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24943 - Bannum, Inc. v. City of columbia, et al.

Shearouse Adv. Sh. No. 17
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

Bannum, Inc., a

Kentucky Corporation

with a principal place of

business in Largo,

Florida, Appellant,

v.

City of Columbia, a

municipality with a

principal place of

business in Columbia,

South Carolina and City

of Columbia Zoning

Board of Adjustments,

an appointed agency of

the City of Columbia, Respondents.

Appeal From Richland County

L. Casey Manning, Circuit Court Judge

Opinion No. 24943

Heard February 18, 1999 - Filed May 7, 1999

REVERSED

P. Benjamin Zuckerman, of Lewis, Babcock and

Hawkins, L.L.P., of Columbia, for appellant.

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BANNUM, INC. v. CITY OF COLUMBIA, et al.





Thomas E. Ellenburg, of Columbia, for respondents.



PER CURIAM: Bannum, Inc. (Bannum) appeals a circuit court order

affirming the Zoning Board ofAdjustment's (ZBA) denial of a "special exception"

permit to use 1608 Westminster Drive as a residential care facility for federal

ex-offenders. We reverse.



FACTS



Bannum provides residential "halfway houses" for persons recently

released from federal prison. In February, 1997, the Bureau of Prisons (BOP)

issued a request for proposals (RFP) to construct and manage a 24 bed

residential care facility in Columbia.1 Bannum inquired of the City Zoning

Administrator as to zoning requirements for such residential care facilities, and

was advised by the Administrator, in March 1997, that such facilities having

more than 9 occupants are allowed in C-3 districts upon obtaining a "special

exception" permit.2 In April, 1997, Bannum leased the property at 1608

Westminster Drive.3 Thereafter, the BOP awarded Bannum a contract for the


1The facility will serve up to 29 ex-inmates, all of whom are from the

Columbia area; approximately 23 will be overnight residents of the facility, the

remaining 6 will spend the night at their Columbia residences. In addition to

housing, Bannum assists its clients by providing job search assistance,

counseling, training, etc. It also imposes a curfew, and performs alcohol and

drug screenings. The facility does not house violent criminals, but does accept

people convicted of federal drug offenses.





2 A special exception permit requires the ZBA to consider 1) Traffic Impact;

2) Vehicle and pedestrian safety; 3) Potential impact of noise, fumes, or

obstruction of air flow on adjoining property; 4) Adverse Impact of the proposed

use on the aesthetic character of the environs, to include possible need for

screening from view; and 5) Orientation and spacing of improvements on

buildings. Columbia City Code of Ordinances, ยง 6-3192(2)(6)(c)(1-5).





3 Westminster Drive crosses Forest Drive in Columbia, a short distance

from Providence Hospital, near the Forest Hills subdivision. The leased

property is zoned C-3 commercial, and at the time this matter arose, was being

used by the Richland County Mental Retardation Center providing job



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BANNUM, INC. v. CITY OF COLUMBIA, et al.





halfway house, contingent on Bannum obtaining all necessary local permits by

Dec. 1, 1997. On Aug. 13, 1997, Bannum sought a special exception permit. At

a hearing on Sept. 9, 1997, the ZBA determined, contrary to the opinion of its

Administrator, the halfway house was not a "residential care facility."

Accordingly, the ZBA denied Bannum's request for a special exception.

Thereafter, the ZBA decided the proposed facility was, in fact, a "residential

care facility," and granted a rehearing. After its October 14, 1997 rehearing,

the ZBA denied Bannum's request for a special exception, holding the halfway

house would have a negative impact on traffic and vehicular and pedestrian

safety. The circuit court affirmed the ZBA's denial of the permit.



ISSUE



Did the circuit court err in upholding the ZBA`s denial of a special

exception permit?





STANDARD OF REVIEW



This Court will not disturb the findings of the Board of Adjustment unless

such findings or decision resulted from action of the Board which is arbitrary,

an abuse of discretion, illegal, or in excess of lawfully delegated authority.

Brock v. Board of Adjustment and Appeals of City of Rock Hill, 308 S.C. 539,

419 S.E.2d 773 (1992); Fontaine v. Peitz, 291 S.C. 536, 354 S.E.2d 565 (1987).

See also Condor, Inc. v. Board of Zoning Appeals, 328 S.C. 173, 493 S.E.2d 342

(1997).



DISCUSSION



Bannum contends ZBA's denial of its permit was arbitrary. We agree.





The ZBA either discounted or disregarded every single bit of evidence put

up by Bannum.4 Instead, it based its holding on the four factors submitted by


placement services to the mentally disabled.





4 The ZBA completely discounted Bannum's evidence submitted by its

private investigator, Mark Kelly, who had monitored the existing site occupied

by the Dept. of Mental Retardation (DMR), for four hours one day, from 9:15 am

until 1:15 pm, finding it too limited in time and scope. It also discounted a

"Brief Traffic Assessment" prepared by Wilbur Smith Associates because the

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BANNUM, INC. v. CITY OF COLUMBIA, et al.





opponents: 1) testimony as to traffic counts on Forest Drive, 2) testimony that

Westminster Drive is used as a "cut through" street, 3) testimony that any

increase in traffic would adversely impact vehicle and pedestrian safety, and 4)

a Government Accounting Office (GAO) study concerning recidivism rates of ex

offenders.





As to numbers 1-3, although there was evidence concerning existing

traffic on Forest Drive, and speculation that the halfway house residents will

use Westminster as a cut-through, there was simply no evidence presented the

proposed use will generate greater use than the existing mental health facility.

On the contrary, the evidence was to the effect that the proposed use would

likely decrease traffic as the majority of halfway house residents will not own

automobiles but will utilize public transportation. Although neighboring

residents testified they felt the halfway house would increase traffic, there is

simply no concrete evidence to support this fact. Accordingly, the ZBA`s finding

that any increase in traffic would adversely impact vehicle and pedestrian

safety is irrelevant as there is no evidence of an increase.





The only piece of evidence which arguably supports the ZBA's decision is

a GAO (General Accounting Office) study concerning "Trends in Community

Supervision of Federal Offenders." The ZBA relied on the GAO report for the

premise that a certain number of the halfway house residents will be recidivists,

which will adversely affect the safety of pedestrians in the area by "having


Smith study compared traffic using the cite as a Medical Office (which could be

done in a C-3 zone without the need for a special exception permit), rather than

comparing the proposed use with the existing use by the DMR. We find the

ZBA's reliance on this factor to avoid the impact of the Smith study spurious.

We know of no requirement that a traffic assessment must be performed

comparing existing to proposed use. Were that the case, a special exception

permit would never issue for vacant premises, because traffic would always

increase, and thereby be negatively impacted by the proposed use. Accordingly,

we find the ZBA erred in refusing to give consideration to the Smith study,

which specifically concludes the proposed use will generate substantially less

traffic than the existing use. Moreover, there is simply no explanation in the

record as to why the ZBA gave no regard to a) the affidavit of David Lowry

(Bannum's president)(indicating proposed facility would have substantially

lesser traffic impact than existing facility at 1608 Westminster, b) the affidavit

of attorney Carl Holloway to the effect that proposed use should substantially

lessen traffic, and c) the affidavit of realtor James Gordon to the same effect.



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BANNUM, INC. v. CITY OF COLUMBIA, et al.





potentially recidivist violent individuals and drug users in the area." However,

according to B annum's attorney, Mr. Zuckerman, and the affidavit of B annum's

president, David Lowry, the GAO study is simply inapplicable to halfway

houses such as Bannum's.





Moreover, even assuming the GAO report concerns halfway houses such

as Bannum's, it does not justify the ZBA's decision in this case. There is no

evidence in the report which correlates the recidivism rates of federal offenders

to "pedestrian safety." In fact, counsel for the City conceded at oral argument

before this Court, that the danger to pedestrian safety was "extrapolated" from

the GAO report by the ZBA. This is simply insufficient to constitute "any

evidence" under our standard of review.



CONCLUSION



After reading the entire record in this case, it is inescapable to us that

the ZBA's decision was based, not on the requirements of the "special exception"

ordinance, but upon the fears of neighboring residents who did not want "those

type of people" in their neighborhood. Although we are sympathetic to the

concerns of neighboring individuals, the ordinance simply does not provide such

a basis for denial of the permit. Accordingly, the circuit court's order affirming

the denial of Bannum's special exception permit is



REVERSED.



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