Posted by: Patricia Salkin | April 30, 2018

SC Appeals Court Finds Building was a Second Principal Building Rather than an Accessory Structure

This post was authored by Matthew Loeser, Esq.

In 2001, Boehm bought property Sullivan’s Island, South Carolina. The property included a main residential building and Unit B, a building with a garage on the ground level and an apartment located above the garage. Unit B was completely separate from the main house, had its own electric meter, and was connected to the sewer system. The Town issued Boehm a permit to build a “slat house” immediately adjacent to Unit B. In 2003, Boehm divided the property into two condominiums, and conveyed ownership of the main house to his son, but retained ownership of Unit B. In 2009, Boehm applied for a variance to attach the slat house roof to the walkway at the back of Unit B, but the variance was denied and the BZA affirmed the denial. In this case, the Town of Sullivan’s Island and the Town of Sullivan’s Island Board of Zoning Appeals (BZA) appealed the circuit court’s order reversing the BZA’s decision to affirm the zoning administrator’s denial and limitation of Boehm’s permits.

On appeal, the Appellants alleged that the circuit court improperly substituted its judgment for the BZA’s as the standard of review required deference to the BZA. The court disagreed, finding that even though its standard of review was deferential to the Board, the record did not contain any evidence to support the Board not finding Unit B is a second principal building. Here, the BZA’s order regarding the denial of his permit application in 2009 stated the building official’s denial of the application “to connect the slat house to the other deck and house” was affirmed.  Further, the letter from the former Town official from the time when Unit B received its certificate of occupancy stated it was a “second principal building”. Additionally, Boehm testified the zoning administrator in place when he bought the building told him the same. Accordingly, the court held the circuit court did not err in finding Unit B was a second principal building.

Next, Appellants argued the circuit court erred by finding Boehm was not precluded from making substantial alterations to the structure even if Unit B was a nonconforming principal building. The court found that just because the height of Unit B would be increased, that did not mean the use would be expanded or the extent of the nonconformity increased. Furthermore, the court found that while placing the posts for the roof outside of the footprint of the stairs would enlarge the footprint for the stairs, this would not necessarily expand the use or nonconformity of Unit B. Moreover, the portion of the Zoning Ordinance concerning nonconforming structures explicitly allowed the structure to be enlarged if it “does not increase the extent of nonconformity.” As such, even if Boehm was allowed to increase the height of Unit B by two feet, Unit B would still be under the maximum height allowed for a principal building by the Zoning Ordinance. Accordingly, the circuit court’s reversal of the Board’s denial of Boehm’s three appeals was affirmed.

Boehm v Town of Sullivan’s Island Board of Zoning Appeals, 2018 WL 1513747 (SC App 3/28/2018)

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