Whaley v. DORCHESTER COUNTY ZOING BD.

• Decision Date: 06 December 1999
• Docket Number: No. 25029.,25029.
• Citation: 337 S.C. 568,524 S.E.2d 404
• Court: South Carolina Supreme Court
• Parties: Charles Dennis WHALEY, Appellant, v. DORCHESTER COUNTY ZONING BOARD OF APPEALS, Respondent.

337 S.C. 568

524 S.E.2d 404

Charles Dennis WHALEY, Appellant, v. DORCHESTER COUNTY ZONING BOARD OF APPEALS, Respondent.

No. 25029.

Supreme Court of South Carolina.

Heard May 26, 1999.

Decided December 6, 1999.

Susan K. Dunn, of Charleston, for appellant.

G.W. Parker, of Chellis & Frampton, of Summerville, for respondent.

BURNETT, Justice:

Appellant Charles Dennis Whaley (Whaley) challenges the constitutionality of Dorchester County Ordinance No. 96-09.

FACTS

On February 14, 1996, Whaley began parking his 18-wheel Mack truck (the cab/tractor) overnight and on weekends at his home in the Crestwood Subdivision of Dorchester County. In August 1997, Whaley received a "Cease and Desist" letter from the Dorchester County Planning and Zoning Department which stated parking his commercial vehicle in the residential zone was in violation of Ordinance No. 90-19, as amended by Ordinance 96-09. He responded to the "Cease and Desist" letter and was granted a hearing.

At the hearing before Respondent Dorchester County Zoning Board of Appeals (the Board), Whaley testified he uses the 18-wheeler to drive back and forth to work everyday. He further testified he performs maintenance on the vehicle at his home. The Board upheld the "Cease and Desist" letter. Shortly thereafter, Whaley was cited for violation of Ordinance 90-19. The Circuit Court affirmed.

ISSUES

I. Did the circuit court err by affirming the decision of the Board because Ordinance 96-09 violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution?

II. Did the circuit court err by affirming the decision of the Board because Ordinance 96-09 is overly broad and vague in violation of the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution?

III. Did the circuit court err by affirming the decision of the Board where Ordinance 96-09 produces a taking in violation of the Fifth Amendment to the United States Constitution?

DISCUSSION

Effective January 1, 1997, Ordinance 96-09 amended Ordinance 90-19, the comprehensive zoning ordinance for Dorchester County, to specifically prohibit long-term parking of commercial vehicles in residential areas of Dorchester County. The relevant portions of Ordinance 90-19 and 96-09 are set forth below.

Ordinance 90-19

In pursuance of authority conferred by ... and for the purpose of promoting health, safety, morals and general welfare of the County: ...

Article V. Use Groups

NUMBER, NAME, DESCRIPTION AND LIST OF PEMITTED USES

2. Residential, Single-Family

Principal Uses: Single family, detached dwellings

Accessory Uses: Customary incidental uses including but not limited to home occupations, garages, swimming pools, tennis courts, and non-commercial greenhouses.¹

Ordinance 96-09

AN ORDINANCE TO AMEND ... COUNTY ... ORDNANCE 90-19 ... TO PROVIDE DESIGN STANDARDS FOR TYPES, SIZE AND WEIGHT LIMITS OF VEHCLES AUTHORIZED TO PARK IN AREAS ZONED RESIDENTIAL.

WHEREAS, IT IS THE DESIRE OF THE COUNTY COUNCIL ... to promote the public health, safety, morals, convenience, prosperity and concern for the general welfare, efficiency and economy in the development of its jurisdiction.

AND WHEREAS ... to promote harmonious and healthful development including adequate provisions for traffic, the promotion of safety and the promotion of good civic design and appearance.

Limitation of Commercial vehicles parked within Residential Zoned Districts.

A. The parking of commercial vehicles upon any lot, land, street, right of way, or shoulder thereof, for a period of time exceeding one (1) hour, ... in a Residential Zoned area:... is prohibited .... It is further provided that this prohibition shall not apply to lots larger than two acres provided adequate screening of such alleged prohibited conduct is undertaken.

B. The intent of this ordinance is to limit the size and weight of commercial vehicles in residential areas and:

1. to eliminate the visual blight created by large commercial vehicles being indiscriminately parked in residential areas for long periods of time 2. to minimize physical damage to publicly maintained rights of way.

3. to protect property values and character of property within residential developments.

4. to reduce traffic congestion.

5. to protect children from traffic injuries.

C. For the purposes of this ordinance, commercial vehicle is defined as a vehicle whose Tare Weight exceeds 5 tons (10,000 lbs), or a vehicle having more than two axles, or a vehicle greater than 8' in height. Construction equipment and farming equipment of any type are included in this definition.

(Emphasis in original).

A municipal ordinance is a legislative enactment and is presumed to be constitutional. Bibco Corp. v. City of Sumter, 332 S.C. 45, 504 S.E.2d 112 (1998). The burden of proving the invalidity of a zoning ordinance is on the party attacking it and it is incumbent on the attacking party to show the arbitrary and capricious character of the ordinance through clear and convincing evidence. Id.; see also Peterson Outdoor Advertising v. City of Myrtle Beach, 327 S.C. 230, 489 S.E.2d 630 (1997)

(a strong presumption exists in favor of the validity and application of zoning ordinances). "Zoning is a legislative act which will not be interfered with by the courts unless there is a clear violation of citizen's constitutional rights." Knowles v. City of Aiken, 305 S.C. 219, 224, 407 S.E.2d 639, 642 (1991).

I.

Whaley argues Ordinance 96-09 violates the Equal Protection Clause of the United States Constitution because there is no rational relationship between the legitimate purposes of the ordinance and the classification produced by the ordinance. Specifically, Whaley contends parked commercial vehicles should not be treated differently than commercial vehicles which drive through a residential area.

The Equal Protection Clause provides: "No State shall .. deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. Equal protection is satisfied if 1) the classification bears a reasonable relation to the legislative purpose sought to be effected; 2) the members of the class are treated alike under similar circumstances and conditions; and 3) the classification rests on some reasonable basis. Skyscraper Corp. v. County of Newberry, 323 S.C. 412, 475 S.E.2d 764 (1996); Town of Hilton Head Island v. Fine Liquors, Ltd., 302 S.C. 550, 397 S.E.2d 662 (1990). The determination of whether a classification is reasonable is initially one for the legislative body and will be sustained if it is not plainly arbitrary and there is any reasonable hypothesis to support it. Town of Hilton Head Island v. Fine Liquors, Ltd., supra.

"The fact that the classification may result in some inequity does not render it unconstitutional." Davis v. County of Greenville, 313 S.C. 459, 465, 443 S.E.2d 383, 386 (1994).

Whaley has failed to establish Ordinance 96-09 violates equal protection. Prohibiting the long-term parking of commercial vehicles in residential neighborhoods is reasonably related to protecting property values and maintaining the aesthetic appearance of residential areas. Prohibiting commercial vehicles from parking in streets in residential zones reduces traffic congestion. Ordinance 96-09 bears a substantial relationship to the promotion of public health, safety, convenience, prosperity, and the general welfare of persons who reside in single-family residential areas of Dorchester County. Accordingly, it does not violate the Equal Protection Clause of the United States Constitution.

Whaley further maintains Dorchester County has selectively enforced the ordinance against "drivers of 18 wheelers," but not against other commercial vehicles who are in violation of the ordinance. We disagree.

"To prove that a statute has been administered or enforced discriminatorily, more must be shown than the fact that a benefit was denied to one person while conferred on another. A violation is established only if the plaintiff can prove that the state intended to discriminate." Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 819 (4th Cir.1995) (internal citations omitted).

Although Whaley presented eleven photographs of "other large commercial vehicles in the immediate area that were not subjected to any enforcement action" at the Board hearing, he failed to establish any purposeful discrimination on the part of the planning and zoning officials. See Butler v. Town of Edgefield, 328 S.C. 238, 493 S.E.2d 838 (1997)

(plaintiff did not establish Equal Protection claim where he failed to allege or set forth any facts which could establish purposeful or intentional discrimination). Accordingly, he has failed to establish the enforcement of Ordinance 96-09 violates equal protection.

II.

Whaley contends Ordinance 96-09 is so overly broad and vague that it results in the denial of due process. Specifically, Whaley contends the ordinance is overly broad and/or vague because, since it prohibits construction equipment of any kind in a residential zone, residents may not store tools such as a hammer on their property. We disagree.

Ordinance 96-09 defines "commercial vehicle" as follows:

a vehicle whose Tare Weight exceeds 5 tons (10,000 lbs), or a vehicle having more than two axles, or a vehicle greater than 8' in height. Construction equipment and farming equipment of any type are included in the definition.

Whaley fails to read the definition of "commercial vehicle" in context. Ordinance 96-09 concerns long-term parking and, hence, necessarily applies to vehicles. The definition of "commercial vehicle" encompasses vehicles of a certain weight, height, and axle number, and to construction and farming vehicles, regardless of weight, height, or axle number. Contrary to Whaley's argument, Ordinance 96-09 does not apply to the storage of hammers in residential zones. Ordinance 96-09 is not unconstitutionally vague. Toussaint v. State Bd. of...