Frieda H. Dortch v. City of Columbia

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

Frieda H. Dortch, Appellant,

v.

City of Coumbia, Planning & Development
Services/Zoning Division a/k/a City of Columbia Board
of Zoning Appeals, Respondent.

Appellate Case No. 2019-000868

Appeal From Richland County
Walton J. McLeod, IV, Circuit Court Judge

Unpublished Opinion No. 2022-UP-307
Heard April 7, 2022 – Filed July 20, 2022

AFFIRMED

M. Baron Stanton, of Stanton Law Offices, P.A., of
Columbia, for Appellant.

Peter M. Balthazor, of Riley Pope & Laney, LLC, of
Columbia, for Respondent.

PER CURIAM: Frieda H. Dortch asserts the circuit court erred in affirming the
City of Columbia Board of Zoning Appeals' (Board) rulings regarding her
residential housing duplex at 825 and 825 1/2 Heidt Street. Dortch contends (1)
the circuit court applied an incorrect standard of review; (2) the circuit court erred
in affirming the Board's finding that her property lost its grandfather status; (3) the
circuit court erred in affirming the Board's decision to deny her variance requests;
and (4) she had a constitutionally vested right to continue her nonconforming use.
We affirm.

1. The circuit court applied the correct standard of review. No authority supports
Dortch's contention that our state or federal constitutions required the circuit court
to review the Board's decisions de novo. See S.C. Code Ann. § 6-29-840(A)
(Supp. 2021) ("The findings of fact by the [B]oard . . . must be treated in the same
manner as a finding of fact by a jury, and the [circuit] court may not take additional
evidence."); Newton v. Zoning Bd. of Appeals for Beaufort Cnty., 396 S.C. 112,
117, 719 S.E.2d 282, 284 (Ct. App. 2011) ("The circuit court may not take
additional evidence and 'must determine only whether the decision of the board is
correct as a matter of law.'" (quoting § 6-29-840(A))); Clear Channel Outdoor v.
City of Myrtle Beach, 360 S.C. 459, 466, 602 S.E.2d 76, 79 (Ct. App. 2004) ("[A]
court will uphold the decisions of a reviewing body if there is any evidence in the
record to support its decision."), aff'd, 372 S.C. 230, 642 S.E.2d 565 (2007).

2. The circuit court did not err in affirming the Board's finding that Dortch's
property lost its grandfather status because evidence that the duplex had been
vacant for twelve consecutive months supported the Board's finding. See
COLUMBIA, S.C., CODE § 17-202(e) (1999) ("A nonconforming use . . . shall not be
reestablished after vacancy, abandonment[,] or discontinuance for any period of 12
consecutive months . . . ."); Gurganious v. City of Beaufort, 317 S.C. 481, 489-90,
454 S.E.2d 912, 917-18 (Ct. App. 1995) (affirming a ruling that a property lost its
grandfather status because the zoning ordinance reasonably prohibited reuse or
reoccupation "after discontinuance of use or occupancy for a period of one year or
more" (quoting CITY OF BEAUFORT, S.C., CODE § 5-6108)).

3. The circuit court did not err in affirming the Board's decision to deny Dortch's
variance request. Restaurant Row Assocs. v. Horry Cnty., 335 S.C. 209, 216, 516
S.E.2d 442, 446 (1999) (noting a variance applicant bears "the burden of proving
entitlement to a variance"); COLUMBIA, S.C., CODE § 17-112(3)b.1.(i), (3)b.5.
(2013) (requiring the Board to find "extraordinary and exceptional conditions
pertaining to [a] piece of property" before granting a variance); COLUMBIA, S.C.,
CODE § 17-112(3)b.2. (2013) ("The [B]oard may not grant a variance the effects of
which would be to allow the establishment of a use not otherwise permitted in a
zoning district . . . .").
4. In Dortch's petition for appeal, she omitted her contention that she had a
constitutionally vested right to continue using her duplex; thus, she failed to
preserve it for appellate review. See Newton, 396 S.C. at 117, 719 S.E.2d at 284
("[T]he sole preservation requirement for a first-level appeal of a zoning board's
decision is that an appellant must set forth his issues on appeal in a written petition
and file that petition with the circuit court before the thirty-day filing period
expires."); Austin v. Bd. of Zoning Appeals, 362 S.C. 29, 37, 606 S.E.2d 209, 213
(Ct. App. 2004) (noting section 6-29-820 of the South Carolina Code (2004 &
Supp. 2021) "makes no provision for amendment of the grounds set forth in the
petition"); Clear Channel Outdoor v. City of Myrtle Beach, 372 S.C. 230, 235, 642
S.E.2d 565, 567 (2007) ("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.").

AFFIRMED.

WILLIAMS, C.J., and KONDUROS and VINSON, JJ., concur.