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Jun 06 2015

Judge Rules Against Town In Boehm Lawsuit

By Jennifer Tuohy for Island Eye News

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A lawsuit between longtime island resident Paul Boehm and the Town of Sullivan’s Island/Board of Zoning Appeals looked as if it had come to an end last month when Judge Markley Dennis ruled in favor of Boehm, the plaintiff. In his written order, Judge Dennis instructed the Town to grant Boehm’s requests to improve his property at 2720B Goldbug, requests that had been repeatedly denied by the Town and the BZA. According to Boehm’s lawyer, the Town has decided to appeal this ruling.

When asked to comment on the matter, Andy Benke, the Town Administrator, told Island Eye News that the Town is not allowed to comment on current litigation.

Herein lies the rub. As soon as a lawsuit rears its head, the Town is forced to close ranks. No one can discuss the issue, or work towards any resolution until the issue has worked its way through the long and expensive legal process.

Why do citizens feel compelled to files suit against their elected officials (there are currently seven cases pending against the Town)?

In cases like Boehm’s, which deal with planning and zoning issues, Boehm contests it is because residents have no choice. As it now stands, a property owner has to file suit within 30 days of getting an unfavorable ruling from the BZA. If they don’t, they automatically forfeit the right to bring the matter back before the board for 2 years. “The whole process is wrong,”

Boehm said in an interview. “A property owner should be given more time to resolve issues before being forced to file suit. Once the suit is filed nobody from the Town is supposed to talk to you about the issues. If the Town’s litigation lawyers won’t talk to you, then there is no other choice but the courts. And of course, the financial clock starts ticking for both sides.”

This catch 22 situation was illustrated by a suit brought by resident Hal Coste when he was instructed to stop work on a treehouse he was building on his property. In order to fight the BZA’s ruling he had to file suit within 30 days, which put an immediate stop to work the Town had been doing on reviewing the ordinances in order to clarify the role of “treehouse,” a process that may have given Coste’s treehouse project new life, had it been allowed to continue.

Boehm’s case is an interesting one, as it covers a lengthy period of time during which personnel changes and BZA decisions effectively altered the designation of his property.

In 2001 Boehm wanted to purchase a property at 2720B Goldbug. There were two dwellings on a single lot. Boehm went to the Town to check on the status of the properties and was told one was “conforming” and the other “nonconforming.” A nonconforming dwelling is one which does not fit with current zoning requirements, but has been “grandfathered in” because it existed before the ordinances that make it illegal. In this case the property was nonconforming because there were two dwellings on one lot. When the Town formed in 1977, it decided there should only be one dwelling on each lot, to encourage the establishment of a single family community.

Subsequently, in circumstances where there were two principal dwellings on a lot, the smaller one became “nonconforming.”

Boehm purchased the property and his son moved into the nonconforming dwelling, a 1,200 sq foot, 2 bedroom home above a storage/parking area. The property is on the marsh and Boehm decided to add a deck. He went to the Town and was told he was not allowed to build a deck, because it was a nonconforming structure, and a nonconforming structure cannot have its use expanded. However, he was told he could build a slat house and use it as a deck, as long as it was freestanding and had no railing around it. Despite believing that adding a deck would not expand the use of the property, which was now a rental property, Boehm followed the Town’s direction and the slat house was used as a deck for 13 years.

In 2009 he again approached the Town, this time for permission to screen-in the top of the slat house, as the bugs were unbearable on the marsh.

In 2014, during the completion of an approved project (a roof over a walkway), he was issued a stop work order by the Town because the work was expanding the footprint of the structure by 5.5″. He was also told he could no longer use the slat house as a deck anymore, and that he must remove the furniture he had placed there because it was acting as a railing. During a subsequent BZA hearing on the matter, the BZA determined that his property was in fact an accessory structure, a garage with an apartment on top. This was a reversal of the BZA’s classification of the property as a nonconforming dwelling in 2009.

Boehm appealed this reclassification, and the BZA denied his appeal based on its findings that the house looked like a garage and therefore was a garage. However the property has been used as a residence for years and has a certificate of occupancy. It also has its own electric meter and connection to the sewer system, both of which are not allowed for an accessory structure.

“If the BZA’s reasoning was followed to its logical conclusion, it would result in every residence on Sullivan’s Island with parking under the house being transformed into an Accessory Structure,” wrote Boehm’s lawyer, Alice Paylor, a Sullivan’s Island resident, in her brief.

In his written ruling, issued April 29, Judge Dennis agreed with Boehm, stating “The Court concludes that 2720B is a principal building under the Town of Sullivan’s Island Zoning Ordinance and that the BZA’s conclusion is arbitrary capricious, not based on the law and an abuse of discretion.”

The Judge goes on to conclude that the property is nonconforming solely due to being the smaller of two dwellings on a single lot. “None of Mr. Boehm’s requests will increase the nonconformity, because they are merely improvements to the existing one dwelling and will not increase the extent of nonconformity.

“The Court concludes that the Town should issue to Mr. Boehm the permits needed to raise the roof and extend the roof over the existing stairs and walkway and should withdraw its order to remove the furniture on the slat house roof, because there is no provision of the Zoning Ordinance prohibiting furniture on a slat house roof.”

At the May 19, 2015 Town Council meeting, Council went into Executive Session to receive legal advice regarding Boehm’s case, among others. Town Administrator, Andy Benke told Island Eye News that a decision on whether to appeal wasn’t reached during that meeting.

On May 27, Paul Boehm’s attorney Alice Paylor, was informed by the Town’s litigation attorney John Linton, that the Town plans to appeal the court’s order.

The Town’s BZA is comprised of a 7 member board of residents, who are appointed by Town Council. Due to recent resignations, three are currently 3 seats vacant on the board. Interested residents should visit www.sullivansisland-sc.com for more details.

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