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Unpublished Opinion No. 2008-UP-082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Withdrawn and Substituted April 28, 2008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”).