NEWBERRY — Circuit Court Judge Frank Addy recently remanded a decision back to the Newberry County Board of Zoning Appeals in the case of Christy Brown vs. Board of Zoning Appeals.
Addy’s decision stated that the Court remanded the matter back to the Board of Zoning Appeals for specific findings of fact with regard to (1) whether Brown’s non-conforming use predates the zoning ordinance in issue; (2) whether the Board has fully considered the factors as described in Section 153.052 (variances); (3) a formal vote as required per section 153.048 (elected and appointed boards and commissions).
The Board is free to use whatever procedure it elects to employ to comply with this order, and the Board may entertain this matter de novo if, at its discretion, the Board considers that appropriate.
This matter came before the Court on Aug. 2 for a hearing on Brown’s appeal from the Newberry County Board of Zoning Appeals. This matter was in regard to an appeal from the purported denial of a variance concerning Brown’s property.
The Court’s decision focuses on the procedure by which the Zoning Board renders its decision.
In the decision it states that the Court may only reverse the decision of the Zoning Board if its decision was arbitrary, capricious, or the Board abused its discretion. The decision further states that, from a review of the transcript, the Court cannot fully discern what the underlying rational was for the denial of the Brown’s variance.
In its Order, dated Jan. 3, the Board appears to find that the property “could not meet required buffers due to acreage.”
However, no findings of fact were made with regard to any of the variance considerations claimed by Brown and specifically outlined in the zoning ordinance at Section 153.052.
Without an explanation as to whether Brown’s arguments were even considered and why the Board, in its discretion, to the action which it did in denying the variance, the Court has no way to evaluate whether the Board acted in an arbitrary or capricious manner.
So far as the Court could find from the transcript of the hearing, the Board engaged in little to no discussion concerning Brown’s contention that her non-conforming use should be grandfathered in as permitted under the Zoning Ordinance and as required under South Carolina statutory law.
Although such discussion may have been had in executive session, which would be contrary to the requirements of the Freedom of Information Act, the record on appeal contains little from which the Court can determine whether Brown’s use should be grandfathered.
The decision further states, though a technical point, Brown is correct that Section 153.048 (C)(7) of the Zoning Ordinance requires “the concurring vote of the majority” to undertake any action. In the present case, although a motion was made and failed for want of a second, clearly no vote was taken as required under Newberry’s own ordinance.
Although Board of Zoning Appeals is correct in its contention that the Court could gleam that any formal vote on Brown’s request would have failed, the Ordinance still requires an affirmative, public vote.
On a final point, Addy stated in his decision that the Court is somewhat troubled by the “boilerplate” nature of which the Zoning Board went into executive session. Stating that from a review of the transcript, the Board went into executive session at 6:35 p.m. and, as justification for going into executive session recited verbatim the provision of Section 30-4-709 (a)(2).
Under the law, the public body is required to identify the purpose of going into executive session; put another way, the body must specify what topic will be discussed prior to going into executive session.
In this case, the Zoning Board was in executive session for 50 minutes before they lifted the veil, asserted that no action had been taken, and immediately proceeded to entertain motions.
The very purpose of FOIA is for public business to take place in public, and if substantive discussion or an informal poll concerning the merits of Brown’s appeal took place in executive session, such would be a clear violation of the law.
However, the Court was not prepared to say a violation did in fact occur.