Posted by: Patricia Salkin | April 2, 2013

South Carolina Supreme Court Upholds BZA decision on Telecom Tower Siting Finding the Board Acted on Competent Evidence

In 2006, the Town of Mount Pleasant (“the Town”) rezoned property on Whipple Road adjacent to the Candlewood residential subdivision from an R-1 residential zone to an Economic Development zone.  The property was owned by South Carolina Electric and Gas, and leased to SCANA Communications, which hoped to build a telecommunications tower there.  In an Economic Development district, telecommunications towers like the one at issue in this case are allowed as a conditional use, subject to certain conditions which must be met to the satisfaction of staff in the Town Zoning Administrator’s office, and do not require public notification.

In January 2009, SCANA entered into discussions with the Town about installing a telecom tower at the Whipple Road property, and subsequently applied for a conditional use permit to do so.  The Town Zoning Administrator approved the permit by letter, dated in May 2009, with one condition—the company had to submit a fall zone plan, prepared by a licensed professional engineer and approved by the Town, before it could obtain a building permit for the tower.  The May 2009 letter also stated that SCANA had satisfied all other requirements to build a telecom tower, including the necessary evaluations of health, safety, and aesthetics, as well as proof that it had considered co-location with other towers or location of the tower on a building as possible alternatives.  SCANA did give some public notice of the project by printing an item in a local paper, in order to comply with historic preservation laws, but no comments were received, and all relevant agencies signed off on construction of the tower.

While he was not required to do so, the Town Zoning Administrator contacted nearby property owners in June 2009 to advise them that a permit had been issued for the tower.  In the letter, the Zoning Administrator informed abutting property owners that they had a right to contest the permit issuance by appealing to the Board of Zoning Appeals (BZA).  No one responded to the June 2009 letter.

A building permit issued in October 2009, once SCANA submitted its completed fall zone report and certificate.  Construction of the tower commenced and was completed later that month.  In November 2009, nearby property owners filed an appeal of the permit to the BZA, alleging that the tower was a safety hazard and harmed the aesthetics and character of the neighborhood.  An evidentiary hearing was held by the BZA, at which time additional appellants in this case appeared and voiced their opposition to the tower, but the BZA voted to affirm issuance of the permit for SCANA’s already-constructed tower.  Orders reflecting their affirmation were filed in January 2010.  In February 2010, appellants filed for judicial review.  The Charleston County Court of Common Pleas held a hearing in September 2010, and affirmed the BZA decision in October 2010, finding that appellants had failed to submit evidence that the BZA had made an error of law regarding safety or aesthetics, that appellants were precluded from bringing challenges related to co-location of the tower, that there was evidence on the record supporting the BZA’s permit decision, that at least two of the appellants had standing to bring the claim, that the other appellants’ claims were barred by the doctrine of law of the case, and that those appellants could not maintain the action under the public importance exception to the standing rule.  The appellants appealed again.

 

On appeal, the court was asked to address two major issues: (1) whether the appellants had standing, or whether they could circumvent standing requirements via the public importance exception to standing and (2) whether the BZA erred procedurally or substantively in allowing construction of the telecom tower.

In its standing analysis, the court found that only two of the appellants—those who appealed the permit issuance to the BZA—had standing  to bring the case, while the others had failed to bring a BZA appeal and were thus barred by the doctrine of the law of the case.  The court passed on the question of whether the other appellants would have had standing under the public importance exception, because these appellants had failed to exhaust their remedies during the administrative process.

To the remaining appellants’ challenge that the BZA had erred procedurally and substantively in allowing construction of the tower, the court affirmed findings from the court below, affirming that the BZA had acted on competent evidence that the tower would not pose a threat to health or safety of nearby residents, and  that the tower was located in “an area encompassing diverse property uses” including other overhead utility equipment, making the appellants’ aesthetic claims about the tower’s harm to their property values at least mere speculation, if not totally unfounded.  SCANA had provided sufficient evidence to prove all of the necessary conditions required by local zoning, and the BZA had acted on a sufficiently well-developed record in affirming issuance of the permit.

Finally, SCANA raised a third issue on appeal regarding whether the Town’s notice provisions–which stated that public notice was not required for construction of telecom towers in Economic Development zones–was void as against public policy, because they created “unclear and ambiguous result[s]” which prevented “orderly economic development.”  Principally, SCANA’s complaint was based on the fact that appellants were able to challenge construction of the tower after it had already been built.  The appellants had claimed they should be entitled to challenge the tower permit because they had not received “actual notice” of the Town’s decision to approve the tower, and thus had not been afforded an opportunity to be heard.  SCANA claimed the Town’s notice provisions should be invalidated as against public policy because they created too much uncertainty for developers in these situations.  The court passed on this issue, finding that its dismissal of appellants’ other claims (and its holding that many appellants lacked standing entirely) had essentially mooted the argument.

Bevivino v. Town of Mount Pleasant Board of Zoning Appeals, 2013 WL 441537 (S.C. Ct. of Appls 2/6/13)

The opinion can be accessed at: http://www.judicial.state.sc.us/opinions/HTMLFiles/COA/5080.pdf


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