Posted by: Patricia Salkin | January 11, 2010

Zoning Ordinance Regarding Density May Not Conflict with Comprehensive Land Use Plan Recommended Maximum Density

In 1999 Charleston County, South Carolina enacted a Comprehensive Land Use Plan (Plan) that called for the preservation of rural community character, the direction of residential development into existing settlement areas, and recommended development densities.  The Plan recommended that land deemed Agricultural Areas (AGR)  have a density of 1 dwelling unit per 1 to 5 acres, and land deemed Agricultural Preservation (AG-10) have a density of 1 dwelling unit per 5 to 10 acres.  In 2001 the county enacted Zoning Land Development Regulations (ZLDR) to implement the Plan and reiterated the development densities stated in the Plan.  The ZLDR slightly narrowed the Plan recommendations stating that AG-10 districts may increase maximum densities from 1 dwelling unit per 10 acres to 1 dwelling unit per 5 acres only if a request is processed through the Planned Development Process (ZLDR § 4.5.3(B)).

Respondents own 6 tracts of land (160 acres), 106 acres of which are zoned an AG-10 district and 55 acres of which are zoned an AGR district.  In 2004 Respondents filed an application with the County to rezone their property.  The County enacted Ordinance #1300, which allowed the increase of the overall density of Respondent’s land to 1 dwelling unit per 3.8 acres.  Petitioners brought a declaratory judgment action contending that Ordinance #1300 conflicts with the density requirements of the County’s Plan and ZLDR.

The Petitioner’s motion for summary judgment was granted and the Master held Ordinance #1300 conflicted with the clear and unambiguous requirements of the ZLDR limiting the density of an AG-10 district to a maximum of 1 dwelling unit per 5 acres.  The Court of Appeals reversed the Master’s decision and held that the ZLDR authorizes the County’s discretion in approving a planned development and found no conflict.

In reversing the decision of the appeals court, the South Carolina Supreme Court noted that the primary rule of statutory construction is to establish and give effect to the intent of the legislature.  Here, the court found that the legislature was clear and intended a maximum density for AG-10 districts at 1 dwelling unit per 5 acres, as stated in both the Plan and ZLDR 4.5.3(B).  Had the legislature intended to allow for a higher density allowance above 1 unit per 5 acres, the requirement under ZLDR 4.5.3(B) would be obsolete. 

In his dissent, Justice Thomas Cooper wrote that the county may modify or supersede the zoning ordinance if done within the bounds of the South Carolina Code.  He argues that often times a Planned Unit Developments (PUD) will create a formal land use or density designation conflict.  However, these conflicts are fatal to the PUD only when state legislation requires zoning regulations be consistent with the Comprehensive Plan.  As the dissent points out, South Carolina Code Section 6-29-720 states that the Comprehensive Plan and density guideline are only recommendations to the County Council and therefore not a legally controlling zoning law.  The dissent argues that Ordinance #1300 meets all objectives of ZLDR’s §3.5 [“…Planned Developments may provide for variations from other ordinances and the regulations of the other established zoning districts concerning use, setbacks, lot area, density, bulk and other requirements to accommodate flexibility in the arrangement of uses for the general purpose of promoting and protecting the public health, safety, and general welfare.”] and conforms to and implements the Charleston County Plan. 

Mikell v. County of Charleston, 2009 WL 4895114 (S.C. Sup.Ct. 12/21/2009)

The opinion can be accessed at: http://www.judicial.state.sc.us/opinions/displayOpinion.cfm?caseNo=26749


Responses

  1. As a relative newby to zoning I hesitantly ask, what would legislative drafters have to do to make it plain that an important point of a PD is to
    “… provide for variations from other ordinances and the regulations of the other established zoning districts concerning use, setbacks, lot area, density, bulk and other requirements to accommodate flexibility in the arrangement of uses for the general purpose of promoting and protecting the public health, safety, and general welfare.”

  2. In Steamboat Springs CO the city has no property tax and no income tax. The City revenues come from sales taxes and lodging taxes. Thus, whatever increases tourism revenues is considered to be of benefit to the community. They also allow PUDS of any size in any location if something unusual is offered there to tourists.

    When zoning was established it was done by long time locals most of whom were “workers”. Their focus was to protect the community quality of life for the full time residents. They developed a comprehensive plan.

    The Yampa River flows through Steamboat Springs and down through Dinosaur. Large creeks flow from the mountains in the county through the city to the river. The creeks were previously used for swimming and fishing as was parts of the river. The comprehensive plan stated that there should absolutely be no variances from the 50 foot setback requirement from the creeks and everyone I knew thought that was an absolute. However, in 1999 the city council gave a big creek setback variance to the builder working for the city council president. He built a big home where only a small one would otherwise have fit and he built a tall retaining wall above the creek. This was very close to my home. We did not get the required two weeks notice for a variance hearing. The notices were mailed so that we didn’t get them until the day of the hearing, which was Tuesday after Thanksgiving vacation if I remember correctly. Then city council approved a creek setback variance to a condo near a creek on the basis that there had been an old shed there. Then I saw another application for a 75% variance in creek setback. Once there is a precedence of variances a new higher density standard is set.

    What I am starting to think is that the purpose of PUDS is to confuse the public and throw out traditional zoning. With a PUD the developers can get permits they couldn’t get with traditional zoning. Existing homeowners end up buying an illusion, thinking they will have certain views, access, parks etc. and then losing the views, access, over a few years. When local government officials get discretionary powers they are immune from lawsuit based on their using their discretion and they have an opportunity to extract a bribe. There is also opportunity in hot development areas to “flip” properties, buying and selling on the same day, based on advance knowledge of key permits. I “heard” in Steamboat Springs that city officials were flipping properties based on inside info but when I wrote to them and asked about that they denied my information request.

    Property owners in Colorado are supposed to be able to rely on the stability of the zoning. You’re supposed to know in advance how much you can build and where you can build and where and how much adjoining property owners can build. With PUD’s all that certainty is lost and the benefits to the public may be illusory or non existent.

    As an individual property owner, you basically have no recourse that I can see. I went to state court to stop my neighbor from building in violation of the zoning. The state judge ruled that only the city can enforce its own zoning, which it chose not to do. I went to federal court and claimed economic damages and damages to reputation and employability because I and my family were injured when I tried to get the city to enforce its own zoning. The 10th Circuit upheld the magistrate’s report stating that my claims of damages caused by zoning violations by my adjoining neighbor the city council president were not allowed because of government immunity. I quoted the Colorado Supreme Court about the rights of adjoining property owners but the magistrate ordered the defendants not to respond to my motions.

    This all went pretty far. In 2009 it was admitted that the president of the city council had been convicted of conspiracy to sell hash but when I asked the police about rumors I had heard about drug dealing in 1995 they refused to discuss the reports with me. Then it turned out that the live in girlfriend of the judge was arrested by the DEA shortly after the judge ruled that only the city can enforce its own zoning. There was a bullet hole through our window but the police refused to investigate how that might have got there.

  3. this is clearly an important and complicated story, but I don’t see the P(U)D connection.

  4. The underlying discrepancy between the majority and the dissent in this case is the extent to which the county can supersede its own zoning ordinance when granting area variations within a Planned Development (PD) district.
    I first find it interesting that the minority, but not the majority, relied on South Carolina Code § 6-29-740, which provides that “planned development districts may provide for variations from other ordinances and the regulations of other established zoning districts concerning . . . density . . . .” The minority’s conclusion that the county can “modify or supersede its own zoning ordinance, if done within the confines of . . . 6-29-740[,]” seemed to imply that under its analysis, the statute confers extremely broad authority to the county to allow for variations in PDs. The majority, however, did not mention § 6-29-740, but instead relied upon the county’s ordinance, § 3.5.7 that provides with very similar language that “Planned Developments may provide for variations from other ordinances and the regulations of the other established zoning districts concerning . . . density . . . .” The minority’s emphasis on the state statute, instead of the almost identical county ordinance, appears to me to reflect its interpretation that the state has conferred an authority to modify or supersede any ordinance that a PD is subject to, provided only that it not be arbitrary or unreasonable.
    The critical issue in this case, as I see it, was whether the county can supersede a zoning ordinance that sets a maximum density requirement specifically within the context of the PD process. The relevant ordinance, not really addressed by the minority, is ZLDR § 4.5.3.B, which states that the density within an AG-10 district “may be increased to a ‘highest allowed density’ of 1 dwelling unit per 5 acres, if a request is processed through the Planned Development process . . . . (emphasis added). I think the italicized language is the most relevant language to support a finding that ordinance #1300 was invalid. The density requirement in AG-10 is 1 unit per 10 acres, but § 4.5.3.B states that if a request is processed through the PD process, the “highest allowed density” is 1 unit per 5 acres. I agree with the majority that it is implausible that the county would “completely vitiate the maximum density requirements set forth in § 4.5.3.B.” To put it another way, I also find it implausible that while the county may provide for PDs ordinance variations on the one hand, it would be effectively precluded from subjecting PDs to specific restrictions if it wanted to. It seems to me that the dissent’s interpretation would broaden the scope of §6-29-740 beyond what the state legislature probably intended its effect to be – that even if a county enacts an ordinance saying “PDs in district A shall not have a density greater that 1 house per 5 acres,” the county would be able to disregard that ordinance and allow a PD with a greater density in that district.


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