THE STATE OF SOUTH CAROLINA
In The Supreme Court
R. L. Jordan Oil
Company of North Appellant,
York County Zoning
Board of Appeals and
York County Planning
and Development Respondents.
Appeal From York County
John C. Hayes, III, Circuit Court Judge
Opinion No. 24952
Heard April 7, 1999 Filed June 14, 1999
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.
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.
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
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.
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
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
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
(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
(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;
(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
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.
For the foregoing reasons, the order of the circuit court is REVERSED.
FINNEY, C.J., MOORE, WALLER, and BURNETT, JJ.,.concur.