Board of Zoning Appeals

TOWN OF MOUNT PLEASANT, SOUTH CAROLINA BOARD OF ZONING APPEALS FEBRUARY 25, 2019 MINUTES Attachment 1— Staff Report Present: Joseph Belton, Chair, David Rubin, Barry Wolff, Stephen Wood, Stephen Duke, Glyn Cowden. Staff: Kent Prause, Michael Robertson, Julia Copeland, Claude Tackett, Eddie Bernard, Lynnette Lynes Mr. Belton called the meeting to order at 6 pm. A. Approval of Agenda B. Approval of Minutes Mr. Wolff moved for approval of the agenda and minutes. Mr. Clowden seconded the motion. All in favor. D. Public Comment Mr. John Wright, 145 Rose Lane, expressed concern regarding item #4, 440 Venning St. He stated that this is a historical location for the African-American community and asked that the request be approved. E. General Correspondence No correspondence F. Administration of Oath Mr. Belton reviewed the procedures with the public and administered the oath to those speaking. G. Business 1. Case A-2-19, 404, 410, 412 Hibben Street, TMS # 532-01-00-138, 139, 141, 331, Appeal of Zoning Administrator’s decision denying that the final  Board of Zoning Appeals February 25, 2019 Page 2 of 9 Design Review Board (DRB) approval for the properties at issue confers a new two-year vested right. Mr. Prause reviewed staff report and Zoning Administrator memorandum with the Board (attachment 1). Mr. Ross Appel, attorney for applicant, reviewed the request with the Board. Mr. George Gates, 312 Cooper River Drive, suggested that another hotel is not needed. He stated that a vested rights extension was denied by the Planning Commission. He stated that there is pending litigation regarding this project and suggested that no other considerations on this project should be considered until the litigation has been resolved. He asked that the request be denied. There being no additional comments, Mr. Belton closed the public hearing. Mr. Wood asked what the legal position is on if the DRB decision retriggered the vesting period. Mr. Belton suggested that this was not a consideration of this Board and asked if the question is whether the DRB approval would restart the vesting period for all portions of the project. Mr. Prause answered that the position of the appellant is that the DRB approval pertains to the entire project. He stated that the Zoning Administrator’s opinion is that the DRB approval would only apply to the DRB portion to the point that there is no conflict with Town ordinances. Mr. Belton asked if the vested period would only pertain to the request. Mr. Prause answered in the affirmative unless there was a change to the Town ordinance. Mr. Appel referred to the state statute pertaining to vested rights for the Board. He suggested that the DRB process cannot be separated from the other approvals. He stated that before the DRB could render a decision on the project, it had to meet all zoning requirements. Mr. Belton asked if the Zoning Administrator’s determination was made prior to the December 31st expiration of the vested rights. Mr. Appel answered in the affirmative and stated that it is a staged process and approvals from the Board of Zoning Appeals must be secured before going before DRB. He stated that the vested rights act was enacted to protect the developer. He stated that the state statute was enacted to allow completion of a project.  Board of Zoning Appeals February 25, 2019 Page 3 of 9 Mr. Wolff suggested that this request appears to be an “end run around the Planning Commission”. He suggested that the decision of the Zoning Administrator should be upheld. Mr. Wood asked if the applicant’s position is that the decision of the Planning Commission is irrelevant to the DRB decision and vested rights. Mr. Appel answered in the affirmative and stated that the Planning Commission extension pertained to the conceptual approvals. He stated that the DRB approval was for specific site design. He stated that the zoning had to be satisfied prior to the project being heard by the DRB. Mr. Belton stated that the zoning was vested until December 31, 2018 and there was time for the project to be approved prior to that time. He suggested that the entire project should not be extended for two years for the entire project as the DRB is only for the site designs. Mr. Wolff moved for denial of the appeal based on the findings of the staff report, the Zoning Administrator’s memorandum and relevant case law cited in the Zoning Administrator’s memorandum and recommend upholding the Zoning Administrator’s decision. Mr. Cowden seconded the motion. Motion passed on a 5 to1 vote with Mr. Wolff, Mr. Rubin, Mr. Cowden, Mr. Belton, and Mr. Duke in favor; Mr. Wood opposed. 2. Case A-3-19, 404, 410, 412 Hibben Street, TMS # 532-01-00-138, 139, 141, 331, Appeal of Zoning Administrator’s decision denying building permit applications submitted for Earl’s Court stating that vested rights expired at midnight on December 31, 2018. Applicant contends that this determination does not recognize any vested rights associated with the final DRB approvals obtained prior to December 31, 2018. Mr. Prause reviewed staff report and memo with the Board (attachment 1). Mr. Appel reviewed the request with the Board. He suggested that the S.C. Supreme Court ruled that if the application is submitted at the time that all approvals are still valid, then those approvals would stand.  Board of Zoning Appeals February 25, 2019 Page 4 of 9 Mr. Vince Graham, developer, reviewed the history of the project with the Board. He stated that the property is zoned for the proposed use. He suggested that the Town assured that if the DRB approval was given and a building permit application submitted by December 31, 2018, then the project could move forward. He asked that the Board honor the commitment made and allow the project to move forward. Mr. Chad Besenfelder, 114 Latitude Lane, stated that he works for the developer in addition to living in the Town. He stated that much effort, time, and money has been taken to bring this project to its current state. Mr. Hamlin O’Kelley, attorney for the applicant, stated that SC Supreme Court recognizes when expenses in reliance to zoning there is a vested property right wherein the property owner may not be deprived without cause. He stated that staff worked with the developer in having the DRB approval prior to the December 31st deadline. He suggested that there has been a “bate and switch” by the Town. He agreed with Mr. Appel that there is a time of application ruling by the Supreme Court that should be considered and asked that the request be approved. Ms. Joanna Millis, 405 Rose Wilder Lane, suggested that it was never disclosed that there would be a hotel on the property. She suggested that financial consideration should not be a consideration, but if so, then the money spent purchasing a home near this property should also be taken into consideration. Ms. Barbara Smith, 410 Royall Avenue, stated that Mr. Prause has provided a clear and concise argument for his decision and suggested that his decision should be upheld. She suggested that parking is still a big issue. She suggested that the request should be denied. Ms. Ashley McGraw, 401 Patjens Lane, stated that the residents’ property rights should be a consideration as well as the developer’s property rights. She stated that the surrounding homeowners are relying on this Board’s discretion to consider all rights and make a fair decision. There being no further comments, Mr. Belton closed the public comments.  Board of Zoning Appeals February 25, 2019 Page 5 of 9 Mr. Belton stated that his decision is based on the facts presented and not emotion. He asked if the building permit application must be approved prior to the expiration of vested rights or only the application submitted. Mr. Prause answered that there is other statutory law in addition to the regulatory law that the appellant cited. He stated statutory law regarding vested rights indicates that the building permit must be approved and in hand in order to be valid. He stated that there was pending ordinance that would affect this property before the application was submitted. He stated that the ordinance has since received final reading and is now in effect. Mr. Wood suggested that the Board convene to review the SC Supreme Court time of application rule should be fully reviewed and suggested that brief recess should be considered. Mr. Wood moved for a five minute recess to review the Supreme Court ruling. Mr. Wolff seconded the motion. Mr. Wolff suggested that an executive session for legal advice regarding this Supreme Court case would be appropriate. Mr. Belton suggested that more time might be needed given the length of the ruling. Mr. Belton moved to amend the motion to allow for a ten minute recess. Mr. Wolff seconded the motion. All in favor. The Board recessed for ten minutes at 7:09 pm and reconvened at 7:21 pm. Mr. Wolff moved to convene into executive session for legal advice pertaining to case law presented. Mr. Cowden seconded the motion. All in favor. The Board convened into executive session at 7:22 pm and reconvened at 7:39 pm. No action taken while in executive session. Mr. Wolff referred to staff’s memorandum, page 2, last paragraph, and asked if the project was in compliance with all zoning requirements at the time the application was submitted. Mr. Prause answered that there was a pending ordinance for amendments that was in effect at the time the application was  Board of Zoning Appeals February 25, 2019 Page 6 of 9 submitted. Mr. Wolff asked what ordinances were in effect at the time the building permit application was submitted. Mr. Prause answered that the project was under vested rights. Mr. Wood asked when the plan became vested. Mr. Prause answered that it was 2011, but there was state tolling in place until December 31, 2016 which is when the first two-year vesting period began. Mr. Wood asked if this is the controlling ordinance. Mr. Prause answered that the pending ordinance would be effective. Mr. Wood asked if the pending ordinance would be superior to the SC Supreme Court ruling. Mr. Prause answered in the affirmative. Mr. Belton asked if the case law was still in effect. Mr. Appel answered in the affirmative and stated that the time of application law is valid. He stated that the original ordinances in place at the time the project was approved and vested were still in place because of the vested rights. He stated that the time of application rule is valid for this request. Mr. Wolff asked if the zoning in force at the time the permit was applied would be the pending ordinance that received first reading. Mr. Appel answered in the negative and stated that the vested rights means that the zoning at the time the approval was given would be the zoning in effect. Mr. Wood moved for approval of the appeal request based on the findings that there is no uncontroverted evidence that an application was timely filed and based on the SC Supreme Court ruling of Pure Oil vs. City of Columbia, that the Zoning Administrator erred in his denial of a permit. Mr. Duke seconded the motion. Motion failed on a 3 to 3 vote with Mr. Belton, Mr. Duke and Mr. Wood in favor; Mr. Wolff, Mr. Rubin, and Mr. Cowden opposed. Mr. Robertson reviewed the bylaws regarding tie votes with the Board. Mr. Wolff stated that the case law states that the zoning in effect at the time of application would be applicable and that would be the pending ordinance that is currently in place. Mr. Belton disagreed and stated that staff stated that the current zoning laws in effect at the time the application was submitted were the zoning laws provided under their vested rights.  Board of Zoning Appeals February 25, 2019 Page 7 of 9 Mr. Wood stated that the Supreme Court case did not include a vested rights case. He suggested that this would be different from the current case before us in that sense. He suggested that it is clear that their rights were vested until December 31, 2018 and this was not disputed by the Town. He suggested that if the December 31st date was not important, the applicant would not have been working through the Christmas holiday to complete the building permit application. Ms. Lynes reviewed her notes regarding the question of vested rights with the Board. She stated that her notes are not a verbatim of what was said and is not complete; they are only her notes. She suggested that the Board might want clarification. Mr. Wolff asked if the interpretation is that the ordinance in force at the time the permit application was submitted, was the pending ordinance that received first reading. Mr. Prause answered that the ordinance pending at that time did not refer to any changes in the initial ordinances in which they were vested. He stated that the ordinances in effect were those that they were vested. He stated that the pending ordinance doctrine puts forth the position that a permit cannot be issued that is repugnant to the terms and conditions of the pending ordinance until the matter has been settled. Mr. Wood asked if there were no vested rights, then the pending ordinance would be in effect and apply to the building permit application. Mr. Prause answered in the affirmative. Mr. Wood asked if there were vested rights in effect for this project on December 31, 2018 that incorporated the ordinances in effect at the time those vested rights inured to them. Mr. Prause answered in the affirmative. Mr. Wood moved for approval of the applicant’s request be upheld and the Zoning Administrator’s denial of permits be overturned on the grounds that there is evidence that there was a properly submitted building permit application on or before midnight on December 31, 2018, the vested rights were in effect and the 1970 decision of SC Supreme Court in Pure Oil vs. City of Columbia makes it such that application had the effect of an approved permit. Mr. Duke seconded the motion. All in favor.  Board of Zoning Appeals February 25, 2019 Page 8 of 9 3. Case S-2-19, 1935 N. Smokerise Way, TMS# 583-07-00-133, Request for a Special Exception in accordance with the standards of §156.110 Accessory Uses (A) Accessory to dwellings (13) Home-based business, (d) Home-based day care and §156.411 (A)(3) to allow a home-based adult day care. This item was withdrawn. 4. Case S-3-19, 440 Venning Street, TMS# 532-01-00-182, Request for a Special Exception in accordance with the standards of §156.325 Principle Use Table, and §156.411 (A)(3) to allow for accessory building at funeral home. Mr. Robertson reviewed staff comments with the Board (attachment 1). Mr. Sam Halls, business owner, reviewed the request with the Board. There being no comments, Mr. Belton closed public comment. Mr. Wood asked if the accessory building would be a shipping container. Mr. Halls answered in the affirmative. Mr. Belton stated that a shipping container would require a variance. Mr. Halls stated that he would be willing to construct a shed as opposed to using the shipping container. Mr. Wood moved for approval of the request with condition that the accessory building is not a shipping container. Mr. Duke seconded the motion. All in favor. 5. Case V-7-19, 738 Sinlea Ave., TMS# 532-10-00-149, Appeal from the strict application of §156.226 to allow encroachment into tree protective zones for two-story rear addition. Mr. Robertson reviewed staff comments with the Board (attachment 1). Mr. Adam Ilderton, owner, reviewed the request with the Board. There being no comments, Mr. Belton closed public comment.  Board of Zoning Appeals February 25, 2019 Page 9 of 9 Mr. Wolff asked if there is sufficient information submitted to make a determination on the tree. Mr. Bernard answered in the affirmative and stated that there are discrepancies on the drawings. Mr. Wolff asked if Mr. Ilderton would like to defer to provide the information to staff. Mr. Ilderton answered that he has been working with staff for several months, with no resolution. Mr. Wolff suggested that the applicant try to work with staff, particularly because the request does not meet all of the criteria and referred to the utilization of property criteria. Mr. Wolff moved for deferral in order to give the applicant an opportunity to work with staff and provide additional information. Mr. Wood seconded the motion. All in favor. H. Approval of Final Orders This item was deferred. There being no further business, the meeting adjourned at 8:29 pm. Submitted by, L. Lynes BOZA02252019