S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
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.
ON WRIT OF CERTIORARI TO THE COURT OF
APPEALS
Appeal From Horry County
Charles W. Whetstone, Jr., Circuit Court Judge
Opinion No. 24944
Heard January 5, 1999Filed May 17, 1999
AFFIRMED AS MODIFIED
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.
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Restaurant Row, et al., v. Horry County
TOAL, A.J.: 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,
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Restaurant Row, et al., v. Horry County
including a written report, supporting Thee DoIlHouse'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 DoIlHouse'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 ofThee 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. 3832 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 º 500 of the
County's zoning ordinance, repealed the amortization period established in º
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).
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Restaurant Row, et al., v. Horry County
"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.
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Restaurant Row, et al., v. Horry County
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 DoIlHouse 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
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Restaurant Row, et al., v. Horry County
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)
("When the owner of real property has been called upon to sacrifice all
economically beneficial uses in the name of the common good, that is, to leave
his property economically idle, he has suffered a taking.").
Variance applicants are not required to prove that without the variance
there exists no feasible conforming use for the property in question in order to
show unnecessary hardship. This Court has upheld the granting of variances
where there were feasible conforming uses of the property. See Hartman v. City
of Columbia, 268 S.C. 44, 232 S.E.2d 15 (1977)(holding that zoning board of
adjustment abused its discretion in denying landowner's request for variance
to permit her to establish child day care center in her brick, residence type
house located in residential district); Stevenson v. Board of Adjustment of City
of Charleston, 230 S.C. 440, 96 S.E.2d 456 (1957)(granting of variance to a
church for construction and occupancy of addition for Sunday school was not
abuse of discretion); see also Dolive v. J.E.E. Developers, Inc., 308 S.C. 380, 418
S.E.2d 319 (Ct. App. 1992)(granting a variance in offsite parking requirements
for commercial use of a beachfront lot).
In South Carolina, "The courts have never undertaken to formulate an
all-inclusive definition of 'unnecessary hardship'. Although it has been stated
that the phrase should be given a reasonable construction, it is recognized that
it does not lend itself to precise definitions automatically resolving every case."
Stevenson v. Board of Adjustment of City of Charleston, 230 S.C. 440, 448, 96
S.E.2d 456,460 (1957); Application of Groves, 226 S.C. 459,463, 85 S.E.2d 708,
709-10, (1955); Hodge v. Pollock, 223 S.C. 342, 348, 75 S.E.2d 752, 754 (1953).
These cases support Thee DollHouse's position that the unnecessary hardship
standard is not the same, or as demanding as, a takings analysis.
Although there is no set definition, this Court has established guidelines
for determining "unnecessary hardship." First, a claim of unnecessary hardship
cannot be based upon conditions created by the owner nor can one who
purchases property after the enactment of a zoning regulation complain that a
nonconforming use would work an unnecessary hardship upon him. Rush v.
City of Greenville, 246 S.C. 268, 143 S.E.2d 527 (1965). Thee DollHouse was in
operation before the enactment of the County's adult uses ordinance so this
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Restaurant Row, et al., v. Horry County
situation is not before the Court. Second, "before a variance can be allowed on
the ground of 'unnecessary hardship', there must at least be proof that a
particular property suffers a singular disadvantage through the operation of a
zoning regulation." Application of Groves, 226 S.C. 459,463, 85 S.E.2d 708, 710
(1955). S.C. Code Ann.§ 6-7-740(2)(c) addresses this precedent by requiring
that variance applicants show "Such conditions are peculiar to the particular
piece of property involved." Lastly, financial hardship does not automatically
constitute unnecessary hardship. Application of Groves, 226 S.C. at 464, 85
S.E.2d at 710. ("assuming that they will suffer substantially in a financial way
... that alone is not sufficient [to grant a variance].").
Thee DollHouse's claims of business disruption, loss of goodwill, relocation
costs, and contractual obligations to the existing location all fall under the scope
of its financial hardship. However, these claims alone do not automatically
constitute unnecessary hardship, and in this case the Board concluded that they
did not. It is important to remember that Thee DollHouse can continue in its
existing location, the only restriction is that it cannot operate as an adult use
without a variance. This situation is very different from the one found in
Bennett v. Sullivan's Island Bd. of Adjustment, 313 S.C. 455, 438 S.E.2d 273
(Ct. App. 1993), where the landowner was entitled to a variance since the land
was zoned residential and, without the variance, the landowner had no other
possible use for the property.
Thee DollHouse argues that if it must relocate there will be at least a
temporary loss of First Amendment rights, in addition to financial hardship,
and this will constitute unnecessary hardship. Thee DollHouse argues that any
loss of First Amendment rights would be unnecessary hardship because its
business does not produce the secondary effects that allow the regulation of
adult business under the First Amendment. We disagree.
Thee DollHouse argues that denying the variance was an
unconstitutional application of the ordinance. Initially, the ordinance itself is
constitutional under the decisions of the United States Supreme Court in Young
v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440) 49 L.Ed.2d 310
(1976), City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89
L.Ed.2d 29 (1986), and this Court's opinion in Centaur, Inc. v. Richland County,
301 S.C. 374,392 S.E.2d 165 (1990). Like the ordinances in Young, Renton, and
Centaur, the County's ordinance is not aimed at the content of the speech, but
rather at the secondary effects of such businesses on the surrounding
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community.1 Local governments have a substantial interest in protecting their
neighborhoods from secondary effects related to the operation of sexually
oriented businesses. See Young, Renton, supra. "Content-neutral" ordinances,
such as the County's, designed to regulate the secondary effects of adult
businesses, are therefore properly examined and analyzed as "time, place, and
manner" regulations.
The County's zoning ordinance is a proper time, place, and manner
restriction because it does not unreasonably limit "alternative avenues of
communication." See Renton, 475 U.S. at 45, 106 S.Ct. at 928,89 L.Ed.2d at 37;
Condor, Inc. v. City off North Charleston, 328 S.C. at 177 n.3, 493 S.E.2d at 345
n.3. On appeal, Thee DollHouse does not contest that there are areas of the
County where the zoning scheme would allow it to operate as an adult business.
With the County having met the Renton criteria, the burden of proof rests upon
Thee DollHouse to prove the ordinance is unconstitutional as applied to it.
Even though the County's zoning ordinance is constitutionally valid, Thee
DollHouse argues that the Board applied it unconstitutionally by denying the
variance. Thee DollHouse argues that it provided unrebutted testimony to the
Board that it did not produce any negative secondary effects. Thee DollHouse's
position is that the Board cannot deny a variance if there was no proof
introduced to the Board that Thee DollHouse created any negative effects. We
disagree.
Renton recognized that local governments need not wait for the secondary
1The ordinance provides:
WHEREAS, by enacting Ordinance Number 92-89, the Horry
County Council intended to prevent the recognized ill effects of
allowing adult entertainment establishments too close to
residential areas; and
WHEREAS, residential use existing in zones other than the
ones specifically delineated in Section 526.2(C)l as residential are
incompatible with and suffer a serious risk of harm by the location
of an adult entertainment establishment near them, for the reasons
outlined in the studies referenced in Ordinance Number 92-89,
which studies are incorporated herein by reference as if set forth
herein verbatim;
Horry County Ordinance Number 29-92.
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effects of adult businesses to actually manifest themselves before implementing
zoning restrictions. In Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct.
2456) 115 L.Ed.2d 504 (1991), Justice Souter's concurring opinion recognized
that local governments did not have to repeatedly litigate the issue of whether
adult businesses create any secondary effects or not. Barnes, 501 U.S. at 583
584, 111 S.Ct. at 2470 ("I do not believe that a State is required affirmatively
to undertake to litigate [the secondary effects] issue in every case."). Adult
businesses cannot exclude themselves from legitimate zoning regulation by
providing expert testimony that they do not currently produce negative
secondary effects. Local governments have the power to zone the location of
adult businesses without any individualized showing the businesses produce
negative secondary effects.2The purpose of zoning "is to enable municipalities
and counties acting individually or in concert to preserve and enhance their
present advantages, to overcome their present handicaps, and to prevent or
minimize such future problems as may be foreseen." S.C. Code Ann. § 6-7-10
(Supp. 1998)(emphasis added).
Thee DollHouse also argues that the natural barrier of the Atlantic
Intracoastal Waterway prevents even the possibility of negative secondary
effects from arising in the future. This Court requires distance measurements
of this nature be done "as the crow flies" and not based on the actual terrain
that must be crossed. See Brown v. State, No. 24861 (S.C. Sup. Ct. filed Nov.
30, 1998)(Shearouse Adv. Sh. No. 38, at 18)("Courts addressing the issue have
uniformly held proximity is measured in a straight line, or 'as the crow flies.'").
Thee DollHouse cites no cases to this Court in support of its "natural barrier"
proposition.3 As to the merits of this argument, testimony in front of the Board
2 We note that the secondary effects doctrine from Renton distinguishes
the current case from our decision in Bannum, Inc. v. City of Columbia, ___ S.C.
___, ___ S.E.2d___ (1999). In Bannum, this Court noted that the zoning board
of appeals either "discounted or disregarded every single bit of evidence" put up
by a special exception applicant. In adult use zoning cases, a reviewing body
must take the expert testimony of the applicant into consideration, but the
zoning board of appeals still has the authority to deny the variance if its zoning
ordinance is constitutionally proper. In the current case, the County was not
required to have testimony confirming that Thee DollHouse produced negative
secondary effects in order to deny the variance.
3Vicary v. City of Corona, 935 F.Supp. 1083 (C.D. Cal 1996), is the only
case found in support of such a "natural barrier" theory. That case has since
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revealed that there is a bridge being constructed across the Atlantic
Intracoastal Waterway very near Thee DollHouse. There is also a nearby tram
that ferries persons across the Intracoastal Waterway. What this testimony
shows is that even though there may be a natural barrier now, there may be a
bridge in the future. As discussed above, zoning is not only concerned about
present conditions, but focuses on the future as well.
The County's ordinance as applied to Thee DollHouse is constitutional.
Other than the claim of a temporary loss of First Amendment rights during
relocation and the financial hardship associated with such a move, Thee
DoIlHouse did not produce for the Board evidence that would demand a finding
of unnecessary hardship. Having failed to meet this required element of the
variance criteria, the Board correctly denied Thee DollHouse's petition.
CONCLUSION
For the foregoing reasons, the decision of the Court of Appeals is
AFFIRMED AS MODIFIED.
FINNEY, C.J., MOORE, WALLER and BURNETT, JJ., concur.
been overturned by the Ninth Circuit Court of Appeals. See Vicary v. City of
Corona, 119 F.3d 8, 1997 W.L. 406768 (9th Cir. 1997)(unpublished decision).
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