Posted by: Patricia Salkin | September 22, 2020

South Carolina Supreme Court Reverses Appeals Court and Orders County to Re-Issue Permit for Fellowship Hall Finding that Substantial Construction Had Occurred

This post was authored by Jacquanna McDonald, Touro Law Center

Gray Hill Baptist Church received a permit in December 1997 to build a fellowship hall adjacent to its existing sanctuary. The permit gave the Church two years to build or the permit would expire unless substantial improvement has occurred, or final subdivision plat has been recorded. Although the Church completed some construction, they did not timely complete the entire project including the fellowship hall due to financial reasons and the County later refused a construction permit to build the fellowship hall. The court of appeals upheld the denial of permit because the permit had expired.

The Church was instructed to seek a zoning variance and apply for a new permit. The Church was denied the variance based on an increased occupancy. The Church stated no occupancy would increase because the fellowship hall would not be occupied while Church was in service. The Church stated when they have an activity, it will be held outside of the Church and there will be folding chairs. The Church stated activities would only be for dinner or social services. Their argument was denied because there could still be a lot of people on the premise.

This appeal arises from Beaufort County’s refusal to issue Grays Hill Baptist Church a construction permit to build a fellowship hall adjacent to its existing sanctuary. The court of appeals reversed the master’s order and reinstated the Beaufort County Planning Commission’s decision to deny the permit because the Church’s 1997 development permit did not include the fellowship hall and had expired. The Supreme Court reversed the decision of the court of appeals and ordered Beaufort County to issue the Church a construction permit for the fellowship hall under its original 1997 development permit.

The County and the court of appeals had relied on Friarsgate, Inc. v. Town of Irmo, 290 S.C. 266, 349 S.E.2d 891 (Ct. App. 1986) and F.B.R. Investors v. County of Charleston, 303 S.C. 524, 402 S.E.2d 189 (Ct. App. 1991) to support the conclusion that the original development permit had expired, and a construction permit for the fellowship hall could not be issued based on that permit. Case one was not accepted because the contingent was on financial success of the 1st units and at the time the zoning ordinance was enacted frigate had no firm commitment to build the project. Therefore, no vested right. Case two was no vested right because completion of phase 1 and phase 2 was essentially barren land and zoning change occurred. Those cases were based on vested rights which required the landowner had acquired a vested right to complete development prior to the enactment of a zoning ordinance. In contrast, there was no vested rights determination made in this case, and this issue was not timely raised by any party to the litigation. Also, here, the church is seeking development of one unified project which is the church and the fellowship hall. Unlike the other cases that had two buildings not phased development. Also, the church made substantial improvements towards the construction of the church and fellowship hall. There are paved roadways, constructed all of the parking, and installed storm water management, septic tanks, drained fields for both buildings.

The Supreme Court found that the planning board erred in finding the church did not comply with the original development permit, and that the county erred in requiring the church to request a new development permit.  The Supreme Court also found that the court of appeals erred in holding original permit expired because of substantial improvement occurred within two years of the permit issuance and improvement were directed toward the construction of both the church and the fellowship hall.

Grays Hill Baptist Church v Beaufort County, 2020 WL 5542089 (SC 9/16/2020)

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