Heilker v. Zoning Bd. of Appeals

Decision Date23 July 2001
Docket NumberNo. 3374.,3374.
Citation346 S.C. 401,552 S.E.2d 42
CourtSouth Carolina Court of Appeals
PartiesPhil HEILKER, d/b/a Mama's Used Furniture and Mama's Discount Furniture Depot, Respondent, v. ZONING BOARD OF APPEALS for the City of Beaufort, Appellant.

William B. Harvey, III, of Harvey & Battey, of Beaufort, for appellant.

C. Scott Graber, of Graber & Baldwin, of Beaufort, for respondent.


This appeal involves the application of a local zoning ordinance. The Zoning Board of Appeals for the City of Beaufort ("the Zoning Board") ordered Phil Heilker to cease the outside display of indoor furniture at his retail stores. The Circuit Court reversed, finding Heilker's displays were protected, nonconforming "uses" of his property. We reverse.


Heilker owns two discount furniture stores in the city of Beaufort. He has operated Mama's Used Furniture for approximately ten years and Mama's Discount Furniture Depot for approximately three years. During these times, Heilker has displayed furniture—mattresses, bunk beds, sofas, chairs, and couches—immediately outside his businesses. The city of Beaufort adopted Ordinance O-61-99 (the "Ordinance"). The Ordinance amended the language of the city's zoning code relating to the city's "Highway Corridor Overlay Zoning" scheme. The stated purpose for this "Highway Corridor" district is:

[T]o protect and promote the appearance, character, and economic value of development in the City of Beaufort adjacent to major roads .... [T]o encourage and better articulate positive visual experiences along the City's major roads and to assure respect for the character, integrity, and quality of the built and natural environments of the City .... [T]o enhance the quality of development and to promote traffic and pedestrian safety .... [T]o protect and enhance the City's unique aesthetic character and encourage development which is harmonious with the natural and man-made assets of the Lowcountry.

Id. at § 5-6201.

The Ordinance, inter alia, created new restrictions on the outdoor display of certain types of merchandise in the "Highway Corridor" district:

Only merchandise typically used and stored outdoors may be displayed outdoors. Such merchandise shall include automobiles, trucks, boats, trailers, outdoor landscape structures (garden sheds, arbors, gazebos, etc.), plant materials, agricultural products, lawn maintenance equipment, and outdoor furniture.

Id. at § 5-6209(f)(1).

Heilker's stores are located within the "Highway Corridor" district. Libby Anderson, the City of Beaufort's Planning Director, informed Heilker by letter that "[a]mong other things, Ordinance O-61-99 bans the outdoor display of merchandise that is not typically used and stored outdoors." Anderson told Heilker that he could only display furniture in compliance with the Ordinance.

Heilker appealed Anderson's order to the Zoning Board. At a subsequent hearing, Heilker claimed his displays were a "nonconforming use" integral in advertising his stores. The City countered, arguing Heilker's display of furniture was merely a "practice" rather than a "use." By letter, the Zoning Board stated to Heilker that "[b]ased on the evidence and extensive arguments presented [at the hearing], the Board unanimously voted to deny the appeal and uphold the application of Ordinance O-61-99...." The Zoning Board determined, inter alia, that the "outdoor display of merchandise is a practice associated with a land use (in this case retail sales) and is not a land use in itself and so is not subject to the nonconforming uses section of the Zoning Ordinance." (emphasis added).

Heilker appealed the Zoning Board's decision to the Circuit Court. In his appeal, Heilker characterized the above-statement as a conclusion of law.

The Circuit Court judge reversed the Zoning Board's decision. The court concluded: "[T]he outdoor display of furniture in front of those two (2) businesses known as Mama's Used Furniture and Mama's Discount Furniture Depot (in the City of Beaufort) is a protected, vested, nonconforming use of these premises." The Zoning Board appeals.


Section 6-29-840 defines the scope of review of a zoning board decision by a Circuit Court judge:

At the next term of the circuit court or in chambers, upon ten days' notice to the parties, the presiding judge of the circuit court of the county shall proceed to hear and pass upon the appeal on the certified record of the board proceedings. The findings of fact by the board of appeals shall be treated in the same manner as a finding of fact by a jury, and the court may not take additional evidence. In the event the judge determines that the certified record is insufficient for review, the matter may be remanded to the zoning board of appeals for rehearing. In determining the questions presented by the appeal, the court shall determine only whether the decision of the board is correct as a matter of law. In the event that the decision of the board is reversed by the circuit court, the board is charged with the costs, and the costs must be paid by the governing authority which established the board of appeals.

(emphasis added).

In Vulcan Materials Co. v. Greenville County Bd. of Zoning Appeals, 342 S.C. 480, 536 S.E.2d 892 (Ct.App.2000), this Court analyzed § 6-29-840 as it relates to the appellate review of a zoning board decision:

In 1994, the Legislature enacted a new statutory scheme for local planning and zoning entities embodied in Title 6, Chapter 29, which replaced the existing scheme found in portions of Title 6, Chapter 7, and elsewhere. Act No. 355, § 2, 1994 S.C. Acts 4036, amended by Act No. 15, § 1, 1999 S.C. Acts 37. The new scheme imposed a standard of review whereby "[t]he findings of fact by the [zoning] board of appeals shall be treated in the same manner as a finding of fact by a jury...." S.C.Code Ann. § 6-29-840 (Supp. 1999). Local zoning programs could adopt the new standard promulgated by § 6-29-840 any time prior to December 31, 1999, after which time its adoption became mandatory. See Act No. 355 ("On or after December 31, 1999, all local planning programs must be in conformity with the provisions of this act. Until December 31, 1999, this act is cumulative and may be implemented at any time."). Section 6-29-840 differs textually from it predecessor, which treated "[t]he findings of fact by the [zoning] board of appeals [as] final and conclusive on ... appeal." S.C.Code Ann. § 6-7-780 (1977) (repealed 1999).
We have repeatedly held that the old statute, § 6-7-780, imposed an "any evidence" standard of review. "The factual findings of the [b]oard (of zoning appeals) must be affirmed ... if they are supported by any evidence...." Stanton v. Town of Pawleys Island, 317 S.C. 498, 502, 455 S.E.2d 171, 172 (1995) (emphasis added); accord Fairfield Ocean Ridge, Inc. v. Town of Edisto Beach, 294 S.C. 475, 366 S.E.2d 15 (Ct.App.1988); Bailey v. Rutledge, 291 S.C. 512, 354 S.E.2d 408 (Ct.App.1987). The new statute, § 6-27-840, is also very deferential to a board's findings of fact as it equates them to a jury's findings. "[T]he factual findings of the jury will not be disturbed unless a review of the record discloses that there is no evidence which reasonably supports the jury's findings." Sterling Dev. Co. v. Collins, 309 S.C. 237, 240, 421 S.E.2d 402, 404 (1992) (emphasis added) (citing Townes Assoc's, Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976)). The distinction, if any, between an "any evidence" and a "no evidence" standard is of little importance to the instant action as our decision, like that of the circuit court, is controlled by an issue of law.

Id. at 487-88, 536 S.E.2d at 895-96 (emphasis added).

I. Definition of "Use"

At issue is whether Heilker's outdoor display of indoor furniture is a nonconforming "use" or a "practice" associated with the operation of his businesses. To resolve this dispute, we must define the term "use" as it applies in the context of zoning. No reported case in South Carolina jurisprudence provides a definition; thus, this Court must look to the law of other jurisdictions for assistance.

As it is conventionally applied, the term "use" is "[t]he purpose or activity for which land or buildings are designed, arranged, or intended, or for which land or buildings are occupied or maintained." Town of Kingstown v. Albert, 767 A.2d 659 (R.I.2001) (quoting R.I. Gen. Laws. § 45-24-31(60)); accord Smith v. Zoning Hearing Bd. of Huntingdon Borough, 734 A.2d 55 (Pa.Commw.Ct.), appeal denied by Pa. Supreme Court, 561 Pa. 664, 747 A.2d 904 (1999), (applying the zoning board's definition of "use": "The term `use' is defined ... as the specific purpose for which land or a building is designed, arranged, intended or for which it is or may be occupied or maintained."); Beugnot v. Coweta County, 231 Ga.App. 715, 500 S.E.2d 28, 30 (1998) (recognizing the definition of the term "use" created by county ordinance: "The purpose or purposes for which land ... is designed, arranged or intended, or to (for) which said land ... is occupied, maintained or leased."); Kam v. Noh, 70 Haw. 321, 770 P.2d 414, 416 (1989) (concluding the term "use" was synonymous with the term "purpose" in examining a zoning statute); Croxton v. Board of County Comm'rs of Natrona County, 644 P.2d 780, 783-84 (Wyo.1982) (employing the county commission's definition of "use" in its analysis: "The purpose or activity for which the land or structure thereon is designated, arranged, or intended, or for which it is occupied, utilized, or maintained.").

Case law exists that incorporates the definition of "use" found above and supports the assertion that the outdoor display of merchandise is an activity or practice separate and distinct from a retail establishment's "use" of its property. In City of Columbus Board of Zoning Appeals v....

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