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
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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.
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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
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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 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).
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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.
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