Zoning – Accessory Use – Heavy Equipment Operator – Masonry Recycling

Recycling other contractors’ concrete and masonry debris is not customarily incidental and subordinate to the maintenance of heavy construction equipment; therefore, such recycling is not an accessory use of the heavy equipment operator’s business.

We reverse the circuit court’s decision to overturn the rulings of the Horry County Zoning Board of Appeals (ZBA).

The heavy equipment operator (Thompkins) appealed two rulings: (1) the rejection of its argument that recycling other contractors’ concrete and masonry debris was an accessory use and (2) the rejection of its application for a zoning variance. The circuit overturned both rulings.

Horry County defines “accessory use” as “[a] use of land or of a building, or portion thereof, [that] is customarily incidental and subordinate to the principal use of the land or building.” Horry County Code of Ordinances § 401.5. We are convinced that Thompkins’ recycling of materials from other contractors is not “customarily incidental and subordinate to” the maintenance of his heavy construction equipment on the property in question. Because this use cannot qualify as an accessory use, the circuit court should have affirmed the ZBA’s decision on this basis.

Although the zoning administrator’s predecessor designated Thompkins’ recycling business as an accessory use on Thompkins’ business license in 2007, nothing in the record suggests the 2007 designation was ever challenged on its underlying merits and subsequently upheld by the ZBA. Further, the issue of whether Thompkins’ recycling of its own debris met the county’s definition of accessory use was not squarely before the ZBA in the present case. Therefore, the ZBA did not need to make a legal distinction between Thompkins’ recycling of its own debris and its recycling of debris from other contractors.

It is true that the record contains evidence that Thompkins had begun its recycling operations before the county enacted its first zoning ordinance, which would make it a legal nonconforming use. However, this evidence was presented during the subsequent variance proceeding, not the accessory-use proceeding. The ZBA did not have the benefit of this evidence when it issued its order rejecting the recycling business as an accessory use.

The circuit court also erred in relying on the testimony of two individuals working in the construction industry in Horry County because these individuals did not provide any specific dates. They merely indicated that Thompkins had been recycling concrete for other contractors “for years.” Therefore, the circuit court’s conclusion that Thompkins had a vested right to continue accepting material from outside sources did not have any evidentiary support in the record for the zoning appeal.

With regard to the appeal in the variance proceeding, Thompkins’ property is in a Limited Industrial District. Thompkins requested rezoning to a Heavy/Intense Manufacturing and Industrial District (MA3) with several variances from the MA3 designation: distance from any residential lot, fully enclosed processing structures, and buffer screenings.

The hearing transcript and the ZBA’s minutes indicate the ZBA’s rejection of the variance application was supported by the testimony of residents in the surrounding community expressing concerns about particulates, noise, and traffic. Additionally, the ZBA’s minutes recount a ZBA member’s statement that the ZBA “had concerns with the nuisance, airborne particulates[,] and the traffic from the heavy trucks.” Therefore, the neighbors’ testimony likely persuaded the ZBA to conclude that the requested variances would be a “substantial detriment” to surrounding residences and would harm the surrounding community’s character. Reaching such a conclusion is a judgment call that is exclusively within the ZBA’s province.

The circuit court also concluded that Thompkins had a vested right to continue accepting material from outside contractors because it began this use before the county enacted its first zoning ordinance. However, Thompkins cannot acquire a vested right to continue the nonconforming use if there is a showing that continuing the use “constitutes a detriment to the public health, safety, or welfare.” The testimony of Thompkins’ neighbors constituted such a showing. Therefore, the circuit court erred in reversing the ZBA’s decision on the ground that Thompkins had a vested right to continue accepting material from outside contractors.

Reversed.

Venture Engineering v. Horry County Zoning Board of Appeals (Lawyers Weekly No. 011-033-21, 12 pp.) (John Geathers, J.) Appealed from the Circuit Court in Horry County (Larry Hyman & Benjamin Culbertson, JJ.) Matthew Magee for appellant; Robert Shelton for respondent. S.C. App.