Court cases on Land Use Planning and Zoning

The following cases relate to challenges by landowners to the authority of planning commissions and similar agencies in South Carolina.

• In Sinkler and Anchorage Plantation Home Owners Association v. County of Charleston (SC Supreme Court, 2010), the property owner applied for, and the county granted, rezoning from AG-15 to PD, allowing higher density. Neighboring property owners sued, claiming that PD was improper because it was not being applied for mixed use, as required by the Comprehensive Planning Enabling Act, SC Code 6-29-310 et seq, but rather simply for increased density. The circuit court held this was improper use of PD. The appellate court reversed, emphasizing "the deference provided local governing bodies and the flexibility created through the Enabling Act." Supreme Court reversed the appellate Court, holding that "the circuit court properly invalidated the ordinance rezoning the Walpoles' property from AG-15 to a PD district because the requirements for a PD district under the Enabling Act were not met."

• In Glover, et al v. County of Charleston (SC Supreme Court, 2004), originally filed in 2000, Glover and several other landowners challenged Charleston County's proposed UDO, alleging that it was effectively a rezoning without the notice required under SC Code 6-29-760, and further that it was an unconstitutional taking and a violation of equal protection. The court held that adoption of the UDO was not a rezoning within the meaning of SC Code 6-29-760, so a conspicuously posted notice was not required.

  In ruling that the proposed UDO was not an unconstitutional taking, the court repeated several times that the landowners were not being deprived of "all economically viable use" of their land, citing Bear Enterprises v. County of Greenville and Westside Quik Shop v. South Carolina (discussed below). The court dismissed the landowners' equal protection argument without ruling on its validity because it had not been appealed correctly. In a later case, Byrd v. The City of Hartsville (discussed below), the court overruled Glover on what constitutes an unconstitutional taking, but stated nevertheless that the correct result was reached.

• In Bear Enterprises v. County of Greenville (SC Court of Appeals, 1995), the property owner's application for upzoning was recommended for approval by the county Planning Commission, but denied by county council. On appeal, the circuit court held that the county had not considered the public health, safety and welfare and had impaired the owner's "constitutional right to use its property" and ordered the county to grant the requested zoning change. The Court of Appeals reversed, stating that it could not substitute its judgement for that of county council unless there was clear and convincing evidence that Council acted arbitrarily or capriciously." The court further stated, "A classification of property should be upheld as constitutional, absent evidence that the classification is either unnecessary or confiscatory."

• Westside Quik Shop v. South Carolina (SC Supreme Court, 2000) was not a zoning case, but a claim of unconstitutional taking was based on the state law that made video gaming machines illegal. Plaintiffs were business owners a large part of whose business earnings were profits from video gaming machines. Aside from their claim that confiscation of the machines themselves was an unconstitutional taking, they further claimed that because the land and buildings where the business operated were "well-suited in location and configuration only to the video gaming business", the law was an unconstitutional taking of property as well. In rejecting this argument, the court cited Lucas v. South Carolina Coastal Council (discussed below), stating, "even if the regulation does deny the owner all economically viable use of his land, it does not constitute a taking if it substantially advances legitimate government interests." The court held that the government has a legitimate interest in "prohibiting illicit gaming."

• Byrd v. The City of Hartsville (SC Supreme Court, 2005, 620 S.E.2d 76) was an inverse condemnation case. Byrd, the property owner, claimed that the City's delays in approving his rezoning request resulted in his lost opportunity to sell property. There were two separate delays examined by the court. The first delay was due to postponements by the City until it became certain that the requested rezoning of the property in question would not jeopardize the National Historic Landmark (NHL) designation of the group of parcels from which it was subdivided. The second delay was simply the usual time required to process an application for rezoning. The court explained what a landowner must prove in a claim of inverse condemnation, which involves a government "taking" of property without a formal condemnation proceeding. The "taking" in such cases may be physical or regulatory, with claims based on zoning regulations, as in the case at hand, falling into the latter category. When regulations cause a total and permanent loss of economic value, it is a taking per se, and the government must compensate the property owner. This was the holding in Lucas v. South Carolina Coastal Council (discussed below). Cases involving only a partial loss of value are governed by Penn Central Transportation Co. v. New York City (US Supreme Court, 1978, 438 U.S. 104), and under a more recent case, Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (US Supreme Court, 2002, 535 U.S. 302), a temporary loss, such as a regulatory delay like the one in the case at hand, is treated as a partial loss. If the delay is unreasonable, the property owner must be compensated. The court stated, "The length of the delay alone is not determinative.... Rather, we consider all relevant circumstances, including the reasons for the delay and the economic impacts on [the owner]."

  Although the court ruled in favor of the City, it did confirm that a partial taking is possible. "We overrule our prior suggestions that a property owner cannot demonstrate a taking unless he has been denied all economically viable use of his property. See Glover v. County of Charleston."

  A third delay caused by the City involved the placement of "flags" on the tax records for the property in question to protect the National Historic Landmark (NHL) designation of the group of parcels from which it was subdivided. The City failed to remove the flags until three years after it became certain that the NHL designation would not be affected by the requested rezoning. Byrd alleged at trial that the City's placement of the tax flags was part of a conspiracy against him, but the trial court ruled the City was not liable because of sovreign immunity and Byrd did not appeal that ruling. It is not clear what the result would have been had Byrd argued that the third delay was also an inverse-condemnation rather than a conspiracy.

• In Lucas v. South Carolina Coastal Council (US Supreme Court, 1992, 505 U.S. 1003), the court held that when a regulatory taking results in a total loss of economic value to a landowner, it is a taking per se and the government must compensate the landowner for the loss. In this case, Lucas had purchased beachfront property on the Isle of Palms prior to South Carolina passing a law that changed how it determined the critical line limiting how close to to ocean construction would be permitted. The new rules effectively made Lucas's property worthless. While holding that "regulation [that] denies all economically beneficial or productive use of land" is "compensable without case-specific inquiry into the public interest advanced in support of the restraint," the court does admit that this rule is not simple to apply, since it "does not make clear the 'property interest' against which the loss of value is to be measured." The court suggests that the value of the land must be determined in light of "the restrictions that background principles of the State's law of property and nuisance already place upon land ownership." In other words, the landowner need not be compensated if the regulation just bans something that could have been prevented as a nuisance anyway.

  The Lucas case is one of the most frequently cited opinions on the Takings Clause. As discussed above, it was cited in Westside Quik Shop v. South Carolina, but the statement by the Westside court may be a misinterpretation of Lucas. In particular, Westside states that there is no taking if some "legitimate government interest" is advanced, even if the owner loses "all economically viable use of his land." In fact, this is almost the exact opposite of the Lucas holding, which held that there is always a taking in cases of a total loss of value to the landowner. It is true that the determining the value of the land requires weighing the government interest, but it would appear that the only way Lucas would not require compensation in the case of a total loss would be if the land had no value to begin with.

  The mischaracterization of Lucas by the Westside court seems to have been carried over into Glover, et al v. County of Charleston, where it is implied that there is no taking unless the landowner is deprived of all economic use of his land. This idea from Glover was specifically overruled in Byrd v. The City of Hartsville. In Glover there was not a total loss of economic value, but there was a legitimate government interest, so the statement by the Glover court about a total loss wasn't relevant to the case being decided.

  An extensive list of U.S. Supreme Court decisions on the Takings Clause may be found in the Congressional Research Service report, Takings Decisions of the U.S. Supreme Court: A Chronology, compiled by Robert Meltz, Legislative Attorney (2015).