Agenda - Planning Commission - 04/01/2010

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Zoning Bulletin February 10, 2010 I Volume 4 I No. 3 $ 4.5 of the Regulations, an AG-10 district was subject to a maximum density of: one dwelling per 10 acres. However, and AG-10 district den- sity could be increased to a "highest allowed density" of: one dwelling unit per five acres pursuant to a Planned Development ("PD") process request. Under § 3.5.7 of the Regulations, PDs could provide for varia- tions from density requirements of "other ordinances and the regulations of the other established zoning districts." PPA asked the county to rezone the six tracts on the Property to a PD District. In May 2004, the county enacted Ordinance # 1300, which rezoned PPA's parcels from AGR and AG-10 to a PD-103 District. This zoning change effectively changed the allowed density on the Property: The overall density increased to one dwelling unit per 3.8 acres. The density of the 106 acres that had previously been zoned AG-10 increased to a maximum density of one unit per 2.4 acres. The Mikells brought a legal action. They contended that Ordinance # 1300 conflicted with: (1) the county's Comprehensive Plan, which called for the preservation of the rural community character and recommend- ed densities for agricultural districts; and (2) the Regulations, which set maximum density limits in AG-10 districts to one dwelling per five acres. PPA and the county maintained that $ 3.5.7 allowed the higher den- sity of Ordinance #1300 (one dwelling unit per 2.4 acres). Finding there were no material issues of fact in dispute, and deciding the matter on the law alone, the circuit court issued summary judgment in favor of the Mikells. The circuit court held that "Ordinance # 1300 conflicted with the clear, unambiguous requirements of [the Regulations] limiting the density in an AG-10 district to a maximum of one dwelling per five acres." The court of appeals reversed. It found that $ 3.5.7 authorized the county's "exercise of discretion in approving a PD with a higher density than base zoning districts would have allowed." The Court's Decision: Judgment of the court of appeals in favor of the county reversed. Agreeing with the Mikells, the Supreme Court of South Carolina held that Ordinance # 1300, which authorized the PD-103 zone change re- sulting in a higher density than the AG-10 district would have allowed, violated the Regulations. In so concluding, the court found that the legislative intent, as it re- lated to AG-10 districts, was: "to ensure a maximum density of 1 dwell- ing unit per 5 acres on AG-10 districts." The court said that intent was clearly reflected in the county's Comprehensive Land Use Plan and the Regulations: The Comprehensive Plan "clearly intended to preserve 'ex- isting rural settlements' and `compatible low -density residential devel- opment." The Regulations "clearly intended to limit those tracts zoned AG-10 to a maximum density of [1 dwelling per 5 acres]." The court found it "highly implausible" that the county intended to authorize (via © 2010 Thomson Reuters 7 55