
PER CURIAM: In this zoning case, Todd Olds appeals a special referee's order,
arguing the special referee erred by finding the Berkeley County Council's denial
of Olds's rezoning application was not arbitrary and capricious. We affirm
pursuant to Rule 220(b), SCACR, and the following authorities: See Bear Enters.
v. Cnty. of Greenville, 319 S.C. 137, 140, 459 S.E.2d 883, 885 (Ct. App. 1995)
("Rezoning is a legislative matter, and [an appellate] court has no power to zone
property."); id. ("The decision of the legislative body is presumptively valid, and
the property owner has the burden of proving otherwise."); Knowles v. City of
Aiken, 305 S.C. 219, 224, 407 S.E.2d 639, 642 (1991) ("Zoning is a legislative act
which will not be interfered with by the courts unless there is a clear violation of
citizen's constitutional rights."); id. ("In order to successfully assault a . . . zoning
decision, a citizen must establish that the decision was arbitrary and
unreasonable."); id. (stating a zoning decision "should not be overturned by a court
so long as the decision is 'fairly debatable'"); Bear, 319 S.C. at 140, 459 S.E.2d at
885 (finding a county council's decision to deny a property owner's rezoning
application was "fairly debatable" and not "so unreasonable as to impair or destroy
[the property owner]'s constitutional rights," even though the only opposition to
rezoning were the neighbors' unsupported complaints about increased traffic and
decreased property values).
We also hold the special referee did not err by finding the County Council was not
required to approve Olds's rezoning application simply because his request
complied with the comprehensive plan. Olds conceded at the hearing before the
special referee that despite the existence of the comprehensive plan, the County
Council "still ha[d] the discretion not to rezone [his] property."
Additionally, we hold Olds's argument that the Comprehensive Plan is the relevant
"legislative act" that should "not be interfered with by the courts" is not properly
before this court because Olds raised it for the first time in his reply brief. See
McClurg v. Deaton, 395 S.C. 85, 87 n.2, 716 S.E.2d 887, 888 n.2 (2011) ("It is
axiomatic that an issue cannot be raised for the first time in a reply brief.").
AFFIRMED. 1
GEATHERS, MCDONALD, and HILL, JJ. concur.
1
We decide this case without oral argument pursuant to Rule 215, SCACR.