Arkay, LLC v. City of Charleston

THOMAS, J.,

dissenting:

I respectfully dissent. I agree with the circuit court that the City of Charleston Board of Zoning Appeals erred in denying Arkay a special exception use permit.

This appeal involves the interpretation of section 54-206(p) of the City of Charleston Code of Ordinances (2015). The majority holds the circuit court erred in reversing the Board’s denial of Arkay’s application for a special use exception and bases this holding on (1) a deferential standard of review in deciding how to apply subsection 54-206(p)(l), under which a stable may operate as a special exception use in certain zoning districts if, among other criteria, “[t]he stable is not located within 100 feet of any residential zone district”; and (2) an examination of ordinances from the City of Charleston Tourism Ordinances. In reaching its decision, the majority finds the City Council intended to apply the 100-foot separation requirement to the building at 45 Pinckney Street, which, as the circuit court observed, is built on the “zero lot line” with its northern fagade constructed flush with the sidewalk, rather than to the specific part of the building that would be used for Arkay’s stable.

I agree with the majority that, as appellate tribunals, this court and the circuit court must “give great deference to the decisions of those charged with interpreting and applying local zoning ordinances.” Gurganious v. City of Beaufort, 317 S.C. 481, 487, 454 S.E.2d 912, 916 (Ct. App. 1995). However, “[ijssues involving the construction of ordinances are reviewed as a matter of law under a broader standard of review than is applied in reviewing issues of fact.” Mitchell v. City of Greenville, 411 S.C. 632, 634, 770 S.E.2d 391, 392 (2015); see also Mikell v. Cty. of Charleston, 386 S.C. 153, 158, 687 S.E.2d 326, 329 (2009) (“Although great deference is accorded the decisions of those charged with interpreting and applying zoning ordinances, ‘a broader and more independent review is permitted when the issue concerns the construction of an ordinance.’ ” (quoting Eagle Container Co., LLC v. Cty. of Newberry, 379 S.C. 564, 568, 666 S.E.2d 892, 894 (2008))).

I would interpret section 54-206(p) solely through common sense scrutiny of its plain language and would not resort to subordinate rules concerning the construction of statutes. See *98McClanahan v. Richland Cty. Council, 350 S.C. 433, 438, 567 S.E.2d 240, 242 (2002) (“All rules of statutory construction are subservient to the one that legislative intent must prevail if it can reasonably be discovered in the language used, and that language must be construed in the light of the intended purpose of the statute.”); Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 584 (2000) (“What a legislature says in the text of a statute is considered the best evidence of the legislative intent or will. Therefore, the courts are bound to give effect to the expressed intent of the legislature.” (quoting Norman J. Singer, Sutherland Statutory Construction § 46.03 at 94 (5th ed. 1992)); Rabon v. S.C. State Highway Dep’t, 258 S.C. 154, 157, 187 S.E.2d 652, 654 (1972) (stating the rule that statutes are to be construed in pari materia “may be applied where there is an ambiguity to be resolved and not where ... the meaning of the statute is clear and unambiguous”).

Although buildings where horses are kept are commonly referred to as stables, a stable is different from other buildings because of the activities that take place within it, namely, the feeding, sheltering, and care of domestic animals. To include other uses such office space, restrooms, or a customer waiting area as part of a stable merely because they are housed within the same physical structure is not supported by any grammatical analysis or by any construction of any provision of the Charleston City Code.

Particularly significant in the present case is the final requirement in section 54-206(p) to obtain special exception approval for a stable. This requirement reads as follows: “Buildings are designed utilizing appropriate ventilation to prevent objectionable odors from being emitted.” Charleston, S.C. Code of Ordinances § 54-206(p)(7) (2015) (emphasis added). As the circuit court observed, the City Council, in using the word “building” when referring to a physical structure, “envisioned a physical circumstance such as is presented in this case, where the use of the property as a ‘stable’ is but one of several uses contained in a larger ‘building.’ ” See Davenport v. City of Rock Hill, 315 S.C. 114, 117, 432 S.E.2d 451, 453 (1993) (“It is never to be supposed that a single word was inserted in the law of this [Sjtate without the intention of thereby conveying some meaning.”); Nexsen v. Ward, 96 S.C. 313, 321, 80 S.E. 599, 601 (1914) (“The rule sustained by all the *99courts requires that every word, clause, and sentence must be given some meaning, force, and effect, if it can be done by any reasonable construction.” (quoted in Breeden v. TCW, Inc./Tenn. Express, 355 S.C. 112, 120 n. 7, 584 S.E.2d 379, 383 n. 7 (2003))).

Furthermore, the specific requirement in subsection 54-206(p)(7) that “[b]uildings [be] designed using appropriate ventilation to prevent objectionable odors from being emitted” shows a recognition that stables are likely to be located in buildings that are also used for other purposes. To impose such sanitation measures on an entire building in which a stable is located shows prudent consideration of the need to avoid undesirable consequences that could not be avoided if such measures were required only within the stable itself.

The majority correctly notes that subsection 29-212(b)(12) of the City of Charleston Code of Ordinances (2015) defines “stable” as “the barn where the animals are kept.” As I have previously noted, it is not necessary to construe this ordinance together with section 54-206(p) with the objective of producing “a single, harmonious result.” Sloan v. S.C. Bd. of Physical Therapy Exam’rs, 370 S.C. 452, 470, 636 S.E.2d 598, 607 (2006). Nevertheless, in response to the majority’s reliance on parts of the City of Charleston Tourism Ordinances to support its holding, I note the definitions provided in section 29-212(b) apply only “as used in this section” and, even within this limitation, do not apply “where the context clearly indicates otherwise.” Charleston, S.C. Code of Ordinances § 29-212(b) (2015).

Finally, notwithstanding the reference in the appealed order to the proposed horizontal property regime and the finding based on the regime plot plan that the 100-foot separation requirement was satisfied, I agree with the respondents that there was no need to create a horizontal property regime in order to obtain a special exception use permit. Rather, the purpose of the regime is to provide assurance to the City and the public that the physical space where the horses would be kept, i.e., the stable in Unit A, will be at least 100 feet from the nearest residential district and in compliance with section 54-206(p).

I would therefore affirm the appealed order.