Estate of Maguire v. City of Charleston

247 S.E.2d 817, 271 S.C. 451, 1978 S.C. LEXIS 299

• Court: Supreme Court of South Carolina
• Decided: October 4, 1978
• Docket: 20774
• Status: Published

Opinions

Ness, Justice:

The question is whether a building in the City of Charleston may be used as a doctor’s office as it once was although that use would now be a nonconforming one under the applicable zoning ordinances. The trial court concluded that use as a doctor’s office could not be resumed. We affirm.

Dr. J. T. Hiott constructed the structure in question in 1941 and used it as his office until his death in 1963. The premises were then leased for use as a doctor’s office until late 1964. In February of 1965, Dr. Hiott’s son, J. T. Hiott, Jr., began occupying the structure as a residence. The applicable zoning ordinances were amended on October 1, 1966, to restrict the area to residential use only.

Dr. Daniel L. Maguire, Jr., purchased the property in August of 1971 and commenced using .the premises as a doctor’s office. When Maguire subsequently sought a permit from the City to make certain improvements to the premises, the permit was denied on the ground that the area was not zoned for office use. The matter was appealed to the circuit court and referred to a master who ruled in favor of Maguire.¹ This appeal followed the circuit court’s reversal of the master’s ruling.

Section 54-10 of the Charleston City Code relating to nonconforming uses of property provides:

“(1.) The lawful use of land existing at the time of the adoption of this chapter, or of an amendment thereto, although such use does not conform to the provisions thereof, may be continued; but if such nonconforming use is discontinued, as evidenced by lack of use for a period of at least one year or by substitution of a conforming use, any future use of said land shall be in conformity with the provisions of this chapter.

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(4.) Whenever a nonconforming use of a building has been changed to a conforming use, such use shall not thereafter be changed back to a nonconforming use.

(5.) Whenever a nonoonforming use of a building, or a portion thereof, has been discontinued, as evidenced by the lack of use, or vacancy for a period of at least one year, or by substituting a conforming use, such nonconforming use shall not thereafter be re-established and the future use shall be in conformity with the provisions of this chapter.”

Dr. Maguire purchased the property with constructive notice of the amended zoning regulations and, inescapably, with notice of the use of the property. However, Dr. Maguire’s Estate seeks to avoid the zoning law by asserting that J. T. Hiott, Jr., who occupied the premises as a residence, was a mental incompetent. 'The Estate asserts that as an incompetent, young Hiott was incapable of forming the requisite intent to abandon the earlier use of the property.

The mental inoompetency of young Hiott during all times in question is undisputed. However, we see no reason to allow the appellant Estate to take advantage of Hiott’s disability. Had a competent person been residing in the premises, the estate of Dr. Maguire would be foreclosed from its attempt to avoid the zoning regulations which existed at the time of purchase.

We conclude that Dr. Maguire, who purchased the property five years after the area was restricted to residential use, should not be allowed to reap the benefits of the prior occupant’s incompetency. Dr. Maguire’s Estate may not circumvent municipal zoning law by asserting young Hiott’s disability.

Affirmed.

Littlejohn and Gregory, JJ., concur. Lewis, C. J., and Rhodes, J., dissent.

1 Dr. Maguire died prior to the issuance of the master’s report and his estate was substituted as petitioner.