THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Floral Beach Corporation, Inc.,        Appellant,

v.

Zoning Board of Appeals of the Town of Surfside Beach,        Respondent.

Appeal From Horry County
Sidney T. Floyd, Circuit Court Judge

Unpublished Opinion No. 2003-UP-390
Heard March 12, 2003 � Filed June 10, 2003

AFFIRMED

James C. McLeod, Jr., of Florence, for Appellant.

N. David DuRant, of Surfside Beach, for Respondent.

PER CURIAM:� Floral Beach Corporation, Inc. (�Floral�) appeals the denial of a variance to permit staircases on the landward end of a beach walkover.� We affirm.

FACTUAL/PROCEDURAL BACKGROUND

The Town of Surfside Beach (�Surfside�) issued a certificate of occupancy to Floral for two beachfront houses in Surfside.� Subsequently, Floral constructed staircases, without the appropriate permits, on the landward end of beach walkovers to permit pedestrian traffic to and from the beach from a point underneath the house.�

The Zoning Administrator (�Administrator�) notified Floral the staircases were in violation of the Surfside Zoning Ordinance, sections 17-389(1) [1] and 17-390(b), [2] because the staircases were seaward of the shore protection line and were seven feet wide.� Floral applied for a variance from the Surfside Beach Zoning Board of Appeals (�Board�).� The Board denied the variance, ruling:� 1) any hardship Floral suffered was self-imposed and did not result from exceptional circumstances; 2) the conditions were not peculiar to the property involved; and 3) if granted, the variance would cause a substantial hardship on the public good because it would set a precedent for the Surfside Shore Protection Area.�

Floral appealed the decision to the circuit court, claiming numerous errors on the part of the Board.� The circuit court affirmed the Board�s decision, ruling the Board appropriately denied the variance pursuant to South Carolina Code Annotated section 6-7-740 (1976). The circuit court did not rule on any of Floral�s remaining issues. ��

Floral moved the circuit court for reconsideration pursuant to Rule 59(e) of the South Carolina Rules of Civil Procedure, arguing the circuit court erred in denying its variance because:� 1) the Beachfront Management Act preempts the Surfside Beach Code; 2) Floral�s variance request met the elements required for a variance; 3) the denial of the variance violated due process and equal protection; and 4) the denial of the variance was arbitrary and capricious.� The circuit court summarily affirmed its original order.� Floral appeals.

STANDARD OF REVIEW

�In the context of zoning, a decision of a reviewing body, . . . will not be disturbed if there is evidence in the record to support its decision.�� Peterson Outdoor Adver. v. City of Myrtle Beach, 327 S.C. 230, 235, 489 S.E.2d 630, 632 (1997).� However, ��the decision of the zoning board will not be upheld where it is based on errors of law, . . . or where there is no legal evidence to support it, or where the board acts arbitrarily or unreasonably, . . . or where, in general, the board has abused its discretion.��� Id. (quoting Hodge v. Pollock, 223 S.C. 342, 348, 75 S.E.2d 752, 754-55 (1953)).

DISCUSSION

I.������ Denial of the Variance

Floral argues the circuit court erred in affirming the decision of the Board because Floral�s properties met all the required elements for a variance pursuant to South Carolina Code Annotated section 6-7-740 (1977) (repealed 1999).� We disagree.

Section 6-7-740, permits the Board to grant a variance when:

(a) There are extraordinary and exceptional conditions pertaining to the particular piece of property in question because of its size, shape, or topography, and (b) The application of the ordinance or resolution of this particular piece of property would create an unnecessary hardship, and (c) Such conditions are peculiar to the particular piece of property involved, and (d) Relief, if granted, would not cause substantial detriment to the public good or impair the purposes and intent of the ordinance or resolution or the comprehensive plan, provided, however, that no variance may be granted for a use of land or building or structure that is prohibited in a given district by ordinance or resolution.

The variance applicant bears the burden of demonstrating all four of the above elements favor granting the variance.� Restaurant Row Assoc. v. Horry County, 335 S.C. 209, 217, 516 S.E.2d 442, 446 (1999).

The Board denied Floral�s request for a variance, ruling:� 1) Floral created its own hardship by constructing the staircases without a permit; 2) Floral could still secure a reasonable return for its properties; 3) the conditions were not peculiar to the pieces of property involved; and 4) if granted, the variance would set a precedent and thereby cause a substantial detriment to the public good.

Testimony before the Board indicates the houses in question were the maximum size houses that could be built on the properties.� Furthermore, both the Administrator and Michael S. Culler, a land surveyor, testified the staircases could have been built at a different location on the property without violating the ordinances.� Moreover, the Administrator testified a permit application for the construction would have been denied if requested.�

We hold sufficient evidence exists to support a finding Floral created any hardship it suffered.� Therefore, Floral has failed to meet all of the elements of section 6-7-740.� Consequently, we hold the circuit court did not abuse its discretion in affirming the decision of the Board. [3] � See Restaurant Row Assoc., 335 S.C. at 217, 516 S.E.2d at 446 (1999).

II.               Mitigation

Floral argues the circuit court erred in affirming the Board because the Board was required to offer Floral the possibility of mitigation for the violation of the ordinance, but did not do so.� We disagree.

�It is axiomatic that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial judge to be preserved for appellate review.�� Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998).������

Floral did not appeal this issue to the circuit court.� Furthermore, the circuit court did not rule on this issue.� Moreover, Floral did not raise this issue in its motion for reconsideration pursuant to Rule 59(e), South Carolina Rules of Civil Procedure.� Therefore, this issue is not preserved for appellate review.�

III.           Considering Matters Not Within the Record

Floral argues the circuit court erred in considering matters that were not in the record before the Board.� We disagree.

A party cannot argue one theory at trial and a different theory on appeal.� McClary v. Witherspoon, 251 S.C. 523, 527, 164 S.E.2d 220, 222 (1968); Gurganious v. City of Beaufort, 317 S.C. 481, 488, 454 S.E.2d 912, 916 (Ct. App. 1995); see also Wilder Corp., 330 S.C. at 76, 497 S.E.2d at 733 (�It is axiomatic that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial judge to be preserved for appellate review.�).� ������

As part of its defense for the staircases, Floral introduced evidence that adjacent properties had similar staircases.� In response, counsel for the Board stated these properties with similar structures were constructed before the passage of the rule, and therefore, these properties were not subject to the ordinance.� Floral argues the circuit court improperly considered these statements.

There is no evidence the circuit court considered these statements when making its ruling.� The circuit court�s order states Floral failed to prove all four elements required to receive a variance.� Thus, the circuit court affirmed the ruling of the Board.� The circuit court did not make any further findings or rulings.� Furthermore, Floral did not raise this issue in his motion for reconsideration pursuant to Rule 59(e), South Carolina Rules of Civil Procedure.� Therefore, this issue is not preserved for appellate review.�

IV.��� Equal Protection Violation

Floral argues the circuit court erred by affirming the decision of the Board because adjacent houses with similar staircases were not forced to remove their steps, and thus, the denial of its variance is a violation of equal protection.� Floral contends the ordinances, although constitutional on their face, are being applied in a discriminatory manner.� We disagree.

The Equal Protection Clause provides that� �[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.��� U.S. Const. amend.� XIV, � 1.� Furthermore, the South Carolina Constitution, provides, �[no person] shall . . . be denied the equal protection of the laws.�� S.C. Const. art. I, � 3

�The sine qua non of an equal protection claim is a showing that similarly situated persons received disparate treatment.�� Grant v. South Carolina Coastal Council, 319 S.C. 348, 354, 461 S.E.2d 388, 391 (1995).�� Thus, the initial burden of proving disparate treatment is on the moving party.� Id.�

Floral presented evidence demonstrating adjacent landowners had structures similar to the staircases attached to Floral�s house.� Floral�s counsel stated he made a Freedom of Information Act request to the Board, requesting to review files regarding adjacent houses containing staircases similar to the staircases attached to his house.� He stated the files did not indicate when the similar houses or their attached staircases were built.� Additionally, Floral requested the circuit court take judicial notice that Hurricane Hugo damaged many homes in Surfside Beach in 1989.� Floral did not present any additional evidence to support its equal protection claim.

Given the evidence presented, Floral has failed to establish a claim for an equal protection violation because it has failed to demonstrate the Board allowed the owners of the similar houses to construct the staircases following passage of the ordinances.� Rather, at most, Floral has demonstrated the owners of the adjacent houses have similar staircases.� Without more, Floral has failed to make a prima facie showing of an equal protection violation.

IV.           Due Process Violation

Floral argues the circuit court erred by affirming the decision of the Board because the denial of its variance is a violation of its due process rights.� We disagree.

�[No state] . . . shall . . . deprive any person of life, liberty, or property without due process of law . . . .�� U.S. Const. amend. XIV, � 1.� Similarly, the South Carolina Constitution provides no �person [shall] be deprived of life, liberty, or property without due process of���������� law . . . .�� S.C. Const. art. I, � 3.��

The due process clauses of both the federal and state constitutions have been interpreted to encompass two parallel protections � procedural and substantive due process.� Procedural due process protects a person�s right to be heard at a meaningful time and in a meaningful manner.� South Carolina Dep�t of Soc. Serv. v. Beeks, 325 S.C. 243, 246, 481 S.E.2d 703, 705 (1997).� �Substantive due process protects a person from being deprived of life, liberty or property for arbitrary reasons.�� Worsley Co. v. Town of Mount Pleasant, 339 S.C. 51, 56, 528 S.E.2d 657, 660 (2000).� Thus, to state a substantive due process claim, �[a] plaintiff must show that he was arbitrarily and capriciously deprived of a cognizable property interest rooted in state law).�� Id.

Initially, we note, Floral has not claimed any deficiencies in the hearings or procedures used by the Board in denying his variance.� Thus, Floral has not stated a procedural due process claim.�� See South Carolina Dep�t. of Soc. Serv., 325 S.C. at 246, 481 S.E.2d at 705.�

Furthermore, Floral�s substantive due process argument claims the Board applied the ordinances in an arbitrarily and capricious manner.�� However, Floral�s claim rests on the same facts as its equal protection claim.� Thus, at most, Floral has demonstrated the Board prohibited Floral from maintaining staircases with particular characteristics, while allowing adjacent landowners to maintain similar staircases.� Without more, this evidence is insufficient to support a claim for a substantive due process violation because Floral has failed to demonstrate the Board permitted the adjacent property owners to maintain similar staircases, under similar conditions and circumstances, while Floral was prohibited from doing so.� Therefore, there is no evidence to sustain Floral�s claim that the denial of its variance was arbitrary and capricious.

CONCLUSION

For the foregoing reasons, the decision of the circuit court affirming the decision of the Board is

AFFIRMED.

CURETON, STILWELL, and HOWARD, JJ., concur.