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South Carolina
Judicial Department
2004-UP-334 - Hernandez v. Town of Mount Pleasant


In The Court of Appeals

Jose and Cynthia Hernandez,        Appellants,


Town of Mt. Pleasant Board of Zoning Appeals & Mark Sargeant in his official capacity as zoning administrator,        Respondents.

Appeal From Charleston County
A. Victor Rawl, Circuit Court Judge

Unpublished Opinion No. 2004-UP-334
Heard April 6, 2004 � Filed May 17, 2004


Thomas R. Goldstein, of Charleston, for Appellants.

R. Allen Young, of Mt. Pleasant; and Frances Isaac Cantwell, of Charleston, for Respondents.

PER CURIAM: �Jose Hernandez and Cynthia Hernandez appeal the circuit court�s order affirming the denial of a zoning variance by the Mt. Pleasant Board of Zoning Appeals and dismissing their claims for violation of their rights to due process and equal protection.� We affirm.


The Hernandezes own a 7.7-acre lot in a subdivision in Mt. Pleasant.� Originally, the unified lot extended from frontage on Bampfield Drive to frontage on Coinbow Drive, with a lake in the middle of the parcel.� Now, however, because the Hernandezes sold highland around the perimeter of the lake to adjoining property owners, the lake bisects the Hernandezes� lot, separating the highland fronting Coinbow Drive from the highland fronting Bampfield Drive.� The Herndandezes� home is on the Coinbow Drive side of the parcel of land.� They decided to subdivide the parcel and create a new lot on the Bampfield Drive side of the lake.�

The new lot is a roughly triangular shaped highland by the lake with a 25 feet by 172 feet corridor leading to Bampfield Drive.� Under the town�s zoning ordinances, the lot is classified as a flag lot.� Neither party disputed this classification during the hearing before the circuit court.� A flag lot is one failing to meet the minimum lot width for the applicable zoning district, as measured at the front setback building line.� The new lot would be 25 feet wide at the setback line as opposed to the required 80 feet for the zoning district.�

The Hernandezes applied for a variance from the ordinance to allow them to create the new lot.� At the hearing before the Board of Zoning Appeals, the neighboring property owners objected to the granting of the variance.� The Board denied the variance request, finding the proposed lot to be a detriment to the surrounding property values.�

The Hernandezes then appealed the Board�s decision to the circuit court, challenging the merits of the decision, the constitutionality of the procedure for hearing variance requests, and the constitutionality of the ordinance banning flag lots and asserting a takings claim.� The circuit court held the Board of Zoning Appeals committed no error of law in hearing or processing their variance application.� It found ample evidence in the record to support the Board�s denial of the variance.� The court found no merit to the Hernandezes� contention that they were denied procedural and substantive due process.� The court also rejected their argument that the Town zoning regulations that exclude flag lots are unconstitutional.� The court held the new lot was not entitled to grandfathered status.� Finally, in its amended order, the court held the Hernandezes� takings issue was premature and dismissed it without prejudice.� This appeal followed.


Appellants argue the circuit court erred in affirming the decision of the Board.� We disagree.

I.       Denial of variance

The South Carolina Local Government Comprehensive Planning Enabling Act (Zoning Enabling Act) sets forth the standard of review for appeals from local zoning boards of appeal:� �The findings of fact by the board of appeals must be treated in the same manner as a finding of fact by a jury.�� S.C. Code Ann. � 6-29-840 (2004).� �In determining the questions presented by the appeal, the court must determine only whether the decision of the board is correct as a matter of law.�� Id.� Thus, the factual findings of the zoning board will not be disturbed unless there is no evidence in the record to support its decision.� Heilker v. Zoning Bd. of Appeals for the City of Beaufort, 346 S.C. 401, 406, 552 S.E.2d 42, 45� (Ct. App. 2001).�

The Zoning Enabling Act empowers the Board �to hear and decide appeals for variance from the requirements of the zoning ordinance when strict application of the provisions of the ordinance would result in unnecessary hardship.�� S.C. Code Ann. � 6-29-800(2) (2004).� The Board may grant such a variance upon making and explaining in writing the following factors:

(a) there are extraordinary and exceptional conditions pertaining to the particular piece of property;

(b) these conditions do not generally apply to other property in the vicinity;

(c) because of these conditions, the application of the ordinance to the particular piece of property would effectively prohibit or unreasonably restrict the utilization of the property; and

(d) the authorization of a variance will not be of substantial detriment to adjacent property or to the public good, and the character of the district will not be harmed by the granting of the variance.

S.C. Code Ann. � 6-29-800(2) (2004).�

In order to grant a variance, the Board must make the factual determination that each of these four elements favors granting the variance. Restaurant Row Assocs. v. Horry County, 335 S.C. 209, 215, 516 S.E.2d 442, 445 (1999).� �Granting a variance is an exceptional power which should be sparingly exercised and can be validly used only where a situation falls fully within the specified conditions.�� Id. at 215, 516 S.E.2d at 445-46. The party seeking the variance bears the burden of demonstrating all four of the above elements.� Id. at 216, 516 S.E.2d at 446.�

In the present case, the Board held that although the Hernandezes had met the first three elements of a variance, they had not met their burden of establishing that the variance would not be a substantial detriment to adjacent property or to the public good and the character of the district would not be harmed by the granting of the variance.

The Hernandezes assert the Board erred in considering the objections of the neighboring property owners. [1] � We find no error in the Board�s consideration of this testimony.� Section 6-29-800(2) requires the Board to determine whether the authorization of a variance will be detrimental to adjacent property.� Accordingly, the neighbors� testimony concerning the negative effect the granting of the variance would have on their property values and the character of the district was relevant to the Board�s consideration of this fourth element and was entitled to as much weight as the Board deemed to accord it.�

Considering the entire record, we find sufficient evidence to support the Board�s decision to deny the variance.� Testimony from the adjacent property owners revealed concerns for drainage, overcrowding, the loss of a substantial number of large trees, removal of yard debris, and a negative effect on property values should the new lot be approved.� Accordingly, we hold the circuit court correctly affirmed the Board�s decision as evidence exists in the record supporting the Board�s decision.

II.        Violation of rights to due process and equal protection

The Hernandezes argue the proceedings below violated their rights to due process and equal protection.� At oral argument, the Hernandezes� counsel stated the Hernandezes were abandoning their challenges to the constitutionality of the Zoning Enabling Act and the municipal ordinance banning flag lots and proceeding only on their arguments that their rights were violated by the application of the statute and ordinance in their case.�

�The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.� South Carolina Dep�t of Soc. Servs. v. Beeks, 325 S.C. 243, 246, 481 S.E.2d 703, 705 (1997).� �Due process is flexible and calls for such procedural protections as the particular situation demands.�� Stono River Envtl. Protection Ass�n v. South Carolina Dep�t of Health and Envtl. Control, 305 S.C. 90, 94, 406 S.E.2d 340, 342 (1991).� The requirements of due process include notice, an opportunity to be heard in a meaningful way, and judicial review.� German Evangelical Lutheran Church of Charleston v. City of Charleston, 352 S.C. 600, 608, 576 S.E.2d 150, 154 (2003).

The Zoning Enabling Act sets forth the procedure for a hearing before the� Zoning Board of Appeals on a zoning variance request.� S.C. Code Ann. � 6-29-800 (2004).� An appeal from the Board�s decision is to the circuit court, which has appellate jurisdiction only.� S.C. Code Ann. �� 6-29-820 and 6-29-840 (2004).� The circuit court may not take additional evidence.� � 6-29-840.�

The Hernandezes contend the hearing before the Board was unfair.� We disagree.�

The Hernandezes were provided with an opportunity to be heard in a meaningful manner.� They were allowed to present their position to the Board.� Furthermore, as found above, the Board did not err in allowing the neighboring property owners to voice their objections to the variance request as their concerns were relevant to the Board�s determination of whether the request met all of the statutory factors necessary for the granting of a variance.� The Hernandezes were also afforded judicial review by their appeal to the circuit court.� We hold the Hernandezes received all of the procedural protections afforded them under the Zoning Enabling Act.

The Hernandezes also raise another due process issue by asserting that as the Hobcaw subdivision plat was approved prior to the enactment of the flag lot ordinance, the ordinance should not be allowed to deprive them of all economic use of the land. [2]

A landowner only acquires a vested right to continue a nonconforming use if that use is already in existence at the time his property is zoned.� Friarsgate, Inc. v. Town of Irmo, 290 S.C. 266, 269-70, 349 S.E.2d 891, 893 (Ct. App. 1986).� �[A] contemplated use of property by a landowner on the date a zoning ordinance becomes effective to preclude such a use is not protected as a nonconforming use.�� Id. �at 269, 349 S.E.2d at 893.

At the time the Town of Mt. Pleasant enacted the ordinance prohibiting flag lots, the Hernandezes� property was considered one lot and was in conformance with the ordinance.� The Hernandezes made no attempt to subdivide their lot to create the nonconforming flag lot until after the enactment of the ordinance.� Accordingly, as their use of the property as a separate lot was at the most merely contemplated at the time of the enactment of the ordinance, they are not entitled to any protection from enforcement of the ordinance.�

The Hernandezes next assert their rights to equal protection were violated by enforcement of the ordinance prohibiting flag lots because although they are not being permitted to create a flag lot, there are five flag lots in the immediate vicinity of their property.� The record reveals, however, that these lots were all created either prior to the area being annexed into the Town of Mt. Pleasant or prior to the enactment of the ordinance prohibiting flag lots.� As such, this is not a case of disparate treatment of similarly situated individuals.

Finally, the Hernandezes suggest they were denied the variance because Mr. Hernandez is Hispanic.� As this issue was neither raised to nor ruled on by the circuit court, it is not preserved for our review.� See Beaufort County v. Butler, 316 S.C. 465, 468, 451 S.E.2d 386, 388 (1994) (stating constitutional claims must be raised and ruled upon below to be preserved for appeal).�

Accordingly, the decision of the circuit court affirming the Board�s decision to deny the Hernandezes� request for a variance is


HUFF and STILWELL, JJ., and CURETON, A.J., concur.

[1] � The Hernandezes cite to Boulevard Dev. and St. John�s Inn v. City of Myrtle Beach, Op. No. 2001-UP-091 (S.C. Ct. App. filed Feb. 13, 2001).� Rule 239(d)(2), SCACR provides, �Memorandum opinions and unpublished orders have no precedential value and should not be cited except in proceedings in which they are directly involved.��

[2] As the parties have agreed to reserve the Hernandezes� takings claim until after the resolution of their variance appeal, we will treat this argument as an assertion that their lot should be grandfathered under the ordinance, as it was addressed by the circuit court.�