Chapter 8 Zoning and Land Use

• Library: Practical Guide to Commercial Real Estate in South Carolina (SCBar) (2024 Ed.)

Chapter 8 Zoning and Land Use¹

Michael Stuart Pitts

A. Introduction

Confirming the compliance of property with applicable zoning ordinances and land development regulations is critical in any real estate transaction, whether commercial or residential, but it is frequently either overlooked entirely or given far too little attention by closing attorneys.

Zoning is the determination by local governmental bodies of how land may be used—both in terms of the types of improvements which can be built on it and the activities which can take place on it. Land development regulations (often referred to as subdivision regulations) control how uses permitted by zoning are physically implemented on the land.

Opinions about the desirability of zoning differ widely. As the South Carolina Supreme Court observed in 2000, "Zoning often is one of the most controversial activities undertaken by a local government. Some citizens view zoning as a requisite in today's world, necessary to control disparate uses of land, promote orderly development, and conserve valuable resources. To others, zoning raises the specter of an overbearing government bent on destroying individual property rights and independent spirits."²

Both counties and municipalities are authorized to adopt zoning and land development ordinances by the Local Government Comprehensive Planning and Enabling Act of 1994. S.C. Code Ann. §§ 6-29-310 through 6-29-1640 (2023). Zoning ordinances "must be for the general purposes of guiding development in accordance with existing and future needs and promoting the public health, safety, morals, convenience, order, appearance, prosperity, and general welfare."³ Some of the stated goals of zoning include preventing the overcrowding of land, regulating the density and distribution of population, lessening congestion in the streets and the adequate provision of services to residents.

B. History and Statutory Authorization

Municipal zoning ordinances were authorized by the legislature in 1924, and the great majority of South Carolina municipalities have adopted some form of zoning ordinance. County planning was authorized in 1942, but zoning at the county level made little headway until after the adoption of the Comprehensive Planning Act of 1967 and the 1975 Home Rule Act. The 1967 Comprehensive Act provided a common framework for all municipal and county zoning ordinances but did not repeal prior legislation, allowing a sometimes confusing mixture of new zoning ordinances adopted pursuant to the 1967 Comprehensive Act and older ones adopted pursuant to prior statutory authorization.

The 1967 Comprehensive Act was replaced by the Local Governmental Comprehensive Planning Enabling Act of 1994, which did repeal existing zoning and planning provisions effective May 3, 1999. Municipalities in counties with comprehensive land use plans, zoning ordinances and land development regulations already in place were given until that date to bring their enactments in compliance with the 1994 Comprehensive Act.

C. Local Implementation

Local governments are not required to enact zoning ordinances or land development regulations. The great majority of municipalities have some form of both. While counties historically had land development regulations but far less in the way of zoning ordinances than most municipalities, that trend has changed and it is not uncommon for a county to have zoning in place for some or all of its unincorporated area.

The local planning process begins with the appointment of a planning commission by the local governing body. A planning commission typically serves only one municipality or county but may serve both a county and one or more municipalities.⁴ Unless it serves more than two political jurisdictions, a planning commission may not have less than five nor more than twelve members.⁵

The powers and duties of a local planning commission include development of a comprehensive plan for the jurisdiction it serves based upon consideration of ten planning elements or areas of consideration set out in the Comprehensive Act.⁶

In order to be authorized to adopt a zoning ordinance, a local government must adopt at least the "land use element" of the comprehensive planning process, which considers existing and recommended future land use by categories, including private and public uses and the provision of open space.⁷ A local government may adopt some or all of the elements of a comprehensive plan but then choose not to enact a zoning ordinance.

In order to be eligible to adopt land development regulations, a local government is also not required to adopt a full comprehensive plan, but must at least complete the "community facilities" element of the planning process, which considers planning for such things as water supply, water and sewer treatment facilities, fire protection and emergency medical services and schools, as well as the "housing" and "priority investment" elements.⁸

A municipality is authorized to adopt zoning ordinances and land development regulations only in the total area within its corporate limits, but county ordinances and regulations may apply to the entire county or only to specific parts of it.⁹

Zoning ordinance provisions and requirements vary widely from jurisdiction to jurisdiction because the 1994 Comprehensive Act allows local governments considerable flexibility to tailor zoning ordinances to local needs. Although the Act identifies a number of zoning classifications and planning techniques, it also states that "Failure to specify a particular technique does not cause that technique to be viewed as beyond the power of the local government choosing to use it."¹⁰

The intent of this chapter is to provide an overview of zoning and land use issues which practitioners need to be aware of in South Carolina commercial real estate transactions. However, the devil is in the details when it comes to examining the specifics of local ordinances applicable to property. Although many jurisdictions have generally patterned their ordinances after those of other cities or counties that were quicker to embrace zoning, it is never safe to assume that corresponding provisions will actually be identical.

D. Zoning Issues

1. Determining Existence of Zoning

In determining the existence of zoning, the first question to ask is always where the property is located—within a municipality or an unincorporated area. Municipal and county zoning jurisdiction for a particular piece of property is typically exclusive. The 1994 Comprehensive Act does allow municipalities and counties to have joint planning processes and ordinances, but this is not commonly done.

After identifying the proper jurisdiction to search, locating a "Zoning Ordinance" may not be as simple as it sounds. Some jurisdictions adopt a zoning ordinance as part of their code of ordinances, but others make the zoning ordinance freestanding. Also, some jurisdictions (perhaps aware of the distaste of some of their citizens for zoning), include their zoning provisions in ordinances whose titles do not mention "zoning" and may be called a "land management ordinance," or simply "land development regulations" even though they contain provisions which the 1994 Comprehensive Act clearly categorizes as "zoning." Many jurisdictions have adopted "unified development codes" which contain both traditional zoning and land development regulations.

2. Verifying Zoning Classifications

Once the existence of a zoning ordinance is confirmed, the next step is to determine what zoning classification has been assigned to the property under the ordinance. This is also often much easier said than done. Each local government with a zoning ordinance must maintain an official zoning district map indicating the zoning classification assigned to each parcel within the zoned area. Typically, each jurisdiction designates an individual staff member (frequently a "Zoning Administrator or Zoning Official") who is charged with maintaining the official map.

In order to definitively confirm the zoning classification of any property, it is essential to locate the official zoning district map for the jurisdiction and physically inspect it to confirm the applicable zoning classification. It is never enough to rely upon a surveyor's note on a survey as to the zoning classification. Even a zoning map maintained on the local jurisdiction's website may not be the official district map, which may be located only in the office of the local planning commission or zoning official. Further, simply relying on a phone call, e-mail or even an official letter from a local jurisdiction can lead to disaster if the information provided is inaccurate and then is detrimentally relied upon by a landowner or developer. The South Carolina Supreme Court has held that reliance upon incorrect advice from a local zoning official as to the zoning classification of the property was not justified when the official zoning district map showed the correct classification and the plaintiffs did not inspect the official map, which would have indicated that the local zoning official was incorrect.¹¹

It is not clear what the S.C. Supreme Court's position would be in a case in which a local zoning official correctly reports a zoning classification shown on the official map and the official map itself is incorrect. While the court might well find reliance in that case would be justified, there is one further level of investigation that can be conducted and could well be required—reviewing a copy of the ordinance adopted by the local governing body which actually designated the zoning classification for the property in question, either when it was originally zoned or at the time its zoning was changed by a subsequent ordinance amendment.

3. Determining Zoning Compliance

Once the correct zoning classification of property has been confirmed, the next inquiry is what restrictions that classification imposes on the property for existing and/or...