Posted by: Patricia Salkin | October 9, 2015

SC Court of Appeals Holds Board’s Determination that Operation of Helicopter Sightseeing Tour Facility Was Not Permitted in the District was made in Error

Respondent Helicopter Solutions, Inc., d/b/a Helicopter Adventures, owns and operates a helicopter sight-seeing tour business in Horry County. Appellant Richard Hinde appeals the circuit court’s ruling that a helicopter sight-seeing tour facility is a permitted use within the Amusement/Commercial (AC) zoning district pursuant to Article VII, Section 712.1 of the Horry County Zoning Ordinance. Hinde contended the circuit court erred in failing to recognize and defer to the findings of fact made by the Horry County Board of Zoning Appeals and by expanding the range of permitted uses in the Horry County AC zoning district to include a heliport or airport.

Hinde first argued the Zoning Board’s finding that “a helicopter tour facility is not a sightseeing depot and is not consistent with the uses in the AC zoning district” is actually a finding of fact, rather than a conclusion of law. Here, however, the Zoning Administrator made an “administrative interpretation” of the County Ordinance, which Hinde appealed to the Zoning Board. This challenge dealt with the Zoning Administrator’s construction of the County Ordinance as it applied to a “sight-seeing depot.” The court therefore found that in construing the County Ordinance, the Zoning Administrator, and subsequently, the Zoning Board, made a legal conclusion.

Hinde next argued the circuit court wrongly concluded as a matter of law that the County Ordinance’s definition of “sight-seeing depot” includes the operation of helicopters or other types of aircraft. Section 712 states “the intent of the AC district is to allow for the mixing of certain specified land uses in the county where both residential and limited business uses are competing for land and accelerated transition is in evidence.” Section 712.1(A) also set forth a list of AC district “permitted uses;” however, neither the phrase “sight-seeing depot” nor any term within the phrase was defined within the County Ordinance, so these words were given their “customary dictionary definitions.” Hinde conceded that section 712 does not exclude air transportation. Because the court was prohibited from writing into an ordinance language restricting property rights to a greater degree than intended by the legislative body, it found the circuit court properly held the Zoning Board made an error of law in construing the County Ordinance to exclude a helicopter sightseeing tour facility as a permissible use within the AC district. Accordingly, the circuit court’s holding was affirmed.

Helicopter Solutions Inc. v Hinde, 2015 WL 5155285 (SC App. 9/2/2015)

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