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<br />May 15, 20071 Volume 1 I No.1 0 <br /> <br />court agreed with the board on tpe issue of variances; it found that no <br />variance was needed for the retaining wall because it fell within the defi- <br />nition of a fence, which was allowable without a variance. <br />After the rehearing, the board voted again to approve Rock Hill's ap- <br />plication. Montessori appealed to zoning board of adjustment, asking <br />for clarification of the zoning ordinance with regard to the definition of <br />a fence. The board of adjustment responded that it was bound by the <br />trial court's finding that the retaining wall was a fence. <br />Montessori filed another court action challenging whether a variance <br />was needed for the wall. The trial court in this matter also found that the <br />wall was a fence, not abuilding-which would have required a variance. <br />Montessori appealed. <br /> <br />Decision: Affirmed. <br /> <br />The only issue on appeal was whether Rock Hill needed a sideyard <br />setback variance to construct the retaining wall. Montessori applied <br />the ordinance as it related to buildings in the industrial zone and de- <br />termined that the appropriate distance for the wall to be set back from <br />the property boundary was 20 feet. The wall was built within six feet <br />of the boundary. <br />However, the appeals court agreed with the lower court that the wall <br />was not subject to the calculation based on the ordinance, because it <br />was not a building. The ordinance stated that the minimum sideyard <br />setback was 10 feet, and noted that "all construction [was] prohibited <br />within three feet of the [adjoining] property with the exception of fenc- <br />es." Because of this specific language, it was clear that there was no set- <br />back requirement for fences. <br />The ordinance defined a fence iL-"1 part as: "_An artificially constructed <br />barrier of wood, maSOlli-Y, stone, wire, metal or any other manufactured <br />material or combination of materials." On the other hand, a build- <br />, ing was: "Any structure having a roof supported by columns, piers, or <br />walls...or having other supports and any unroofed platform, terrace or <br />porch having a vertical face higher than three feet above the level of the <br />ground from which the height of the building is measured." <br />Montessori argued that the wall was more than three feet high and <br />other structures had been found to be buildings based on that part of <br />the definition, but the court found that the cases cited by Montessori <br />had other determining factors in addition to height. Importantly, the <br />court had to read the ordinance using the plain language standard; it <br />was clear that the wall was not a building under the ordinance. <br /> <br />3 <br /> <br />191 <br />