Bevivino v. Town of Mount Pleasant Board of Zoning Appeals
2013 WL 441537, 737 S.E.2d 863, 402 S.C. 57 (2013)
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Rule of Law:
Under South Carolina law, a person with a substantial interest in a board of zoning appeals' decision has statutory standing to seek judicial review in a circuit court, even if that person did not participate in the prior administrative proceedings before the board.
Facts:
- South Carolina Electric and Gas Co. (SCE&G) owned property at 937 Whipple Road, which it leased to SCANA Communications, Inc. (SCANA).
- The property is located in the Town of Mount Pleasant and adjoins the Candlewood residential subdivision, where Appellants Mark Bevivino and others reside.
- In 2009, SCANA began the process of obtaining a permit to build a telecommunications tower on the property, which was zoned to allow such a structure as a 'conditional use'.
- The Town Zoning Administrator, Kent Prause, approved SCANA’s application for a conditional use permit on May 27, 2009.
- In June 2009, Prause sent a 'courtesy' letter to some, but not all, of the property owners whose land abutted the site, informing them of the permit's approval.
- Between October 6 and October 20, 2009, SCANA constructed a 195-foot telecommunications tower on the site.
- Appellants, residents of the adjacent Candlewood subdivision, opposed the tower due to concerns about safety and its negative impact on neighborhood aesthetics and character.
Procedural Posture:
- The Town of Mount Pleasant Zoning Administrator approved a conditional use permit for SCANA to construct a telecommunications tower.
- A subset of the Appellants (the Lincolns and Bevivino) appealed the Administrator's decision to the Town of Mount Pleasant Board of Zoning Appeals (BZA).
- The BZA held a hearing and affirmed the Zoning Administrator's decision to grant the permit.
- All Appellants, including those who had not formally appealed to the BZA, filed a petition for judicial review of the BZA's decision in the Charleston County Court of Common Pleas, a state trial court.
- The Court of Common Pleas affirmed the BZA's decision and held that the Appellants who had not appealed to the BZA lacked standing to seek judicial review.
- All Appellants, as a group, appealed the decision of the Court of Common Pleas to the South Carolina Court of Appeals, an intermediate appellate court.
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Issue:
Does a person who has a substantial interest in a decision by a board of zoning appeals have statutory standing to appeal that decision to a circuit court, even if they did not participate in the administrative appeal to the board?
Opinions:
Majority - Thomas, J.
Yes. A person who has a substantial interest in a decision by a board of zoning appeals has statutory standing to appeal that decision to the circuit court, even if they did not participate in the underlying administrative proceeding. The court reasoned that S.C. Code Ann. § 6-29-820(A) explicitly allows any 'person who may have a substantial interest in any decision' of the board to appeal to the circuit court. Citing its recent decision in Newton v. Zoning Board of Appeals, the court held that this statute does not require an appellant to have attended the board's hearing or otherwise communicated their concerns to the board. The sole procedural requirement is to file a timely written petition with the circuit court. Since standing is conferred by this statute, traditional common-law and constitutional standing doctrines are inapplicable. The court also affirmed the BZA's decision on the merits, finding it was supported by substantial evidence and was not arbitrary, capricious, or an abuse of discretion.
Analysis:
This decision clarifies and broadens access to judicial review for zoning challenges in South Carolina. It establishes that statutory standing under § 6-29-820(A) does not require exhaustion of administrative remedies through participation in BZA hearings. This lowers the procedural barrier for aggrieved citizens, allowing them to challenge zoning decisions directly in court as long as they can demonstrate a 'substantial interest' and file a timely appeal. The ruling solidifies the principle that where a statute explicitly grants a right to appeal, courts will not impose additional, unstated common-law requirements such as prior participation in the administrative process.
