In 2009, Wyndham purchased the property subject to this action – a lot zoned as general commercial – for the purpose of operating a Halloween retail store for a portion of the year, and a fireworks store for the summer months. In order to sell fireworks, the applicable zoning code required Wyndham to obtain a special exception from the defendant BZA. Wyndham sought this special exception, which was supported by the Director of the Department of Economic and Community Development (hereinafter “DECD”), but the BZA denied the request. The code provided that the BZA must analyze three factors prior to making a decision. These factors being: that the request comply with development standards of the code and policies of the comprehensive plan; that it be in substantial harmony with the surrounding area; and, that it “will not discourage or negate the use of surrounding property for use(s) permitted by right[.]” The code also requires the BZA to establish facts and hold hearings, and that BZA’s decision must be based on “competent, substantial and material evidence.” The BZA determined the last two factors were not satisfied due to the residential nature of a nearby area.
Wyndham claimed that the BZA’s determination was based solely on opinion and conjecture, and thus was incompetent to support a decision. In support, Wyndham pointed to the DECD’s recommendation, which provided that the locality’s traffic consultant indicated that the fireworks business would not have a meaningful impact on traffic. The BZA claimed their grounds for denial, sworn testimony of local residents on matters including their opinion on increased traffic and diminution of property value, where sufficient.
The South Carolina Court of Appeals found the BZA’s determination was arbitrary and capricious. As to the third factor for a special exception, the court found that the basis for the BZA’s denial incompetent as based on speculation and conjecture. The court stated that resident testimony can be competent where concerning the diminution in value of their own property. However, in this case the residents testified concerning the possibility of general decreases in property value as to the entire residential area. In addition, the residents failed to articulate why Wyndham’s operation of a firework store would specifically decrease property values, as a fireworks store already existed across the street from the subject parcel. Furthermore, there was no articulation as to how the operation of a fireworks store was any more harmful than the other commercial uses permitted as of right. Addressing the residents’ testimony concerning an increase in traffic, the court found this evidence incompetent and incorrect, given the traffic consultant’s opinion that there would not be an increase.
Addressing the second factor, that the proposed use be in harmony with the surrounding area, the court found that the BZA’s denial was arbitrary and capricious. In making their determination, the BZA found the use would not be in harmony with a nearby residential community. However, as the court noted, the subject parcel was in a commercial district near another fireworks store and other commercial uses. The court found that the BZA’s deferment to the residential area, rather than the commercial district in which the proposed use was located, was arbitrary. Furthermore, as discussed above, the court found that the concerns deferred to were not even competent for consideration by the BZA.
Wyndham Enterprises, Inc. v. City of North Augusta, Case No. 2010 167368, 2012 WL 3828237 (S.C. Ct. App., Sept. 5, 2012)
The opinion is available here.