## Facts

- South Carolina Electric and Gas Company and SCANA Communications, Incorporated sought permission to construct a telecommunications tower in the Town of Mount Pleasant, South Carolina.
- The proposal required a conditional-use permit (also described as a special-use permit) under the Town’s zoning scheme.
- The Town of Mount Pleasant Board of Zoning Appeals (the Board) approved the conditional-use permit for the telecommunications tower.
- As a condition of approval, the Board required preparation of a fall-zone plan addressing where the tower would fall if it failed.
- The Board determined that the fall-zone condition had been satisfied.
- The record before the Board included statements from the tower’s manufacturer and a licensed engineer indicating the tower could withstand extremely high winds.
- Those materials also stated the tower was designed, if it collapsed, to fall on itself within a radius of approximately 70 feet from the base.
- The tower project was reviewed by the Town’s building inspector and examined by multiple federal agencies as part of the overall scrutiny of the project.
- Mark Bevivino and other nearby residents opposed the tower and challenged the permit, asserting the evidence did not support a finding that the tower would not endanger the health and safety of residents living nearby.
- The circuit court upheld the Board’s decision, and Bevivino and other residents appealed to the South Carolina Court of Appeals.

## Issues

1. Whether the record contained sufficient evidence to support the Board’s finding that the telecommunications tower, with the fall-zone requirement, would not endanger the health and safety of nearby residents, such that the conditional-use permit could stand on judicial review.

## Decision

- The South Carolina Court of Appeals affirmed the circuit court’s order upholding the Board’s grant of the conditional-use (special-use) permit.
- The court concluded the Board’s health-and-safety determination was supported by evidence in the record, including engineering and manufacturer information about wind resistance and collapse behavior, along with the fall-zone plan condition and governmental review of the project.
- The court rejected the residents’ attempt to overturn the permit by disputing the weight or credibility of the materials the Board accepted.

## Legal Principles

- On judicial review of a local zoning-board decision, the court does not substitute its judgment for the board’s judgment on disputed factual matters; the question is whether the board’s decision is supported by evidence in the record and is legally permissible.
- A conditional-use (special-use) permit may be approved when the decision-maker finds the proposed use satisfies the ordinance’s standards, including standards tied to public health and safety.
- A zoning board may rely on competent technical materials—such as manufacturer specifications and licensed-engineer statements—when evaluating claims about structural safety, wind resistance, and expected collapse behavior.
- A zoning board may impose enforceable conditions (such as a fall-zone plan requirement) to address safety concerns as part of conditional-use approval.

## Conclusion

The Court of Appeals left the permit in place because the Board had record support for its finding that the tower would not threaten nearby residents’ health and safety, particularly given the engineering and manufacturer materials describing wind resistance and a limited collapse radius, the Board’s fall-zone condition, and additional project review by local and federal authorities.


Bevivino v. Board of Zoning Appeals, 737 S.E.2d 863 (2013)