Variance allowing business/residential use is Unlawful

Great legal editorial in the paper today by a Jewish attorney documenting how the variance granting business and multifamily residential uses of our church is UNLAWFUL.

‘Use-variance’ shouldn’t apply in this case

Post and Courier, Wednesday, July 11, 2012

The Board of Zoning Appeals granted a “use-variance” for the historic church building at 43 Wentworth Street at the request of a prospective purchaser.

It allows the church to be converted into multiple residential and office uses. Many have voiced opposition to this decision, motivating me to comment on how it violates longstanding legal precedent.

The law allows a variance (basically, an exception) from zoning regulations if they cause an “unnecessary hardship.”

More than half a century ago, the South Carolina Supreme Court ruled that granting a variance is an “exceptional power which should be sparingly exercised,” and the court has since adopted rules limiting variances.

One such rule disqualifies a property owner if he purchased the property after the complained-of zoning was in effect.

This rule makes sense. One cannot claim unnecessary hardship if the claimed hardship is self-created and could have been avoided.

Forty-three Wentworth Street’s use-variance violates this rule. The current owner acquired the property in 2009. Used as a church for generations, the property’s zoning prohibited more intensive residential and office uses.

It makes no difference that a prospective buyer is the applicant since the zoning exists before her purchase as well.

The unnecessary hardship is self-created and can be avoided.

The owner does not have to sell to someone intending to convert the church to several residences and businesses.

Nothing in the board’s decision states that this is the only marketable use for the property.

In fact, the church worshiping there now may be interested in purchasing and carrying on church activities for years to come.

There are several other reasons, in my view, why the board’s decision was incorrect, but space is limited.

Fortunately, the City Council has the power to reverse the board’s decision on July 17.

Ross Appel       Ashley Avenue      Charleston

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