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2008-UP-082 - White Hat Properties v. Hilton Head

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

White Hat Properties, Appellant,

v.

The Town of Hilton Head Island, and The Town of Hilton Head Island Board of Zoning Appeals, Respondents.


Appeal From Beaufort County
 Perry M. Buckner, III, Circuit Court Judge


Unpublished Opinion No. 2008-UP-082
Submitted December 11, 2007 - Filed February 6, 2008
Withdrawn and Substituted April 28, 2008


AFFIRMED


James O. Hale, of Hilton Head Island, for Appellant.

Gregory M. Alford, of Hilton Head Island, for Respondents.

PER CURIAM:  White Hat appealed Hilton Head’s order to stop construction of residential homes on Lot 142 of Sea Pines Plantation to the Board of Zoning Appeals (BZA).  The BZA found Lot 142 was designated as golf course or if undesignated, open space, and affirmed the stop work order.  The circuit court, sitting in its appellate capacity, affirmed.  White Hat appeals, and we affirm.

1. White Hat argues the circuit court erred by deferring to the BZA’s findings as the BZA interpreted an ordinance.  We disagree and find the BZA’s findings were factual, warranting deference from the circuit court and this court.

The factual findings of a BZA will not be disturbed, unless there is no evidence to support the findings.  Vulcan Materials Co. v. Greenville County Bd. of Zoning Appeals, 342 S.C. 480, 488, 536 S.E.2d 892, 896 (Ct. Ap. 2000).  Conversely, the BZA’s ruling will not be upheld if an error of law exists or if the BZA acted arbitrarily or unreasonably.  Peterson Outdoor Adver. v. City of Myrtle Beach, 327 S.C. 230, 235, 489 S.E.2d 630, 633 (1997).    

In this case, the BZA found “this property is a portion of the Golf Course and was designated as a golf course use.”  The BZA went on to find if the designation was uncertain, then “it should be found as undesignated and, therefore, open space.”  We hold this determination is factual, supported by some evidence, and neither arbitrary nor unreasonable.

The 1984 Master Plan of Sea Pines is devoid of any reference to Lot 142, the piece of property this case involves.  Lot 142 was created after 1984.  Lot 142 appeared in December 1999, when a Settlement Agreement granted Lot 142 by quitclaim deed to Sea Pines Land Company, which later became known as White Hat.  Also in December 1999, Hilton Head issued subdivision approval for Lot 142.  However, neither of these actions amended the Master Plan, which was necessary to change zoning.

Before the BZA, Hilton Head’s Urban Designer stated Lot 142, under the Land Use Map, was part of the golf course, which is nonresidential.  The Designer further informed the BZA that he determined the property was undesignated.  We believe there is evidence to support the BZA’s finding.

White Hat attempts to expand this court’s scope of review by arguing the BZA’s determination was legal, not factual.  White Hat points to Hilton Head Land Management Ordinance section 16-4-209(D) (1993), which states, “Undesignated areas on these master plans shall be considered as open space.”  This argument is faulty, as the BZA’s finding hinges on its factual determination the land was golf course or undesignated, not any perceived application of the ordinance.

This court acknowledges the ostensible unfairness created by the stop work order, but the standard of review restrains this court to defer to the BZA’s judgment on factual findings regarding zoning.  See Clear Channel Outdoor v. City of Myrtle Beach, 372 S.C. 230, 234, 642 S.E.2d 565, 567 (2007) (“A court will refrain from substituting its judgment for that of the reviewing body, even if it disagrees with the decision.”).  Moreover, this seeming inequity may be attributed in part to White Hat’s own conduct.  As the circuit court noted, White Hat’s losses due to the stop work order flow directly from White Hat’s continued representation the 1999 Settlement Agreement authorized the building of two houses on Lot 142, which it did not.  As noted above, an amendment to the Master Plan was necessary to affect a zoning change.  In this regard, White Hat’s proper remedy is to apply for a zoning map amendment.  See Hilton Head Land Management Ordinance §16-3-1608 (1998).

2. White Hat additionally contends the BZA denied White Hat’s due process rights to develop its case.  We disagree.

Under South Carolina jurisprudence, due process requires “(1) adequate notice; (2) adequate opportunity for a hearing; (3) the right to introduce evidence; and (4) the right to confront and cross-examine witnesses.”  Clear Channel, 372 S.C. at 235, 642 S.E.2d at 567.  In Clear Channel, the South Carolina Supreme Court found the party’s due process rights were not violated because the party had notice of the nonconformity issue and an opportunity to be heard.  372 S.C. at 235, 642 S.E.2d at 568.

In the case at hand, the stop work order was issued on September 14, 2004.  White Hat appealed the order to the BZA on September 28, 2004.  The BZA conducted two hearings regarding the order, both of which White Hat’s counsel attended.  At the second hearing, White Hat’s counsel made a presentation to the BZA.  Therefore, White Hat had notice of the issue regarding Lot 142’s zoning and an opportunity to be heard.  Thus, White Hat’s due process rights were not violated.

3. White Hat next argues Hilton Head should be estopped from denying Lot 142 is zoned residential.  We disagree.

In order to claim equitable estoppel, a party must illustrate: “(1) a lack of knowledge and the means of knowledge of truth as to facts in question; (2) justifiable reliance upon the conduct of the party estopped; and (3) prejudicial change in the position of the party claiming estoppel.”  Clear Channel, 372 S.C. at 235, 642 S.E.2d at 568. 

In Clear Channel, Clear Channel applied for a permit to replace a billboard, which was completely destroyed by a tornado.  372 S.C. at 232, 642 S.E.2d at 566.  The Zoning Administrator denied the permit because of a zoning ordinance prohibiting the construction of new billboards, and the city’s BZA upheld the denial.  Id.  Clear Channel’s previous billboard did not conform; however, Clear Channel argued the city was estopped from arguing nonconformity because the city inspected the previous billboard and found it did conform.  Id. at 235, 642 S.E.2d at 568.  The South Carolina Supreme Court rejected Clear Channel’s argument stating, Clear Channel is “in the business of outdoor advertising and had ample means of knowing its sign violated the City’s ordinance.”  Id. at 235-36, 642 S.E.2d at 568.  Further, Clear Channel knew or had means to know its sign was nonconforming under the city ordinance.  Id. at 236, 642 S.E.2d at 568.  Therefore, Clear Channel’s “reliance on the doctrine of estoppel is misplaced.”  Id.

This case’s facts fit squarely with Clear Channel.  White Hat had ample means of knowing (especially from Hilton Head Land Management Ordinance section 16-3-1608) the only way to affect zoning was to change the Master Plan through a zoning map amendment, despite Hilton Head’s improper issuance of a building permit.  Accordingly, Hilton Head is not estopped from denying Lot 142 is residential.

4. Finally, White Hat asserts Hilton Head’s adoption of the 1993 amendment to section 16-4-209 of Hilton Head Land Management Ordinance, which made undesignated land open space, is void for lack of notice.  We disagree.

In 1993, the applicable law barred a challenge to an amendment of a zoning regulation more than two years after the public hearing for inadequacy of notice, if substantial compliance with notice requirements existed.  See S.C. Code Ann. § 6-7-730 (Supp. 1994).[1]  Section 6-7-730 mandated the governing authority to hold advertised, public hearings regarding the amendment.

The record does indicate eight public hearings were conducted and a First and Second reading by the town council prior to the adoption of the 1993 amendment.  Additionally, the record includes two newspaper clippings advertising the public hearings.  Therefore, this argument is without merit because it falls after the two-year statue of limitations and the record provides evidence of proper notice. 

White Hat heavily relied on Brown v. County of Charleston, 303 S.C. 245, 247, 399 S.E.2d 784, 785-86 (Ct. App. 1990), where this court held the notice of an amendment did not sufficiently notify landowners the use of their own property would be altered, even though no one contested the advertisement’s compliance with the statutory guidelines.  Brown is easily distinguished from the case at hand as the amendment in this case did not change a current landowner’s property rights.  Instead, the ordinance attempted to bring continuity to the subdivision by designating uncertain land as open space.  Additionally, as in Clear Channel, White Hat is in the land development business and should have known the potential implications of the amendment.  372 S.C. at 236, 642 S.E.2d at 568.

During oral argument, White Hat asserted an unconstitutional taking occurred; however, this issue was not ruled upon below or advanced in White Hat’s brief.[2]  Therefore, under issue preservation principles, this argument is not properly before us.  See Lucas v. Rawl Family Ltd. P’ship, 359 S.C. 505, 510-11, 598 S.E.2d 712, 715 (2004) (“It is well settled that, but for a very few exceptional circumstances, an appellate court cannot address an issue unless it was raised to and ruled upon by the trial court.”).

CONCLUSION

Although White Hat attempts to disguise the BZA’s factual determinations as legal, our standard of review requires this court to defer to the BZA’s factual findings.  Further, White Hat’s due process, estoppel, and public notice arguments lack merit.  Accordingly, the BZA’s order is

AFFIRMED.

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


[1]  The current law limits the statute of limitations to sixty days after the decision of the governing body.  See S.C. Code Ann. § 6-29-760(D) (2004).

[2]  The last sentence of White Hat’s reply brief referred to a “constitutionally inappropriate taking;” however, this mere mention of a taking is conclusory.  See Glasscock, Inc. v. U.S. Fid. and Guar. Co., 348 S.C. 76, 81, 557 S.E.2d 689, 691 (Ct. App. 2001) (stating “short, conclusory statements made without supporting authority are deemed abandoned on appeal and therefore not presented for review”).