Zoning – Prescriptive Easement – Right-of-Way Variance

Listen to this article

The Oconee County Board of Zoning Appeals (BZA) acted within its jurisdiction in granting the variance.

The circuit court properly affirmed the BZA’s granting of the variance.

This appeal challenged the circuit court’s order affirming the BZA’s granting of a right-of-way variance for the construction of a private road to access a proposed subdivision on Lake Keowee. Appellants argued the BZA: (1) lacked jurisdiction to determine the existence of a prescriptive easement, (2) erred in assuming Oconee County held a prescriptive easement, and (3) erred in expanding the purported easement. Appellants further contended the BZA’s approval of the variance application was arbitrary and capricious.

Appellants argued the BZA lacked jurisdiction to decide a legal or factual dispute related to the existence of a prescriptive easement. Appellants further claimed that in presuming such an easement exists, the Board improperly shifted the burden of proof to Appellants to object to the variance when the burden properly lies with the applicant—the developer—to establish the prerequisites for a variance. Finally, Appellants contended the BZA erred in expanding the purported easement. We agreed with the circuit court that the BZA acted within its jurisdiction in granting the variance.

The BZA has the statutory power to “to hear and decide appeals for variance from the requirements of the zoning ordinance when strict application of the provisions of the ordinance would result in unnecessary hardship” and may grant a variance if the board “makes and explains in writing” the required statutory findings. S.C. Code Ann. § 6-29-800(A)(2) (Supp. 2024). Although Appellants repeatedly argued the BZA lacked jurisdiction to determine the existence of a prescriptive easement, the BZA made no such determination. Here, the BZA reviewed the variance application and addressed the applicable statutory factors. At least one board member expressly stated during the November meeting that the BZA would not express an opinion as to the existence of any alleged easement. And the BZA’s order recognizes the developers must satisfy other applicable requirements prior to moving the existing roadway or constructing a new portion of the road. As the BZA properly addressed only a variance from the County’s right-of-way width requirement for the entrance to the proposed subdivision, we found Appellants’ jurisdictional argument meritless.

Appellants next argued the approval of the variance was arbitrary and capricious because the location of the proposed road was left undetermined. We disagreed. The BZA properly considered the statutory factors, and its findings were not arbitrary, capricious, or a clear abuse of discretion. In its discussion, the BZA addressed all four conditions that an applicant must meet to receive a variance. The BZA then made findings as to each condition in its written order, and its findings are more than supported by the evidence. First, the evidence establishes “there are extraordinary and exceptional conditions pertaining to the particular piece of property.” See § 6-29-800(A)(2)(a).

Next, there is evidence to support the BZA’s finding that “because of these conditions, the application of the ordinance to the particular piece of property would effectively prohibit or unreasonably restrict the utilization of the property.” See § 6-29-800(A)(2)(c). The only way the developers could avoid the 50-foot right-of-way width requirement would be to reduce the number of proposed homes on the property to three lots. Thus, evidence supports the BZA’s conclusion that reducing the number of lots to three would unreasonably restrict the utilization of this 15-acre property.

Finally, there is evidence in the record supporting the BZA’s finding that “the authorization of a variance will not be of substantial detriment to adjacent property or to the public good, and the character of the district will [not] be harmed by granting of the variance.”

For these reasons, the circuit court properly affirmed the BZA’s granting of the variance.

Affirmed.

John’s Marine Service Inc. v. Oconee County Board of Zoning Appeals (Lawyers’ Weekly No. 011-008-25, 10 pp.) (Stephanie P. McDonald, J.) Appealed from Oconee County Circuit Court (J. Cordell Maddox Jr., J.) David Lee Paavola, of Kenison Dudley & Crawford, LLC, of Columbia, for Appellants; Larry C. Brandt, of Larry C. Brandt, PA, of Walhalla, and Andrew Kent Holliday, of Derrick Ritter Williams & Morris, PA, of Seneca, both for Respondents Ridgewater Engineering & Surveying, LLC, Globe, a South Carolina Limited Partnership, and Farmes, a South Carolina Limited Partnership; James W. Logan, Jr., of Logan & Jolly, LLP, of Anderson, for Respondent Oconee County Board of Zoning Appeals. South Carolina Court of Appeals