Mikell v. County of Charleston

• Decision Date: 04 October 2007
• Docket Number: No. 4296.,4296.
• Citation: 654 S.E.2d 92
• Court: South Carolina Court of Appeals
• Parties: I. Jenkins MIKELL, Jr. and Pinkney V. Mikell, Respondents, v. COUNTY OF CHARLESTON and Timothy E. Scott, A.D. Jordan, Curtis E. Bostic, Carolyn Condon, Ed Fava, Barrett Lawrimore, Francis J. Roberts, Leon E. Stavrinakis, and Charles T. Wallace in their capacity as Members of Charleston County Council, George Lee Mikell, Julia Mikell Flowers, Daisy Mikell Pedrick, Mary Mikell, John Mikell, and Peter's Point Associates, LP, Defendants, of whom George Lee Mikell, Julia Mikell Flowers, Daisy Mikell Pedrick, Mary Mikell, John Mikell, and Peter's Point Associates, LP, are the Appellants.

654 S.E.2d 92

I. Jenkins MIKELL, Jr. and Pinkney V. Mikell, Respondents, v. COUNTY OF CHARLESTON and Timothy E. Scott, A.D. Jordan, Curtis E. Bostic, Carolyn Condon, Ed Fava, Barrett Lawrimore, Francis J. Roberts, Leon E. Stavrinakis, and Charles T. Wallace in their capacity as Members of Charleston County Council, George Lee Mikell, Julia Mikell Flowers, Daisy Mikell Pedrick, Mary Mikell, John Mikell, and Peter's Point Associates, LP, Defendants, of whom George Lee Mikell, Julia Mikell Flowers, Daisy Mikell Pedrick, Mary Mikell, John Mikell, and Peter's Point Associates, LP, are the Appellants.

No. 4296.

Court of Appeals of South Carolina.

Submitted May 9, 2007.

Decided October 4, 2007.

Rehearing Denied December 20, 2007.

Morris A. Ellison, Perrin Quarles Dargan, III, Carolyn H. Blue, of Charleston, for Appellants.

Capers G. Barr, III and Frances Isaac Cantwell, both of Charleston, for Respondents.

BEATTY, J.

In this appeal from the rezoning of the Peter's Point Planned Development, George Lee Mikell, Julia Mikell Flowers, Daisy Mikell Pedrick, Mary Mikell, John Mikell, and Peter's Point Associates, LP, (hereinafter "Appellants")¹ contend the master-in-equity erred in finding a conflict between the planned development and the Charleston County Zoning and Land Development Regulations ("ZLDR") and subsequently voiding the planned development. We reverse.²

FACTS

Appellants are the sole owners of 162 acres of land located on Edisto Island, South Carolina, also known as Peter's Point Plantation. The land in question is a peninsula-like tract formed by the confluence of two tidal creeks. The land is divided into six parcels whose zoning is governed by the ZLDR. Under the ZLDR, five of the parcels were zoned Agricultural Residential (AGR). The ZLDR provides that base zoning district AGR parcels have a maximum recommended density for residential use of one dwelling unit per acre. The last parcel was zoned Agricultural Preservation (AG-10), which provides for a recommended density of one dwelling unit per ten acres. In order to achieve the highest allowed density of one dwelling unit per five acres, an application must be processed through the planned development process. Without application for maximum density, the original zoning plan allowed for the development of approximately sixty-four units.

On December 17, 2003, Appellants filed a Zoning Change Application requesting the land in question be rezoned as a planned development that would include single family homes. The permitted uses of the planned development would include detached single family homes on lots having at least one acre; agriculture; horse or other animal production; commercial timber operations; and stables. The application stated that the new planned development would shift the number of units within the tracts of Peter's Point and would allow more units in the previously zoned AG-10 tract. The application proposed to reduce the total number of dwelling units from sixty-four to fifty-five and reduce the total number of waterfront lots to fifty-one.

On June 22, 2004, the Charleston County Council (County Council) adopted Ordinance No. 1300, which rezoned the land in question pursuant to Article 3.5 of the ZLDR from AGR/AG-10 districts to a planned development district. This change reduced the overall number of units allowed, but reallocated them, increasing the number of dwelling units in the AG-10 area from ten to thirty-nine units. On July 1, 2004, adjoining property owners and distant cousins of Appellants (hereinafter "Respondents") filed a Complaint against Appellants stating that the rezoning violated the ZLDR by increasing the density ratio of the previously zoned AG-10 area from a density ratio of one dwelling per ten acres to one dwelling per 2.73 acres. Both parties filed motions for summary judgment.

Although the parties raised several issues during the summary judgment hearing, the master limited his analysis by stating, "[t]he issue in this case turns on the construction of various provisions of the ZLDR, particularly those of Article 4.5.3, the AG-10 regulations, and those of Article 3.5, the planned development regulations, in a manner that effectuates the intent of County Council." After analyzing this issue, the master ultimately granted summary judgment in favor of Respondents.

In reaching this decision, the master found Ordinance No. 1300 conflicted with Article 4.5.3B of the ZLDR which limits the density in an AG-10 district to no higher than one residential dwelling unit per five acres. The master rejected Appellants' contention that Article 3.5 of the ZLDR, which states that planned developments may provide for variations from other ordinances concerning the density of a parcel, was controlling. The master reasoned that Article 4.5.3.B, the more specific ZLDR provision, took precedence over the more general provisions of Article 3.5. In support of this reasoning, the master relied on what he believed was the intent of County Council in adopting the ZLDR. Specifically, the master found that by enacting the AG-10 and AG-8 regulations, "Council evinced an intent to limit itself in increasing density in these districts, by requiring a planned development and then capping the number of units that could be achieved by way thereof."

Based on this analysis, the master held that because the planned development was adopted contrary to the ZLDR, it was arbitrary, capricious and exceeded the authority of the County Council. The master also concluded there was insufficient evidence in the record to determine whether or not the planned development met the criteria for creating a planned development contained in the ZLDR. As a result, the master remanded the matter to County Council to make specific findings and for the identification and designation of the open space and other criteria necessary for the establishment of a planned development. The master subsequently denied Appellants' motion for reconsideration. This appeal followed.

STANDARD OF REVIEW

When reviewing the grant of a summary judgment motion, appellate courts apply the same standard that governs the trial court under Rule 56(c), SCRCP, which states that summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), SCRCP; Helms Realty, Inc. v. Gibson-Wall Co., 363 S.C. 334, 340, 611 S.E.2d 485, 488 (2005); Fleming v. Rose, 350 S.C. 488, 493, 567 S.E.2d 857, 860 (2002). On appeal from an order granting summary judgment, the appellate court will review all ambiguities, conclusions, and inferences arising in and from the evidence in a light most favorable to the nonmoving party below. Willis v. Wu, 362 S.C. 146, 151, 607 S.E.2d 63, 65 (2004); see Schmidt v. Courtney, 357 S.C. 310, 317, 592 S.E.2d 326, 330 (Ct.App.2003) (stating all ambiguities, conclusions, and inferences arising from the evidence must be construed most strongly against the moving party).

Summary judgment is not appropriate where further inquiry into the facts of the case is desirable to clarify the application of the law. Gadson v. Hembree, 364 S.C. 316, 320, 613 S.E.2d 533, 535 (2005). "Even when there is no dispute as to evidentiary facts, but only as to the conclusions or inferences to be drawn from them, summary judgment should be denied." Nelson v. Charleston County Parks & Recreation Comm'n, 362 S.C. 1, 5, 605 S.E.2d 744, 746 (Ct.App.2004). "However, when plain, palpable, and indisputable facts exist on which reasonable minds cannot differ, summary judgment should be granted." Ellis v. Davidson, 358 S.C. 509, 518, 595 S.E.2d 817, 822 (Ct.App.2004).

DISCUSSION

Appellants contend the master erred in voiding the planned development by finding a conflict between Ordinance No. 1300 and the ZLDR. We agree.

"It is well settled that when interpreting an ordinance, legislative intent must prevail if it can be reasonably discovered in the language used." Charleston County Parks & Recreation Comm'n v. Somers, 319 S.C. 65, 67, 459 S.E.2d 841, 843 (1995). "In construing ordinances, the terms must be taken in their ordinary and popular meaning." Id. at 68, 459 S.E.2d at 843.

"The primary rule of statutory construction is to ascertain and give effect to the intent of the legislature." Mid-State Auto Auction of Lexington, Inc. v. Altman, 324 S.C. 65, 69, 476 S.E.2d 690, 692 (1996). "The first question of statutory interpretation is whether the statute's meaning is clear on its face." Wade v. Berkeley County, 348 S.C. 224, 229, 559 S.E.2d 586, 588 (2002). If a statute's language is plain, unambiguous, and conveys a clear meaning, then "the rules of statutory interpretation are not needed and the court has no right to impose another meaning." Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000). The words of the statute must be given their plain and ordinary meaning without resorting to subtle or forced construction to limit or expand the statute's operation. Hitachi Data Sys. Corp. v. Leatherman, 309 S.C. 174, 178, 420 S.E.2d 843, 846 (1992). A statute should be given a reasonable and practical construction consistent with the purpose and policy expressed in the statute. Daisy Outdoor Adver. Co. v. S.C. Dep't of Transp., 352 S.C. 113, 120, 572 S.E.2d 462, 466 (Ct.App.2002).

"Rezoning is a legislative matter, and the court has no power to zone property." Bear Enters. v. County of Greenville, 319 S.C. 137, 140, 459 S.E.2d 883, 885 (Ct. App.1995). "The decision of the legislative body is presumptively valid, and the property owner has the burden of proving otherwise." Id. Our supreme court has explained:

The authority of a municipality to enact zoning ordinances, restricting the use of privately owned property is founded in the police power. The governing bodies of municipalities clothed with authority to determine residential and industrial districts are better qualified by their knowledge of...