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County of Charleston v. South Carolina Department of Transportation

Court of Appeals of South Carolina

July 12, 2017

County of Charleston, South Carolina, Appellant,
v.
South Carolina Department of Transportation, Respondent. Appellate Case No. 2015-001309

          Heard April 11, 2017

         Appeal From Charleston County R. Markley Dennis, Jr., Circuit Court Judge

          Joseph Dawson, III, Bernard E. Ferrara, Jr., Austin Adams Bruner, and Johanna Serrano Gardner, all of the Charleston County Attorney's Office, of North Charleston, for Appellant.

          Beacham O. Brooker, Jr., of Brooker Law Offices LLC, and Linda C. McDonald, of the South Carolina Department of Transportation, both of Columbia, for Respondent.

          LOCKEMY, C.J.

         Charleston County (the County) appeals the circuit court's grant of summary judgment to the South Carolina Department of Transportation (the Department). The County argues the court erred in finding (1) the Department is exempt from complying with the Charleston County Zoning and Land Development Regulations Ordinance (the ZLDR), and (2) the ZLDR is an unconstitutional tax on the Department's maintenance of the state highway system. We affirm.

         FACTS/PROCEDURAL BACKGROUND

         The South Carolina Local Government Comprehensive Planning Enabling Act of 1994 (the Planning Act) authorizes local governments in South Carolina to adopt zoning ordinances to regulate land use within their jurisdictions. S.C. Code Ann § 6-29-710 (2004). On November 20, 2001, the Charleston County Council adopted the ZLDR to regulate land use in the unincorporated areas of the County pursuant to the Planning Act. Among other things, the Ordinance regulates tree removal and protection. The County determined:

Trees are an essential natural resource, an invaluable economic resource, and a priceless aesthetic resource. Trees play a critical role in purifying air and water, providing wildlife habitat, and enhancing natural drainage of storm water and sediment control. They also help conserve energy by providing shade and shield against noise and glare. Trees promote commerce and tourism by buffering different land uses and beautifying the landscape. The Tree Protection and Preservation regulations of this Article are intended to enhance the health, safety and welfare of Charleston County citizens.

ZLDR § 9.4.1.

         The ZLDR prohibits the removal of trees prior to the issuance of a zoning permit by the Planning Director. ZLDR § 9.4.2. The ZLDR provides a partial exemption for the Department, allowing it to remove trees without a zoning permit except for the following:

a. All trees species measuring 6 inches or greater DBH[1]located in right-of-ways along Scenic Highways as designated in this Ordinance shall be protected and require a variance from the Charleston County Board of Zoning Appeals for removal per Article 9.4.5.B and 9.4.6.
b. Grand Tree Live Oak species in all present and proposed right-of-ways and easements shall be protected and require a variance from the Charleston County Board of Zoning Appeals for removal per Article 9.4.5.B and 9.4.6.
c. All Grand Trees other than Live Oak species in all present and proposed right-of-ways and easements not located on a Scenic Highway are protected but may be permitted to be removed ...

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