Sea Island Scenic Parkway Coalition v. Beaufort County Board of Adjustments and Appeals

Cureton, Judge:

Appellants, Sea Island Scenic Parkway Coalition, and others, appeal from a decision of the circuit court affirming a decision of the Beaufort County Board of Adjustments and Appeals (Board), a body created pursuant to the provisions of Section 6-7-740 et seq., S.C. Code Ann. (1976 & Supp. 1993). We affirm in part, reverse in part and remand.

The facts are not seriously in dispute. The developer, Branch Development, Inc. (Branch), filed a preliminary application with the Beaufort County Development Review Committee (DRC), the approving authority,1 for a development permit to construct a “Publix Supermarket” on a 6.4-acre site Branch had contracted to purchase. The application was disapproved by DRC because the plan (1) required excessive tree removal, (2) the proposed highway access did not meet county standards, (3) the retention areas were in the wrong places, and (4) the parking areas were excessive. In an appeal to the Board, the plan was approved. The appellants then appealed to the circuit court which affirmed the Board. The only issue addressed in this majority opinion is whether the trial *234court erred in affirming the Board’s finding that Branch’s development plan did not require the removal of an excessive number of protected trees in violation of the Beaufort County Zoning and Development Standards Ordinance. The majority concurs in and adopts the analysis and disposition of all other issues contained in Judge Goolsby’s concurrence and dissent. Specifically, we adopt Parts I, II, IV, V and VI of Judge Goolsby’s concurrence and dissent.

Contrary to the findings of the DRC, the Board found “[t]he tree removal proposed by Branch’s plan is not ‘excessive’ as a matter of law, either as to the number or type of trees.” The board also concluded “[t]he applicable provisions of the [Ordinance] authorize approval of development which involves removing not more than 75 percent of the protected trees on the site.” In the appellants’ petition for review to the circuit court, they argue “the destruction of 47 [of 89] live oak trees ... is contrary to the [Ordinance]” and would impair “the purpose and intent of the [Ordinance].” They also state the Board “acted in this matter in an arbitrary, capricious and unlawful manner, without substantial evidence, such that its decision is void.” In ruling on the petition for review, the trial court found “[t]he tree removal proposed by Branch’s plan is not “excessive” as a matter of law, either as to the number or type of trees.”

Ordinarily, findings of fact made by a zoning board of adjustments are final and conclusive on the circuit court and on this court if there is any evidence in the record to support them and they are not influenced by error of law. National Advertising Co. v. Mount Pleasant Bd. of Adjustment, — S.C. —, —, 440 S.E. (2d) 875, 876 (1994) (citing Fairfield Ocean Ridge, Inc. v. Town of Edisto Beach, 294 S.C. 475, 480, 366 S.E. (2d) 15, 18 (Ct. App. 1988)). In Fairfield, however, we stated that where an appeal presents the question of whether a particular use2 is permitted under an ordinance, the resolution of that question is left to the sound discretion of the Board, which discretion will not be disturbed on appeal unless arbitrary or clearly erroneous. Fairfield, 294 *235S.C. at 479-482, 366 S.E. (2d) at 18-19; Bishop v. Hightower, 292 S.C. 358, 356 S.E. (2d) 420 (Ct. App. 1987). Finally, while the circuit court’s and our scope of review is narrow when reviewing the Board’s factual findings, a broader and more independent review is permitted when the issue concerns the construction of an ordinance. 83 Am. Jur. (2d) Zoning and Planning § 1054 (1992); 62 C.J.S. Municipal Corporation § 442 (1949) (The proper construction of an ordinance is a question of law).

Section 6.5.1 of the Ordinance provides that a development plan may be approved if the plan complies “as a whole” with the provisions of Articles Four and Five of the Ordinance. Section 6.7 provides that the DRC “shall deny approval of a development plan only if it finds the proposed development does not comply with the expressed provisions of the Ordinance.” (Emphasis added.) What then are the “expressed provisions” of the Ordinance with respect to the removal of protected trees?

The appellants argue Section 5.2.7 of the Ordinance contains three separate provisions affecting the removal of trees: one for trees in general, one for trees over eight inches in diameter and a third for specific “endangered or valued” trees, into which classification live oak trees are included. They further argue the standard applicable for the removal of trees in each category is different. Particularly, they argue that the language “endangered or valued trees will not normally be permitted [to be removed]” means that the removal of live oak trees is totally prohibited by the Ordinance. Thus, a plan of development requiring the removal of even one live oak tree over eight inches in diameter requires a developer obtain a variance from the Board of Adjustment. We disagree with such an interpretation of the Ordinance.

Section 7.5.2.3(C) states the requirements for a prelimi nary application for a development permit and Section 7.5.2.3(0(16) requires the application be accompanied by a “Tree Survey” showing the “trees proposed for removal.” Section 5.2.7(C) requires the survey include “all trees of the applicable size and larger” located within the area to be developed and the “size and location” of the trees must “be indicated on the site plan.” This requirement is waived, however, when the “preliminary site evaluation by the applicant reveals the abil*236ity to accomplish the proposed project without removal of any trees eight (8) inches in diameter or larger.”

We agree with Judge Goolsby that the Ordinance establishes a procedure that permits the DRC and the Board on appeal to approve a development plan although it proposes the removal of some protected live oak trees. In our view, the fact that Section 5.2.7(B) says that approval to remove endangered trees will not normally be granted simply limits the discretion of the DRC initially, and the Board on appeal, in approving a development plan where endangered trees are proposed for removal. We do not read this section as prohibiting the DRC and Board from approving a plan involving the removal of any endangered trees. Each part of a statute should be given effect and each word given its plain meaning if this can be accomplished by any reasonable construction. Higgins v. State, 307 S.C. 446, 415 S.E. (2d) 799 (1992). To interpret the Ordinance to totally prohibit the removal of even one live oak tree as claimed by the appellants, or to permit the removal of up to seventy-five percent of such trees as contended by respondents, would nullify the Ordinance’s expressed mandate to the DRC and Board to severely limit the number of trees permitted to be removed when approving development plans.3

We have searched the appellants’ brief for an argument for reversal of the trial court based on the proposition the Board’s approval of the development plan was arbitrary, clearly erroneous and/or influenced by error of law. Under their argument Number III, the appellants state:

[The Board] nevertheless concluded that “. . . [t]he tree removal proposed by the Developer’s plan is not ‘excessive’ as a matter of law, either as to the number or type of trees” (reference to record omitted). Since no finding of fact addresses the issue of “endangered or valued trees” as defined in the [ordinance], this conclusion of law is simply not supported by any evidence and is arbitrary, capricious and clearly erroneous. Hodge v. Pollock, 75 S.E. (2d) 752 (1953).

*237We hold that this argument preserves the issue of whether the Board’s approval of the development plan as it pertains to the live oak trees is arbitrary, capricious, clearly erroneous and/or influenced by error of law. We further hold that the Board’s decision to permit removal of over 52 percent of the protected live oak trees was arbitrary and clearly erroneous in view of the clear mandate in the Ordinance to “not normally” permit any endangered trees to be removed. This is especially so in view of the fact that the Board enumerated no circumstances surrounding this development that would compel it to deviate from what is normal or usual in approving plans requiring the removal of endangered trees. Finally, as we read the Board’s conclusions of law, they make no distinction between protected live oak trees and other protected trees. The board appears to have concluded it had authority to approve for removal up to 75 percent of all endangered and valued trees. Such a conclusion is influenced by an error of law.

Accordingly, we reverse the order of the trial court to the extent it affirmed the Board’s decision to permit the removal of the 47 live oak trees from the site proposed for development.

The judgment is

Affirmed in part, reversed in part, and remanded.

Connor, J., concurs. Goolsby, J., concurs and dissents in separate opinion.

Actually, the application was first made to the Zoning and Development Administrator. However, Section 6.4 of the Ordinance requires approval by the DRC before the Administrator could issue the permit. Additionally, Section 7.9 of the Ordinance establishes a procedure for a public hearing before the DRC when “the issues raised by the proposed development, in the judgment of the Development Review Committee, have sufficient County-wide impact as to warrant public discussion.” A public hearing was held in this case.

The ultimate question presented here is whether the land in question may be used for a supermarket in accordance with the plans presented. However, in order to decide that question, construction of the ordinance is necessary to determine its requirements.

Section 7.5.3.1(B)(10) states “It is the expressed intent of this Ordinance that every effort be made in the design and layout of development projects to conserve as many trees as possible.”