Restaurant Row Associates v. Horry County

• Decision Date: 17 May 1999
• Docket Number: No. 24944.,24944.
• Citation: 335 S.C. 209,516 S.E.2d 442
• Parties: RESTAURANT ROW ASSOCIATES and The Afterdeck, Inc., d/b/a Thee DollHouse, Petitioners, v. HORRY COUNTY, a Political Subdivision of the State of South Carolina, Respondent.
• Court: South Carolina Supreme Court

335 S.C. 209

516 S.E.2d 442

RESTAURANT ROW ASSOCIATES and The Afterdeck, Inc., d/b/a Thee DollHouse, Petitioners, v. HORRY COUNTY, a Political Subdivision of the State of South Carolina, Respondent.

No. 24944.

Supreme Court of South Carolina.

Heard January 5, 1999.

Decided May 17, 1999.

Rehearing Denied June 23, 1999.

Luke Charles Lirot, of Luke Charles Lirot, P.A., of Tampa, Florida; and Willard D. Hanna, of Harris & Hanna, P.A., of Myrtle Beach, for petitioners.

Emma Ruth Brittain and John P. Henry, of Thompson Law Firm, of Conway, for respondent.

TOAL, Justice:

This case is on appeal from the Court of Appeals' decision upholding the denial of Petitioner's zoning variance. We affirm as modified.

FACTUAL/PROCEDURAL BACKGROUND

Petitioners Restaurant Row Associates and the Afterdeck d/b/a Thee DollHouse ("Thee DollHouse") began its adult entertainment business in Horry County ("the County") in March 1988. On September 30, 1989, the County adopted Ordinance 92-89, establishing adult entertainment zoning regulations. Ordinance 92-89, now codified in the Horry County Zoning Code as section 526, granted a six-year amortization period to businesses existing at the time of the ordinance's enactment that were in violation of the ordinance so that they could recoup their investments and seek other locations should the business desire to continue as an adult use.

The zoning plan prohibits the location of an adult entertainment establishment within 500 feet of a residential district. Thee DollHouse is a nonconforming use under the ordinance because it is located 350 feet from a residential district. Almost all of this 350 feet consists of the Atlantic Intracoastal Waterway that separates Thee DollHouse from the residential district. This residential district is comprised of a golf course and currently contains no residential development.

In early 1994, the Horry County Zoning Administrator wrote to Thee DollHouse, advising it that it was an "adult use" as defined by the County's Adult Use Zoning Regulations, and that its nonconforming use of the property would have to cease on or before January 1, 1995. Thee DollHouse responded by filing three separate petitions with the Horry County Board of Adjustments and Zoning Appeals ("the Board"). The first petition challenged the definition of "Adult Cabaret" as used in the ordinance. The second petition alleged that Ordinance 26-90, an ordinance passed after 92-89, effectively grandfathered in Thee DollHouse's adult use. The third petition requested a variance from the setback and amortization provisions of 92-89.

During the Board meeting, the Zoning Administrator made no recommendation to approve or deny the variance application. A paid consultant testified extensively for Thee DollHouse. The consultant offered testimony, including a written report, supporting Thee DollHouse's claim that it met the variance criteria. The Board also heard comments from several members of the public.

After hearing all the evidence, the Board denied Thee DollHouse's request for a variance as well as its other two petitions. Thee DollHouse then appealed the Board's decisions to the circuit court. The circuit court upheld the Board's determination that Horry County Ordinance 26-90 did not grandfather in adult uses, but nevertheless held that the denial of Thee DollHouse's variance request was "arbitrary and clearly erroneous in light of the lack of any residence on the golf course and the natural barrier created by the Intracoastal Waterway." The Court of Appeals found the circuit court erred in reversing the Board's denial of the variance. Restaurant Row Associates v. Horry County, 327 S.C. 383, 390, 489 S.E.2d 641, 645 (Ct.App.1997). The Court of Appeals held the Board correctly found Thee DollHouse failed to prove the element of unnecessary hardship. Having determined Thee DollHouse failed to meet one of the four necessary elements of a variance, the Court of Appeals did not discuss the remaining three elements. The Court of Appeals also disagreed with Thee DollHouse's argument that the circuit court erred in concluding that County Ordinance 26-90, which amended certain subsections of § 500 of the County's zoning ordinance, repealed the amortization period established in § 526.2J of Ordinance 92-89, and therefore grandfathered in all nonconforming adult entertainment uses. This Court granted certiorari to consider the following issue:

Did the Court of Appeals err in reversing the circuit court and thereby upholding the Zoning Board's determination that Thee DollHouse failed to meet the standards for receiving a variance?

LAW/ANALYSIS

Thee DollHouse argues that the Court of Appeals erred by failing to find the Board acted arbitrarily and capriciously in denying the variance. We disagree.

When deciding whether to grant a variance, a local board must be guided by standards which are specific in order to prevent the ordinance from being invalid and arbitrary. Hodge v. Pollock, 223 S.C. 342, 75 S.E.2d 752 (1953); Schloss Poster Adv. Co. v. City of Rock Hill, 190 S.C. 92, 2 S.E.2d 392 (1939). "The concept of vagueness or indefiniteness rests on the constitutional principle that procedural due process requires fair notice and proper standards for adjudication." City of Beaufort v. Baker, 315 S.C. 146, 152, 432 S.E.2d 470, 472 (1993). Here, the County specifically adopted the statutory language of S.C.Code Ann. § 6-7-740 (1976 & Supp.1998) in Section 1204(B) of its zoning ordinance. That section provides:

The board of appeals ... shall have the following powers: (2) To authorize upon appeal in specific cases a variance from the terms of the ordinance or resolution as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of the ordinance or resolution will, in an individual case, result in unnecessary hardship, so that the spirit of the ordinance or resolution shall be observed, public safety and welfare secured, and substantial justice done. Such variance may be granted in such individual case of unnecessary hardship upon a finding by the board of appeals that:

(a) There are extraordinary and exceptional conditions pertaining to the particular piece of property in question because of its size, shape, or topography, and

(b) The application of the ordinance or resolution of this particular piece of property would create an unnecessary hardship, and

(c) Such conditions are peculiar to the particular piece of property involved, and

(d) Relief, if granted, would not cause substantial detriment to the public good or impair the purposes and intent of the ordinance or resolution or the comprehensive plan, provided, however, that no variance may be granted for a use of land or building or structure that is prohibited in a given district by ordinance or resolution.

In order to grant a variance, the Board must make the factual determination that each of the four elements above favor granting the variance. See Dolive v. J.E.E. Developers, Inc., 308 S.C. 380, 418 S.E.2d 319 (Ct.App.1992)

. Granting a variance is an exceptional power which should be sparingly exercised and can be validly used only where a situation falls fully within the specified conditions. Hodge v. Pollock, 223 S.C. 342, 75 S.E.2d 752 (1953). A strong presumption exists in favor of the validity and application of zoning ordinances. Peterson Outdoor Advertising v. City of Myrtle Beach, 327 S.C. 230, 235, 489 S.E.2d 630, 632 (1997). In the context of zoning, a decision of a reviewing body, in this case the Horry County Board of Adjustments and Zoning Appeals, will not be disturbed if there is evidence in the record to support its decision. Id.

A court will refrain from substituting its judgment for that of the reviewing body, even if it disagrees with the decision. Peterson, 327 S.C. at 235,489 S.E.2d at 632. However, a decision of a municipal zoning board will be overturned if it is arbitrary, capricious, has no reasonable relation to a lawful purpose, or if the board has abused its discretion. See id.; Knowles v. City of Aiken, 305 S.C. 219, 407 S.E.2d 639 (1991)

; Hodge v. Pollock, 223 S.C. 342, 75 S.E.2d 752 (1953); Gurganious v. City of Beaufort, 317 S.C. 481, 454 S.E.2d 912 (Ct.App.1995). This Court has summarized its standard of review in zoning appeals as follows:

It is a well settled proposition of zoning law that a court will not substitute its judgment for the judgment of the board. The court may not feel that the decision of the board was the best that could have been rendered under the circumstances. It may thoroughly disagree with the reasoning by which the board reached its decision. It may feel that the decision of the board was a substandard piece of logic and thinking. None the less, the court will not set aside the board's view of the matter just to inject its own ideas into the picture of things.

Talbot v. Myrtle Beach Board of Adjustment, 222 S.C. 165, 173, 72 S.E.2d 66, 70 (1952). As the variance applicant in this case, Thee DollHouse bore the burden of proving its entitlement to a variance. Application of Groves, 226 S.C. 459, 85 S.E.2d 708 (1955). If Thee DollHouse failed to meet the requirements of each element of the ordinance, then the Board correctly denied the variance.

Thee DollHouse argues that the Court of Appeals applied an incorrect standard for determining the unnecessary hardship element of the zoning ordinance. We agree, but nonetheless conclude that Thee DollHouse has failed to prove unnecessary hardship. The Court of Appeals held there was no unnecessary hardship because Thee DollHouse failed to present evidence suggesting "there was no feasible conforming use for the land in question." Restaurant Row Associates v. Horry County, 327 S.C. 383, 390, 489 S.E.2d 641, 645. Such a standard is akin to a Fifth Amendment regulatory taking analysis. See Staubes v. City of Folly Beach, 331 S.C. 192, 500 S.E.2d 160 (Ct.App.1998)

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