Dortch v. City of Columbia

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Frieda H. Dortch, Appellant,

v.

City of Columbia Planning & Development
Services/Zoning Division, Respondent.

Appellate Case No. 2013-002686

Appeal From Richland County
James R. Barber, III, Circuit Court Judge

Unpublished Opinion No. 2015-UP-535
Heard June 9, 2015 – Filed November 25, 2015

REMANDED

M. Baron Stanton, of Stanton Law Offices, P.A., of
Columbia, for Appellant.

Peter M. Balthazor, of the Office of the City Attorney, of
Columbia, for Respondent.

PER CURIAM: Appellant Frieda H. Dortch argues the circuit court erred in
dismissing her appeal from the City of Columbia Board of Zoning Appeals (BZA).
Specifically, Dortch argues (1) the doctrine of res judicata cannot be asserted for
the first time on appeal; (2) the lack of finality and a determination on the merits in
the first proceeding precludes the defense of res judicata from being raised in the
second proceeding; and (3) res judicata was not applicable to the first proceeding
because she was not given a full and fair opportunity to litigate her claim.

On May 14, 2008, Dortch filed an application with the City of Columbia Planning
and Development Services/Zoning Division (Respondent), seeking "grandfather
status" for the nonconforming use of a vacant duplex on the subject property
(subject property). The Zoning Administrator denied this request, and Dortch
applied for administrative review of the Administrator's determination. After a
hearing on September 9, 2008, the BZA denied the application in a written
decision dated January 16, 2009. Concurrently, on June 11, 2008, Dortch filed an
application for a variance from the lot size requirement for a dwelling unit in order
to "[re]establish a duplex" on the subject property. After a full hearing on the
merits on July 8, 2008, the BZA denied the application for a variance in a written
decision, which was also dated January 16, 2009. Both parties acknowledge the
two decisions were postmarked on January 22, 2009.

On February 24, 2009, Dortch, acting pro se, filed an appeal with the circuit court
from the two 2009 decisions. Dortch then filed an amended petition of appeal
along with a supporting affidavit on February 26, 2010.1 Respondent filed a
motion to dismiss on April 15, 2010. By order dated September 1, 2010 (2010
Order), the circuit court dismissed the appeal, finding Dortch's February 24, 2009
appeal had been untimely filed. On September 17, 2010, Dortch filed a motion to
reconsider the 2010 Order.2 The circuit court has not ruled on this motion to
reconsider.

Dortch filed another application for a variance regarding the same property on
November 14, 2012. On February 8, 2013, after obtaining counsel, Dortch
amended her November 14, 2012 application. After a hearing on February 12,
2013, the BZA denied the application in a written decision dated March 12, 2013.

1
Respondent did not receive notice of Dortch's appeal until being served with the
amended petition on February 26, 2010.
2
Both parties acknowledge that Dortch filed a motion to reconsider from the 2010
order; however, the motion itself is not in the record. Copies of the September 17,
2010 motion enclosure letter from Dortch's counsel (also copied to the trial judge)
and the twenty-five dollar motion fee check are in the record.
Dortch again sought circuit court review, appealing the BZA decision on April 11,
2013. On April 30, 2013, Respondent moved to dismiss the appeal to circuit court
on the grounds of res judicata and collateral estoppel. After a hearing on the
matter, the circuit court dismissed the appeal by order dated August 19, 2013,
holding Dortch's appeal was barred by the doctrine of res judicata. Dortch filed a
motion to reconsider the circuit court's dismissal of the appeal on September 23,
2013, which the circuit court denied on October 15, 2013. This appeal followed.

We remand for a ruling on Dortch's motion to reconsider the 2010 Order pursuant
to Rule 220(b), SCACR, and the following authorities: S.C. Code Ann. § 6-29-
820(A) (Supp. 2014) (stating, in pertinent part, that appeals from local zoning
boards "must be filed within thirty days after the decision of the board is mailed");
Rule 6(e), SCRCP ("Whenever a party has the right or is required to do some act or
take some proceedings within a prescribed period after the service of a notice or
other paper upon him and the notice or paper is served upon him by mail or upon a
person designated by statute to accept service, five days shall be added to the
prescribed period."); Rule 74, SCRCP ("The proceedings in the circuit court shall
be in accordance with these rules . . . ."); Vulcan Materials Co. v. Greenville Cty.
Bd. of Zoning Appeals, 342 S.C. 480, 491, 536 S.E.2d 892, 897–98 (Ct. App. 2000)
(holding Vulcan's appeal to the circuit court timely after analyzing both § 6-29-820
(Supp. 1999) and its predecessor, § 6-7-750 (1970)).

REMANDED.

SHORT, LOCKEMY, and MCDONALD, JJ., concur.