By Jennifer Tuohy, Island Eye News Contributing Editor
A long-running lawsuit between The Town of Sullivan’s Island and Sullivan’s resident Paul Boehm almost came to a conclusion last month, when the South Carolina Court of Appeals upheld Judge Dennis’s ruling that Boehm’s garage apartment building on Goldbug Ave. was in fact a principal building and not an accessory structure. The Judge wrote that the Town’s Board of Zoning and Appeals decision to change the building’s status had been “arbitrary capricious, not based on the law and an abuse of discretion.”
That initial decision was issued in 2015 and it has taken three years – almost to the month – for the Town’s appeal to run its course. And it’s not done yet. On March 28 the Court of Appeals ruled the original judgement was correct and that Boehm could go ahead with his plans to improve the building – which have been on hold since the Town’s Zoning Administrator Joe Henderson issued a stop work order in 2014. Then, on April 12, the Town appealed the appeal. The Town wants the court to rehear the case because it believes the court’s opinion overlooks the argument that any expansion of a second principal building is prohibited under its zoning ordinance.
“The Town’s new request to have the SC Court of Appeals rehear the case is just bad faith and a waste of our taxpayer money,” Boehm told Island Eye News. He said the court did an extensive job of researching the law in the case, taking a year to investigate. The court’s 20 page ruling “addresses every claim the town made against me and my property and specifically refuted each one with examples of other similar issues decided in South Carolina, as well as other states,” said Boehm. “The ruling was a complete victory for me and my property and a vindication for me for having gone through all this.”
In its petition to rehear, the Town says Boehm’s wish to improve his deck and add a covered walkway would expand the use of the structure, which is prohibited by the Town’s ordinance. The crux of this issue, it appears, lies in that word “use.”
When the Town was established in 1977 it sought to promote a single-family dwelling community by restricting the building of multi-family dwellings on residential lots.
However, at that point there were already some lots with more than one home and/or structure on them. These became “grandfathered in” because they were in existence before the new ordinance.
At the time, according to research done by Boehm, very few of these “non conforming” principle buildings were formally recognized as such, also records have been lost (in some cases due to Hurricane Hugo in 1989), and there are fewer and fewer people left who remember the island at that time.
Today, the Town’s Comprehensive Plan states there are 172 of these “extra dwellings” on the island. Over the years, when a property owner has gone before the BZA to request any type of change to such a property, they would have to prove it was a non-conforming principle building in order for the BZA to determine if the changes requested would expand its “use” or not; Town ordinances prevent any non-conforming use from being expanded “unless the expansion reduces or eliminates the use.” Although according to Boehm, the Town has approved construction on non-conforming buildings many times, including allowing new structures to be built.
But what is use? The court of appeals took the view that use is what the building is used for, i.e. a residential property, whereas the Town says use is related to how large the property is. The court explicitly told the Town in its ruling that if the Town had intended “use shall not be expanded” to mean the volume of a non-conforming building cannot be increased, it should have used that exact terminology.
Boehm points out a number of similar cases that have gone before the BZA have been allowed to have their footprint expanded, including the current redevelopment of the old school building at 2302 Middle St.
“Since this has occurred, the Town has had other lawsuits over non-conforming uses, and they have allowed the expansion of other non-conforming uses,” Boehm said. “Take the church school building that’s being renovated right now, they allowed the two non-conforming use apartments inside that building to be blown up and enlarged and made more more livable. What’s the difference between those and mine under the zoning code?”