Beachwalk Hotel v. The Town of 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 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Beachwalk Hotel & Condominiums Association, Inc. and
Beachwalk Hilton Head, LLC, Appellants,

v.

The Town of Hilton Head Island and/or The Town of
Hilton Head Island Board of Zoning Appeals, and SDC
Properties, Inc., Respondents.

Appellate Case No. 2020-000617

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

Unpublished Opinion No. 2023-UP-232
Heard April 12, 2023 – Filed June 7, 2023

AFFIRMED

Thomas C. Taylor, of Law Offices of Thomas C. Taylor,
LLC, of Bluffton; and Kathleen McColl McDaniel, of
Burnette Shutt & McDaniel, PA, of Columbia, both for
Appellants.

Gregory Milam Alford, of Alford Law Firm LLC, of
Hilton Head Island; and Brian Earl Hulbert, of Beaufort,
both for Respondent The Town of Hilton Head Island and
The Town of Hilton Head Island Board of Zoning
Appeals.

Stephen Harrison Williams, of Shelton Law Firm, LLC, of
Hilton Head Island; and William Lamar Johnson, II, and
Barry L. Johnson, both of Johnson & Davis, PA, both of
Bluffton, all for Respondent SDC Properties, Inc.

PER CURIAM: Beachwalk Hotel & Condominiums Association, Inc.
(Beachwalk) appeals the master in equity's decision upholding development
approvals granted by the Town of Hilton Head Island Board of Zoning Appeals and
the Town's planning staff. Beachwalk argues that the approving authorities did not
properly consider the density requirements in an overlay zoning district when
evaluating the proposed development. Beachwalk also argues the approval was
impermissibly based, at least in part, on a finding that the subject property would
have no economic value if Beachwalk prevailed.

STANDARD OF REVIEW

"[S]ection 6-29-840 [of the South Carolina Code (Supp. 2022)] prescribes the
standard of review a circuit court should apply when considering an appeal from a
local zoning board." Austin v. Bd. of Zoning Appeals, 362 S.C. 29, 35, 606 S.E.2d
209, 212 (Ct. App. 2004). The statute provides "[t]he findings of fact by the board
of appeals must be treated in the same manner as a finding of fact by a jury, and the
court may not take additional evidence." S.C. Code Ann. § 6-29-840(A) (Supp.
2022). A jury's factual findings will not be disturbed on appeal unless the record
contains no evidence reasonably supporting the jury's findings. Austin, 362 S.C. at
35, 606 S.E.2d at 212.

We apply the same standard here. "In reviewing the questions presented by the
appeal, the court shall determine only whether the decision of the [b]oard is correct
as a matter of law." Id. at 33, 606 S.E.2d at 211. "However, a decision of a municipal
zoning board will be overturned if it is arbitrary, capricious, has no reasonable
relation to a lawful purpose, or if the board has abused its discretion." Id. (quoting
Rest. Row Assocs. v. Horry County, 335 S.C. 209, 216, 516 S.E.2d 442, 446 (1999)).
"An abuse of discretion occurs when a trial court's decision is unsupported by the
evidence or controlled by an error of law." Newton v. Zoning Bd. of Appeals for
Beaufort Cnty., 396 S.C. 112, 116, 719 S.E.2d 282, 284 (Ct. App. 2011) (quoting
County of Richland v. Simpkins, 348 S.C. 664, 668, 560 S.E.2d 902, 904 (Ct. App.
2002)).

CONSIDERATION OF OVERLAY DISTRICT

Beachwalk argues that local planning officials failed to properly consider the density
of the existing development in the PD-2 District when reviewing the plan to
construct a welcome center on the parcel in question, Parcel E. Beachwalk asserts
the existing development in the PD-2 District already exceeds the allowed density
in the current ordinances and there can be no further development in the district as a
consequence.

We respectfully disagree. Although the record in this case is complicated, as we will
explain, we think there is no question the local planning officials considered the
existing density and the density regulations when approving this development.

In 1987, Hilton Head's town council granted a special exception/conditional use
permit and approved a master plan for the overlay district that is involved—the PD-2
District. These documents, which we collectively refer to as the 1987 documents,
set precise density limits for this overlay district and were specifically approved by
the Town Council. See Hilton Head Island, S.C., Code § 16-3-106.G.5 (indicating
the PD-2 District's approved 1987 master plan was incorporated by reference into
the Town's official zoning map and land management ordinances). This approval
resulted in the master plan becoming part of the Town's official ordinances and
zoning map.

There is no indication in the record that the density limits permitted under the 1987
documents expired or were revised. The Town's ordinances indicate that future
construction in the district must follow whichever density limits—the base zoning
district under the land management ordinance or the overlay district's
requirements—are more restrictive. See Hilton Head Island, S.C., Code
§ 16-1-106.A.1 ("When any [land management ordinance] provision is inconsistent
with another [land management ordinance] provision, or a provision found in other
adopted codes or ordinances of the Town, the more restrictive provision shall govern
unless the terms of the more restrictive provision specify otherwise. The more
restrictive provision is the one that imposes greater restrictions or burdens, or more
stringent controls." (emphasis omitted)). The proposed development passes both
tests. The project is a 7,500 square foot welcome center on Parcel E, which is 1.068
acres. This is permitted under the current land management ordinance: the base
district has a density limit of 8,000 square feet per net acre, which would allow 8,544
square feet of nonresidential use on Parcel E. See Hilton Head Island, S.C., Code
§ 16-3-105.L.3 (limiting nonresidential density in the underlying RD district to
8,000 square feet per net acre). It is also permitted under the 1987 documents: those
documents, which became part of the land management ordinance when they were
approved, leave 16,787 square feet of available commercial office density remaining
for use throughout the district. 1 Therefore, the local planning officials' decision to
permit the development was not an abuse of discretion and was also not arbitrary or
capricious.

A large part of Beachwalk's argument focuses on the ordinance's mandate that, "The
average density for the PD-2 Overlay District shall not exceed the maximum density
permitted in the base zoning district." Hilton Head Island, S.C., Code
§ 16-3-106.G.4.a (emphasis omitted). The ordinance does not define "average
density," and when the ordinance discusses density, it mandates that residential and
nonresidential densities should not be added together. Hilton Head Island, S.C.,
Code § 16-10-102.B.2. The record suggests the local planning official reasoned that
the Town considered average density when it approved the 1987 documents and that
the approval established the average densities that would be allowed in this district.
We cannot say the planning official clearly erred in adopting this interpretation or
that the board of zoning appeals clearly erred in letting the approval stand.

Beachwalk believes that average density should be calculated with the ordinance's
present density requirements for a planned unit development (PUD) and correctly
observes the ordinance would not allow a PUD to be developed in this way if the
development was started today, from scratch. We take the point, and it is a good
one. Even so, the reason we think it misfires is because this development has an
approved master plan. It is not starting from scratch. We cannot say it was arbitrary
or capricious for the Town to let the local planning official's interpretation of the
local ordinance stand as setting average density limits for this district when the Town
approved the 1987 documents and incorporated that approval into the land
management ordinance.

One last point on this issue: the 1995 "categorical exemption" for this development
has no bearing on this case. The categorical exemption would have completely freed
any development from complying with the local ordinance while the exemption was

1
The 1987 documents approved 21,913 square feet of commercial office space for
the district. There is 5,126 square feet of commercial office space that has already
been built. That leaves 16,787 square feet of commercial office space density
available.
in effect. Now that the exemption has expired, the development is bound by the
master plan or the base zoning district, whichever is stricter. As explained above,
local officials reasonably concluded that this proposed development is within the
base district's and master plan's allowable density.

LOSS OF ECONOMIC VALUE

As already noted, Beachwalk argues the master erred in basing his decision in part
on a finding that there would be no economic utility for Parcel E if Beachwalk
prevailed.

Our finding that the local planning officials did not clearly err in their interpretation
of the land management ordinance is dispositive, so we will not address this
argument. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613,
518 S.E.2d 591, 598 (1999) (holding an appellate court need not address remaining
issues on appeal when its determination of a prior issue is dispositive).

CONCLUSION

Based on the foregoing, the master's order is

AFFIRMED.

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