Dippel v. Horry County Planning

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

Kenneth Dippel
& Kimber Fowler, Appellants,

v.

Horry County
Planning Department, Respondent.

Appeal From Horry County

Benjamin H. Culbertson, Circuit Court
Judge

Unpublished Opinion No.  2011-UP-108

Submitted March 1, 2011 – Filed March 16,
2011

AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED

Kenneth Dippel and Kimber Fowler, both of
Loris, pro se.

John L. Weaver, of Conway, for Respondent.

PER CURIAM:  Kenneth Dippel and Kimber Fowler (Appellants), pro se,
appeal the circuit court's (1) denial of their motion for an order of reference
and change of venue and (2) the grant of the Horry County Planning Department's
(the Department) motion to strike and motion to dismiss.  We affirm in part,
reverse in part, and remand.[1]

This appeal concerns the Department's
refusal to approve Appellants' submitted plat.  After the Department did not
approve the plat, Appellants unsuccessfully appealed to the Horry County
Planning Commission.  Subsequently, Appellants appealed this determination to
the circuit court.  Appellants' appeal, manifested in a lengthy document styled
as a "complaint," alleged three causes of action.  Appellants
asserted (1) a judicial taking, (2) the Department's failed to comply with a
court order, and (3) an action that constituted an appeal of the Planning Commission's
adverse determination.  Upon motion by the Department, the circuit court struck
all allegations and causes of action not related to a direct appeal of the
Planning Commission's plat determination.  Subsequently, the circuit court
dismissed the appeal on procedural grounds because Appellants failed to file a
pre-litigation request for mediation with the notice of appeal and failed to
join necessary parties.  Appellants appealed this decision, asserting the
circuit court erred in striking actions from their complaint and in dismissing their
appeal.  Appellants also contend error in the denial of their motion for an
order of reference and change of venue.

"A property owner whose
land is the subject of a decision of the planning commission may appeal by
filing a notice of appeal with the circuit court accompanied by a request for
pre-litigation mediation in accordance with section 6-29-1155."  S.C. Code
Ann. § 6-29-1150(D)(2) (Supp. 2010). "If a property owner files a notice
of appeal with a request for pre-litigation mediation, the request for
mediation must be granted . . . ."  S.C. Code Ann. § 6-29-1155(A) (Supp.
2010).  When interpretation of a statute is required, "words must be given
their plain and ordinary meaning without resort to subtle or forced
construction to limit or expand the statute's operation."  State v.
Blackmon, 304 S.C. 270, 273, 403 S.E.2d 660, 662 (1991).

We find the circuit court
erred in basing the dismissal of Appellants' appeal on their failure to file a
request for pre-litigation mediation.  The Department contends sections 6-29-1150
and 6-29-1155 require the mandatory filing of a request for mediation along
with a notice of appeal in order to properly appeal a decision by the Planning
Commission.  We believe a plain and ordinary reading of the statute reveals
that it merely informs a potential appellant of the option and procedure for
filing a request for mediation.  Specifically, section 6-29-1150(D)(2) provides
a property owner "may appeal by filing a notice of appeal with the circuit
court accompanied by a request for pre-litigation mediation in accordance with
section 6-29-1155."  Section 6-29-1155 in turn provides: "[i]f a
property owner files a notice of appeal with a request for pre-litigation
mediation . . . ."  Reading these two sections together indicates the
mediation request is an optional step in appealing the decision of a planning
commission.  Accordingly, we reverse the circuit court's grant of dismissal on
this ground.

As a second ground for
dismissal, the circuit court found Appellants failed to join necessary
parties.  We find the circuit court erred in failing to make findings of fact
to support the dismissal of Appellants' appeal for failure to join necessary
parties.

A
person who is subject to service of process and whose joinder will not deprive
the court of jurisdiction over the subject matter of the action shall be joined
as a party in the action if (1) in his absence complete relief cannot be
accorded among those already parties, or (2) he claims an interest relating to
the subject of the action and is so situated that the disposition of the action
in his absence may (i) as a practical matter impair or impede his ability to
protect that interest or (ii) leave any of the persons already parties subject
to a substantial risk of incurring double, multiple, or otherwise inconsistent
obligations by reason of his claimed interest.

Rule 19, SCRCP.  "[A]
development permittee is a necessary party to an appeal of its permit."  Spanish
Wells Prop. Owners Ass'n, Inc. v. Bd. of Adjustment of Town of Hilton Head
Island,  295 S.C. 67, 69, 367 S.E.2d 160, 161 (1988).  "Designating the permittee a necessary party insures
the most vitally interested party's participation in the appellate process."  Id. at 68, 367 S.E.2d at 161.  "In all actions tried upon
the facts without a jury . . . the court shall find the facts specially and
state separately its conclusions of law thereon."  Rule 52, SCRCP.   

We do
not require a lower court to set out findings on all the myriad factual
questions arising in a particular case.  But the findings must be sufficient to
allow this [c]ourt, sitting in its appellate capacity, to ensure the law is
faithfully executed below. The absence of factual findings makes our task of
reviewing the court order impossible because "the reasons underlying the
decision [are] left to speculation." 

 In re Treatment and Care
of Luckabaugh, 351 S.C. 122, 133, 568 S.E.2d 338, 343 (2002).

  The circuit court's order
relies on Spanish Wells to support the contention that Appellants failed
to join necessary parties to the appeal of the Planning Commission decision.[2] 
The order indicates unnamed parties were necessary because the determination of
the Planning Commission directly affected their existing access to these
parcels.  The circuit court's order states, "These parties occupy an
analogous position to an owner whose application approval is appealed, since
appeal could result in reversal of the access rights recognized by the Planning
Commission."  Notwithstanding these analogies, the paucity of information
concerning the purported necessary parties makes it difficult to determine if
the circuit court's legal conclusions are correct.  See Luckabaugh,
351 S.C. at 132-133, 568 S.E.2d at 343 (quoting Coble v. Coble, 268
S.E.2d 185, 189 (N.C.1980)) ("Trial courts, sitting without juries in an
action at law, write their findings specially and separately: to allow a
reviewing court to determine from the record whether the judgment and the legal
conclusions which underlie it represent a correct application of the law. The
requirement for appropriately detailed findings is thus not a mere formality or
a rule of empty ritual; it is designed instead to dispose of the issues raised
by the pleadings and to allow the appellate courts to perform their proper
function in the judicial system."). 
The circuit court's order neither provides the identities of the purported
necessary parties nor fully describes how these parties are "directly
affected" by the Planning Commission's determination beyond unspecified
effects on their existing access.  Accordingly, we remand for the circuit court
to clarify the nature and identity of the purported necessary parties and if
necessary to consider the appeal on its merits.

To the extent Appellants
asserted original causes of action in their appeal from the Planning Commission,
the circuit court's decision is affirmed.

Finally, we affirm the
circuit court's denial of Appellants' motion for an order of reference and
change of venue.  Because the underlying action is an appeal from a planning
commission decision, reference to a master-in-equity is not appropriate
pursuant to Rule 53, SCRCP, and the circuit court did not err.  Likewise, venue
in Horry County is proper and we find no error in the circuit court's denial of
this motion.     

AFFIRMED IN
PART, REVERSED IN PART, AND REMANDED.

FEW, C.J.,
KONDUROS, J., and CURETON, A.J., concur

[1] We decide this case without oral argument pursuant to
Rule 215, SCACR.

[2] The order does not reveal the identity of these
parties.