Bradley Circle v. Town of Hilton Head Island

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

Bradley Circle Vacation Partners, LLC, and Monti
Development HH, LLC, Appellants,

v.

Town of Hilton Head Island, Town of Hilton Head Island
Board of Zoning Appeals, Tamara Becker and Rhonda
Carper, Respondents.

Appellate Case No. 2019-000314

Appeal From Beaufort County
Marvin H. Dukes, III, Master-in-Equity

Unpublished Opinion No. 2022-UP-232
Heard March 8, 2022 – Filed June 1, 2022

AFFIRMED

Drew A. Laughlin, of Laughlin & Bowen, PC, of Hilton
Head Island, for Appellants.

Curtis Lee Coltrane, of Coltrane & Wilkins, LLC, of
Hilton Head Island, for Respondents.

Tamara Becker and Rhonda Carper, both of Hilton Head,
pro se.
PER CURIAM: Bradley Circle Vacation Partners, LLC and Monti Development
HH, LLC (collectively, Appellants) appeal the master-in-equity's order affirming
the Town of Hilton Head Island board of zoning appeals' (BZA) decision
overruling a determination made by the Town's director of community
development (the Official). Appellants contend the BZA's March 28, 2016
approval of certain setback and buffer variances for 28 Bradley Circle and 3 Whelk
Street, both in the Bradley Circle neighborhood, constituted approval of a site
specific development plan1 for the subject properties. Relying on this approval,
Appellants argue they have a vested right to build two single-family homes with a
maximum height of seventy-five feet above base flood elevation (BFE) and are not
bound by the more restrictive height limitation in effect in August 2017, when they
applied for building permits.2 We affirm.

Initially, Respondents urge us to find Appellants have failed to make a proper
argument challenging the BZA's factual finding that Appellants did not submit a
site specific development plan with their initial variance application. See Rule
208(b)(1)(B), SCACR ("Ordinarily, no point will be considered which is not set

1
"'Site specific development plan' means a development plan submitted to a local
governing body by a landowner describing with reasonable certainty the types and
density or intensity of uses for a specific property or properties. The plan may be
in the form of, but is not limited to, the following plans or approvals: planned unit
development; subdivision plat; preliminary or general development plan;
variance; conditional use or special use permit plan; conditional or special use
district zoning plan; or other land use approval designations as are used by a
county or municipality." S.C. Code Ann. § 6-29-1520(9) (Supp. 2021) (emphasis
added). Section 16-2-102.J.1.a of the Land Management Ordinance (LMO)
provides the following: "Approval or conditional approval of an application for
a Special Exception, Major or Minor Subdivision Review, Major or Minor
Development Plan Review, Small Residential Development Review, and a
Variance shall constitute approval of a site specific development plan that
establishes a vested right in accordance with the Vested Rights Act, S.C. Code
Ann. § 6-29-1510 et seq. . . ." (emphasis in original).
2
The zoning classification for these two properties was Resort Development (RD)
in 2016, when Appellants applied for the setback and buffer variances. In April
2017, the Town amended its LMO, reducing the maximum height for single-family
homes in RD zoning districts from seventy-five feet to forty-five feet above BFE.
forth in the statement of the issues on appeal."); Jones v. Lott, 387 S.C. 339, 346,
692 S.E.2d 900, 903 (2010) ("Under the [two-issue] rule, [when] a decision is
based on more than one ground, the appellate court will affirm unless the appellant
appeals all grounds because the unappealed ground will become the law of the
case.") abrogated on other grounds by Repko v. Cnty. of Georgetown, 424 S.C.
494, 505, 818 S.E.2d 743, 749 (2018). Respondents contend Appellants have
argued only that the decisions of the BZA and circuit court were controlled by
errors of law. We disagree with this characterization of Appellants' argument.

Although Appellants did not use the words "factual finding" in their statement of
issues, their primary argument is that the master erred in affirming the BZA's
findings that the 2016 approval did not constitute approval of a site specific
development plan nor establish a vested right to build the structures at the greater
height permitted prior to the amendment of the LMO. This argument necessarily
includes a challenge of the BZA's factual finding regarding Appellants' variance
application submission. Moreover, Appellants' arguments addressing the factual
finding are reasonably clear from the arguments set forth in their opening brief to
this court. See Herron v. Century BMW, 395 S.C. 461, 466, 719 S.E.2d 640, 642
(2011) ("When an issue is not specifically set out in the statements of issues, the
appellate court may nevertheless consider the issue if it is reasonably clear from an
appellant's arguments.").

Nevertheless, we affirm the master-in-equity's orders affirming the BZA's 2018
decision overruling the Official's determination. In response to a letter from
Appellants' counsel, the Official opined the BZA's 2016 approval of the setback
and buffer variances constituted approval of a site specific development plan and
established a vested right3 for the landowner to build the proposed homes to the

3
"'Vested right' means the right to undertake and complete the development of
property under the terms and conditions of a site specific development plan or a
phased development plan as provided in this article and in the local land
development ordinances or regulations adopted pursuant to this chapter." S.C.
Code Ann. § 6-29-1520(10) (Supp. 2021). "A vested right is established for two
years upon the approval of a site specific development plan." S.C. Code Ann.
§ 6-29-1530(A)(1) (Supp. 2021). "A vested right established by this article and
in accordance with the standards and procedures in the land development
ordinances or regulations adopted pursuant to this chapter is subject to the
following conditions and limitations: (1) the form and contents of a site specific
development plan must be prescribed in the land development ordinances or
regulations. . . ." S.C. Code Ann. § 6-29-1540(1) (Supp. 2021). These code
maximum height of seventy-five feet allowed by the LMO in 2016. In overruling
this determination, the BZA made the following finding of fact: "The previous
variance application, VAR-352-2016, did not include a site specific development
plan as defined in South Carolina State Code Section 6-29-1520."

The BZA's conclusion of law followed:

Without a site specific development plan, the granting of
the variances in VAR-2016 did not create a vested right,
as defined by South Carolina State Code Section
6-29-1520, to build at any particular height. Absent any
such vested right, the height restriction is 45 feet above
base flood elevation as set forth in the current RM-8
zoning[4] of the property.

Both the South Carolina Vested Rights Act—and the LMO the Town promulgated
in accordance with it—specifically reference "a variance" in the context of vested
rights established "upon the approval of a site specific development plan." See
S.C. Code Ann. § 6-29-1530(A)(1) and § 6-29-1520(9); LMO § 16-2-102.J.1.a.
But, like the BZA, the master found Appellants "never filed with the Town or the
BZA a site specific development plan ("Site Plan") for the subject property,
containing the elements required by LMO Appendix D-19.A.2 and A.4." The
LMO specifies what must be submitted with a variance application, including but
not limited to:

A.2 A site plan at a scale of 1"=30' accurately showing
the variance(s) requested. If the application is for a
variance of Sec. 16-6-102.D, Wetland Buffer Standards,
the survey must be certified by the permitting authority.

A.4 written narrative explaining in detail the variance(s)
requested and how the criteria of Sec. 16-2-103.S.4,

sections are part of the South Carolina Vested Rights Act. See S.C. Code Ann.
§§ 6-29-1510 to -1560 (Supp. 2021).
4
In 2018, the zoning for the district for 28 Bradley Circle and 3 Whelk Street was
changed from RD to RM-8 (Moderate Density Residential), which allows a
maximum height of forty-five feet above BFE.
Variance Review Standards, apply to the variance
request.
LMO Appendix D-19.A.2 and A.4. Section 16-10-105 of the LMO defines a "Site
Plan" as a "detailed engineering plan to scale showing uses and structures for a
parcel of land as required by this Ordinance."

The site plan Appellants submitted with their variance application for 28 Bradley
Circle and 3 Whelk Street was neither drawn to scale nor specific as to the heights
of the proposed homes; the application sought setback and buffer variances,
addressing only the horizontal footprint of the proposed structures, not the vertical
aspects. At the hearing before the master-in-equity, Appellants stated:

And there was a lot of discussion about the not to scale
drawings that were submitted. And, you know, even
though they're not to scale, they do contain some
dimensions. And I will tell you that some of those
elevations scale out to—one of them is 58 feet. One of
them scales out to 45 feet, I believe.5

Although the record reflects there was much discussion about the height of the
proposed homes before the BZA—neighborhood concerns about height, parking,
and safety are referenced, as is a height allowance of "up to 75 feet"—we are
unable to find any consensus regarding the height of the proposed structures
depicted in Attachment H to Appellants' variance application. In fact, Appellants
admitted "there's nothing that tells you what the exact height of the buildings are."

Likewise, the Official presented the following testimony at the March 26, 2018
BZA hearing: (1) Attachment H did not specify the height of the proposed homes
for 28 Bradley Circle and 3 Whelk Street; (2) because Attachment H lacked
information as to the height of the homes, the Town planning staff made its own
determination regarding height; (3) Attachment H showed "four stories over
parking," which is neither defined in the LMO nor has any specific meaning; and
(4) the Official's initial height determination of seventy-five feet was incorrect—

5
At this hearing, Appellants also referenced a "settlement agreement of the appeal
of the variances." A recorded "Settlement Agreement and Restrictive Covenants"
appears to be the settlement of an appeal from the BZA's 2016 granting of the
horizontal footprint variance requests. This prior agreement does not address the
heights of the proposed structures.
her new calculation of fifty-two feet one and a half inches was "based on the
approved elevation drawings of the recently constructed houses in the area."

Respondent Becker testified at the 2018 hearing that the ordinance reducing the
maximum height for the two proposed structures from seventy-five to forty-five
feet came about due to the 2016 outcry of residents concerned that a proposed
"towering mini hotel disguised as a single family home was affecting the
neighborhood." In opposing Appellants' argument that the BZA's approval of the
variance application vested their rights in the prior seventy-five-foot height limit,
Becker summarized the objections as: the lack of a proper site plan, the ordinance
pending at the time of the 2016 variance application, the builder's self-imposed
hardship, and the builder's failure to provide the height measurements in either a
"to scale" site plan or the written narrative required by LMO Appendix D-19.

Because Attachment H to Appellants' variance application is not drawn to scale
and does not show the heights of the proposed homes with "reasonable certainty,"
we find the master correctly affirmed the BZA's finding that its 2016 approval did
not constitute approval of a site specific development plan as defined by the LMO.
See Boehm v. Town of Sullivan's Island Bd. of Zoning Appeals, 423 S.C. 169, 185,
813 S.E.2d 874, 882 (Ct. App. 2018) ("All rules of statutory construction are
subservient to the one that legislative intent must prevail if it can be reasonably
discovered in the language used, and that language must be construed in light of
the intended purpose of the statute." (quoting Eagle Container Co. v. Cnty. of
Newberry, 379 S.C. 564, 570, 666 S.E.2d 892, 895 (2008))); id. ("'[W]ords in a
statute must be construed in context,' and 'the meaning of particular terms in a
statute may be ascertained by reference to words associated with them in the
statute.'" (quoting Eagle Container Co., 379 S.C. at 570, 666 S.E.2d at 895–96));
Arkay, LLC v. City of Charleston, 418 S.C. 86, 91, 791 S.E.2d 305, 308 (Ct. App.
2016) ("The appellate court gives 'great deference to the decisions of those charged
with interpreting and applying local zoning ordinances.'" (quoting Gurganious v.
City of Beaufort, 317 S.C. 481, 487, 454 S.E.2d 912, 916 (Ct. App. 1995)).
Appellants failed to comply with LMO Appendix sections D-19.A.2 and A.4,
which require both a site plan "at a scale of 1"=30'" and a written narrative.

In light of the BZA's findings addressing the 2016 variance application and the
submission requirements of the Town's LMO, we find Appellants' rights are vested
only as to the horizontal setback and buffer variances and not as to the greater
height allowance in effect prior to the Town's 2017 amendment of its LMO.

AFFIRMED.
THOMAS, MCDONALD, and HEWITT, JJ., concur.