Agenda - Planning Commission - 11/01/2007

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( "j October 15, 2007 I Volume 1 I No. 20 Finally, the court found. that Aron would not experience a substantial I ." . . hardship if he was denied a variance. As described, there were no circUm- stances relating to the soil conditions, shape, or topography of the land or structure affecting this property and not the surrounding area. Those fac- tors had to be present to support an applicants claim that he or she would suffer a hardship if not granted a variance. Because the court found that the board granted the variance without satisfying the requirements set forth in the general law, the board's deci- sion was arbitrary and capricious and exceeded its authority. The variance was annulled. Restrictive Covenants-Owner of development sells portion of land with restrictions on subdivision . Claims new owner's plans to turn existing apartments into condos violates covenant '~) Citation: Penny Creek Associates, LLC v. Fenwick Tarragon Apartments, LLC, i007 WL 2767199 (S.c. Ct. App. 2007) SOUTH CAROLINA (09/18/07)-Penny Creek owned and developed property for residential use. in Charleston County. Another developer, Fenwick Tarragon, purchased 15.63 acres of land within an existing de- velopment from Penny Creek for the purpose of constructing an apart- ment coml'lex. The property was subject to several covenants and restrictions, which . provided that the property was to be used exclusively for single-family . residential purposes, townhouses, apartment homes, commercial 'activi- ties, and other similar uses that had to be approved by Penny Creek. Im- portantly, one section of the restrictive covenant provided that: "[n]o Lot or Parcel shall be subdivided or its boundary lines changed, nor shall ap- plication for same be made to the City of Charleston, except with [penny Creek's] prior, written consent." . In 2005, Fenwick Tarragon decided to convert the existing apartments into condominiums. When it began the conversion, Penny Creek demand- ed that Fenwick Tarragon first obtain its written consent pursuant to the restrictive covenant. Fenwick Tarragon proceeded with the project with- out obtaining permission. . Penny Creek petitioned the court, requesting that it declare that the conversion of the apartments into condominiums amounted to a subdivi- sion of the property without Penny Creek's permission in violation of the . restrictive covenant. Pep.ny Creek later filed another request that request- ed specifically that the court prohibit Fenwick Tarragon from continuing with the condominium project. Fenwick Tarragon denied violating the re- strictive covenant, arguing that the conversion project did not amount to 7 93