In The Court of Appeals

G. Dana Sinkler and Anchorage Plantation Home Owners Association, Respondents,


County of Charleston, Charleston County Council and Theodora Walpole and John D. Walpole, Appellants.

Appeal From Charleston County
 R. Markley Dennis, Jr., Circuit Court Judge

Unpublished Opinion No. 2008-UP-297
Heard May 7, 2008 – Filed June 5, 2008   


Joseph Dawson, III, Bernard E. Ferrara, Jr., Bernice M. Jenkins, and Lonnie Hamilton, III, all of North Charleston, and Gerald M. Finkel of Charleston, for Appellants.

G. Trenholm Walker and Francis M. Ervin, of Charleston, for Respondents.

PER CURIAM:  This case arises from a zoning ordinance, which rezoned a tomato farm to a planned development district.  Upon review, the circuit court found the ordinance invalid due to perceived conflicts with the Enabling Act and local zoning regulations.  This court finds no such conflicts and defers to the local governing body’s judgment regarding this zoning decision.  We reverse and reinstate the ordinance.

1. Theodora and John Walpole own the property in question and applied to have the property rezoned from AG-15 to PD-96, i.e. from agricultural with some houses to a planned development district.  Charleston County Council approved the application and issued an ordinance rezoning the property as PD-96.

Dana Sinkler and Anchorage Plantation Homeowners Association (hereinafter “Sinkler”) brought a declaratory judgment action challenging County Council’s rezoning of the property.  The circuit court found the ordinance was invalid and the property was still zoned AG-15.  The circuit court found the submitted plan for the property did not meet the Enabling Act’s requirements of mixed use, improved property design, and specifically designated open space.  As an additional sustaining ground, the circuit court found the zoning and land development regulations (ZLDR) lacked a process to change AG-15 to planned development.  Charleston County, the Council, and the Walpoles (collectively “the County of Charleston”) appealed the circuit court’s ruling.

2. The circuit court found the ordinance violated sections 6-29-720 and 740 of the South Carolina Code’s Enabling Act and, therefore, found the ordinance invalid.  We disagree because of the deference provided local governing bodies and the flexibility created through the Enabling Act.

To provide the proper framework, this court first recognizes that a holistic reading of the Enabling Act indicates its purpose is to provide the flexibility and ability for a local governing authority to make local decisions regarding zoning.  See S.C. Code Ann. §§ 6-29-720(C) & 740 (Supp. 2007); Dunbar v. City of Spartanburg, 266 S.C. 113, 119, 221 S.E.2d 848, 850 (1976) (noting a predecessor to the Enabling Act of 1994 was broad in its scope and gave municipalities much authority in the field of zoning).  The narrow reading of the Enabling Act by the circuit court is at direct odds with this intent.

Further, the circuit court exceeded the applicable scope of review because a reviewing court should practice judicial restraint and not supplant its judgment for the local governing authority’s judgment.  Specifically, our supreme court stated:

The governing bodies of municipalities clothed with authority to determine residential and industrial districts are better qualified by their knowledge of the situation to act upon such matters than are the Courts, and they will not be interfered with . . . unless there is plain violation of the constitutional rights of citizens.  There is a strong presumption in favor of the validity of municipal zoning ordinances, and in favor of the validity of their application, and where the Planning and Zoning Commission and the city council of a municipality has acted after considering all the facts, the Court should not disturb the finding unless such action is arbitrary, unreasonable, or in obvious abuse of its discretion, or unless it has acted illegally and in excess of its lawfully delegated authority.  Likewise, the power to declare an ordinance invalid because it is so unreasonable as to impair or destroy constitutional rights is one which will be exercised carefully and cautiously, as it is not the function of the Court to pass upon the wisdom or expediency of municipal ordinances or regulations.

Bob Jones Univ., Inc. v. City of Greenville, 243 S.C. 351, 360, 133 S.E.2d 843, 847 (1963) (citation omitted).  This court additionally held, “[w]e cannot insinuate our judgment into a review of the City Council’s decision, but must leave that decision undisturbed if the propriety of that decision is even ‘fairly debatable.’”  Lenardis v. City of Greenville, 316 S.C. 471, 472, 450 S.E.2d 597, 598 (Ct. App. 1994) (citation omitted).

The circuit court specifically found the ordinance violated section 6-29-720 of the Enabling Act because the ordinance failed to meet the provided definition.  Section 6-29-720(C)(4) defines a planned development district as:

[A] development project comprised of housing of different types and densities and of compatible commercial uses, or shopping centers, office parks, and mixed-use developments.  A planned development district is established by rezoning prior to development and is characterized by a unified site design for a mixed use development.

First, we note the prefatory language before the definitions of possible planning techniques, including the above definition for a planned development district, states, “[t]he zoning ordinance may utilize the following or any other zoning and planning techniques for implementation of the goals specified above.  Failure to specify a particular technique does not cause use of that technique to be viewed as beyond the power of the local government choosing to use it.”  S.C. Code Ann. § 6-29-720(C) (emphasis added).

At oral argument, Sinkler argued the County Council did not avail itself of this curative language because the County Council utilized one of the definitions.  This court need not explore Sinkler’s argument as this court defers to the County Council’s judgment regarding the plan.  In the ordinance, the County Council found that the plan met Article 3.5 of the ZLDR by:

Providing a greater choice in the type of environment and living units available to the public through lot size ranges (minimum of one acre);

Providing more open space land use by 224 acres of common open space land use and an additional 345 acres of open space land use on residential lots totaling 569 acres of the tract’s 747 acres;

Providing a creative approach to the use of land by limiting the total number of residential lots to 107, limiting the uses in these areas from that which would be allowed in the AG-15 Zoning District, and incorporating existing water features into the common open space areas providing for greater wildlife habitat area and protecting water quality; and by Providing (sic) an efficient use of the land that results in a smaller network of utilities and streets and a variety of lot sizes.

Notably, Article 3.5.1 of the ZLDR incorporates the definition of planned development district in the Enabling Act.  Article 3.5.2 provides the intent for planned development districts, which is consistent with section 6-29-740.

Therefore, County Council’s above findings square with the planned development district definition provided in section 6-29-720(C)(4).  Further, these findings address the remaining reasons the circuit court found the ordinance conflicted with the Enabling Act: the ordinance’s believed failure to improve design and character of the community under section 6-29-740, lack of mixed use and open space, and deficient specificity.  Thus, we are convinced the planned development district satisfies the threshold statutory requirements provided under section 6-29-720 and 740.

Next, we turn to whether County Council’s decision was arbitrary or capricious, as required by the applicable scope of review.  See Bear Enters. v. County of Greenville, 319 S.C. 137, 141-42, 459 S.E.2d 883, 886 (Ct. App. 1995) (stating the reviewing court will focus on whether the municipal zoning authority’s decision was arbitrary or capricious).  County Council reviewed the plan for the property multiple times and the county staff recommended rezoning the property.  Accordingly, County Council’s decision was neither arbitrary nor capricious.

3. As an additional ground for declaring the ordinance invalid, the circuit court held that County Council did not intend for a property owner to reduce the residential standards of property zoned AG-15 through a planned development district process.  We disagree.

In a case recently decided by this Court, owners of property adjacent to rezoned land challenged the rezoning ordinance, arguing it conflicted with the local ZLDR.  Mikell v. County of Charleston, 375 S.C. 552, 654 S.E.2d 92 (Ct. App. 2007), petition for cert. filed (S.C. January 24, 2008).  Sinkler acknowledges the uphill battle in attempting to distinguish our decision in Mikell.  We appreciate able counsel’s effort to distinguish Mikell, but we find the precedent controlling.

In Mikell, the master-in-equity found ZLDR restricted County Council’s authority to rezone the property from AG-10 to PD and remanded the ordinance to County Council.  Id. at 556-57, 654 S.E.2d at 95.  On appeal, this court found the ZLDR supported County Council’s decision to rezone the property, and we reversed the master’s ruling and reinstated the ordinance.  Id. at 560, 654 S.E.2d at 96.  This court specifically held ZLDR Article 2.1.2 and section 6-29-740 provide “County Council with final decision-making authority in rezoning actions pursuant to a planned development [PD] application,” and Article 3.5.7 “provides for deviations from other zoning designations.”  Id. at 560, 654 S.E.2d at 96-97.  As noted in Mikell, “there is nothing to suggest that County Council cannot change an ordinance that it created.”  Id. at 561, 654 S.E.2d at 97.

In the case at hand, the circuit court interpreted the ZLDR as barring the use of a planned development district to alter AG-15 zoning standards.  The circuit court noted that the regulations for AG-8 and AG-10 provide a process to achieve the highest allowed density rate, which is to make a request through the planned development process.  No such process is mentioned for AG-15 and AG-25 areas.  Therefore, the circuit court concluded that the absence of a planned development process for AG-15 barred such an action.  However, the plain meaning of the statutory language does not indicate the home density cannot be increased given the discussed power of County Council.  Accordingly, there is no conflict between the ordinance and the ZLDR.

4. Sinkler’s challenge to County Council’s legal authority fails to show the enacted ordinance conflicted with state law or ZLDR; County Council’s decision was arbitrary and unreasonable; or rezoning violated Sinkler’s constitutional rights.  We decline to substitute our judgment for that of County Council, and we hold the circuit court erred in concluding County Council exceeded its lawfully delegated authority.  Due to this finding, we need not address the County of Charleston’s remaining arguments.  Accordingly, we reinstate the ordinance rezoning the Walpoles’ property as PD-96 and the order of the circuit court is