Dewberry 334 Meeting Street, LLC v. City of Charleston and Board of Zoning Appeals-Zoning

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

Dewberry 334 Meeting Street, LLC, Respondent,

v.

City of Charleston and Board of Zoning Appeals-Zoning,
Appellants.

Appellate Case No. 2018-000378

Appeal From Charleston County
J. C. Nicholson, Jr., Circuit Court Judge

Unpublished Opinion No. 2021-UP-360
Heard September 15, 2020 – Filed October 20, 2021

REVERSED

Frances Isaac Cantwell and Daniel Simmons
McQueeney, Jr., both of Charleston, for Appellants.

John Phillips Linton, Jr. and George Trenholm Walker,
both of Walker Gressette Freeman & Linton, LLC, of
Charleston, for Respondent.

PER CURIAM: The City of Charleston (City) and Board of Zoning Appeals-
Zoning (BZA) (collectively, Appellants) appeal the order of the circuit court
vacating the BZA's decision and declaring Dewberry 334 Meeting Street, LLC
(Dewberry) has the legal right to certain accessory uses on the eighth floor of its
hotel. We reverse.

1. We agree with Appellants' argument that the circuit court erred in holding the
City's zoning ordinances did not prohibit Dewberry from adding new accessory
uses to the hotel building without first obtaining BZA approval.

"Issues involving the construction of ordinances are reviewed as a matter of law
under a broader standard of review than is applied in reviewing issues of fact."
Mitchell v. City of Greenville, 411 S.C. 632, 634, 770 S.E.2d 391, 392 (2015).
"The cardinal rule of statutory interpretation is to ascertain and effectuate the
legislative intent whenever possible." Id. "When interpreting an ordinance,
legislative intent must prevail if it can be reasonably discovered in the language
used." Id. "An ordinance must receive a practical, reasonable, and fair
interpretation consonant with the purpose, design, and policy of the lawmakers."
Id. "The statutory language must be construed in light of the intended purpose of
the statute." Florence Cnty. Democratic Party v. Florence Cnty. Republican Party,
398 S.C. 124, 128, 727 S.E.2d 418, 420 (2012). The appellate court "will not
construe a statute in a way which leads to an absurd result or renders it
meaningless." Id. "[I]t is well-settled that statutes dealing with the same subject
matter are in pari materia and must be construed together, if possible, to produce a
single, harmonious result." Beaufort County v. S.C. State Election Comm'n, 395
S.C. 366, 371, 718 S.E.2d 432, 435 (2011). "[W]here two provisions deal with the
same issue, one in a general and the other in a more specific and definite manner,
the more specific prevails." Mikell v. County of Charleston, 386 S.C. 153, 160,
687 S.E.2d 326, 330 (2009).

According to section 54-220 of the City of Charleston Code of Ordinances (2016),1
accommodation uses were only allowed in the A Overlay Zone2 and only with
approval of the BZA. The ordinance explained the intent of the City as follows:
"The City places a high value on the preservation of the character of its residential
neighborhoods. Potential negative impacts affecting residential neighborhoods
shall be avoided or minimized to the greatest extent possible." Section 54-220
required an applicant to provide site plans, floor plans, building elevations, and a
detailed written assessment report to the BZA for its consideration. This
information must have included "the proximity of residential neighborhoods to the

1
The City of Charleston has revised these ordinances since this matter arose. We
refer to the ordinances as they appear in the record on appeal.
2
The ordinance permits some exceptions not relevant to this case.
facility" and "the accessory uses proposed for the facility in terms of the size,
impact on parking, and impact on traffic generation[.]" In addition, section 54-925
of the City of Charleston Code of Ordinances (2016) provided, "In granting an
exception or a variance, the [BZA] may attach to it such conditions regarding the
location, character or other features of the proposed building, structure, or use as
the [BZA] may consider advisable to protect established property values in the
surrounding area, or to promote the public health, safety, or general welfare."

The zoning ordinances clearly authorized the BZA to consider all of the plans for a
hotel, including all of the accessory uses. In addition, the ordinances authorized
the BZA to place conditions on accessory uses. This authorization would have
been meaningless if a hotel could add or change accessory uses without seeking
BZA approval for such alterations. Under the circuit court's interpretation of the
ordinances, a hotel, such as Dewberry, could submit plans for a special exception
that did not include any objectionable accessory uses and then, after receiving BZA
approval, include in the construction a use the BZA would not have approved. We
find such an interpretation does not comport with the intent of the zoning
ordinance, which had the stated goal of preserving the character of the City's
residential neighborhoods and sought to avoid or minimize potential negative
impacts affecting residential neighborhoods to the greatest extent possible.

We find the circuit court erred in holding that a property owner was entitled to all
accessory uses that accompanied a principal use. The circuit court relied on
section 54-203 of the City of Charleston Code of Ordinances (2016), which
addressed permitted principal uses and provided, "Accessory uses, which for the
purposes of this Chapter are defined as uses of land or of a building or portion
thereof which are customarily incidental and subordinate to a principal use located
on the same lot or parcel, are allowed . . . ." This definition was in the general
ordinance concerning permitted principal uses. The more specific ordinances
concerning special exceptions for accommodation uses and granting the BZA
authority over accessory uses prevail over this general definition. See Mikell, 386
S.C. at 160, 687 S.E.2d at 330 (stating "where two provisions deal with the same
issue, one in a general and the other in a more specific and definite manner, the
more specific prevails").

We agree with Appellants' argument that the circuit court erred in interpreting the
2011 special exception permit and conditions contained therein as tacit permission
for Dewberry to add new accessory uses to the eighth floor and rooftop. The
circuit court stated, "If the BZA desired to condition its accommodations use for
this location at 334 Meeting Street on the prohibition of uses like a function,
reading room, pantry or small bar/restaurant inside the eighth floor, then it could
have crafted such a condition as part of its approval." As stated above, the zoning
ordinance charged the BZA with the authority to review site plans, floor plans,
building elevations, and a detailed written assessment report. This information
must include "the accessory uses proposed for the facility in terms of the size,
impact on parking, and impact on traffic generation." The BZA evaluated an
application based on the detailed information the applicant provided to it. It was
not charged with anticipating any and all possible accessory uses and prohibiting
uses it was not asked to consider.

While the circuit court correctly found that a hotel would not be irrevocably bound
by the conceptual floor plans presented to the BZA, Appellants never advocated
such an inflexible position. Appellants explain in their brief to this court that
although "the Zoning Administrator referred to the approved uses shown on the
floor plans as being 'set in stone,' . . . this comment was qualified several times
with explanations that changes would be locked in unless Dewberry received an
amended special exception for the completely new accessory uses." The BZA's
approval of a rooftop pool did not require Dewberry to complete an unfeasible
project. However, before Dewberry could construct alternative accessory uses, it
was required to submit its revised plans to the BZA to allow the BZA the
opportunity to exercise its authority as granted in the ordinances. We find
Appellants' interpretation reasonable. See Mitchell, 411 S.C. at 634, 770 S.E.2d at
392 ("An ordinance must receive a practical, reasonable, and fair interpretation
consonant with the purpose, design, and policy of the lawmakers.")

We therefore hold the circuit court erred in finding the zoning ordinances did not
require Dewberry to submit a new application to the BZA upon its revision of its
plans for the eighth floor and rooftop.

2. Appellants argue the circuit court erred in holding the BZA's decision to deny
Dewberry an amendment to the 2011 special exception was arbitrary and
capricious. We agree.

"On appeal, the findings of fact by the [Zoning] Board shall be treated in the same
manner as a finding of fact by a jury, and the court may not take additional
evidence." Helicopter Sols., Inc. v. Hinde, 414 S.C. 1, 8-9, 776 S.E.2d 753, 757
(Ct. App. 2015) (alteration in original) (quoting Wyndham Enters., LLC v. City of
North Augusta, 401 S.C. 144, 147, 735 S.E.2d 659, 661 (Ct. App. 2012)); see S.C.
Code Ann. § 6-29-840(A) (Supp. 2020) ("The 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."). "In reviewing the questions presented
by the appeal, the court shall determine only whether the decision of the [Zoning]
Board is correct as a matter of law." Helicopter Sols., Inc., 414 S.C. at 9, 776
S.E.2d at 757 (alteration in original) (quoting Wyndham Enters., 401 S.C. at 147-
48, 735 S.E.2d at 661). "However, a decision of a municipal [Z]oning 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. (alteration in original)
(quoting Wyndham Enters., 401 S.C. at 148, 735 S.E.2d at 661). "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)).

"The appellate court gives 'great deference to the decisions of those charged with
interpreting and applying local zoning ordinances.'" Arkay, LLC v. City of
Charleston, 418 S.C. 86, 91, 791 S.E.2d 305, 308 (Ct. App. 2016) (quoting
Gurganious v. City of Beaufort, 317 S.C. 481, 487, 454 S.E.2d 912, 916 (Ct. App.
1995)). "A court will refrain from substituting its judgment for that of the
reviewing body, even if it disagrees with the decision." Furr v. Horry Cnty.
Zoning Bd. of Appeals, 411 S.C. 178, 184, 767 S.E.2d 221, 224 (Ct. App. 2014)
(quoting Clear Channel Outdoor v. City of Myrtle Beach, 372 S.C. 230, 234, 642
S.E.2d 565, 567 (2007)). "The party challenging a governmental body's decision
bears the burden of proving the decision is arbitrary." Pressley v. Lancaster
County, 343 S.C. 696, 704, 542 S.E.2d 366, 370 (Ct. App. 2001).

Dewberry asserts the City's concerns about noise emanating from the eighth floor
are unfounded because the thickness of the glass on the exterior of the building
would prevent any noise from being heard from the outside. Although Dewberry
contends the Citrus Club is not a rooftop bar, it admitted in its brief that "guests
visiting the interior accessory uses are free to go on the terrace, and, to that extent,
their presence on the terrace might be considered an extension of the uses on the
interior or facilitated by the accessory uses[.]" Dewberry also claims the Citrus
Club would continue Dewberry's theme of elegance and would not be a rowdy
place "like a biker bar." However, one of the neighborhood residents who opposed
Dewberry's application for an amendment of the special exception testified at the
BZA hearing Dewberry had already been ticketed twice due to noise generated
from activities on the first floor.3 Another resident related his observation of the
sound intensity at street level emanating from another rooftop bar. Although
Dewberry portrays the uses of the Citrus Club and function rooms as small and
intimate, one neighborhood resident testified he had been invited to a large party,
which was attended by 200 to 250 people, and had been planned to be held on the
rooftop before the City closed the eighth floor.

We find a letter from the designer of the sound system for the hotel asserting the
music would not be heard from street level does not contradict the concerns about
noise. The concern was not only about the volume of music but also the sounds of
conversations emanating from large groups on the rooftop. We also reject
Dewberry's assertion that the City's noise ordinance would alleviate any concerns
about noise. This ordinance did not stop Dewberry from being cited in livability
court for parties on the first floor.

Dewberry contends the conditions the BZA set forth in the 2011 special exception
would serve to alleviate any of the issues raised by the City. However, the
accessory uses shown in the 2011 application—the spa/fitness area and pool—
would have been used by patrons of the hotel. Under Dewberry's current plans, the
general public can use the Citrus Club and the events held in the function rooms
are not limited to hotel patrons. As a representative of the Historic Charleston
Foundation testified at the BZA hearing, "There's a large difference [between]
paying guests of a hotel[] getting drinks via room service [or] a bar and having a
publically open bar on the rooftop." In addition, Dewberry did not simply move
accessory uses approved in the 2011 special exception to the eighth floor from
other locations in the hotel. The hotel still has a ballroom and restaurant operating
on the first floor. The proposed uses for the eighth floor would draw additional
people to the hotel. Dewberry, however, failed to provide the BZA with
information about the "impact on parking[] and impact on traffic generation" as
required by the zoning ordinance.

We find the neighborhood residents expressed valid concerns. One testified about
his own experiences hearing noise from rooftop bars and another related being
invited to a large party that was to have been held on the rooftop. The residents
testified about how Dewberry broke their trust by gaining their approval with the
2011 plans and then changing those plans to include a bar, which had been their

3
Dewberry explained the violations were due to its misunderstanding that the
restriction prohibiting outdoor amplified music applied just to the roof while in fact
it applied to the entire hotel.
biggest concern during the original application time. Thus, not all of the testimony
presented by the residents was speculative as the trial court held. Furthermore,
unlike as in Wyndham Enterprises upon which the trial court relied, the record
does not contain any direct evidence contradicting the residents' concerns. See
Wyndham Enters., 401 S.C. at 149-50, 735 S.E.2d at 662 (explaining city staff
determined the proposed use would not generate a significant amount of traffic,
which contradicted the residents' speculative concerns about increased traffic).

Dewberry bore the burden of showing that the new uses of the eighth floor and
rooftop would avoid or minimize potential negative impacts on the neighborhood.
We hold the record contains evidence to support the BZA's decision that Dewberry
failed to meet this burden.

3. Appellants argue the circuit court erred in reversing the BZA's decision to deny
Dewberry an amended special exception based on the doctrine of governmental
estoppel. We agree.

As the defense of estoppel is equitable in nature, "[i]n reviewing the trial court's
decision, this court may make findings of fact according to its own view of the
preponderance of the evidence." Moates v. Bobb, 322 S.C. 172, 175, 470 S.E.2d
402, 403 (Ct. App. 1996). As a general rule, estoppel does not lie against the
government to prevent the due exercise of its police power or to thwart the
application of public policy. Grant v. City of Folly Beach, 346 S.C. 74, 80, 551
S.E.2d 229, 232 (2001). "No estoppel can grow out of dealings with public
officers of limited authority, and the doctrine of equitable estoppel cannot
ordinarily be invoked to defeat a municipality in the prosecution of its public
affairs because of an error or mistake of . . . one of its officers or agents." Quail
Hill, LLC v. County of Richland, 387 S.C. 223, 236, 692 S.E.2d 499, 506 (2010)
(omission in original) (quoting DeStefano v. City of Charleston, 304 S.C. 250, 257-
58, 403 S.E.2d 648, 653 (1991)). "A governmental body is not immune from the
application of the doctrine of estoppel where its officers or agents act within the
proper scope of their authority." Id. (quoting DeStefano, 304 S.C. at 258, 403
S.E.2d at 653). "The public cannot be estopped, however, by the unauthorized or
erroneous conduct or statements of its officers or agents which have been relied on
by a third party to his detriment." Id. (quoting DeStefano, 304 S.C. at 258, 403
S.E.2d at 653). In addition, "administrative officers of the state cannot estop the
state through mistaken statements of law." Id. (quoting Greenville County v.
Kenwood Enters., Inc., 353 S.C. 157, 172, 577 S.E.2d 428, 436 (2003), overruled
on other grounds by Byrd v. City of Hartsville, 365 S.C. 650, 620 S.E.2d 76
(2005)). "Specifically, '[e]stoppel will not lie against a government entity where a
government employee gives erroneous information in contradiction of statute.
Simply stated, equity follows the law.'" Id. (alteration in original) (quoting
Morgan v. S.C. Budget & Control Bd., 377 S.C. 313, 319, 659 S.E.2d 263, 267 (Ct.
App. 2008)).

In order for estoppel to be applicable against a government agency, the asserting
party must prove "(1) lack of knowledge and of the means of knowledge of the
truth as to the facts in question, (2) justifiable reliance upon the government's
conduct, and (3) a prejudicial change in position." Id. at 236-37, 692 S.E.2d at
506; see Grant v. City of Folly Beach, 346 S.C. 74, 82, 551 S.E.2d 229, 233 (2001)
(holding the city was not estopped from excluding the residential use of a unit
because even if the property owner had been misled by the permit's reference to an
"apartment," he could have reviewed the zoning/flood ordinance to ascertain the
limitations on his building).

Section 54-901 of the City of Charleston Code of Ordinances (2016) provided,

The duty to administer and to enforce the provisions of
this Chapter is hereby conferred upon the zoning
administrator, herein referred to as the administrative
officer of the Zoning Ordinance. The city building
inspector shall inspect all construction or alteration for
which permits are issued by the city engineer or as
authorized by the Board of Zoning Appeals or as
authorized by the Board of Architectural Review, as
hereinafter provided, and shall make a weekly report in
writing to the city engineer's office, listing all
construction inspected and specifying any work observed
by him which is not in accordance with permits issued, or
which violates this chapter or any other ordinance of the
city.

While this ordinance charges the building inspector with reporting to the city
engineer's office any work not in accordance with permits or in violation of
ordinances, it does not authorize the inspector to waive any zoning ordinance
requirements. The building inspector has limited authority. There is no evidence
in the record the building inspector told Dewberry it did not have to submit an
amended application to the BZA. The inspector simply never stopped
construction. Furthermore, as stated above, the City's ordinances clearly require
applicants to submit all plans to the BZA and authorize the BZA to evaluate all
accessory uses. Dewberry was required by the ordinances to submit an application
for an amendment.

We find Dewberry knew or should have known from the ordinances that it was
required to submit an application for an amendment to the 2011 special exception.
It could not rely on the building division's approval of its plans or on the building
inspector's failure to stop the construction to justify its decision to proceed with the
construction without first submitting the application to the BZA.

For the above stated reasons, the order of the circuit court vacating the BZA's
decision and declaring Dewberry has the legal right to continue the accessory uses
on the eighth floor is

REVERSED.

HUFF, WILLIAMS, and GEATHERS, JJ., concur.