Grant v. City of Folly Beach

BURNETT, Justice

(concurring in part and dissenting in part):

I concur in part and dissent in part. I concur with the majority regarding Grant’s estoppel claim. I respectfully dissent, however, from the majority’s conclusion which allows a zoning board to produce a transcript of a hearing solely at its own discretion.

In relevant part, South Carolina Code Ann. § 6-7-760 (1977) provides:
Upon the filing of such an appeal ¡from the board of adjustment], the clerk of the circuit court shall give immediate notice thereof to the secretary of the board and within thirty days from the time of such notice the board shall cause to be filed with the clerk a duly certified copy of the proceedings had before .... the board of adjustment, including a transcript of the evidence heard before it, if any, *84and the decision of the board.6

(Underline added).

“If a statute’s language is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion for employing rules of statutory interpretation and the court has no right to look for or impose another meaning.” Paschal v. State Election Comm’n, 317 S.C. 434, 436, 454 S.E.2d 890, 892 (1995). However, where the language of an act gives rise to doubt or uncertainty as to legislative intent, the construing court may search for that intent beyond the borders of the act itself. The Lite House, Inc., v. J.C. Roy, Co., 309 S.C. 50, 419 S.E.2d 817 (Ct.App.1992).

A statute as a whole must receive a practical, reasonable, and fair interpretation consonant with the purpose, design, and policy of lawmakers. Roche v. Young Bros., Inc., of Florence, 332 S.C. 75, 504 S.E.2d 311 (1998). “Any ambiguity in a statute should be resolved in favor of a just, equitable, and beneficial operation of the law.” Bennett v. Sullivan’s Island Bd. of Adjustment, 313 S.C. 455, 458, 438 S.E.2d 273, 274 (Ct.App.1993). In giving effect to legislative intent, the court is constrained to avoid an absurd result. South Carolina Tax Comm’n v. Gaston Copper Recycling Corp., 316 S.C. 163, 447 S.E.2d 843 (1994).

The majority and I agree that Section 6-7-760 is ambiguous. As noted by the majority, “if any” arguably modifies the noun “transcript;” alternatively, “if any” modifies the phrase, “evidence heard before it.”

In my opinion, the most reasonable interpretation of § 6-7-760 is that the legislature intended to require a zoning board to prepare and file a transcript with the circuit court whenever evidence was presented before it and its decision is appealed. Requiring a zoning board to file a transcript if it prepares one leaves the production of a verbatim transcript at the discretion of the zoning board, a result I find the legislature could not have intended. My interpretation is entirely consistent with § 6-7-740 which requires zoning boards to keep public records of its hearings and other official actions. In compliance *85with this section, zoning boards can record evidentiary proceedings then transcribe the recording if a decision is appealed.7

Because of my interpretation of § 6-7-760, I necessarily must address City’s question whether the Court of Appeals erred by concluding the circuit court should have remanded this matter to the Board for rehearing after Grant encountered hostility while attempting to reconstruct the record.

At the initial hearing before the circuit court, the parties agreed the tape recording from the Board hearing was of poor quality and could not be transcribed. Accordingly, Grant moved to either reconstruct the record or hold a new hearing. The circuit court allowed Grant to reconstruct the record by stipulation, affidavit, or transcript.

At the second hearing, Grant’s attorney stated:

... it was a bit difficult to supplement the record, Your Honor. I guess one explanation might be that these were not friendly witnesses, in that I did not get return phone calls from people I really wanted to get affidavits from, since I could not require them [to] call me back or cooperate.

City’s attorney responded:

Your Honor, [Grant’s attorney] — I don’t think she meant to imply this, but I just want to present to the Court that we have been very cooperative in trying to reach a stipulation. She talked about not [sic] able to reach people. I do not believe those people were city employees, and I do not believe she meant to imply that [City’s attorney] or I somehow, you know, caused the problem.

Grant’s attorney replied:

It is correct that I did not imply that they were not cooperative at all. They have been, but, nonetheless, Your Honor, the record is still incomplete.

Grant reconstructed the record with an affidavit from his property manager.

*86The record does not support the Court of Appeals’ conclusion Grant was “prohibited in obtaining affidavits” and “encountered a hostile environment” in attempting to reconstruct the record. The record indicates the circuit court gave Grant the opportunity to reconstruct the record from the Board hearing through stipulation, affidavits, or transcript. Although she initially suggested otherwise, Grant’s counsel agreed City’s employees were cooperative.

The circuit court properly allowed Grant to reconstruct the record. See Dolive v. J.E.E. Developers, Inc., 308 S.C. 380, 418 S.E.2d 319 (Ct.App.1992) (holding trial court did not err in granting property owner’s request to reconstruct the record of zoning proceeding where portions of original tape of hearing were incapable of being transcribed and loss of vital portions of record appeared to have been through no fault of zoning board); see also China v. Parrott, 251 S.C. 329, 162 S.E.2d 276 (1968) (where portions of stenographic notes of trial proceeding were lost before being transcribed, not error for trial judge to consider affidavit of trial counsel and court reporter in determining what transpired). Because Grant failed to take advantage of the opportunity to reconstruct the record by obtaining a stipulation with City’s attorney, deposing witnesses, and/or filing his own and his attorney’s8 affidavits, he is not entitled to a new hearing.9

I would affirm in part and reverse in part the Court of Appeals’ opinion.

. Section 6-7-760 has been repealed and recodified with similar language at § 6-29-830 (Supp.2000).

. Under my interpretation, zoning boards need not employ full-time court reporters.

. A different attorney represented Grant on appeal.

. Section 6-9-840 (Supp.2000) specifically provides that if the circuit court judge "determines that the certified record is insufficient for review, the matter may be remanded to the zoning board of appeals for rehearing.” This section became effective in May 1999. See Act No. 355, 1994 S.C. Acts 4036. The predecessor to this section, § 6-7-780, did not have a provision for remand.