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2011-UP-108 - Dippel v. Horry County Planning

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

Kenneth Dippel & Kimber Fowler, Appellants,

v.

Horry County Planning Department, Respondent.


Appeal From Horry County
Benjamin H. Culbertson, Circuit Court Judge


Unpublished Opinion No.  2011-UP-108
Submitted March 1, 2011 – Filed March 16, 2011


AFFIRMED IN PART, REVERSED IN PART, AND REMANDED


Kenneth Dippel and Kimber Fowler, both of Loris, pro se.

John L. Weaver, of Conway, for Respondent.

PER CURIAM:  Kenneth Dippel and Kimber Fowler (Appellants), pro se, appeal the circuit court's (1) denial of their motion for an order of reference and change of venue and (2) the grant of the Horry County Planning Department's (the Department) motion to strike and motion to dismiss.  We affirm in part, reverse in part, and remand.[1]

This appeal concerns the Department's refusal to approve Appellants' submitted plat.  After the Department did not approve the plat, Appellants unsuccessfully appealed to the Horry County Planning Commission.  Subsequently, Appellants appealed this determination to the circuit court.  Appellants' appeal, manifested in a lengthy document styled as a "complaint," alleged three causes of action.  Appellants asserted (1) a judicial taking, (2) the Department's failed to comply with a court order, and (3) an action that constituted an appeal of the Planning Commission's adverse determination.  Upon motion by the Department, the circuit court struck all allegations and causes of action not related to a direct appeal of the Planning Commission's plat determination.  Subsequently, the circuit court dismissed the appeal on procedural grounds because Appellants failed to file a pre-litigation request for mediation with the notice of appeal and failed to join necessary parties.  Appellants appealed this decision, asserting the circuit court erred in striking actions from their complaint and in dismissing their appeal.  Appellants also contend error in the denial of their motion for an order of reference and change of venue.

"A property owner whose land is the subject of a decision of the planning commission may appeal by filing a notice of appeal with the circuit court accompanied by a request for pre-litigation mediation in accordance with section 6-29-1155."  S.C. Code Ann. § 6-29-1150(D)(2) (Supp. 2010). "If a property owner files a notice of appeal with a request for pre-litigation mediation, the request for mediation must be granted . . . ."  S.C. Code Ann. § 6-29-1155(A) (Supp. 2010).  When interpretation of a statute is required, "words must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand the statute's operation."  State v. Blackmon, 304 S.C. 270, 273, 403 S.E.2d 660, 662 (1991).

We find the circuit court erred in basing the dismissal of Appellants' appeal on their failure to file a request for pre-litigation mediation.  The Department contends sections 6-29-1150 and 6-29-1155 require the mandatory filing of a request for mediation along with a notice of appeal in order to properly appeal a decision by the Planning Commission.  We believe a plain and ordinary reading of the statute reveals that it merely informs a potential appellant of the option and procedure for filing a request for mediation.  Specifically, section 6-29-1150(D)(2) provides a property owner "may appeal by filing a notice of appeal with the circuit court accompanied by a request for pre-litigation mediation in accordance with section 6-29-1155."  Section 6-29-1155 in turn provides: "[i]f a property owner files a notice of appeal with a request for pre-litigation mediation . . . ."  Reading these two sections together indicates the mediation request is an optional step in appealing the decision of a planning commission.  Accordingly, we reverse the circuit court's grant of dismissal on this ground.

As a second ground for dismissal, the circuit court found Appellants failed to join necessary parties.  We find the circuit court erred in failing to make findings of fact to support the dismissal of Appellants' appeal for failure to join necessary parties.

A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.

Rule 19, SCRCP.  "[A] development permittee is a necessary party to an appeal of its permit."  Spanish Wells Prop. Owners Ass'n, Inc. v. Bd. of Adjustment of Town of Hilton Head Island,  295 S.C. 67, 69, 367 S.E.2d 160, 161 (1988).  "Designating the permittee a necessary party insures the most vitally interested party's participation in the appellate process."  Id. at 68, 367 S.E.2d at 161.  "In all actions tried upon the facts without a jury . . . the court shall find the facts specially and state separately its conclusions of law thereon."  Rule 52, SCRCP.   

We do not require a lower court to set out findings on all the myriad factual questions arising in a particular case.  But the findings must be sufficient to allow this [c]ourt, sitting in its appellate capacity, to ensure the law is faithfully executed below. The absence of factual findings makes our task of reviewing the court order impossible because "the reasons underlying the decision [are] left to speculation." 

 In re Treatment and Care of Luckabaugh, 351 S.C. 122, 133, 568 S.E.2d 338, 343 (2002).

  The circuit court's order relies on Spanish Wells to support the contention that Appellants failed to join necessary parties to the appeal of the Planning Commission decision.[2]  The order indicates unnamed parties were necessary because the determination of the Planning Commission directly affected their existing access to these parcels.  The circuit court's order states, "These parties occupy an analogous position to an owner whose application approval is appealed, since appeal could result in reversal of the access rights recognized by the Planning Commission."  Notwithstanding these analogies, the paucity of information concerning the purported necessary parties makes it difficult to determine if the circuit court's legal conclusions are correct.  See Luckabaugh, 351 S.C. at 132-133, 568 S.E.2d at 343 (quoting Coble v. Coble, 268 S.E.2d 185, 189 (N.C.1980)) ("Trial courts, sitting without juries in an action at law, write their findings specially and separately: to allow a reviewing court to determine from the record whether the judgment and the legal conclusions which underlie it represent a correct application of the law. The requirement for appropriately detailed findings is thus not a mere formality or a rule of empty ritual; it is designed instead to dispose of the issues raised by the pleadings and to allow the appellate courts to perform their proper function in the judicial system.").  The circuit court's order neither provides the identities of the purported necessary parties nor fully describes how these parties are "directly affected" by the Planning Commission's determination beyond unspecified effects on their existing access.  Accordingly, we remand for the circuit court to clarify the nature and identity of the purported necessary parties and if necessary to consider the appeal on its merits.

To the extent Appellants asserted original causes of action in their appeal from the Planning Commission, the circuit court's decision is affirmed.

Finally, we affirm the circuit court's denial of Appellants' motion for an order of reference and change of venue.  Because the underlying action is an appeal from a planning commission decision, reference to a master-in-equity is not appropriate pursuant to Rule 53, SCRCP, and the circuit court did not err.  Likewise, venue in Horry County is proper and we find no error in the circuit court's denial of this motion.     

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

FEW, C.J., KONDUROS, J., and CURETON, A.J., concur


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] The order does not reveal the identity of these parties.