S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Bannum, Inc., a
Kentucky Corporation
with a principal place of
business in Largo,
Florida, Appellant,
v.
City of Columbia, a
municipality with a
principal place of
business in Columbia,
South Carolina and City
of Columbia Zoning
Board of Adjustments,
an appointed agency of
the City of Columbia, Respondents.
Appeal From Richland County
L. Casey Manning, Circuit Court Judge
Opinion No. 24943
Heard February 18, 1999 - Filed May 7, 1999
REVERSED
P. Benjamin Zuckerman, of Lewis, Babcock and
Hawkins, L.L.P., of Columbia, for appellant.
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BANNUM, INC. v. CITY OF COLUMBIA, et al.
Thomas E. Ellenburg, of Columbia, for respondents.
PER CURIAM: Bannum, Inc. (Bannum) appeals a circuit court order
affirming the Zoning Board ofAdjustment's (ZBA) denial of a "special exception"
permit to use 1608 Westminster Drive as a residential care facility for federal
ex-offenders. We reverse.
FACTS
Bannum provides residential "halfway houses" for persons recently
released from federal prison. In February, 1997, the Bureau of Prisons (BOP)
issued a request for proposals (RFP) to construct and manage a 24 bed
residential care facility in Columbia.1 Bannum inquired of the City Zoning
Administrator as to zoning requirements for such residential care facilities, and
was advised by the Administrator, in March 1997, that such facilities having
more than 9 occupants are allowed in C-3 districts upon obtaining a "special
exception" permit.2 In April, 1997, Bannum leased the property at 1608
Westminster Drive.3 Thereafter, the BOP awarded Bannum a contract for the
1The facility will serve up to 29 ex-inmates, all of whom are from the
Columbia area; approximately 23 will be overnight residents of the facility, the
remaining 6 will spend the night at their Columbia residences. In addition to
housing, Bannum assists its clients by providing job search assistance,
counseling, training, etc. It also imposes a curfew, and performs alcohol and
drug screenings. The facility does not house violent criminals, but does accept
people convicted of federal drug offenses.
2 A special exception permit requires the ZBA to consider 1) Traffic Impact;
2) Vehicle and pedestrian safety; 3) Potential impact of noise, fumes, or
obstruction of air flow on adjoining property; 4) Adverse Impact of the proposed
use on the aesthetic character of the environs, to include possible need for
screening from view; and 5) Orientation and spacing of improvements on
buildings. Columbia City Code of Ordinances, § 6-3192(2)(6)(c)(1-5).
3 Westminster Drive crosses Forest Drive in Columbia, a short distance
from Providence Hospital, near the Forest Hills subdivision. The leased
property is zoned C-3 commercial, and at the time this matter arose, was being
used by the Richland County Mental Retardation Center providing job
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BANNUM, INC. v. CITY OF COLUMBIA, et al.
halfway house, contingent on Bannum obtaining all necessary local permits by
Dec. 1, 1997. On Aug. 13, 1997, Bannum sought a special exception permit. At
a hearing on Sept. 9, 1997, the ZBA determined, contrary to the opinion of its
Administrator, the halfway house was not a "residential care facility."
Accordingly, the ZBA denied Bannum's request for a special exception.
Thereafter, the ZBA decided the proposed facility was, in fact, a "residential
care facility," and granted a rehearing. After its October 14, 1997 rehearing,
the ZBA denied Bannum's request for a special exception, holding the halfway
house would have a negative impact on traffic and vehicular and pedestrian
safety. The circuit court affirmed the ZBA's denial of the permit.
ISSUE
Did the circuit court err in upholding the ZBA`s denial of a special
exception permit?
STANDARD OF REVIEW
This Court will not disturb the findings of the Board of Adjustment unless
such findings or decision resulted from action of the Board which is arbitrary,
an abuse of discretion, illegal, or in excess of lawfully delegated authority.
Brock v. Board of Adjustment and Appeals of City of Rock Hill, 308 S.C. 539,
419 S.E.2d 773 (1992); Fontaine v. Peitz, 291 S.C. 536, 354 S.E.2d 565 (1987).
See also Condor, Inc. v. Board of Zoning Appeals, 328 S.C. 173, 493 S.E.2d 342
(1997).
DISCUSSION
Bannum contends ZBA's denial of its permit was arbitrary. We agree.
The ZBA either discounted or disregarded every single bit of evidence put
up by Bannum.4 Instead, it based its holding on the four factors submitted by
placement services to the mentally disabled.
4 The ZBA completely discounted Bannum's evidence submitted by its
private investigator, Mark Kelly, who had monitored the existing site occupied
by the Dept. of Mental Retardation (DMR), for four hours one day, from 9:15 am
until 1:15 pm, finding it too limited in time and scope. It also discounted a
"Brief Traffic Assessment" prepared by Wilbur Smith Associates because the
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BANNUM, INC. v. CITY OF COLUMBIA, et al.
opponents: 1) testimony as to traffic counts on Forest Drive, 2) testimony that
Westminster Drive is used as a "cut through" street, 3) testimony that any
increase in traffic would adversely impact vehicle and pedestrian safety, and 4)
a Government Accounting Office (GAO) study concerning recidivism rates of ex
offenders.
As to numbers 1-3, although there was evidence concerning existing
traffic on Forest Drive, and speculation that the halfway house residents will
use Westminster as a cut-through, there was simply no evidence presented the
proposed use will generate greater use than the existing mental health facility.
On the contrary, the evidence was to the effect that the proposed use would
likely decrease traffic as the majority of halfway house residents will not own
automobiles but will utilize public transportation. Although neighboring
residents testified they felt the halfway house would increase traffic, there is
simply no concrete evidence to support this fact. Accordingly, the ZBA`s finding
that any increase in traffic would adversely impact vehicle and pedestrian
safety is irrelevant as there is no evidence of an increase.
The only piece of evidence which arguably supports the ZBA's decision is
a GAO (General Accounting Office) study concerning "Trends in Community
Supervision of Federal Offenders." The ZBA relied on the GAO report for the
premise that a certain number of the halfway house residents will be recidivists,
which will adversely affect the safety of pedestrians in the area by "having
Smith study compared traffic using the cite as a Medical Office (which could be
done in a C-3 zone without the need for a special exception permit), rather than
comparing the proposed use with the existing use by the DMR. We find the
ZBA's reliance on this factor to avoid the impact of the Smith study spurious.
We know of no requirement that a traffic assessment must be performed
comparing existing to proposed use. Were that the case, a special exception
permit would never issue for vacant premises, because traffic would always
increase, and thereby be negatively impacted by the proposed use. Accordingly,
we find the ZBA erred in refusing to give consideration to the Smith study,
which specifically concludes the proposed use will generate substantially less
traffic than the existing use. Moreover, there is simply no explanation in the
record as to why the ZBA gave no regard to a) the affidavit of David Lowry
(Bannum's president)(indicating proposed facility would have substantially
lesser traffic impact than existing facility at 1608 Westminster, b) the affidavit
of attorney Carl Holloway to the effect that proposed use should substantially
lessen traffic, and c) the affidavit of realtor James Gordon to the same effect.
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BANNUM, INC. v. CITY OF COLUMBIA, et al.
potentially recidivist violent individuals and drug users in the area." However,
according to B annum's attorney, Mr. Zuckerman, and the affidavit of B annum's
president, David Lowry, the GAO study is simply inapplicable to halfway
houses such as Bannum's.
Moreover, even assuming the GAO report concerns halfway houses such
as Bannum's, it does not justify the ZBA's decision in this case. There is no
evidence in the report which correlates the recidivism rates of federal offenders
to "pedestrian safety." In fact, counsel for the City conceded at oral argument
before this Court, that the danger to pedestrian safety was "extrapolated" from
the GAO report by the ZBA. This is simply insufficient to constitute "any
evidence" under our standard of review.
CONCLUSION
After reading the entire record in this case, it is inescapable to us that
the ZBA's decision was based, not on the requirements of the "special exception"
ordinance, but upon the fears of neighboring residents who did not want "those
type of people" in their neighborhood. Although we are sympathetic to the
concerns of neighboring individuals, the ordinance simply does not provide such
a basis for denial of the permit. Accordingly, the circuit court's order affirming
the denial of Bannum's special exception permit is
REVERSED.
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