John's Marine Service, Inc. v. Oconee County BZA

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

John's Marine Service, Inc., Frances J. Ratliff, Edward J.
Ratliff, Jr., James L. Ratliff, Lucretia B. Morgan, Sherri
Akers Crisp, and Amy Cawthon, Appellants,

v.

Oconee County Board of Zoning Appeals, Ridgewater
Engineering & Surveying, LLC, Globe, a South Carolina
Limited Partnership, and Farmes, a South Carolina
Limited Partnership, Respondents.

Appellate Case No. 2022-001796

Appeal From Oconee County
J. Cordell Maddox, Jr., Circuit Court Judge

Opinion No. 6101
Heard November 6, 2024 – Filed February 19, 2025

AFFIRMED

David Lee Paavola, of Kenison Dudley & Crawford,
LLC, of Columbia, for Appellants.

Larry C. Brandt, of Larry C. Brandt, PA, of Walhalla,
and Andrew Kent Holliday, of Derrick Ritter Williams &
Morris, PA, of Seneca, both for Respondents Ridgewater
Engineering & Surveying, LLC, Globe, a South Carolina
Limited Partnership, and Farmes, a South Carolina
Limited Partnership.
James W. Logan, Jr., of Logan & Jolly, LLP, of
Anderson, for Respondent Oconee County Board of
Zoning Appeals.

MCDONALD, J.: This appeal challenges the circuit court's order affirming the
Oconee County Board of Zoning Appeals' (BZA) granting of a right-of-way
variance for the construction of a private road to access a proposed subdivision on
Lake Keowee. Appellants argue the BZA: (1) lacked jurisdiction to determine the
existence of a prescriptive easement, (2) erred in assuming Oconee County (the
County) held a prescriptive easement, and (3) erred in expanding the purported
easement. Appellants further contend the BZA's approval of the variance
application was arbitrary and capricious. We affirm.

Facts and Procedural History

In 2008, Globes and Farmes, two South Carolina limited partnerships, purchased
an undeveloped 15-acre tract on Lake Keowee at the end of a peninsula known as
Arrowhead Point and agreed to develop a nineteen-home subdivision there.1
Arrowhead Point has no street address; the closest addressed property is 599
Ellenburg Road, where John's Marine Service has operated for over forty years. 2
In 2020, other members of the Ratliff family, James Ratliff and Lucretia Morgan,
purchased a neighboring property, 585 Ellenburg Road, from the descendants of
T.B. Ellenburg. A plat prepared in connection with this conveyance shows
Ellenburg Road is "subject to r/w public."

In October 2021, Ridgewater Engineering submitted a variance application on
behalf of Andy Lee, the Arrowhead Point developer, requesting a variance of 18.1
feet from the County's 50-foot right-of-way requirement. 3 Lee needed the variance

1
Globes and Farmes purchased the property from Crescent Communities, a real
estate development company created by Duke Energy.
2
In 1982, Edward John Ratliff and Francis Ratliff bought the Ellenburg Road
property and relocated their business from downtown Seneca.
3
Section 26-2(c) of the Oconee County, S.C., Code of Ordinances establishes the
requirements for private roads constructed to provide "vehicular access and road
frontage to developments, or sections of developments, containing more than ten
to build a road accessing the peninsula because the existing road does not extend
fully onto Arrowhead Point. The property line separating the John's Marine
property from the Arrowhead Point property is the centerline of the existing
roadway. The variance was necessary because at its narrowest point, Arrowhead
Point is only 31.9 feet wide and thus cannot accommodate the 50-foot right-of-way
the County generally requires. Ridgewater proposed shifting the existing road
completely onto Arrowhead Point, leaving only a right-of-way upon the John's
Marine property. According to Ridgewater, the variance would not be detrimental
to the character of the district because surrounding areas include single-family
residential lots, and compliance with other applicable ordinances and permitting
requirements would remain necessary.

The BZA first discussed the variance application at its November 30, 2021
meeting. Leah Smith, from the Development Team at Lake Keowee Real Estate,
spoke on behalf of the Arrowhead Point developer. Smith confirmed the majority
of the road would allow the required fifty-foot right-of-way but the narrowest
"pinch point" provided room for only a 31.9 foot right-of-way.

Attorney Rick McDuff spoke on behalf of John's Marine and the Ratliff family,
who opposed the granting of a variance. McDuff expressed the family's concerns,
noting a dispute remained as to whether the County had a prescriptive easement
and addressing this question would require a judicial proceeding. McDuff claimed
county maintenance of the road ended approximately four to five hundred feet to
the west of the John's Marine property and the Ratliff family privately maintained
the remainder of the road as a private driveway. McDuff argued moving the road
onto the Arrowhead Point property would landlock the John's Marine property with
no road access. He also expressed concerns about potential flooding and traffic.

Edward John "Jay" Ratliff, a son of John's Marine's founder and brother of current
owner Jimmy Ratliff, also spoke on behalf of the family. Jay Ratliff claimed
John's Marine had used the entirety of the road from 585 Ellenburg Road to the end
for forty years and noted the Ratliff family maintained that portion of the road.
Yet, he admitted old Route 1 predated Lake Keowee, and "the road went all the
way across and it was a tar and gravel road." Jay then demonstrated on a map
where the County's road maintenance ended and where along the edge of the

dwellings." One of these requirements is that such roads shall have "a minimum
road right-of-way width of 50 feet[.]" Oconee County, S.C., Code of Ordinances
§ 26-2(c)(2).
shoreline the old road's tar and gravel remains visible under the water. Owner
Jimmy echoed Jay's concern that allowing a 31.9 foot right-of-way on the
narrowest portion of the approach to Arrowhead Point would prevent John's
Marine from parking boats and maneuvering boats into its shop for service.

The BZA also took public comment, with most commenters expressing concerns
about the affect the right-of-way might have on John's Marine and Jimmy's ability
to conduct business. Citizens worried about Jimmy's ability to maneuver boats in
and out of his shop and the water, particularly in light of the likely increase in
traffic from cars and delivery trucks traveling to the proposed subdivision. The
BZA acknowledged it had received several emails opposing the variance.

Larry Brandt, counsel for Ridgewater, explained that moving the road completely
onto Arrowhead Point would result in John's Marine gaining additional access to
its property (as the access point was currently beneath the roadway) and would
allow ample space for maneuvering and parking boats. Lee further explained that
a proposed cul-de-sac would provide emergency vehicles, delivery trucks, and cars
with the necessary turnaround space. Lee, who has developed other subdivisions
around Lake Keowee, noted many of the developments on the lake required a
reduced right-of-way for road access.

Ultimately, the BZA voted to table the variance discussion so that planning staff
could research the road ownership question and to allow the parties to continue
their efforts to resolve the dispute.

On January 24, 2022, the BZA again discussed the variance request. County staff
indicated there was no question as to ownership of the property beneath the road,
but a question remained as to the traveling surface. Thus, the BZA voted to
postpone consideration of the requested variance for no longer than six months to
allow the parties to continue their efforts to reach a compromise.

On April 25, 2022, the BZA revisited the variance discussion. Counsel for the
County explained he had received affidavits from Jan Ratliff and Lori Ellenburg
Bright claiming the county's road maintenance historically ended before the John's
Marine property, despite the County's assertion that it maintained the road to the
end of the pavement. He noted the BZA had authority to both grant the variance—
whether or not this was a state or county road—and to place conditions on any
variance granted. He suggested the BZA craft an order addressing the variance but
not expressing a direct opinion on the existence of any prescriptive easement.
Members of the Board agreed the BZA lacked authority to determine whether an
easement existed. Counsel further explained that the road as it currently exists
would need to go through the abandonment process before the developer could
move the roadway.

Kyle Reid from Oconee County Roads and Bridges commented that there was no
indication in county records that Ellenburg Road was ever abandoned or otherwise
turned over to private property owners. He explained the right-of-way associated
with a road allows the County to widen the road, raise or lower the surface,
construct drainage and culverts, and install utilities. Reid noted the roadbed
running through Arrowhead Point and into Lake Keowee supported the position
that Ellenburg Road was an old state road that continued onto Arrowhead Point
prior to the construction of the lake and that this roadbed was turned over to the
County after the lake was filled.

By contrast, McDuff asserted no public record supported a finding that the
questioned portion of the road was ever a state (or county) road. McDuff further
argued the BZA lacked the ability to grant a variance expanding any purported
prescriptive easement or changing its location. Members of the public reiterated
their concerns expressed at the November 2021 meeting that the variance would be
detrimental to John's Marine; they also opposed any potential increase in traffic.

Smith and Lee again spoke on behalf of the Arrowhead Point developers. Smith
described the variance request and noted moving the road would give Jimmy
Ratliff more room to maneuver boats on the John's Marine property outside the
roadway. Lee explained John's Marine would regain a substantial amount of
property if the road were moved and any alleged "gap" between John's Marine and
the roadway would be deeded to the owners of the John's Marine property. Lee
noted Jimmy was currently parking boats all along the road, including on some of
the property owned by the Arrowhead Point developers.

After the close of public comment, the BZA discussed the variance request.
Members of the BZA acknowledged that granting a variance would be only the
first step toward the road's construction, as the developer would still need to
comply with other ordinances and permitting requirements. The BZA agreed
constructing the road through the narrowest point of the property would be safe,
assuming it complied with all applicable ordinances and permitting conditions.

The BZA then discussed the impact on John's Marine. One board member
commented that John's Marine had been using the road as part of its business for
several years, so the granting of the variance would necessarily impact it. In
response, the BZA Chairman noted John's Marine would be gaining access to the
portion of its property long-covered by the road surface. Still, the BZA
acknowledged this was an emotional issue, and it discussed the perceived safety
concerns at length. A traffic study would be required, and road upgrades would be
necessary if the study found the road could not handle the potential traffic increase
associated with the proposed development. The Chairman explained he
understood the public's concern about increased traffic but noted the proposed
subdivision would have only nineteen lots, so this did not appear to be a true safety
matter. The Chairman further stated economic development and any potential
increase in County tax revenues are not factors when the BZA considers a variance
request.4 The BZA then unanimously approved the application for the variance.

The BZA mailed its written findings to the parties on May 11, 2022. Finding all
required conditions for a variance had been met, the BZA concluded: "Order
approved subject to proper abandonment procedures, compliance with all
ordinances and state law on acceptance into the County roadway system.
Developer grant/deed John's Marine property so that there is reasonable,
unimpeded access to the new road."

Appellants timely appealed to circuit court. Following a hearing, the circuit court
affirmed the BZA's decision, finding the granting of the variance was supported by
the evidence in the record. The circuit court denied Appellants' subsequent Rule
59(e), SCRCP motion.

Standard of Review

"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)). "In reviewing a decision of a zoning board of appeals, this court applies
the same standard of review as the circuit court." Venture Eng'g for DT LLC v.
Horry County Zoning Bd. of Appeals, 433 S.C. 419, 426, 858 S.E.2d 638, 642 (Ct.
App. 2021). By statute, the circuit court must uphold a decision of the BZA unless
there is no evidence to support it. See S.C. Code Ann. § 6-29-840 (Supp. 2024)
(providing "[t]he findings of fact by the board of appeals must be treated in the

4
See S.C. Code Ann. § 6-29-800(A)(2)(d)(i) (Supp. 2024) ("The fact that property
may be utilized more profitably, if a variance is granted, may not be considered
grounds for a variance.").
same manner as a finding of fact by a jury" and "[i]n determining the questions
presented by the appeal, the court must determine only whether the decision of the
board is correct as a matter of law"). "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." Austin v. Bd. of Zoning
Appeals, 362 S.C. 29, 33, 606 S.E.2d 209, 211 (Ct. App. 2004) (quoting Rest. Row
Assocs. v. Horry County, 335 S.C. 209, 216, 516 S.E.2d 442, 446 (1999)).
Analysis

I. Jurisdiction: The Alleged Prescriptive Easement

Appellants argue the BZA lacked jurisdiction to decide a legal or factual dispute
related to the existence of a prescriptive easement. Appellants further claim that in
presuming such an easement exists, the Board improperly shifted the burden of
proof to Appellants to object to the variance when the burden properly lies with the
applicant—the developer—to establish the prerequisites for a variance. Finally,
Appellants contend the BZA erred in expanding the purported easement.

We agree with the circuit court that the BZA acted within its jurisdiction in
granting the variance. The BZA has the statutory power to "to hear and decide
appeals for variance from the requirements of the zoning ordinance when strict
application of the provisions of the ordinance would result in unnecessary
hardship" and may grant a variance if the board "makes and explains in writing"
the required statutory findings. S.C. Code Ann. § 6-29-800(A)(2) (Supp. 2024).

Although Appellants repeatedly argue the BZA lacked jurisdiction to determine the
existence of a prescriptive easement, we note the BZA made no such
determination. Here, the BZA reviewed the variance application—in accordance
with the powers delegated by § 6-29-800(A)(2)—and addressed the applicable
statutory factors. At least one board member expressly stated during the
November meeting that the BZA would not express an opinion as to the existence
of any alleged easement. And, the BZA's order recognizes the developers must
satisfy other applicable requirements prior to moving the existing roadway or
constructing a new portion of the road. As the BZA properly addressed only a
variance from the County's right-of-way width requirement for the entrance to the
proposed subdivision, we find Appellants' jurisdictional argument meritless. 5

5
At oral argument, the parties acknowledged Appellants' filing of a related
declaratory judgment action seeking to have the subject road deemed abandoned
II. Granting of the Variance

Appellants next argue the approval of the variance was arbitrary and capricious
because the location of the proposed road was left undetermined. We disagree.

"The exercise of police power under a municipal ordinance is subject to judicial
correction only if the action is arbitrary and has no reasonable relation to a lawful
purpose." Town of Scranton v. Willoughby, 306 S.C. 421, 422, 412 S.E.2d 424,
425 (1991) (per curiam). "When deciding whether to grant a variance, a local
board must be guided by standards which are specific in order to prevent the
ordinance from being invalid and arbitrary." Rest. Row Assocs., 335 S.C. at 214,
516 S.E.2d at 445.

Section 6-29-800(A)(2) provides the framework for a municipal board's
consideration of a variance request:

A variance may be granted in an individual case of
unnecessary hardship if the board makes and explains in
writing the following findings:

and closed. In June 2024, the circuit court held a three-day bench trial and decided
in favor of Oconee County and the developers. The circuit court found:

[T]here is no evidence that Oconee County has
abandoned the road by clear and unequivocal acts
showing a clear intent to abandon. Accordingly,
plaintiff's petition to have the road deemed abandoned
and closed is denied. Further, Ellenburg Road from its
intersection of Knox Road to the border of [the
developers'] property is a public road until such time as a
party obtains a Court ordered closure of all or some
portion of the same or in the event Oconee County,
through some clear and unequivocal act, abandons the
same.

Appellants' appealed this ruling as well, but their appeal was dismissed, without
prejudice, due to certain motions pending before the circuit court. We do not rely
on the findings in this related matter in reaching our decision here.
(a) there are extraordinary and exceptional conditions
pertaining to the particular piece of property;

(b) these conditions do not generally apply to other
property in the vicinity;

(c) because of these conditions, the application of the
ordinance to the particular piece of property would
effectively prohibit or unreasonably restrict the
utilization of the property; and

(d) the authorization of a variance will not be of
substantial detriment to adjacent property or to the public
good, and the character of the district will not be harmed
by the granting of the variance.

"In order to grant a variance, the Board must make the factual determination that
each of the four elements above favor granting the variance." Rest. Row Assocs.,
335 S.C. at 215, 516 S.E.2d at 445. "Variance applicants are not required to prove
that without the variance there exists no feasible conforming use for the property in
question in order to show unnecessary hardship. [Our supreme court] has upheld
the granting of variances where there were feasible conforming uses of the
property." Id. at 217, 516 S.E.2d at 446.

We find the BZA properly considered the statutory factors and its findings were
not arbitrary, capricious, or a clear abuse of discretion. In its discussion, the BZA
addressed all four conditions that an applicant must meet to receive a variance.
The BZA then made findings as to each condition in its written order, and its
findings are more than supported by the evidence.

First, the evidence establishes "there are extraordinary and exceptional conditions
pertaining to the particular piece of property." See § 6-29-800(A)(2)(a). As shown
by aerial photos, Arrowhead Point is uniquely shaped, and the small "pinch point"
approaching the property becomes too narrow for the standard 50-foot right-of-
way. The BZA's finding that "these conditions do not generally apply to other
property in the vicinity" is also supported by the record. See § 6-29-800(A)(2)(b).
While there may be other peninsula-shaped tracts along Lake Keowee, the
Chairman noted those properties do not contain a "pinch point" where the land
becomes too narrow to construct a road with the width generally required for such
a right-of-way. Here, the "pinch point" neck of the property is surrounded by Lake
Keowee and property owned by Duke Energy.

Next, there is evidence to support the BZA's finding that "because of these
conditions, the application of the ordinance to the particular piece of property
would effectively prohibit or unreasonably restrict the utilization of the property."
See § 6-29-800(A)(2)(c). The only way the developers could avoid the 50-foot
right-of-way width requirement would be to reduce the number of proposed homes
on the property to three lots. Compare Oconee County, S.C., Code of Ordinances
§ 26-2(a) (providing no design standards apply to private driveways, which "shall
serve no more than three residential dwellings") with § 26-2(b) (requiring private
drives serving no more than ten lots or dwellings must "[h]ave a minimum road
right-of-way of 50 feet, or an appropriately executed private roadway easement as
defined by these regulations"). Thus, evidence supports the BZA's conclusion that
reducing the number of lots to three would unreasonably restrict the utilization of
this fifteen-acre property.

Finally, there is evidence in the record supporting the BZA's finding that "the
authorization of a variance will not be of substantial detriment to adjacent property
or to the public good, and the character of the district will [not] be harmed by
granting of the variance." 6 See also § 6-29-800(A)(2)(d). Brandt's testimony—as
well as the traffic study and safety discussions—provided the necessary
evidentiary support for the BZA's finding as to this factor. Although the Ratliff
family and others voiced concerns about John's Marine's parking and maneuvering
of boats, evidence in the record supports the BZA's finding that the true impact on
the neighboring business would be minimal. For these reasons, the circuit court
properly affirmed the BZA's granting of the variance.

Conclusion

Accordingly, the order of the circuit court is

AFFIRMED.

WILLIAMS, C.J., and TURNER, J., concur.

6
There is a scrivener's error in finding 4 of the BZA's written order; however, the
transcripts of the discussion and vote confirm the BZA properly considered and
voted on all four statutory factors in considering whether to grant the variance.