The South Carolina Court of Appeals has affirmed a review board’s decision to give the green light to a proposed mixed-use development in Summerville—more than four years after the board gave the project its approval.

In 2014, the Town of Summerville and its redevelopment corporation entered into a public-private partnership agreement with developer Applegate & Co. to redevelop 1.58 acres in its downtown to construct a conference center, parking deck, hotel, restaurant, and condos. Applegate applied to the town’s architectural review board for approval.

At board meetings, several town residents expressed concerns about the project—including some, like the effect on traffic, that were outside the board’s purview. After a lengthy back-and-forth during which the developer made substantial changes to the project to mollify concerns raised by members of the public and the board, the board gave the project its final approval in May 2015.

But some of the disgruntled residents were unassuaged and sued the board seeking to have the decision overturned. The lead plaintiff, who died before the Court of Appeals got around to issuing its ruling, alleged that residents of the proposed condos would be able to peer inside her house. A Dorchester County Circuit Court judge affirmed the board’s ruling, and the opponents appealed again.

The plaintiffs argued that the case should have been remanded because although the review board gave its blessing at the May 2015 meeting, it did not certify its findings of facts and conclusions of law until its August meeting, after the plaintiffs filed suit. They also contended that the board unreasonably restricted public comment and lacked appropriate rules of procedure.

But the appeals court affirmed the decision in a unanimous Oct. 9 opinion, with Judge Stephanie P. McDonald inspecting each of the opponents’ arguments in turn and finding their foundations to be unsound.

South Carolina law authorizes local governments to create boards of architectural review in order to promote historic preservation, and courts have deemed that a board’s discretion to approve proposed construction is “constrained only by reasonableness and good faith,” McDonald noted. The state’s appellate courts have not addressed the statutory requirements for a board’s decision, but court found that the transcripts of the board’s public hearings provided ample factual support for its ruling.

“Throughout this process, Appellants worked to defeat the Project, but—as the Board’s chairman repeatedly explained—because the property was zoned for the proposed business uses, Summerville’s own ordinance prevented the overreach Appellants sought from the Board,” McDonald wrote. “There is no evidence the Board acted unreasonably or in bad faith in approving the Project’s design, and the record supports the Board’s findings.”

McDonald also rejected arguments that the board’s meetings had failed to comply with the state’s public meetings laws. Although the board didn’t approve the minutes of the July 2015 meeting until its next scheduled meeting, nothing in the state’s freedom of information law requires boards to publish their minutes immediately, and this is in fact a standard practice for governing bodies across the state.

Similarly, there were no problems with the board placing time limits on how long each member of the public could speak for or against the proposal at the meetings. McDonald wrote that nothing in state law requires governmental bodies to give the public unlimited speaking time and that “one can easily anticipate the problematic results of such a requirement.”

Waring Parker of Summerville and Tim Domin of Clawson & Staubes in Charleston represented the town and its architectural review board. Mike Rose of Summerville and Andy Gowder of Austen & Gowder in Charleston represented the plaintiffs. Neither side’s attorneys could be reached for comment on the decision.

The 17-page decision is Croft v. Town of Summerville (Lawyers Weekly No. 011-088-19).

Follow David Donovan on Twitter @SCLWDonovan



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