THE STATE OF SOUTH CAROLINA

In The Supreme Court

R. L. Jordan Oil

Company of North Appellant,

Carolina, Inc.,

v.

York County Zoning

Board of Appeals and

York County Planning

and Development Respondents.

Services,

Appeal From York County

John C. Hayes, III, Circuit Court Judge

Opinion No. 24952

Heard April 7, 1999 Filed June 14, 1999

REVERSED

Matthew A. Henderson, of Henderson, Brandt &

Vieth, of Spartanburg, and Joshua M. Henderson, of

Kennedy, Covington, Lobdell & Hickman, L.L.P., of

Rock Hill, both, for appellant.

Melvin B. McKeown, Jr., of McKeown Law Firm, of

York, for respondent.

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TOAL, A.J.: This case is on appeal from the circuit court's decision

upholding the zoning board of appeal's denial of grandfather status for three

video poker machines.

FACTUAL/PROCEDURAL BACKGROUND

Jordan is the owner/operator of Hot Spot #6, a convenience store in

Bowling Green, York County, South Carolina. Jordan has operated a number

of video poker machines at the Hot Spot #6 for over a decade. In June 1993,

Jordan contracted with Carolina Games to install five video poker games in the

store. Jordan operated these machines while Carolina Games remained the

owner of the games. Under this arrangement, Carolina Games had the

responsibility for obtaining all necessary video poker licenses.

At the time Carolina Games installed the machines at the Hot Spot #6,

York County did not have any licensing requirement for video poker machines.

On January 3, 1994,, York County enacted Ordinance No. 294 containing the

County's first video poker licensing requirement. York County Ordinance No.

294 imposes a $300 licensing fee on each machine operated in the county.

Failure to pay the fee may result in a fine between $100 and $500 dollars or up

to 30 days imprisonment for each offense. County licenses for the five machines

owned by Carolina Games at the Hot Spot #6 were never purchased. The

County never enforced the ordinance's fines against Carolina Games or Jordan.

In November 1994, the citizens of York County voted in a referendum to

ban video poker machines. In May 1995, Carolina Games decided to remove its

five machines from the Hot Spot #6 in anticipation of the July 1, 1995 ban on

video poker in York County. On June 22, 1995, Jordan learned that the video

poker ban would be postponed. The next day, Jordan installed 2 video poker

machines in the Hot Spot #6 and obtained both the state and county licenses.

The County's ban on video poker was eventually ruled unconstitutional

by this Court in Martin v. Condon, 324 S.C. 183, 478 S.E.2d 272 (1996). On

February 10, 1997, in response to the ban's demise, York County passed

Ordinance No. 497 including new video poker regulations. Ordinance No. 497

included a "Grandfather Clause" that allowed the continued operation of video

poker machines that met certain criteria.

In February 1997, Jordan began applying to the York County Planning

Department to have the Hot Spot #6 recognized as in compliance with the

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Grandfather Clause for five video poker machines. While Jordan presented

evidence that it operated five machines at the Hot Spot #6 at a time prior to

York County Ordinance No. 497's cutoff date of June 30, 1995, the Planning

Department issued a recognition of zoning compliance for only 2 machines. On

February 13, 1997, the York County Zoning Board of Appeals ("ZBA") affirmed

the decision to grandfather only 2 machines. Both the decision of the Planning

Department and the ZBA relied on the fact that Jordan had only two county

licenses at the time of the Ordinance's June 30, 1995 cutoff date.

Jordan appealed ZBA's decision to the circuit court. The action was tried

without a jury and an order entered affirming the grandfathering of only two

machines at the Hot Spot #6. Jordan then appealed to this Court.

LAW/ANALYSIS

Jordan claims that under the York County Grandfather Clause it is

entitled to have five machines at the Hot Spot #6. We agree.

On February 16, 1998, York County amended the ordinance under which

this controversy began, altering significantly the Grandfather Clause. "The

general rule is that the repeal or amendment of a zoning ordinance during an

appeal renders the appeal moot." Peterson Outdoor Advertising Corp. v.

Beaufort County, 291 S.C. 533, 535, 354 S.E.2d 563, 564 (1987). The

Grandfather Clause of the York County Ordinance under discussion has been

materially altered since the appeal of this case began. Under the principle

espoused in Peterson, this Court could dismiss Jordan's appeal in order to allow

the company to bring its request under the new version of the ordinance.

Another option is to vacate the Circuit Court's order and remand for a

determination of Jordan's rights under the new ordinance. See Calibogue

Gardens Development Group, Inc. v. Town of Hilton Head Island, 296 S.C. 342,

372 S.E.2d 590 (1988). Neither option is necessary in the current case because

there are no new factual findings necessary to resolve the dispute under the

amended ordinance.

York County Ordinance 497, when originally applied to Jordan, limited

the number of games in a grandfathered establishment to the number of

machines in operation on the effective date of the ordinance. The County

determined that there were only two machines in operation at the location on

that date and therefore only grandfathered two machines. The County has

since removed from the ordinance the restriction on an establishment from

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having more than the number of games in operation on the effective date.

Section 4 currently states as follows:

(i) the owner, lessee or operator of such video poker establishment

has owned, leased or operated a video poker establishment at

the location for which grandfather status is claimed in

compliance with state law for a continuous and

uninterrupted period of not less than six months before June

30,1995; and

(ii) the owner, lessee or operator of such video poker establishment,

or the owner of video poker or electronic video game

machines located in such establishment, obtained and

continuously maintained current valid county and state

licenses for video poker machines or electronic video game

machines at the location for which grandfather status is

claimed; and

(iii) the video poker establishment seeking grandfather status was

located in the Business Development District/Convenience

(BD-I), Business Development District/General (BD-III), or

Urban Development District (UDD) Zoning Districts and had

obtained all building permits and certificates of occupancy

required under applicable state and county codes and laws;

and

(iv) the operation of a video poker establishment was the principal

use or a lawful incidental, subordinate or accessory use of the

property claimed; provided that the number of video poker

machines or electronic game machines may not exceed the

number of such machines in operation at the building or

property for which grandfather status is claimed on June 30,

1995, or the number of such machines permitted at such

location under applicable provisions of state statutes, county

ordinances or applicable regulations.

(v) the issuance of licenses for video poker machines or electronic video

game machines shall not be deemed to constitute approval of the

placement, use, location or operation of such machines in any

zoning district or at any location at which video poker

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establishment uses are not a permitted use under the York county

Zoning and Development Standards Ordinance as amended by

Ordinance 497, state statutes and regulations, and this

ordinance. (Emphasis added).

Under the previous County ordinance, the ZBA made the determination

that Jordan only had two machines on the effective date of the ordinance and

therefore could only be allowed to grandfather two machines. Under the newly

amended ordinance, if Jordan is entitled to any video poker machines at the

location, it is entitled to the "number of such machines permitted at such

location under applicable provisions of state statutes, county ordinances or

applicable regulations." Since the County has already determined that Jordan

met all the requirements for two machines at the location, under the amended

ordinance, the County cannot deny that Jordan is entitled to the other three

machines to reach the maximum number permitted by applicable law.

CONCLUSION

For the foregoing reasons, the order of the circuit court is REVERSED.

FINNEY, C.J., MOORE, WALLER, and BURNETT, JJ.,.concur.

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