Greenville County v. Kenwood Enterprises

Decision Date27 January 2003
Docket NumberNo. 25584.,25584.
Citation577 S.E.2d 428,353 S.C. 157
CourtSouth Carolina Supreme Court
PartiesGREENVILLE COUNTY, Respondent, v. KENWOOD ENTERPRISES, INC., and Elephant, Inc., d/b/a Platinum Plus, and Ken Wood, Appellants, Greenville County, Respondent, v. HH & M, Inc., and First Five Management, Inc., d/b/a Heartbreakers, Appellants, Greenville County, Respondent, v. Pretty Woman, Inc., Appellant.

Harry T. Heizer, Jr., of Columbia, and Randall S. Hiller, of Greenville, for Appellants Kenwood Enterprises, Inc., and Elephant, Inc., d/b/a Platinum Plus, and Ken Wood.

Robert C. Childs and Laura W.H. Teer, of Greenville for Appellants HH & M, Inc., and First Five Management, Inc., d/b/a Heartbreakers.

Suzanne E. Coe, of Atlanta, for Appellant Pretty Woman, Inc.

W. Howard Boyd, Jr., Ronald K. Wray, II, and Andrea M. Hawkins, of Gallivan, White & Boyd, P.A., of Greenville for Respondent.

JUSTICE WALLER:

Appellants appeal from the trial court's order granting summary judgment in favor of respondent Greenville County. We affirm.

PROCEDURAL BACKGROUND

Greenville County ("the County") brought lawsuits against appellants to enforce the County's ordinance regulating the location of sexually oriented businesses. The trial court granted summary judgment in favor of the County and enjoined appellants from operating their businesses. In addition, the trial court granted the County summary judgment on appellants' counterclaims. Appellants Kenwood Enterprises, Inc., and Elephant, Inc., d/b/a Platinum Plus, and Ken Wood (collectively "Platinum Plus") and HH & M, Inc., and First Five Management, Inc., d/b/a Heartbreakers (collectively "Heartbreakers") together have filed a brief raising several issues on appeal. Appellant Pretty Woman, Inc., d/b/a Diamonds ("Diamonds") filed a separate brief raising a single issue.

FACTS

On February 7, 1995, the County enacted Greenville County Zoning Ordinance No. 2673 ("the Ordinance"). The Ordinance established both a licensing scheme and location restrictions for sexually oriented businesses. Several adult businesses (but none of the appellants in the instant case) challenged the constitutionality of the Ordinance in Harkins v. Greenville County, 340 S.C. 606, 533 S.E.2d 886 (2000), cert. denied, 531 U.S. 1125, 121 S.Ct. 880, 148 L.Ed.2d 789 (2001), and the Harkins Court invalidated the licensing portion of the ordinance. The Harkins opinion initially was filed on April 24, 2000. On June 12, 2000, the Court withdrew the April 24 opinion, denied a petition for rehearing, and refiled the opinion, stating that the "Conclusion section of the initial opinion has been clarified so that only the licensing portion of the Greenville County Ordinance is declared unconstitutional." Id. at 611, 533 S.E.2d at 888 (emphasis added). In August 2000, the County instituted the instant actions against appellants. The Ordinance states that County Council considered, inter alia, several summaries of other cities' land use studies as well as court cases including City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). Based on these materials, County Council concluded that "in areas surrounding adult-oriented entertainment establishments crime increases, property values decrease, and the quality of life for residents declines." Moreover, the "Purpose and Intent" section of the Ordinance provides as follows:

It is the purpose of this ordinance to regulate sexually oriented businesses to promote the health, safety, morals, and general welfare of the citizens of the county, and to establish reasonable and uniform regulations to prevent the continued deleterious location and concentration of sexually oriented businesses within the county. The provisions of this ordinance have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials including sexually oriented materials. Similarly, it is not the intent or effect of this ordinance to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market...

Section 12 of the Ordinance governs the location of sexually oriented businesses, and subsection (a) provides that all sexually oriented businesses shall be located in an S-1 district. Subsection (b) establishes a 1500-foot setback requirement such that a sexually oriented business cannot be located within 1500 feet of nine enumerated types of properties, including a church, school, boundary of a residential district, and property line of a lot devoted primarily to residential use. Subsection (c) states that a sexually oriented business cannot be within 1500 feet of another sexually oriented business. In subsection (i), the provisions, with the exception of subsection (a), are made applicable to "those areas of the county that are not zoned."1 Initially, the Ordinance was proposed and drafted as an amendment to the County's Zoning Ordinance ("Zoning Ordinance").2 Ultimately, however, the Ordinance was not passed as an amendment to the Zoning Ordinance, but instead was passed as a stand-alone ordinance applicable to both the zoned and unzoned areas of the County. John Owings, Jr., of the County's Planning Commission, explained that if the Ordinance had been applied only to the zoned areas of the County, then it would have encouraged the location and possible concentration of adult businesses on the edge of the zoned areas. Thus, Owings advised that the Ordinance should be county-wide and not as an amendment to the Zoning Ordinance.3

The Ordinance was given a first and second reading. At the recommendation of the Planning Commission, a workshop was held between the second and third reading. Upon the third reading, the Ordinance's location requirement, originally drafted at 1000 feet, was amended to the 1500-foot requirement, and then County Council adopted the Ordinance as amended.

Platinum Plus, Heartbreakers, and Diamonds are all "sexually oriented businesses," as that term is defined by the Ordinance.4 Platinum Plus and Heartbreakers are both located in an S-1 district and did not exist when the Ordinance was enacted. Although located in an S-1 district, both Platinum Plus and Heartbreakers violate the Ordinance's 1500-foot location requirement. Diamonds is located in a C-2 district and is in violation of the 1500-foot location requirement. Because Diamonds was in existence when the Ordinance was enacted, it was entitled to a one-year moratorium pursuant to Section 12(g) of the Ordinance.

Platinum Plus leased a building in late 1999 and intended to open a nightclub. At the County's request, Platinum Plus advised the County Code Enforcement Administrator, Peter Nomikos, in December 1999 that it did not intend to operate an adult business at its location. However, after the initial Harkins decision was filed, Platinum Plus met with County representatives and was told that the Ordinance had been declared unconstitutional. Platinum Plus was issued a temporary certificate of occupancy on June 30, 2000, which indicated the business was going to be a nightclub only. In a July 27, 2000, letter, Platinum Plus was notified by Nomikos that the substituted Harkins opinion upheld the Ordinance's location provisions and that Platinum Plus would be prohibited from being operated as a sexually oriented business. On August 9, 2000, Platinum Plus responded stating the intent to open as a nightclub.

Platinum Plus alleged in its answer that it relied on the representations made by the County that there was no ordinance regulating sexually oriented businesses and modified its renovation plans, spending over $750,000 to construct Platinum Plus as an adult nightclub. Thus, Platinum Plus asserted that the County should be estopped from enforcing the Ordinance against it. In addition, Platinum Plus asserted a claim of gross negligence against the County and sought money damages.

Heartbreakers also had a certificate of occupancy issued to it during the time period between the two Harkins opinions. Nomikos testified that the certificate of occupancy was issued with the knowledge that Heartbreakers was going to operate as a sexually oriented business, but at a time when he mistakenly believed that the Ordinance had been declared unconstitutional by this Court. Heartbreakers alleged estoppel against the County and sought money damages.

APPEAL OF PLATINUM PLUS AND HEARTBREAKERS
ISSUES
1. Did the trial court err in finding that the Ordinance was properly enacted pursuant to the County's police power and thus did not need to be enacted pursuant to the Comprehensive Planning Act?
2. Is the Ordinance's location requirement constitutional?
3. Did the trial court err in finding the County was not estopped from enforcing the Ordinance?
4. Did the trial court err in granting summary judgment on the counterclaims?
5. Did the trial court err in quashing the subpoenas for County Council members?
DISCUSSION
1. The Ordinance Was Properly Enacted

The trial court ruled that the Ordinance was properly enacted pursuant to the police powers granted to the County by S.C.Code Ann. § 4-9-25 (Supp.2001).5 Further, the trial court found that the Ordinance is not part of the Zoning Ordinance and did not have to be enacted pursuant to the South Carolina Local Government Comprehensive Planning Enabling Act of 1994, S.C.Code Ann. § 6-29-310 et seq. (Supp.2001) ("Comprehensive Planning Act").

Platinum Plus and Heartbreakers argue that the trial court erred because the Ordinance is clearly a zoning ordinance. Furthermore, they argue that if the Ordinance is not a zoning ordinance, it should be "struck down as an illegal land use control act" because the County cannot enact such ordinances unless it complies with the Comprehensive Planning Act. We disagree.

The trial court...

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