Did a South Carolina town have to create an architectural review board, and who could appeal its decisions?

Plain-English summary

The mayor of Pawleys Island asked whether a municipality with architectural standards had to maintain a board of architectural review, who could appeal a board decision, and who paid appeal costs. The Attorney General said the board was optional under § 6-29-870, but a local government that chose to establish one had to comply with the governing statute. If it later discontinued the board, it had to follow its own governance rules and applicable statutory requirements.

The opinion said an appeal required a person with a substantial interest, meaning standing, and reviewed examples involving nearby property owners, an artist, and a neighboring government. It did not declare that the particular group or municipality in the mayor's question had standing. For costs when an architectural board decision was reversed in circuit court, it directed the mayor to § 6-29-930 rather than the zoning-board provision in § 6-29-840, while also noting the relevant court rules.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did architectural standards require the town to keep a review board? A: The AG said no. The authorizing statute made such a board optional, though a town that established one had to follow the applicable requirements.

Q: Could nearby owners appeal a board decision?
A: The opinion cited a case in which owners next to or near a development had a substantial interest. It said standing depended on the circumstances of the actual appellant.

Q: Did a neighboring municipality automatically have standing? A: No. The AG cautioned that a political subdivision generally had to allege an infringement of its own proprietary interests or statutory rights, absent an overriding public concern.

Q: Which cost provision applied to an architectural review appeal? A: The opinion identified § 6-29-930 for architectural-board appeals and distinguished § 6-29-840, which concerned zoning-board appeals.

Background and statutory framework

The letter contrasted an optional architectural review board under § 6-29-870 with the separate zoning and architectural appeal provisions. It treated “substantial interest” as a standing requirement and emphasized that courts, not the AG, would resolve disputed facts and the application of cost rules in an actual case.

Citations and references

The opinion discusses § 6-29-870, § 6-29-840 and § 6-29-930.

Official title

Regarding Architectural Board of Appeals.

Requester

The Honorable William L. Otis, Mayor, Town of Pawleys Island

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-2-2013/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/10/otis-w-l-os-9676-10-2-13-architectural-board-of-appeals.pdf

Original opinion text

ALAN WILSON
A TIORNEY GENERAL

October 2, 2013

The Honorable William L. Otis
Mayor, Town of Pawleys Island
321 Myrtle Avenue
Pawleys Island, South Carolina 29585
Dear Mayor Otis:
Attorney General Alan Wilson has referred your letter of September 23, 2013 to the Opinions section for a response. The following is our understanding of your questions presented and the opinion of this Office concerning the issues based on that understanding. Issues (as quoted from you letter): 1) Is a County or Municipality required to have an Architectural Board of Appeals if they have Ordinances requiring Architectural Standards? If not, what is the redress of a decision in. which a party feels the ordinance standards have not been correctly appliecf! 2) The SC Code of Laws 6-29-840 states that "a person with a substantial interest" may appeal a decision of a Board of Architectural Appeals. Who is "a person of substantial interest?" Would a local group of citizens, or a nearby Municipality interested in upholding the architectural standards in the Overlay Zone, be such a "person?" 3) ls a "person of substantial interest" liable for civil action by the appellant for costs incurred because of the appeal, if they pursue an appeal in Circuit Court? 4) Does 9-29-840(A) : "In the event that the decision of the Board is reversed by the circuit court, the board is charged with the costs, and the cost must be paid by the governing authority which established the board of appeals. " require that the Governing Body pay the costs of a successfal appeal of its Board ofAppeals or is that up to the Judge? Answers: 1) The South Carolina statute authorizing a board of architectural review says a local government "may" have a board of architectural review or similar such board. S.C. Code § 6-29-870 (1976 Code, as amended). Thus, while a county or municipality does not have to have a board of architectural review, they must comply with the statute concerning such boards if they choose to have one. However, just as a county or municipality may choose to have a board of architectural review, they. may choose to discontinue one. If the county or municipality discontinues its board of architectural review after they already establish one by ordinance, they must follow their own rules of governance in dissolving the board or complying with any ordinances they have in addition to any statutory requirements. If one feels an ordinance's revocation or implementation was not properly performed by the entity's own rules and ordinances (keeping in mind S.C. Code § 4-9-110 which says "the council shall determine its own rules

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The Honorable William L. Otis
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October 2, 2013

and order of business) or pursuant to statutory law, then one with standing could file a suit in circuit court, such as an action for declaratory judgment or could otherwise appeal through statutory channels. See, e.g., Business License Opposition Committee v. Sumter County, 311 S.C. 24, 426 S.E.2d 745 (1992). However, if one desires to appeal an ordinance's standards for architectural review were not followed, then a party with standing should follow the appeal procedures set forth by statute. See S.C. Code § 6-29890ff.1 2) As a background regarding statutory interpretation, the cardinal rule of statutory construction is to ascertain the intent of the legislature and to accomplish that intent. Hawkins v. Bruno Yacht Sales. Inc., 353 S.C. 31, 39, 577 S.E.2d 202, 207 (2003). The true aim and intention of the legislatnre controls the literal meaning of a statute. Greenville Baseball v. Bearden, 200 S.C. 363, 20 S.E.2d 813 (1942). The historical background and circumstances at the time a statute was passed can be used to assist in interpreting a statute. Id. An entire statute's interpretation must be "practical, reasonable, and fair" and consistent with the purpose, plan and reasoning behind its making. Id. at 816. Statutes are to be interpreted with a "sensible construction," and a "literal application of language which leads to absurd consequences should be avoided whenever a reasonable application can be given consistent with the legislative purpose." U.S. v. Rippetoe, 178 F.2d 735, 737 (4th Cir. 1950). Like a court, this Office looks at the plain meaning of the words, rather than analyzing statutes within the same subject matter when the meaning of the statute appears to be clear and unambiguous. Sloan v. SC Board of Physical Therapy Exam., 370 S.C. 452, 636 S.E.2d 598 (2006). The dominant factor concerning statutory construction is the intent of the legislature, not the language used. Spartanburg Sanitarv Sewer Dist. v. City of Spartanburg. 283 S.C. 67, 321 S.E.2d 258 (1984) (citing Abell v. Bell, 229 S.C. 1, 91 S.E.2d 548 (1956)). Since the statute appears clear and unambiguous in requiring a person to have a substantial interest to appeal, this Office will not look further to determine the meaning of the language in the statute. Sloan v. SC Board of Physical Therapy Exam., 370 S.C. 452, 636 S.E.2d 598 (2006). The question of "a person with a substantial interest" entails one must have standing in order to appeal a decision of a Board of Architectural appeals. A "person with a substantial interest" has been an issue discussed in a few South Carolina cases. Property owners next to and close by a development were found to have a "substantial interest" and thus had standing to appeal in one South Carolina case. Spanish Wells Property Owners Ass'n v. Board of Adjustment, 292 S.C. 542, 357 S.E.2d 487 (Ct.App. 1987) (reversed on other grounds). However, the artist who painted a mural on private property did not have standing to challenge the constitntionality of a city's historic preservation ordinance, after the city's ·board of architectural review ordered the mural to be removed. Burke v. City of Charleston, 139 F.3d 401 (1998). 2 While there is plenty of South Carolina case law on standing, this Office wants to caution you in pursuing a government entity's standing. One South Carolina case between a county and municipality held that "[a]bsent an issue of overriding public concern, a political subdivision must establish it is a real party in interest in order to maintain a suit ... It must allege an infringement of its own proprietary interests or statutory rights to establish standing." County of Lexington v. City of Colnmbia, 303 S.C. 300, 400 S.E.2d 146 (1991) (citing Richland Co. Recreation Dist. v. City of Columbi~ 290 S.C. 93, 348 S.E.2d

1

See Historic Charleston Foundation v. Citv of Charleston, 400 S.C. 181, 734 S.E.2d 306 (2012), for a case

concerning "spot zoning" and zoning ordinances.
2

For additional board of architectural review appeal cases, see Gurguanious v. Citv of Beaufort, 317 S.C. 481, 454 S.E.2d 912 (Ct.App. 1995); Blind Tiger, LLC v. Citv of Charleston, 366 S.C. 182, 621S.E.2d361(Ct.App.2005).

The Honorable William L. Otis
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October 2, 2013

363 (1986)). See also City of Spartanburg v. County of Spartanburg. 303 S.C. 393, 401 S.E.2d 158 (1991). 3) & 4) This Office will presume you are asking about S.C. Code Section 6-29-840, which concerns appeals from zoning boards. It references costs for appeals when it says: "[i]n the event that the decision of the board is reversed by the circuit court, the board is charged with the costs, and the costs must be paid by the governing authority which established the board of appeals." S.C. Code § 6-29-840. It is this Office's understanding your question involves an appeal of a board of architectural review not a zoning board. An appeal concerning a board of architectural review is found in S.C. Code Sections 6-29-890, 629-900ff. S.C. Code Section 6-29-930 lays out the terms for costs of an appeal from the board of architectural review to the circuit court. It says: "[i]n the event that the decision of the board is reversed by the circuit court, the board is charged with the costs, and the costs must be paid by the governing authority which established the board of appeals." S.C. Code § 6-29-930. This Office can direct you to some of the other court rules to determine liability for conrt costs. That statute appears to be clear and unambiguous. However, please note the South Carolina Rules of Civil Procedure say "[e ]xcept when express provision therefor is made either in a statute or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the State, its officers, and agencies shall be imposed only to the extent permitted by law ... " Rule 54(d) SCRCP. The South Carolina Rules of Appellate Procedure say "[u]nless otherwise ordered by the appellate court or agreed by the parties, costs shall be taxed against the appellant when the appeal is dismissed or judgment on appeal is affirmed. When a judgment is reversed, costs shall be taxed against the respondent unless the court orders otherwise. When an appeal is affirmed or reversed in part or is vacated, costs shall be allowed only as ordered by the appellate court." Rule 222(a) SCACR. As stated above regarding statutory interpretation, the cardinal rule of statutory construction is to ascertain the intent of the legislature and to accomplish that intent. Hawkins v. Bruno Yacht Sales. Inc., 353 S.C. 3 I, 39, 577 S.E.2d 202, 207 (2003). The true aim and intention of the legislature controls the literal meaning of a statute. Greenville Baseball v. Bearden, 200 S.C. 363, 20 S.E.2d 813 (1942). The historical background and circumstances at the time a statute was passed can be used to assist in interpreting a statute. Id. An entire statute's interpretation must be "practical, reasonable, and fair" and consistent with the purpose, plan and reasoning behind its making. Id. at 8 I 6. Statutes are to be interpreted with a "sensible construction," and a "literal application of language which leads to absurd consequences should be avoided whenever a reasonable application can be given consistent with the legislative purpose." U.S. v. Rippetoe, 178 F.2d 735, 737 (4th Cir. 1950). Like a court, this Office looks at the plain meaning of the words, rather than analyzing statutes within the same subject matter when the meaning of the statute appears to be clear and unambiguous. Sloan v. SC Board of Physical Therapy Exam., 370 S.C. 452, 636 S.E.2d 598 (2006). The dominant factor concerning statutory construction is the intent of the legislature, not the language used. Spartanburg Sanitary Sewer Dist. v. City of Spartanburg, 283 S.C. 67, 321 S.E.2d 258 (1984) (citing Abell v. Bell, 229 S.C. 1, 91 S.E.2d 548 (1956)). Since the statutes appear to be clear and unambiguous, this Office will not look further to determine the meaning of the language in the statute. Sloan v. SC Board of Physical Therapy Exam., 370 S.C. 452, 636 S.E.2d 598 (2006). However, since this Office may not be familiar with the particulars of your factual situation, we suggest obtaining the advice of your municipal attorney or checking with the court for further inquiry.

The Honorable William L. Otis
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October 2, 2013

Conclusion: All of the above answers were this Office's attempt to assist you with your legal questions. We encourage you to consult your municipal attorney for additional advice. As you are aware, this Office is only issuing a legal opinion. Until a court or the legislature specifically addresses the issues presented in your letter, this is only an opinion on how this Office believes a court would interpret the law in the matter. If it is later determined otherwise or if you have any additional questions or issues, please let us know. Sincerely,

~dy~
Anita Smith Fair
Assistant Attorney General
REVIEWED AND APPROVED BY:

Solicitor General