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25029 - Whaley v. Dorchester County Zoning Board of Appeals

Shearouse Adv. Sh. No.
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

Charles Dennis Whaley, Appellant,

v.

Dorchester County

Zoning Board of

Appeals, Respondent.

Appeal From Dorchester County

Patrick R. Watts, Special Circuit Court Judge

Opinion No. 25029

Heard May 26, 1999 - Filed December 6, 1999

AFFIRMED

Susan K. Dunn, of Charleston, for appellant.

G.W. Parker, of Chellis & Frampton, of Summerville,

for respondent.





BURNETT, A.J.: Appellant Charles Dennis Whaley (Whaley)

challenges the constitutionality of Dorchester County Ordinance No. 96-09.







FACTS

On February 14, 1996, Whaley began parking his 18-wheel Mack

truck (the cab/tractor) overnight and on weekends at his home in the

p.34


WHALEY v. DORCHESTER COUNTY ZONING





Crestwood Subdivision of Dorchester County. In August 1997, Whaley

received a "Cease and Desist" letter from the Dorchester County Planning

and Zoning Department which stated parking his commercial vehicle in the

residential zone was in violation of Ordinance No. 90-19, as amended by

Ordinance 96-09. He responded to the "Cease and Desist" letter and was

granted a hearing.





At the hearing before Respondent Dorchester County Zoning

Board of Appeals (the Board), Whaley testified he uses the 18-wheeler to

drive back and forth to work everyday. He further testified he performs

maintenance on the vehicle at his home. The Board upheld the "Cease and

Desist" letter. Shortly thereafter, Whaley was cited for violation of

Ordinance 90-19. The Circuit Court affirmed.







ISSUES

I. Did the circuit court err by affirming the decision of the

Board because Ordinance 96-09 violates the Equal Protection

Clause of the Fourteenth Amendment to the United States

Constitution?



II. Did the circuit court err by affirming the decision of the

Board because Ordinance 96-09 is overly broad and vague in

violation of the Due Process Clause of the Fifth and Fourteenth

Amendments to the United States Constitution?



III. Did the circuit court err by affirming the decision of the

Board where Ordinance 96-09 produces a taking in violation of

the Fifth Amendment to the United States Constitution?





DISCUSSION

Effective January 1, 1997, Ordinance 96-09 amended Ordinance

90-19, the comprehensive zoning ordinance for Dorchester County, to

specifically prohibit long-term parking of commercial vehicles in residential

areas of Dorchester County. The relevant portions of Ordinance 90-19 and

96-09 are set forth below.

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WHALEY v. DORCHESTER COUNTY ZONING





Ordinance 90-19

In pursuance of authority conferred by . . . and for the purpose of

promoting health, safety, morals and general welfare of the

County: . . .

Article V. Use Groups

NUMBER, NAME, DESCRIPTION AND LIST OF PERMITTED

USES

2. Residential, Single-Family

Principal Uses: Single family, detached dwellings

Accessory Uses: Customary incidental uses including but

not limited to home occupations, garages, swimming pools,

tennis courts, and non-commercial greenhouses.1

Ordinance 96-09

AN ORDINANCE TO AMEND . . . COUNTY . . . ORDINANCE

90-19 . . . TO PROVIDE DESIGN STANDARDS FOR TYPES,

SIZE AND WEIGHT LIMITS OF VEHICLES AUTHORIZED TO

PARK IN AREAS ZONED RESIDENTIAL.

WHEREAS, IT IS THE DESIRE OF THE COUNTY COUNCIL.

. . to promote the public health, safety, morals, convenience,

prosperity and concern for the general welfare, efficiency and

economy in the development of its jurisdiction.


1 It is not clear whether Whaley's property is zoned R2, single family

residential, as stated in the Board's minutes, or whether it is zoned R3,

duplexes and patio homes, as stated in the Board's order. While the

definition of "accessory uses" varies slightly for a single family residence and

a duplex or patio home, the difference is irrelevant to our decision.

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WHALEY v. DORCHESTER COUNTY ZONING





AND WHEREAS . . . to promote harmonious and healthful

development including adequate provisions for traffic, the

promotion of safety and the promotion of good civic design and

appearance.

Limitation of Commercial vehicles parked within Residential Zoned Districts.

A. The parking of commercial vehicles upon any lot, land, street,

right of way, or shoulder thereof, for a period of time exceeding

one (1) hour, . . . in a Residential Zoned area: . . . is prohibited ... .

It is further provided that this prohibition shall not apply to

lots larger than two acres provided adequate screening of such

alleged prohibited conduct is undertaken.

B. The intent of this ordinance is to limit the size and weight of

commercial vehicles in residential areas and:

1. to eliminate the visual blight created by large

commercial vehicles being indiscriminately parked in

residential areas for long periods of time.

2. to minimize physical damage to publicly maintained

rights of way.

3. to protect property values and character of property

within residential developments.

4. to reduce traffic congestion.

5. to protect children from traffic injuries.

C. For the purposes of this ordinance, commercial vehicle is

defined as a vehicle whose Tare Weight exceeds 5 tons (10,000

lbs), or a vehicle having more than two axles, or a vehicle greater

than 8' in height. Construction equipment and farming

equipment of any type are included in this definition.

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WHALEY v. DORCHESTER COUNTY ZONING





(Emphasis in original).





A municipal ordinance is a legislative enactment and is

presumed to be constitutional. Bibco Corp. v. City of Sumter, 332 S.C. 45,

504 S.E.2d 112 (1998). The burden of proving the invalidity of a zoning

ordinance is on the party attacking it and it is incumbent on the attacking

party to show the arbitrary and capricious character of the ordinance

through clear and convincing evidence. Id.; see also Peterson Outdoor

Advertising v. City of Myrtle Beach, 327 S.C. 230, 489 S.E.2d 630 (1997)(a

strong presumption exists in favor of the validity and application of zoning

ordinances). "Zoning is a legislative act which will not be interfered with by

the courts unless there is a clear violation of citizen's constitutional rights."

Knowles v. City of Aiken, 305 S.C. 219, 224, 407 S.E.2d 639, 642 (1991).





I.

Whaley argues Ordinance 96-09 violates the Equal Protection

Clause of the United States Constitution because there is no rational

relationship between the legitimate purposes of the ordinance and the

classification produced by the ordinance. Specifically, Whaley contends

parked commercial vehicles should not be treated differently than

commercial vehicles which drive through a residential area.





The Equal Protection Clause provides: "No State shall. . deny to

any person within its jurisdiction the equal protection of the laws." U.S.

Const. amend. XIV, § 1. Equal protection is satisfied if 1) the classification

bears a reasonable relation to the legislative purpose sought to be effected; 2)

the members of the class are treated alike under similar circumstances and

conditions; and 3) the classification rests on some reasonable basis.

Skyscraper Corp. v. County of Newberry, 323 S.C. 412, 475 S.E.2d 764

(1996); Town of Hilton Head Island v. Fine Liquors, Ltd., 302 S.C. 550, 397

S.E.2d 662 (1990). The determination of whether a classification is

reasonable is initially one for the legislative body and will be sustained if it is

not plainly arbitrary and there is any reasonable hypothesis to support it.

Town of Hilton Head Island v. Fine Liquors, Ltd., supra. "The fact that the

classification may result in some inequity does not render it unconstitutional."

Davis v. County of Greenville, 313 S.C. 459, 465, 443 S.E.2d 383, 386 (1994).





Whaley has failed to establish Ordinance 96-09 violates equal

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WHALEY v. DORCHESTER COUNTY ZONING





protection. Prohibiting the long-term parking of commercial vehicles in

residential neighborhoods is reasonably related to protecting property values

and maintaining the aesthetic appearance of residential areas. Prohibiting

commercial vehicles from parking in streets in residential zones reduces

traffic congestion. Ordinance 96-09 bears a substantial relationship to the

promotion of public health, safety, convenience, prosperity, and the general

welfare of persons who reside in single-family residential areas of Dorchester

County. Accordingly, it does not violate the Equal Protection Clause of the

United States Constitution.





Whaley further maintains Dorchester County has selectively

enforced the ordinance against "drivers of 18 wheelers," but not against

other commercial vehicles who are in violation of the ordinance. We

disagree.





"To prove that a statute has been administered or enforced

discriminatorily, more must be shown than the fact that a benefit

was denied to one person while conferred on another. A violation is established only if

the plaintiff can prove that the state intended to discriminate." Sylvia Dev.

Corp. v. Calvert Count, Md., 48 F.3d 810, 819 (4th Cir. 1995) internal

citations omitted).





Although Whaley presented eleven photographs of "other large

commercial vehicles in the immediate area that were not subjected to any

enforcement action" at the Board hearing, he failed to establish any

purposeful discrimination on the part of the planning and zoning

officials. See Butler v. Town of Edyefield, 328 S.C. 238, 493 S.E.2d 838 (1997)(plaintiff

did not establish Equal Protection claim where he failed to allege or set forth

any facts which could establish purposeful or intentional discrimination).

Accordingly, he has failed to establish the enforcement of Ordinance 96-09

violates equal protection.





II.



Whaley contends Ordinance 96-09 is so overly broad and vague

that it results in the denial of due process. Specifically, Whaley contends the

ordinance is overly broad and/or vague because, since it prohibits

construction equipment of any kind in a residential zone, residents may not

store tools such as a hammer on their property. We disagree.

p.39


WHALEY v. DORCHESTER COUNTY ZONING







Ordinance 96-09 defines "commercial vehicle" as follows:

a vehicle whose Tare Weight exceeds 5 tons (10,000 lbs), or a

vehicle having more than two axles, or a vehicle greater than 8'

in height. Construction equipment and farming equipment of

any type are included in the definition.





Whaley fails to read the definition of "commercial vehicle" in

context. Ordinance 96-09 concerns long-term parking and, hence,

necessarily applies to vehicles. The definition of "commercial vehicle"

encompasses vehicles of a certain weight, height, and axle number, and to

construction and farming vehicles, regardless of weight, height, or axle

number. Contrary to Whaley's argument, Ordinance 96-09 does not apply to

the storage of hammers in residential zones. Ordinance 96-09 is not

unconstitutionally vague. Toussaint v. State Bd. of Medical Examiners, 303

S.C. 316, 320, 400 S.E.2d 488, 491 (1991)("[a] law is unconstitutionally vague

if it forbids or requires the doing of an act in terms so vague that men of

common intelligence must necessarily guess as to its meaning and differ as

to its application.").





III.

Whaley asserts Ordinance 96-09 results in a taking of his

property without just compensation in violation of the due process clause of

the Fifth Amendment to the United States Constitution because he is no

longer able to park his Mack truck on his property. We disagree.





The Fifth Amendment to the United States Constitution

prohibits the taking of private property "for public use, without just

compensation." The takings clause applies to the states through the

Fourteenth Amendment to the United States Constitution. "[T]he

application of a general zoning law to a particular property effects a taking if

the ordinance does not substantially advance legitimate [governmental]

interests or denies an owner economically viable use of his land." Agins v.

City of Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106, 112

(1980) internal citations omitted . "A zoning classification is not an

unconstitutional, compensable taking simply because it denies to a

landowner the highest and best use of his property." Moore v. Sumter

County Council, 300 S.C. 270, 272, 387 S.E.2d 455, 457 (1990); see l0lA

p.40


WHALEY v. DORCHESTER COUNTY ZONING





C.J.S. Zoning & Land Planning § 476 (1979).







Ordinance 96-09 does not effect a taking of Whaley's property.

As noted above, there is a legitimate government interest in limiting traffic

and protecting the property values and aesthetic qualities in residential

zones. Ordinance 96-09 is substantially related to these purposes. Further,

Ordinance 96-09 does not deny Whaley economical use of his land, even

though it prohibits him from parking a commercial vehicle on his property.

Moore v. Sumter County Council, supra (property owner not entitled to best

use of property). Ordinance 96-09 does not result in a taking of Whaley's

property within the meaning of the Fifth Amendment.





Whaley further asserts, even if Ordinance 96-09 is constitutional,

he is entitled to park his commercial vehicle in the residential zone as a non-

conforming legal use. The Board argues because Whaley was not permitted

to park his Mack truck in a residential zone prior to enactment of Ordinance

96-09, he does not have a legal nonconforming use.





A landowner acquires a vested right to continue a nonconforming

use already in existence at the time of a zoning ordinance absent a showing

the continuance of the use constitutes a detriment to the public health, safety,

or welfare. Daniels v. City of Goose Creek, 314 S.C. 494, 431 S.E.2d 256 (Ct.

App. 1993). A use cannot be a nonconforming use if it was unlawful at the

time of the amendment of the ordinance prohibiting the use. Town of

Sullivans Island v. Byrum, 306 S.C., 539, 413 S.E.2d 325 (Ct. App. 1992);

lOlA C.J.S. Zoning & Land Planning º 164, p.500 ("[a] use which was

unlawful at the time the ordinance prohibiting such use was enacted is not

ordinarily regarded as a nonconforming use."). The burden of proving a

nonconforming use is on the party claiming a prior nonconforming use. Id. §

154.





Accessory uses are those which are customarily incident to the

principal use. Id. § 148. "In order to qualify as a use incidental to the

principal use of a nonconforming premises, such use must be clearly

incidental to, and customarily found in connection with, the principal use to

which it is allegedly related." Id. § 154, p.479. An accessory use must be one

"so necessary or commonly to be expected that it cannot be supposed that the

ordinance was intended to prevent it." Borough of Northdale v. Blundo, 203

A.2d 721, 723 (N.J. Super. Ct. App Div. 1964).



p.41


WHALEY v. DORCHESTER COUNTY ZONING





Article V (2) of Ordinance 90-19 provides for uses which are

accessory to a single family home in a residential zone. It describes accessory

uses as "[c]ustomary incidental uses including but not limited to home

occupations, garages, swimming pools, tennis courts, and non-commercial

greenhouses." This non-exclusive definition is consistent with the general

law as it prohibits any use which is not customarily incident to residential

zones. 2





While other courts have held parking a commercial vehicle in the

street or driveway is not an accessory use to a residence, the narrow issue

here is whether parking the cab of an 18-wheeler is an accessory use to a

residence.3We conclude it is not. The parking of the cab of an 18-wheeler at

a residence is not customarily incident to a residential zone, as defined by

Article V (2) of Ordinance 90-19, so as to constitute an accessory use. Since

Whaley was not entitled to park his Mack truck in the residential zone prior

to enactment of Ordinance 96-09, his present use of the property is not a legal

nonconforming use.

AFFIRMED.

Finney, CA, Moore, AA, concur. Toal and Waller, JJ., dissenting in a separate opinion.


2 The ordinance does not limit accessory uses to physical structures.





3 See Borough of Northvale v. Blundo, id. (parking commercial vehicle in

residential district is not accessory use); Facci v. City of Schenectady, 176

N.Y.S.2d 827 (ICY. App. Div. 1957)(parking 1 V2 ton truck on premises zoned

for residential purposes does not constitute accessory use); Cook v. Bensalem

Township Zoning Bd. of Adjustment, 196 A.2d 327 (Pa. 1963)(parking

commercial vehicles at residence was not accessory use of residential lot or

customarily incidental to dwelling house within zoning ordinance); 101A

C.J.S. Zoning & Land Planning, § 150, p.469 ("[t]he parking of a commercial

vehicle on residential property, including the driveway of a home, is not a

permissible accessory use.").

p.42


TOAL, A. J. (dissenting):





I respectfully dissent. I agree with the majority's observation that

Ordinance 90-19 has always regulated more than just physical structures.

Article V(2) of Ordinance 90-19 restricted Whaley's property to "principal" and

"accessory" uses. The issue is whether Ordinance 90-19's "accessory use"

restrictions prevented Whaley from parking his truck at his residence before the

amendment by Ordinance 96-09.





Ordinance 96-09 became effective more than eleven months after Whaley

began parking his truck at his residence. A landowner acquires a vested right

to continue a nonconforming use already in existence at the time of a zoning

ordinance. Daniels v. City of Goose Creek, 314 S.C. 494, 431 S.E.2d 256 (Ct.

App. 1993). Amortization and grandfather clauses are two methods available

to address activities made nonconforming by the enactment of new zoning

ordinances. See Restaurant Row Associates v. Horry County, Op. No. 24944

(S.C. Sup. Ct. filed May 17, 1999) (Shearouse Adv. Sh. No. 18 at 1). In the

current case, the County applied neither a grandfathering method nor an

amortization process.





The majority errs by applying a common law definition of "accessory use"

when Ordinance 90-19 explicitly defines that term. "It is well settled that a

legislative body has the power within reasonable limitations to prescribe legal

definitions of its own language, and when an Act passed by it embodies the

definition, it is generally binding upon the Courts." Windham v. Pace, 192 S.C.

271, 6 S.E.2d 270, 275 (1939); see also Fruehauf Trailer Co. v. South Carolina

Elec. & Gas Co., 223 S.C. 320, 75 S.E.2d 688 (1953); Brown v. Martin, 203 S.C.

84, 26 S.E.2d 317 (1943); Purvis v. State Farm Mut. Auto. Ins. Co., 304 S.C. 283,

403 S.E.2d 662 (Ct. App. 1991). I can find no logical reason to join the majority

and disregard such a well established principle of statutory construction.





In determining whether Whaley's truck violated Ordinance 90-19 prior

to the enactment of Ordinance 96-09, the majority chooses to ignore the

Ordinance's definition and adopts a definition of "accessory use" found in 101A

C.J.S. Zoning and Planning § 148 (1979). The majority apparently legislates

this common law definition because the Ordinance's "accessory use" definition

only addresses physical structures and says nothing about restricting motor

p.43


TOAL, A. J. (dissenting):







vehicles.1d I do not dispute that Dorchester County had the power to restrict

trucks like Whaley's from parking in the zoned area. The passage of Ordinance

96-09 shows that the County knew how to enact such restrictions and that it

recognized the need to do so in order to prevent such trucks from parking at

residences.





Instead of recognizing that no restrictions existed on motor vehicles in the

Dorchester County zoning scheme prior to Ordinance 96-09, the majority goes

outside the statute to create a definition under which it can find Whaley's truck

prohibited. The majority's decision to resort to abroad common law definition

of "accessory use" when the Ordinance's "accessory use" definition does not

address motor vehicles ignores the obvious: Ordinance 90-19 did not restrict

motor vehicles until Ordinance 96-09 amended it.





Based on the foregoing, I would reverse.2d

Waller, A. J, concurs.


1d Ordinance 90-19's accessory use definition is as follows:

Accessory Use, Dwelling or Structure. A detached building or

structure which is detached from and subordinate to a principle building/facility

or use on a lot and used for purpose customarily incidental to the principle use,

including, but not limited to, garages, greenhouses, guest homes, servants'

quarters, custodial and security quarters, swimming pools and tennis courts,

cable satellite antenna or other radio transmitting/receiving antenna.

Structures that accommodate living facilities will be temporary in nature

and require a majority vote to approve from County Council for the initial

installation. Approval of such a request shall not constitute a Rezoning Request

to amend the County Land Use (Zoning Map) Plan. The Owner must agree to

remove the accessory structure and return the grounds to their original

condition within 30 days following a written request from the County Zoning

Administrator.

The Zoning Administrator will require the property owner to document

the continued need for this accessory use on an annual basis. It is the

responsibility of the property owner to ensure this annual review takes place.

Failure to have this annual renewal will be grounds for removal.





2d I express no opinion as to how or when the legal nonconforming use may

be terminated. Similarly, I express no opinion regarding the effect of any

applicable restrictive covenants.

p.44