Hampton v. Richland County Council

370 S.E.2d 714 | S.C. | 1988

Concurrence Opinion

Harwell, Justice

(concurring):

Petitioners brought this action to overturn Richland County Council’s refusal to rezone their property as C-3 (General Commercial). We granted certiorari to review the opinion of the Court of Appeals which upheld Council’s decision.

This Court will not overturn the decision of a zoning authority unless the decision is not fairly debatable. Rushing v. City of Greenville, 265 S. C. 285, 217 S. E. (2d) 797 (1975). A decision is not fairly debatable if it is so unreasonable as to impair or destroy a Constitutional right. Id.

While I question the wisdom of Council’s decision, I can not say that the decision is not fairly debatable. Therefore, I agree that the writ of certiorari was improvidently granted.

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Lead Opinion

J. B. Ness, Acting Associate Justice:

We issued a writ of certiorari to review the opinion of the Court of Appeals reported at 292 S. C. 500, 357 S. E. (2d) 463 (Ct. App. 1987). After the careful consideration of the briefs and arguments, we have decided the writ was improvidently granted. We note, however, that the discussion of the so-called Fasano¹ doctrine in the Court of Appeals’ opinion is clearly unnecessary to a resolution of the issue before the court and is therefore dicta. See Johnson v. Atlantic Coast Line R.Co., 142 S. C. 125, 140 S. E. 443 (1927).

Accordingly, the writ of certiorari is dismissed as improvidently granted.

Writ dismissed.

Gregory, C. J., and Finney, and Chandler, JJ., concur. Harwell, J., concurring in separate opinion.

1 Fasano v. Board of County Commissioners of Washington County, 264 Or. 574, 507 P. (2d) 23 (1973).