Venture Engineering v. Horry County Zoning Board of Appeals

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
In Re: Venture Engineering, agent for DT LLC,
Respondent,
v.
Horry County Zoning Board of Appeals, Appellant.
Appellate Case No. 2018-001221
Appeal from Horry County
Larry B. Hyman, Jr., Circuit Court Judge
Benjamin H. Culbertson, Circuit Court Judge
Opinion No. 5819
Heard February 2, 2021 – Filed May 12, 2021
REVERSED
Matthew R. Magee, of Thomas & Brittain, P.A., of
Myrtle Beach, for Appellant.
Robert S. Shelton, of Bellamy, Rutenberg, Copeland,
Epps, Gravely & Bowers, P.A., of Myrtle Beach, for
Respondent.
GEATHERS, J.: Appellant Horry County Zoning Board of Appeals (the Board)
challenges the circuit court's order in consolidated appeals from two Board
decisions. The circuit court reversed both decisions, which (1) prohibited a client of
Respondent Venture Engineering (Venture) from receiving construction and
demolition debris from outside sources for recycling and (2) denied Venture's
request for three variances from the zoning ordinances governing concrete recycling
businesses. The Board argues the circuit court erred by failing to properly apply the
appropriate standard of review to each appeal. The Board also argues the circuit
court erred by (1) consolidating the two appeals and (2) considering material outside
the respective records on appeal. We reverse the circuit court's order allowing
Venture's client to receive demolition debris from outside sources as well as its order
granting costs to Venture.1
FACTS/PROCEDURAL HISTORY
In January 1981, Arthur Thompkins, Jr. established Thompkins & Associates,
Inc. (Thompkins) for the purpose of operating heavy equipment for construction and
demolition projects.2 Thompkins maintained its equipment and office at 310 Piling
Road in Myrtle Beach (the Property) within the historic Pine Island Residential
District.3 Another business operated a concrete plant next to the Property but ceased
operating at some point before the Board considered the two cases now before the
court.
When Thompkins began operating in 1981, the Property was not zoned.
According to the Board, in 1987, Horry County enacted its first zoning ordinance
and designated the zone in which the Property was located as Limited Industrial (LI),
which allows light industrial uses that are "not significantly objectionable in terms
of noise, odor, fumes, etc., to surrounding properties." Horry County Code of
Ordinances § 717. This zoning classification prohibits "noise, vibration, smoke, gas,
fumes, odor, dust, fire hazards, dangerous radiation or any other conditions [that]
constitute a nuisance beyond the premises." Horry County Code of Ordinances §
717.1(P).
1
Because we reverse the circuit court's orders on the ground that the circuit court
failed to properly apply the appropriate standards of review, we need not address the
Board's remaining arguments. See Futch v. McAllister Towing of Georgetown, Inc.,
335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (providing that an appellate court
need not address remaining issues when resolution of a prior issue is dispositive).
2
At some point, Arthur's son, Dennis Thompkins, took over the business, and DT,
LLC became the Property's owner. For the purpose of consistency, we will refer to
Dennis Thompkins and DT, LLC collectively as "Thompkins" throughout the
remainder of this opinion.
3
This community has been inhabited since the 1700s.
According to Thompkins, since it began operating in 1981, the Construction
& Demolition (C&D) division of its business "has crushed, processed, and/or
recycled both: (1) C&D material from Thompkins' own demolition projects; and (2)
C&D material received from outside sources." Most of the material received from
outside sources was from demolished buildings that had "block and reinforced
concrete." The business accepted only concrete and masonry for recycling. Also,
according to Thompkins, (1) in 2007, it was "required to apply for a business license
in order to continue operating in its new zoning district"; (2) the license approved of
the recycling activity as an accessory use to what was designated on the license as
the principal use of the Property,4 "Construction Heavy Equipment"; and (3) in 2014,
a potential investor in the business sought a "zoning compliance letter" from the
Horry County Zoning Administrator, Rennie Mincey, to ensure Thompkins was
complying with the County's zoning requirements.
In response to the request of Thompkins' investor, the Zoning Administrator
determined that because the recycling activity on the Property was approved as an
accessory use only, Thompkins was not authorized to accept construction materials
from outside contractors for recycling. Thompkins appealed this determination to
the Board, which heard the appeal over the course of four meetings in 2015. At the
conclusion of its April 13, 2015 meeting, the Board voted to overturn the Zoning
Administrator's determination. It is undisputed that this vote would not have been
final until the Board could approve the April meeting minutes at its next meeting on
May 11, 2015. However, at the beginning of the May meeting, before approving the
April minutes, the Board entertained a motion to reconsider the April 13 vote.
The motion had not been included as an agenda item in the public notice of
the May meeting, but the County's planning director had telephoned Thompkins'
counsel to advise him that it would be considered at the meeting. During the
meeting, several individuals residing in the surrounding community testified to
express their concerns. All of the residents who testified at the May 2015 meeting
were under the mistaken impression that a landfill was going to be located on the
Property. Some of these residents also expressed dissatisfaction with noise and dust
in the community, but it is unclear whether they were referring to Thompkins'
operations or the concrete plant's operations next-door.
4
Horry County defines "Accessory use" as "[a] use of land or of a building, or
portion thereof, [that] is customarily incidental and subordinate to the principal use
of the land or building." Horry County Code of Ordinances § 401.5. "Accessory
uses must be located on the same lot with the principal use." Id.
The Board ultimately upheld the Zoning Administrator's determination.
Thompkins then filed a notice of appeal of the Board's May 11, 2015 order with the
circuit court. Several months later, the circuit court issued a consent order for a six-
month continuance of the final hearing so that Thompkins could seek a resolution of
its dispute with the Board by way of a variance petition. Subsequently, Thompkins,
through counsel, retained Venture to assist with the submission of the variance
petition to the Board. Venture filed a variance petition with the Board on
Thompkins' behalf, and the Board heard the petition on March 14, 2016.
At the hearing, Venture's President, Steve Powell, testified that in 1985, his
firm had taken demolition materials from another contractor to Thompkins' business
for recycling, adding: "So, I can state from personal experience that materials have
been going to this site since well before the zoning was adopted in 1987." Powell
later stated: "It was the only site that almost any contractor in building demolitions
could take material to for recycling," and "they've been doing that here continuously
since 1981." He explained that when Thompkins had to apply for a business license
in 2007, no one recognized the significance of the accessory use designation on the
license and it was "completely different from what [they had] done."
Some residents disputed Powell's testimony. Janice Dowe testified Powell's
claim that Thompkins had been accepting material from other contractors for thirty-
five years was "false" because she had lived in the surrounding community for the
same amount of time and the community "didn't have this crushing when [she]
originally [moved] out there." Wesley Finley testified: "I'm coming up on my
thirtieth anniversary[,] and I can guarantee you there was no plant there thirty years
ago . . . . There was no noise there."
The Board issued an order denying the variance petition, and Venture
appealed this order. On April 5, 2018, the circuit court reversed the Board's order
upholding the Zoning Administrator's determination as well as the Board's order
denying Venture's variance petition. The circuit court later denied the Board's
motion for reconsideration and granted Venture's motion for costs. This appeal
followed.
STANDARD OF REVIEW
In reviewing a decision of a zoning board of appeals, this court applies the
same standard of review as the circuit court. Boehm v. Town of Sullivan's Island Bd.
of Zoning Appeals, 423 S.C. 169, 182, 813 S.E.2d 874, 880 (Ct. App. 2018). Section
6-29-840 of the South Carolina Code (Supp. 2020) requires the circuit court to treat
the findings of fact by a zoning board of appeals "in the same manner as a finding
of fact by a jury," and "[i]n determining the questions presented by the appeal, the
court must determine only whether the decision of the board is correct as a matter of
law." In other words, the decision of a zoning board of appeals must not be disturbed
if there is supporting evidence in the record. Rest. Row Assocs. v. Horry Cty., 335
S.C. 209, 215, 516 S.E.2d 442, 446 (1999); Boehm, 423 S.C. at 182, 813 S.E.2d at
880. Further, a court must not substitute its judgment for that of the board, "even if
it disagrees with the decision." Rest. Row Assocs., 335 S.C. at 216, 516 S.E.2d at
446.
Nonetheless, a reviewing court "may rely on uncontroverted facts [that]
appear in the record, but not in a zoning board's findings." Vulcan Materials Co. v.
Greenville Cty. Bd. of Zoning Appeals, 342 S.C. 480, 491, 536 S.E.2d 892, 898 (Ct.
App. 2000). Moreover, a board's decision "will be overturned if it is arbitrary,
capricious, has no reasonable relation to a lawful purpose, or if the board has abused
its discretion." Rest. Row Assocs., 335 S.C. at 216, 516 S.E.2d at 446. "An abuse
of discretion occurs when a [tribunal's] decision is unsupported by the evidence or
controlled by an error of law." Boehm, 423 S.C. at 182, 813 S.E.2d at 880 (quoting
Newton v. Zoning Bd. of Appeals for Beaufort Cty., 396 S.C. 112, 116, 719 S.E.2d
282, 284 (Ct. App. 2011)).
LAW/ANALYSIS
The Board asserts that the circuit court failed to give deference to the Board
as required by the respective standards of review for each appeal. We agree.
A. Zoning Appeal
In its decision upholding the Zoning Administrator's determination, the Board
found that Thompkins' recycling business was approved in 2007 as an accessory use
"to the existing construction heavy equipment business that was located on the site
in 1981." The Board restated the Zoning Administrator's determination that the
recycling of construction material "is approved as an accessory use to a construction
and heavy equipment business that was approved on the site prior to zoning of [the
Property]." The Board also found that the recycling business could continue as an
accessory use but was not permitted to receive materials from other contractors and
would have to cease operating altogether "[s]hould the approved Construction
Heavy Equipment business use cease operation" at its current location. Without
further findings or conclusions of law, the Board stated that it was upholding the
Zoning Administrator's decision.
On appeal, the circuit court relied on three grounds to reverse the Board's
decision. Before addressing these, we hold that the Board's decision was correct as
a matter of law for two reasons: (1) the zoning classification for the Property did not
permit Thompkins' acceptance of construction debris from other contractors for
recycling and (2) the activity of taking outside debris does not qualify as an
accessory use. The County designated the zone in which the Property was located
as Limited Industrial (LI), which allows light industrial uses that are "not
significantly objectionable in terms of noise, odor, fumes, etc., to surrounding
properties." Horry County Code of Ordinances § 717. This zoning classification
prohibits "noise, vibration, smoke, gas, fumes, odor, dust, fire hazards, dangerous
radiation or any other conditions [that] constitute a nuisance beyond the premises."
Horry County Code of Ordinances § 717.1(P). At the Board's February 2015
meeting, Wayne Grissett's testimony indicated that Thompkins' recycling operations
contributed to the dust encountered by its neighbors. Therefore, the recycling does
not qualify as a principal use under section 717.
Further, Horry County defines "accessory use" as "[a] use of land or of a
building, or portion thereof, [that] is customarily incidental and subordinate to the
principal use of the land or building." Horry County Code of Ordinances § 401.5.
This definition is similar to the description of an accessory use found in case law.
See Whaley v. Dorchester Cty. Zoning Bd. of Appeals, 337 S.C. 568, 579, 524 S.E.2d
404, 410 (1999) ("Accessory uses are those [that] are customarily incident to the
principal use."); id. ("An accessory use must be one 'so necessary or commonly to
be expected that it cannot be supposed that the ordinance was intended to prevent
it.'" (quoting Borough of Northvale v. Blundo, 203 A.2d 721, 723 (N.J. Super. Ct.
App. Div. 1964))); see also 101A C.J.S. Zoning and Land Planning § 148 (2021)
("Generally, the uses of property permitted in particular zones by a zoning ordinance
or regulation include accessory uses customarily incident to the permitted uses."
(emphasis added)); id. ("'Accessory use' refers to uses customarily incidental to the
listed permitted uses in a district." (emphasis added) (citing Capelle v. Orange Cty.,
607 S.E.2d 103, 106 (Va. 2005))). We are convinced that Thompkins' recycling of
materials from other contractors is not "customarily incidental and subordinate to"
the maintenance of his heavy construction equipment on the Property. Because this
use cannot qualify as an accessory use, the circuit court should have affirmed the
Board's decision on this basis. See § 6-29-840(A) ("In determining the questions
presented by the appeal, the court must determine only whether the decision of the
board is correct as a matter of law.").
Instead, the circuit court relied on three grounds to reverse the Board's
decision, the first of which was its conclusion that there was no "legal basis" for the
Board's "distinction" between Thompkins' recycling of its own debris and its
recycling of debris from other contractors. This conclusion necessarily rests on the
premise that the Board squarely ruled on the issue of whether Thompkins' recycling
of its own debris meets the County's definition of accessory use in section 401.5.
The Board made no such ruling. Rather, the Board summarily stated that the
recycling business approved in 2007 "may continue as an accessory use to the
Construction Heavy Equipment business approved on the site" and it was upholding
the Zoning Administrator's determination that the business was "not permitted to
receive and process materials from other contractors." We infer from the record that
the Board's factual basis for the distinction was the decrease in the amount of dust
and noise imposed on Thompkins' neighbors that would result from prohibiting
Thompkins from recycling other contractors' debris.
We acknowledge that the Zoning Administrator's predecessor designated
Thompkins' recycling business as an "accessory use" on Thompkins' business
license in 2007. However, nothing in the record suggests the 2007 designation was
ever challenged on its underlying merits and subsequently upheld by the Board,5 and
the issue of whether Thompkins' recycling of its own debris met the County's
definition of accessory use was not squarely before the Board in the present case.
Therefore, the Board did not need to make a legal distinction between Thompkins'
recycling of its own debris and its recycling of debris from other contractors.
Next, the circuit court concluded that the Board's order was arbitrary and
capricious because (1) at the Board's April 2015 meeting, Thompkins presented
"overwhelming, credible evidence" that it had been receiving material from outside
contractors prior to the issuance of its business license in 2007;6 therefore, the Board
5
See Pelullo v. Croft, 18 N.E.3d 1092, 1095 (Mass. App. Ct. 2014) ("[T]he right of
the public to have the zoning by-law properly enforced cannot be forfeited by the
actions of a municipality's officers. Nor can a permit legalize a structure or use that
violates a zoning by-law." (quoting Building Comm'r of Franklin v. Dispatch
Commc'ns of New England, Inc., 725 N.E.2d 1059, 1066 (Mass. App. Ct. 2000)));
cf. Nemeth v. K-Tooling, 955 N.Y.S.2d 419, 423 (N.Y. App. Div. 2012) (holding
that the issuance of a building permit "cannot confer rights in contravention of the
zoning laws" (quoting City of Buffalo v. Roadway Transit Co., 104 N.E.2d 96, 100
(N.Y. 1952))).
6
Thompkins presented numerous "load tickets" ostensibly documenting its receipt
of other contractors' material during November and December 2006.
properly voted to reverse the Zoning Administrator's determination; (2) the Board
failed to explain its reconsideration of its April 2015 decision; and (3)
reconsideration of the April decision was not listed as an agenda item in the public
notice of the May 2015 meeting, yet several residents in the surrounding community
appeared at that meeting, indicating someone had informed them a landfill was going
to be located on the Property. The circuit court was heavily influenced by
Thompkins' assertion of improper influence by an employee of the County's Solid
Waste Authority, as summarized in the circuit court's order.7 However, our review
of the record reveals no direct evidence of nefarious activity or improper influence
on the Board's decision. Further, the Board's decision was correct as a matter of law
because the zoning classification for the Property did not permit Thompkins'
acceptance of construction debris from other contractors for recycling and the
activity of taking outside debris does not qualify as an accessory use.
The circuit court's third ground for reversing the Board's May 2015 decision
was its conclusion that Thompkins had a vested right to continue accepting material
from outside sources for recycling because it began this use before the County
enacted its first zoning ordinance and, thus, it was a legal nonconforming use. See
Whaley, 337 S.C. at 578, 524 S.E.2d at 409–10 ("A landowner acquires a vested
right to continue a nonconforming use already in existence at the time of a zoning
ordinance absent a showing [that] the continuance of the use constitutes a detriment
7
Specifically, the circuit court found that between April and May 2015, Thompkins
"was informed an individual from [the] Solid Waste Authority was contacting
members of the Board in an effort to persuade the Board members to reconsider their
votes," and Thompkins' counsel "addressed this concern in a letter to counsel for
Horry County." The circuit court further stated: "Subsequently, [Thompkins] was
informed by [the] Horry County Planning Director . . . [that] the Board was going to
move to reconsider its vote overturning [the Zoning Administrator's] decision at their
May 11, 2015 Board Meeting."
The circuit court also found that at the Board's May 2015 meeting, the Board
moved to reconsider its vote and residents in the surrounding community appeared
and "voiced unsubstantiated complaints about Thompkins' business" despite the fact
that the reconsideration had not been listed as an item on the Board's published
agenda. The circuit court added, "These persons' complaints strongly suggest to the
[c]ourt that, between April and May 2015, someone told residents near the Property
that Thompkins was going to begin taking in and recycling compost/trash, which
Thompkins had never done and did not seek to do."
to the public health, safety, or welfare."). However, the record for the zoning appeal,
as opposed to the variance appeal, does not support the circuit court's conclusion.
Although evidence of a nonconforming use was presented at the Board's
hearing on the variance request, this hearing occurred approximately ten months
after the Board's hearing to review the Zoning Administrator's determination, and
therefore, the Board did not have the benefit of this evidence when it issued its order
upholding the Zoning Administrator's determination. Further, the circuit court erred
in relying on counsel's arguments before the Board as evidence of a nonconforming
use. See S.C. Dep't of Transp. v. Thompson, 357 S.C. 101, 105, 590 S.E.2d 511, 513
(Ct. App. 2003) ("Arguments made by counsel are not evidence."); McManus v.
Bank of Greenwood, 171 S.C. 84, 89, 171 S.E. 473, 475 (1933) ("This court has
repeatedly held that statements of fact appearing only in argument of counsel will
not be considered.").
The circuit court also erred in relying on the testimony of two individuals
working in the construction industry in Horry County because these individuals did
not provide any specific dates. They merely indicated that Thompkins had been
recycling concrete for other contractors "for years." Therefore, the circuit court's
conclusion that Thompkins had a vested right to continue accepting material from
outside sources did not have any evidentiary support in the record for the zoning
appeal.
Based on the foregoing, the circuit court erred by reversing the Board's
decision in the zoning appeal.
B. Variance Appeal
In reviewing a zoning board's decision on a request for a variance from a
zoning ordinance's requirements, the circuit court must consider not only the general
standard of review from a zoning board's decision but also the specific standards for
granting a variance. Section 6-29-800(A)(2) of the South Carolina Code (Supp.
2020) prohibits the granting of a variance unless "strict application of the provisions
of the ordinance would result in unnecessary hardship" to the applicant and the board
"makes and explains in writing the following findings:
(a) there are extraordinary and exceptional conditions
pertaining to the particular piece of property;
(b) these conditions do not generally apply to other
property in the vicinity;
(c) because of these conditions, the application of the
ordinance to the particular piece of property would
effectively prohibit or unreasonably restrict the utilization
of the property; and
(d) the authorization of a variance will not be of substantial
detriment to adjacent property or to the public good, and
the character of the district will not be harmed by the
granting of the variance.
(i) The board may not grant a variance, the effect of
which would be to allow the establishment of a use
not otherwise permitted in a zoning district, to
extend physically a nonconforming use of land or to
change the zoning district boundaries shown on the
official zoning map. The fact that property may be
utilized more profitably, if a variance is granted,
may not be considered grounds for a variance.
Other requirements may be prescribed by the
zoning ordinance.
(emphases added). "Granting a variance is an exceptional power [that] should be
sparingly exercised and can be validly used only [when] a situation falls fully within
the specified conditions." Rest. Row Assocs., 335 S.C. at 215, 516 S.E.2d at 445–
46.
In its decision denying the variance request, the Board cited the factors set
forth in section 6-29-800(A)(2) and found that in 2007, a certificate of zoning
compliance was issued for the recycling business "as an accessory use to the existing
construction and heavy equipment business." The Board also found that Thompkins
was not then permitted "to receive and process material from other contractors" but
was proposing to do so in its variance application. The Board noted that a rezoning
of the Property to "MA3 (Heavy/Intense Manufacturing and Industrial District)" was
required to allow the proposed use and Thompkins was seeking a variance from three
requirements for an MA3 district, i.e., (1) all proposed plant sites shall be located a
minimum of five hundred feet from any residential lot; (2) all processing plants shall
be located in fully enclosed structures; and (3) the site must be screened through
enhanced buffers around the entire work area (with an opening for approved
entrances) if located within one thousand feet of a residential area.8 The Board's
order included a section for conclusions of law, but the sole conclusion was that
Thompkins' request did not meet "the criteria set forth in Horry County Code §
1404(B) and S.C. Code Ann. § 6-29-800."9
On appeal, the circuit court concluded that it did not need to reach the issues
due to its disposition of the zoning appeal. Nevertheless, the circuit court relied on
two additional grounds to reverse the Board's decision. First, the circuit court
concluded that the Board's decision was arbitrary because Thompkins met the factors
set forth in section 6-29-800(A)(2). We disagree.
Although the Board's written order failed to set forth any reasoning, the
hearing transcript and the Board's minutes indicate the Board's decision was
supported by the testimony of residents in the surrounding community expressing
concerns about particulates, noise, and traffic.10 Additionally, the Board's minutes
recount a Board member's statement that the Board "had concerns with the nuisance,
airborne particulates[,] and the traffic from the heavy trucks." Therefore, the
neighbors' testimony likely persuaded the Board to conclude that the requested
variances would be a "substantial detriment" to surrounding residences and would
harm the surrounding community's character. See § 6-29-800(A)(2)(d) (requiring a
finding that the variance will not be a substantial detriment to adjacent property or
8
Specifically, Thompkins requested a variance from the requirement that the
business must be separated from residential lots by at least five hundred feet and
sought to perform recycling operations in the open rather than in a fully enclosed
structure. Thompkins also proposed an earthen berm on one side of the property in
addition to its existing landscaping rather than meeting the code's specifications for
the enhanced buffer.
9
The language of Horry County Code section 1404(B) is virtually identical to the
language in section 6-29-800(A)(2).
10
See Vulcan, 342 S.C. at 494, 536 S.E.2d at 899 ("Generally, the format of a final
decision is immaterial as long as the substance of the decision is sufficiently detailed
so as to allow a reviewing court to determine if the decision is supported by the facts
of the case."); cf. Austin v. Bd. of Zoning Appeals, 362 S.C. 29, 35, 606 S.E.2d 209,
212 (Ct. App. 2004) (holding that reading the hearing transcript together with a letter
informing the applicant of the board's decision provided a "sufficient basis for a
reviewing court to determine whether the decision was supported by the facts of the
case" because the evidence was "clearly laid out in the transcript" and the issue raised
to the board was limited to a narrow factual question).
to the public good and the character of the district will not be harmed). Reaching
such a conclusion is a judgment call that is exclusively within the Board's province.
See Rest. Row Assocs., 335 S.C. at 216, 516 S.E.2d at 446 (holding that a court must
not substitute its judgment for that of the board, "even if it disagrees with the
decision").
The circuit court also concluded that Thompkins had a vested right to continue
accepting material from outside contractors because it began this use before the
County enacted its first zoning ordinance. See Whaley, 337 S.C. at 578, 524 S.E.2d
at 409–10 ("A landowner acquires a vested right to continue a nonconforming use
already in existence at the time of a zoning ordinance absent a showing [that] the
continuance of the use constitutes a detriment to the public health, safety, or
welfare."). Although the circuit court cited only counsel's arguments before the
Board, Venture's President, Steve Powell, gave supporting testimony at the Board's
March 14, 2016 hearing. Nonetheless, Thompkins cannot acquire a vested right to
continue the nonconforming use if there is a showing that continuing the use
"constitutes a detriment to the public health, safety, or welfare." See id. The
testimony of Thompkins' neighbors constituted such a showing. Therefore, the
circuit court erred in reversing the Board's decision on the ground that Thompkins
had a vested right to continue accepting material from outside contractors. See Rest.
Row Assocs., 335 S.C. at 215, 516 S.E.2d at 446 (holding that the decision of a
zoning board of appeals must not be disturbed if the record includes supporting
evidence).
Based on the foregoing, the circuit court erred by reversing the Board's
decision in the variance appeal.
CONCLUSION
Accordingly, the circuit court's order on the merits and its order granting costs
to Venture are
REVERSED.
KONDUROS and MCDONALD, JJ., concur.