Blalock v. City of Aiken

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

In Re:  Kathleen Blalock and William Blalock,       
Appellants,

v.

City of Aiken, City of Aiken Planning Department, City of Aiken Board
of Zoning Appeals, Bruce McGhee and Janis McGhee, d/b/a Aiken Mile Track,       
Respondents.

Appeal From Aiken County

Rodney A. Peeples, Circuit Court Judge

Unpublished Opinion No. 2004-UP-057

Submitted January 12, 2004 – Filed January 29, 2004

AFFIRMED

James D. Nance and A. Shane Massey, both of Aiken, for Appellants.

Bruce McGhee, Janis McGhee and Richard L. Pearce,
all of Aiken, for Respondents.

PER CURIAM:  William and Kathleen Blalock
appeal an order by the City of Aiken’s Board of Zoning Appeals (“BZA”), subsequently
affirmed by the circuit court, granting Bruce and Janet McGhee a special exception
to the city’s zoning ordinance.  We affirm.

FACTS

The McGhees own and operate a horse
racing and training facility in the “Horse District” zone of Aiken.  They filed
an application with the BZA for a special exception to the city’s zoning ordinance
to construct an eating establishment, tack shop, grooms’ quarters and trainers’
quarters on the 78- acre property. 

The BZA, as required by the zoning ordinance,
scheduled a public hearing on the matter.  Prior to the hearing, they conspicuously
posted notice on the actual property.  Notice was also published in the local
newspaper, on a local cable television station, on the city’s web site, and
mailed to all contiguous property owners.  The notice, while listing all of
the proposed uses requiring a zoning exception (including the restaurant), did
not specify whether alcohol would be served on the premises.

The Blalocks own residential property
abutting the McGhees.  They received a mailed notice of the public hearing. 
They chose not to personally attend the hearing, but sent a letter expressing
their objection to all of the McGhees’ requested exceptions to the zoning ordinance. 
The possibility of alcohol sales in the restaurant was acknowledged and discussed
at the hearing.  Thereafter, the BZA granted the application for special exceptions,
but placed ten conditions on the approval, including a mandatory 9:00 p.m. closing
time.

The Blalocks appealed this order to the
circuit court.  They argued that the absence in the notice of any indication
that alcohol would be served on the McGhees’ property amounted to a violation
of both the notice provision of the zoning ordinance and their constitutional
guarantee of due process.  Furthermore, they argued that the zoning ordinance
itself prohibits the sale of alcohol within the Horse District. The judge denied
their appeal and affirmed the order of the BZA.  This appeal follows.

LAW / ANALYSIS

I.       The Notice Provision and Due Process

The notice provision
of the zoning ordinance requires that mailed notice inform recipients of the
“nature of the application.”  See Zoning Ordinance, City of Aiken, §
6.1.4(C)  Additionally, the Due Process Clauses of the Constitutions of the
United States and South Carolina require “notice which fairly and reasonably
apprises those whose rights may be affected of the nature and character of the
action proposed.”  Brown v. County of Charleston, 303 S.C. 245, 247,
399 S.E.2d 784, 786 (Ct. App. 1990).  Appellants argue that the absence of any
indication of alcohol sales in the City’s notice of the public hearing violated
the ordinance by not specifying “the nature of the application” and the Due
Process Clauses by not apprising them of the true “nature and character of the
action,” thus denying them an “opportunity to be heard in a meaningful way.” 
See Universal Benefits, Inc. v. McKinney, 349 S.C. 179, 183, 561
S.E.2d 659, 661 (Ct. App. 2002).   We disagree.

The Due Process Clause
of the U.S. Constitution demands only “notice reasonably calculated, under all
the circumstances, to apprise interested parties of the pendency of the action
and afford them an opportunity to present their objections.”  Mullane v.
Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657
(1950); S.C. Const. art. I, § 22 (“No person shall be finally bound by a judicial
or quasi judicial decision of an administrative agency affecting private rights
except on due notice and an opportunity to be heard…”).  We find that the City
of Aiken’s actions to notify the community of this public hearing exceeded this
constitutional mandate.  Notice was posted and published in several adequate
forms, best evidenced by the fact that the Blalocks received actual notice in
time to attend the hearing had they been so inclined.

The Blalocks’ arguments
hint to the fact that they would have been present at the hearing had they known
the McGhees were contemplating the sale of alcohol on the premises.  While this
may be true, minimum due process requirements simply do not mandate the degree
of specificity desired by the Blalocks.  The “nature of the application” and
“character of the action” was adequately described in the notice.  This hearing
was to offer the public an opportunity to comment on an exception to the zoning
ordinance, not a grant of a liquor license.  

We conclude that the
Blalocks were given reasonable notice of the nature of the application.  Had
they desired more detail regarding the restaurant or wished to better articulate
their objections to the proposed zoning exceptions, it was their right to attend,
ask questions, and present any specific objections.  They chose, however, to
be meaningfully heard in writing rather than personally attend the hearing. 
Furthermore, not only did the BZA consider the Blalocks’ letter, but the issues
they claim to have been denied the opportunity to raise were raised by others
and considered at the hearing.  Due process mandates that every interested party
be granted the opportunity to be heard, not that every interested party, regardless
of the party’s own initiative, is actually heard.  We find that the Blalocks
were given due process and the zoning ordinance’s notice requirement was satisfied.

II.      The Zoning Ordinance

The Blalocks
contend that the zoning ordinance prohibits the sale of alcoholic beverages
within the Horse District and, therefore, the BZA improperly granted the special
exception by not expressly prohibiting the sale of alcohol at the proposed restaurant
in its order.  We disagree.

A zoning board’s decision
should not be disturbed unless the board’s findings resulted from action “which
is arbitrary, an abuse of discretion, illegal, or in excess of lawfully delegated
authority.”  Bannum, Inc. v. City of Columbia, 335 S.C. 202, 205, 516
S.E.2d 439, 440 (1999).  This court should refrain from substituting its judgment
for that of the BZA, even if we disagree.  See Restaurant Row Assocs.
v. Horry County, 335 S.C. 209, 216, 516 S.E.2d 442, 446 (1999).  While recognizing
that this court is permitted a “broader and more independent review” in cases
such as this, concerning ordinance construction, we choose to maintain this
well-recognized deference to the zoning board’s discretion.  See Charleston
County Parks & Recreation Comm’n v. Somers, 319 S.C. 65, 67, 459 S.E.2d
841, 843 (1995) (applying a broader scope of review in ordinance construction
cases).

The ordinance expressly allows
a restaurant in the Horse District by special exception under the category of
“Eating Establishments.”  Although the ordinance prohibits a “liquor store”
and “nightclub or bar” under a separate category titled “Retail Sales and Service,”
we do not find “by implication,” as the Blalocks suggest, an outright prohibition
on all alcohol sales.  Were it the intention of the drafters to ban all alcohol
sales in the Horse District, they could have very simply done so in a clear,
express manner.  Given our standard of review, we are constrained to defer to
the zoning board’s interpretation absent evidence of arbitrariness, abuse of
discretion, or illegality.  There is no such evidence here.  Thus, we defer
to the decision of the BZA that the zoning ordinance does not ban the sale of
alcohol outright in the Horse District.

CONCLUSION

In accordance with the broad
discretion vested in the BZA and the multiple notices that comply with due process,
the order of the BZA is

AFFIRMED.

HEARN, C.J., HOWARD, and KITTREDGE, JJ., concur.