April 11, 2017
From Charleston County R. Markley Dennis, Jr., Circuit Court
Trenholm Walker and John Phillips Linton, Jr., both of Walker
Gressette Freeman & Linton, LLC, of Charleston, for
F. Paylor, of Rosen Rosen & Hagood, LLC, of Charleston,
Town of Sullivan's Island (the Town) and the Town of
Sullivan's Island Board of Zoning Appeals (BZA)
(collectively, Appellants) appeal the circuit court's
order reversing the BZA's decision to affirm the zoning
administrator's denial and limitation of permits
requested by Paul Boehm to make certain alterations to his
building and nearby structures. Appellants contend the
circuit court erred in determining (1) Boehm's building
was a second principal building, rather than an accessory
structure and (2) Boehm could expand the building. We affirm.
TOWN'S ZONING ORDINANCES
application of the Town's zoning ordinances to
Boehm's property is a tortured one involving multiple
requests for alterations, building inspectors, and zoning
reviews. To aid in application to the facts, we provide the
relevant portions of those ordinances before discussing the
(1) Principal Building Coverage Area. The Lot Area
covered by the Principal Building measured vertically
downward from the Principal Building's exterior walls to
the ground (also known as the building footprint area), but
excludes areas covered only by:
(a) accessory structures not readily useable as living space;
(b) exterior porches and decks; and,
(c) exterior stairs.
(2) Principal Building. A building or buildings in
which the principal use of the lot is conducted. The term
also specifically applies to multiple dwellings located on
the same lot, including an historic structure used as an
accessory dwelling unit.
Sullivan's Island, S.C., Zoning Ordinance (T.Z.O.) §
21-25(A) (2007). "No Principal Building shall be
erected, altered or moved so as to exceed thirty-eight (38)
feet in overall height." T.Z.O. § 21-54(A)
structures shall . . . . [n]ot exceed 15 feet in height,
except that the height may be extended to 18 feet where the
pitch of the accessory structure[']s roof is not less
than seven on twelve (7/12) . . . ." T.Z.O. §
21-138(A)(3)(a). The Zoning Ordinances provide an accessory
structure cannot have a separate electric meter or be
connected to the sewer system. T.Z.O. § 21-138(A)(7).
In the event that two or more Principal Buildings occupy
a single lot, said occupancy shall constitute a
non-conforming use. One structure shall be designated
conforming and the other(s) shall be non-conforming under the
(1) If a request to improve the property is received, the
Zoning Administrator shall designate the Principal Building
with the greatest livable square footage, including porches,
as a conforming use and the other Principal Buildings as
(2) The designation of conforming and non-conforming
Principal Buildings shall be recorded on the Certificate of
Occupancy that is on file in the Town Hall.
(3) A Building Permit for improvements to the designated
conforming Principal Building may be considered favorably,
provided all other requirements of the Town Ordinances are
met. The non-conforming structure(s) shall be regulated in
accordance with Subsections A-E.
T.Z.O. § 21-150(F) (emphasis added).
Nonconforming Use is a land use that was legally established
but that is no longer allowed by the use regulations of the
Zoning District in which it is located. . . . A
Nonconforming Use shall not be expanded except to eliminate
or reduce the nonconforming aspects." T.Z.O. §
21-150(A), (B) (emphasis added). "A Nonconforming
Structure is any building or structure that was legally
established but no longer complies with the density, lot
coverage, floor area, height and dimensional standards of
this Zoning Ordinance. Nonconforming Structures may remain,
subject to the regulations of this Article." T.Z.O.
§ 21-151(A). For nonconforming structures,
"[s]tructural alterations, including enlargements,
are permitted if the structural alteration does not increase
the extent of nonconformity." T.Z.O. §
21-151(B)(1) (emphasis added).
(1) Incidental repairs and normal maintenance necessary to
keep a Nonconforming Structure in sound condition are
permitted unless such repairs are otherwise expressly
prohibited by this Zoning Ordinance.
(2) Nothing in this Article will be construed to prevent
Structures from being structurally strengthened or restored
to a safe condition, in accordance with an official order of
a public official.
T.Z.O. § 21-149(F).
following relevant definitions are provided by the Town's
zoning ordinance. T.Z.O. § 21-203. "Principal
Use. The specific, primary purpose for which land or a
building is used." Id. "Building,
Principal. [ ]A building in which the principal use of
the lot is conducted." Id. "Accessory
Use or Structure. A use or structure subordinate to the
Principal Building on a lot and used for purposes customarily
incidental to the main or principal use or building and
located on the same lot." Id. "Garage,
private. An accessory building or portion of a Principal
Building used only for the private storage of motor vehicles,
campers, boats, boat trailers and lawn mowers, as an
accessory use." Id.
Dwelling. A building or portion of a building
arranged or designed to provide living quarters for a single
family, with no structural features impeding free access
throughout the entire structure by all members of the family.
. . . .
Dwelling, Single Family. A detached Principal
Building other than a mobile home designed for or occupied
exclusively by a single family on a single lot. Dwelling,
Upper Story. An attached dwelling constructed as an
integral part of a non-residential Principal Building located
on the second floor.
Id. The definition for Residence simply states
"See 'Dwelling.'" Id.
Nonconforming Structure. Any building or structure
that was legally established but no longer complies with the
density, lot coverage, floor area, height and dimensional
standards of this Zoning Ordinance. Nonconforming
Use. A land use that was legally established but that is
no longer allowed by the use regulations of the Zoning
District in which it is located.
Nonconformities. Uses, structures, lots, signs and
other situations that came into existence legally and
continued to exist as a legal nonconforming use until the
time of the adoption of this ordinance but that do not
conform to ...