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2004-UP-057 - Blalock v. City of Aiken

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


In Re:  Kathleen Blalock and William Blalock,        Appellants,

v.

City of Aiken, City of Aiken Planning Department, City of Aiken Board of Zoning Appeals, Bruce McGhee and Janis McGhee, d/b/a Aiken Mile Track,        Respondents.


Appeal From Aiken County
Rodney A. Peeples, Circuit Court Judge


Unpublished Opinion No. 2004-UP-057
Submitted January 12, 2004 – Filed January 29, 2004


AFFIRMED


James D. Nance and A. Shane Massey, both of Aiken, for Appellants.

Bruce McGhee, Janis McGhee and Richard L. Pearce, all of Aiken, for Respondents.


PER CURIAM:  William and Kathleen Blalock appeal an order by the City of Aiken’s Board of Zoning Appeals (“BZA”), subsequently affirmed by the circuit court, granting Bruce and Janet McGhee a special exception to the city’s zoning ordinance.  We affirm.

FACTS

The McGhees own and operate a horse racing and training facility in the “Horse District” zone of Aiken.  They filed an application with the BZA for a special exception to the city’s zoning ordinance to construct an eating establishment, tack shop, grooms’ quarters and trainers’ quarters on the 78- acre property. 

The BZA, as required by the zoning ordinance, scheduled a public hearing on the matter.  Prior to the hearing, they conspicuously posted notice on the actual property.  Notice was also published in the local newspaper, on a local cable television station, on the city’s web site, and mailed to all contiguous property owners.  The notice, while listing all of the proposed uses requiring a zoning exception (including the restaurant), did not specify whether alcohol would be served on the premises.

The Blalocks own residential property abutting the McGhees.  They received a mailed notice of the public hearing.  They chose not to personally attend the hearing, but sent a letter expressing their objection to all of the McGhees’ requested exceptions to the zoning ordinance.  The possibility of alcohol sales in the restaurant was acknowledged and discussed at the hearing.  Thereafter, the BZA granted the application for special exceptions, but placed ten conditions on the approval, including a mandatory 9:00 p.m. closing time.

The Blalocks appealed this order to the circuit court.  They argued that the absence in the notice of any indication that alcohol would be served on the McGhees’ property amounted to a violation of both the notice provision of the zoning ordinance and their constitutional guarantee of due process.  Furthermore, they argued that the zoning ordinance itself prohibits the sale of alcohol within the Horse District. The judge denied their appeal and affirmed the order of the BZA.  This appeal follows.

LAW / ANALYSIS

I.       The Notice Provision and Due Process

The notice provision of the zoning ordinance requires that mailed notice inform recipients of the “nature of the application.”  See Zoning Ordinance, City of Aiken, § 6.1.4(C)  Additionally, the Due Process Clauses of the Constitutions of the United States and South Carolina require “notice which fairly and reasonably apprises those whose rights may be affected of the nature and character of the action proposed.”  Brown v. County of Charleston, 303 S.C. 245, 247, 399 S.E.2d 784, 786 (Ct. App. 1990).  Appellants argue that the absence of any indication of alcohol sales in the City’s notice of the public hearing violated the ordinance by not specifying “the nature of the application” and the Due Process Clauses by not apprising them of the true “nature and character of the action,” thus denying them an “opportunity to be heard in a meaningful way.”  See Universal Benefits, Inc. v. McKinney, 349 S.C. 179, 183, 561 S.E.2d 659, 661 (Ct. App. 2002).   We disagree.

The Due Process Clause of the U.S. Constitution demands only “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”  Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657 (1950); S.C. Const. art. I, § 22 (“No person shall be finally bound by a judicial or quasi judicial decision of an administrative agency affecting private rights except on due notice and an opportunity to be heard…”).  We find that the City of Aiken’s actions to notify the community of this public hearing exceeded this constitutional mandate.  Notice was posted and published in several adequate forms, best evidenced by the fact that the Blalocks received actual notice in time to attend the hearing had they been so inclined.

The Blalocks’ arguments hint to the fact that they would have been present at the hearing had they known the McGhees were contemplating the sale of alcohol on the premises.  While this may be true, minimum due process requirements simply do not mandate the degree of specificity desired by the Blalocks.  The “nature of the application” and “character of the action” was adequately described in the notice.  This hearing was to offer the public an opportunity to comment on an exception to the zoning ordinance, not a grant of a liquor license.  

We conclude that the Blalocks were given reasonable notice of the nature of the application.  Had they desired more detail regarding the restaurant or wished to better articulate their objections to the proposed zoning exceptions, it was their right to attend, ask questions, and present any specific objections.  They chose, however, to be meaningfully heard in writing rather than personally attend the hearing.  Furthermore, not only did the BZA consider the Blalocks’ letter, but the issues they claim to have been denied the opportunity to raise were raised by others and considered at the hearing.  Due process mandates that every interested party be granted the opportunity to be heard, not that every interested party, regardless of the party’s own initiative, is actually heard.  We find that the Blalocks were given due process and the zoning ordinance’s notice requirement was satisfied.

II.      The Zoning Ordinance

The Blalocks contend that the zoning ordinance prohibits the sale of alcoholic beverages within the Horse District and, therefore, the BZA improperly granted the special exception by not expressly prohibiting the sale of alcohol at the proposed restaurant in its order.  We disagree.

A zoning board’s decision should not be disturbed unless the board’s findings resulted from action “which is arbitrary, an abuse of discretion, illegal, or in excess of lawfully delegated authority.”  Bannum, Inc. v. City of Columbia, 335 S.C. 202, 205, 516 S.E.2d 439, 440 (1999).  This court should refrain from substituting its judgment for that of the BZA, even if we disagree.  See Restaurant Row Assocs. v. Horry County, 335 S.C. 209, 216, 516 S.E.2d 442, 446 (1999).  While recognizing that this court is permitted a “broader and more independent review” in cases such as this, concerning ordinance construction, we choose to maintain this well-recognized deference to the zoning board’s discretion.  See Charleston County Parks & Recreation Comm’n v. Somers, 319 S.C. 65, 67, 459 S.E.2d 841, 843 (1995) (applying a broader scope of review in ordinance construction cases).

The ordinance expressly allows a restaurant in the Horse District by special exception under the category of “Eating Establishments.”  Although the ordinance prohibits a “liquor store” and “nightclub or bar” under a separate category titled “Retail Sales and Service,” we do not find “by implication,” as the Blalocks suggest, an outright prohibition on all alcohol sales.  Were it the intention of the drafters to ban all alcohol sales in the Horse District, they could have very simply done so in a clear, express manner.  Given our standard of review, we are constrained to defer to the zoning board’s interpretation absent evidence of arbitrariness, abuse of discretion, or illegality.  There is no such evidence here.  Thus, we defer to the decision of the BZA that the zoning ordinance does not ban the sale of alcohol outright in the Horse District.

CONCLUSION

In accordance with the broad discretion vested in the BZA and the multiple notices that comply with due process, the order of the BZA is

AFFIRMED.

HEARN, C.J., HOWARD, and KITTREDGE, JJ., concur.