Heilker v. Zoning Board of Appeals

552 S.E.2d 42, 346 S.C. 401, 2001 S.C. App. LEXIS 109

• Court: Court of Appeals of South Carolina
• Decided: July 23, 2001
• Docket: 3374
• Status: Published

Opinions

ANDERSON, Judge:

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.

FACTSIPROCEDURAL BACKGROUND

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 0-61-99 (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)(l).

Heilker’s stores are located within the “Highway Corridor” district. Libby Anderson, the City of Beaufort’s Planning Director, informed Heilker by letter that “[ajmong other things, Ordinance 0-61-99 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 0-61-99 ....” 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.

STANDARD OF REVIEW

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).

LAW/ANALYSIS

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. Big Blue, 605 N.E.2d 188 (Ind.Ct.App.1992), a city sought to enjoin a retail store located in the city’s “C-l Neighborhood Shopping District” from continuing its outdoor display of garden supplies. The city contended the store’s practice violated the planned unit development site plan (“PUD”) and the ordinance under which the PUD was adopted. The ordinance, in part, read: “The commercial uses included in the plan are limited to those permitted in the C-l Neighborhood Shopping District.” Id. at 191. The ordinance outlined a number of “uses permitted and specified” for a C-l Neighborhood Shopping District. Id. The only “use” relevant to the parties’ dispute was “retail store.” Id.

The Indiana Court of Appeals found the PUD was completely silent concerning outside sales and storage. Regarding the ordinance, the court determined it did not reveal any restriction on outside displays by owners of retail stores. Notwithstanding these findings, the city argued “because the ordinance did not specifically permit outside displays, such use was therefore prohibited.” Id. at 191 (emphasis added).

The court disagreed with the city. Relying upon Harbour Town Associates v. City of Noblesville, 540 N.E.2d 1283, 1285 (Ind.Ct.App.1989), which defined the term “use,” as employed in the context of zoning, as “a word of art denoting ‘the purpose for which the building is designed, arranged or intended, or for which it is occupied or maintained,’ ” the Big Blue Court found: “We cannot agree with City’s inference that the term ‘use’ in this case should be expanded to regulate the manner in which Big Blue advertises merchandise as it operates its retail store” Id. (emphasis added).

Applying the definition of “use” as found within the above-cited authorities, it is apparent the Circuit Court erred in its reversal of the Zoning Board’s determination. The “use” for which Heilker purchased and occupied his Beaufort properties is the retail sale of furniture. His outdoor display of furniture — a form of advertisement — is merely an activity or practice incidental to this “use.”

This Court recognizes the term “use” has amorphous meanings in the realm of zoning. Municipal Elec. Auth. of Ga. v. 2100 Riveredge Assocs., 180 Ga.App. 326, 348 S.E.2d 890 (1986). In addition to the interpretation that “use” describes the actual purpose of a property, the word is also sometimes employed to refer to the types of activities, practices, and operations conducted in connection with the property’s purpose. See Recovery House VI v. City of Eugene, 156 Or.App. 509, 965 P.2d 488, 512 n.2 (1998) (“We ... note ... that the word “use” has two different meanings, depending on the context. It sometimes refers to the actual activity that is conducted on or proposed for ... property, and sometimes to types of activities and operations that are or are not permissible in an area under zoning regulations.”). We decline to integrate the latter meaning into our analysis.

Our examination of the cases that define “use” as referring to the types of activities, practices, and operations conducted in connection with the property’s purpose reveal that numerous courts have relied strictly upon a dictionary or cases citing dictionaries when formulating their definitions. See, e.g., Phoenix City Council v. Canyon Ford, Inc., 12 Ariz.App. 595, 473 P.2d 797, 801 (1970) (defining “use” as “the act of employing anything, or state of being employed; application; employment” by quoting State ex rel. Mar-Well, Inc. v. Dodge, 113 Ohio App. 118, 177 N.E.2d 515 (1960), which in turn quoted Webster’s New International Dictionary).

Dictionaries can be helpful tools during the initial stages of legal research. However, we are reluctant to rely upon either a dictionary or cases that have relied upon a dictionary for a definitive answer as to the definition of “use” when extensive case law exists that provides ah accurate and reliable definition for the term. Our disinclination to adopt a dictionary definition is based, in part, upon persuasive commentary found in the literature.

In their recent law review article,¹ Samuel A. Thumma & Jeffrey L. Kirehmeier critique the efficacy of turning to common-usage and law dictionaries as the principal authority for defining legal terms:

Regarding common-usage dictionaries, Thumma and Kirchmeier state:

[A court cannot] defínitively rely on [common-usage] dictionaries as an end point in deñning a word. A descriptive dictionary sets forth definitions showing what a word may mean generally, not what a word does mean in context. Accordingly, although a descriptive dictionary may set forth possible alternative definitions for a term, it cannot provide the definitive definition for what that term actually means in a specific context. Differing definitions for a word in different dictionaries and alternative definitions of a word in the same dictionary would further confound an attempt to use a descriptive dictionary as an end point in defining a word.

47 Buff. L.Rev. at 298 (emphasis added).

The authors additionally caution against a reliance upon a law dictionary as the ultimate source for defining key terms:

Deftnitive reliance on law dictionaries to define terms suffers from defects similar to such reliance on general usage dictionaries. In addition, many terms in a law dictionary are legal terms and, frequently, terms of art. Thus, the definitions provided in a law dictionary are either: (1) based on case law or usage (such as statutory terms) or (2) created anew by the dictionary’s editorial board. If based on case law or usage, the best source for a definition is the decision or usage in context. Prior decisions and usage, defining the term in context, should be far more instructive than the definitions in a law dictionary, which are general paraphrases that lack any context. And if, rather than being based on case law or usage, the law dictionary definition was created anew, one might ask whether that deñnition should be afforded any weight at all.

[Although perhaps a good resource for law students and lawyers unfamiliar with a term in the abstract, law dictionaries are not particularly helpful to [a court] in determining the precise meaning of a term in context.

Id. at 294 (footnotes omitted) (emphasis added).

II. Zoning Board Determination Regarding Whether a Particular Activity or Purpose is a “Use” is a Finding of Fact

In Stanton v. Town of Pawleys Island, 317 S.C. 498, 455 S.E.2d 171 (1995), a homeowner sought a building permit to repair the ground level of his oceanfront home, which was destroyed by Hurricane Hugo. The building inspector, applying the town’s “Flood Damage Prevention Ordinance,” denied the homeowner’s request. This ordinance, enacted after the home’s original erection, prohibited the construction of any ground level living quarters in the area where the home was situated. The town’s zoning codes, however, permitted the rebuilding of nonconforming “uses,” provided the structure requiring reconstruction was not more than 50% percent destroyed. The lower level in Stanton was completely destroyed; nevertheless, reviewed as a whole, the homeowner’s entire structure was more than 50% intact.

The building inspector found the lower level, in and of itself, constituted a “separate use ” from the rest of the house. Id. at 501, 455 S.E.2d at 172 (emphasis added). Therefore, although the entire house was not destroyed by more than 50%, the complete destruction of the lower level rendered it ineligible for reconstruction. The homeowner appealed to the town’s zoning board, which upheld the permit denial. The Circuit Court affirmed.

The dispute reached the Supreme Court. Whether the town zoning board erred in concluding the homeowner’s lower level was a separate “use” was the main issue before the Court. The Court articulated its standard of review:

The factual ñndings of the Board must be affirmed by the Circuit Court if they are supported by any evidence and not influenced by an error of law.

Id. at 502, 455 S.E.2d at 172 (citation omitted) (emphasis added).

This Court reads Stanton to mean that in South Carolina, a zoning board determination regarding whether a particular activity or purpose constitutes a “use” of property is a finding of fact.

The Stanton Court reversed the town’s zoning board, finding that the building inspector erred as a matter of law by severing the ground level from the entire structure during his evaluation. Conversely, in the instant case, we do not conclude there was error in the Zoning Board’s findings. The outdoor display of indoor furniture is not a “use” of property. It is a practice or activity that is a corollary of Heilker’s advertising campaign.

Because the outdoor display of indoor furniture is not a “use,” it cannot be a nonconforming “use”; thus, Heilker does not possess the vested right to continue this activity in violation of the Ordinance.

CONCLUSION

In zoning matters, this Court is obligated to apply the extremely narrow standard of review outlined in Vulcan Materials Co. v. Greenville County Bd. of Zoning Appeals, 342 S.C. 480, 536 S.E.2d 892 (Ct.App.2000). The local zoning boards, and not the courts, are the primary entities responsible for the planning and development of our communities.

A “use” in the zoning context is “the purpose or activity for which land or buildings are designed, arranged, or intended, or for which land or buildings are occupied or maintained.” A determination by a zoning board that a particulár purpose or activity does or does not constitute a “use” is a finding of fact.

In the case sub judice, we rule the Circuit Court erred in supplanting the Zoning Board’s finding of fact that Heilker’s outdoor display of indoor merchandise was not a nonconforming “use.”

For the foregoing reasons, the decision of the Circuit Court is

REVERSED.²

HUFF J., concurs. SHULER, J;, dissents in a separate opinion.

1 . The Lexicon Has Become a Fortress: The United States Supreme Court’s Use of Dictionaries, 47 Buff. L.Rev. 227 (1999).

2 . In light of this disposition, we need not address the Zoning Board's alternative sustaining grounds. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 518 S.E.2d 591 (1999) (ruling appellate court need not review remaining issues when disposition of prior issues is dispositive).