Whaley v. Dorchester County Zoning Board of Appeals

TOAL, Justice

(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, 335 S.C. 209, 516 S.E.2d 442 (1999). 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 *581definition, 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 vehicles.1 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 *582create a definition under which it can find Whaley’s truck prohibited. The majority’s decision to resort to a broad 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.2

WALLER, J., concurs.

. 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 requést 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.

. 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.