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24944 - Restaurant Row, et al. v. Horry County

Shearouse Adv. Sh. No.18
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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Restaurant Row, et al., v. Horry County





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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Restaurant Row, et al., v. Horry County





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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