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2004-UP-553 - Excitement Video, Inc. v. Board of Zoning Appeals

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS
PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


Excitement Video, Inc., Appellant,

v.

Board of Zoning Appeals, Respondent.


Appeal From Horry County
Steven H. John, Circuit Court Judge


Unpublished Opinion No. 2004-UP-553
Submitted October 1, 2004 – Filed November 1, 2004


AFFIRMED


H. Louis Sirkin, of Cincinnati and Jill Wright Fennel, of Myrtle Beach, for Appellant.

John L. Weaver, of Conway, for Respondent.

PER CURIAM:  Excitement Video, Inc. appeals the circuit court’s order affirming the Horry County Board of Zoning Appeals’ denial of a certificate of zoning compliance.  We affirm [1] .

FACTS

On May 25, 2001, Horry County Business License manager Roddy Dickenson notified Excitement by letter that Horry County was denying its request for the renewal of its business license.  The stated reason was that Excitement was in violation of an Horry County ordinance that prohibited the issuance of adult entertainment establishment licenses pursuant to the Adult Entertainment Moratorium.          

Additionally, the zoning administrator declined to issue Excitement a certificate of zoning compliance for the business.  The basis of the denial was that Excitement’s location was within 2000 feet of a residential area and a church in violation of Horry County Code of Ordinances, Appendix B, section 526.          

Excitement appealed the zoning administrator’s decision to the Board of Zoning Appeals.  At the hearing, the only testimony offered was that of the zoning administrator.  The administrator testified that while on a routine fire inspection, he observed that Excitement was operating as an adult entertainment establishment.  He based his assessment on the fact that “99 percent of the shelf and wall displays were Triple XXX videos and anatomically correct adult products used for sexual stimulation. . . . [O]ther than the bathrooms and a drink vending area, adult videos and adult products consumed the gross floor area of the store.”  Horry County Code of Ordinances, Appendix B, section 526.3 defines an “Adult Video Store” as any enterprise deriving more than fifty percent of its gross revenues from adult materials. [2]   The administrator also testified that Excitement did not meet the spacing requirement of 2000 feet from a residential use or a church. 

Excitement put forth the argument that natural vegetation created a “buffer zone” that insulated the business from the view of both the church and the residential area.  However, the administrator testified Excitement was not in literal compliance with the zoning ordinance, which requires that measurements be taken from one point to another in a straight line.  Measurements indicated Excitement was located 1825 feet from a church and 1598 feet from a residential area. 

After consideration of the matter, the Board denied the appeal based upon specific findings that Excitement’s business was an adult entertainment establishment as defined in Horry County Zoning Ordinance section 526.3 and it was within 2000 feet of a residential area and a church. 

Excitement appealed to the circuit court.  In addition to the grounds raised in its petition for review, Excitement argued to the circuit court that it did not receive a fair hearing before the Board in violation of its due process rights.  The circuit court requested briefs from both sides on the due process issue.  After considering the briefs, the circuit court affirmed the Board’s decision. 

STANDARD OF REVIEW

The South Carolina Local Government Comprehensive Planning Enabling Act (Zoning Enabling Act) sets forth the standard of review for appeals from local zoning boards of appeal:  “The findings of fact by the board of appeals shall be treated in the same manner as a finding of fact by a jury . . . .” S.C. Code Ann. § 6-29-840 (2004).  “In determining the questions presented by the appeal, the court must determine only whether the decision of the board is correct as a matter of law.”  Id.  Thus, the factual findings of the zoning board will not be disturbed unless there is no evidence in the record to support its decision.  Heilker v. Zoning Bd. of Appeals for the City of Beaufort, 346 S.C. 401, 406, 552 S.E.2d 42, 45  (Ct. App. 2001). 

LAW/ANALYSIS

I.  Due Process

Excitement argues that it did not receive a fair hearing before the Board of Zoning Appeals because the Board did not provide it with a meaningful opportunity to cross examine adverse witnesses, thereby depriving Excitement of its due process rights.  We disagree.

“The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.”  South Carolina Dep’t of Soc. Servs. v. Beeks, 325 S.C. 243, 246, 481 S.E.2d 703, 705 (1997).  “Due process is flexible and calls for such procedural protections as the particular situation demands.”  Stono River Envtl. Protection Ass’n v. South Carolina Dep’t of Health and Envtl. Control, 305 S.C. 90, 94, 406 S.E.2d 340, 342 (1991).

Excitement contends it did not receive a fair hearing because the chairman of the Board interrupted its attorney as he attempted to cross-examine the zoning administrator on the presence of a buffer between the business and nearby church and residences.  Our review of the record reveals that the Chairman interrupted Excitement’s attorney’s cross-examination of the zoning administrator only to inform him that the administrator’s determination as to the adequacy of a buffer was not relevant as he was limited to enforcing the zoning ordinance as written.  Excitement’s attorney was in fact able to question the administrator about the existence of vegetation providing a buffer and receive the administrator’s answers.  Excitement was also allowed to submit into evidence pictures of the alleged buffer and make its argument on this issue.  In addition, Excitement was able to question the administrator on the basis for his determination that the business was in violation of the ordinance by having more than fifty percent of its revenue derived from the sale of adult products and to present its argument that the burden was on the administrator to prove this violation. 

Near the conclusion of the hearing, the following exchange occurred between the Chairman and Excitement’s attorney:

[Attorney]:  I’ve got it in the record, and I’m done.  That’s all I wanted to do.
The Chairman:  Okay. 
[Attorney]:  That’s all I wanted to do.  Thank you.  We’ll rest with the record as it is. 
The Chairman:  Okay. Do we have any other statement from you?
[Attorney]:  No. I believe I have created my record.  I can’t argue the measurements. 

It is clear from the record that Excitement was given sufficient opportunity to present its case.  It never complained about the interruptions or asked for the opportunity to question the witness further.  In addition, Excitement failed to present evidence or make further argument when given the opportunity.  If Excitement’s attorney thought that the hearing was conducted in a manner that did not present Excitement with the opportunity to be heard in a meaningful manner in violation of the dictates of due process, then he should have made a statement at that time.  

We agree with the circuit court that Excitement has failed to prove a violation of its right to due process. 

II.  Buffer Zone

Excitement next argues that the circuit court erred when it determined that the secondary effects of adult businesses were not negated by the existence of a buffer between Excitement and the church and the residential area.  We disagree. 

On appeal, Excitement contends:  “[A] local government seeking to justify its zoning restrictions on the basis of the secondary effects doctrine need demonstrate:  (1) that the drafters of the ordinance relied upon studies of secondary effects, and (2) that a majority of the members of the voting body received some information about the secondary effects.”  Excitement, however, failed to raise any argument about a lack of evidence justifying Horry County’s adult business zoning ordinances to the Board or the circuit court.  Accordingly, this argument is not properly before this court.  See Burton v. County of Abbeville, 312 S.C. 359, 361, 440 S.E.2d 396, 397 (Ct. App. 1994) (stating issue was not preserved for appeal where neither county zoning board of appeals nor circuit court addressed issue and appellant did not seek a ruling by a post-trial motion).

Excitement also asserts the “natural barrier mitigates any negative impacts upon the surrounding community and therefore undercuts the County’s ability to regulate Excitement Video’s location.”  The Board and circuit court relied on Restaurant Row Assocs. v. Horry County in rejecting this assertion. 335 S.C. 209, 516 S.E. 2d 442 (1999).  We agree that Restaurant Row is directly on point.  In Restaurant Row, Thee DollHouse, an adult entertainment business located in Horry County, challenged the Board’s denial of their request for a variance from the provisions of Horry County zoning plan which at the time prohibited the location of an adult entertainment establishment within 500 feet of a residential district.  Thee DollHouse argued that the natural barrier of the Atlantic Intracoastal Waterway created a buffer zone between its location and the residential area and thereby prevented the possibility of any negative secondary effects from arising.  Id. at 220, 516 S.E.2d at 448.         

Our supreme court found the argument unconvincing.  The court explained that zoning distance measurements must be done “as the crow flies” rather than based on the actual terrain that must be crossed.  Id. at 221, 516 S.E.2d at 448.  The court noted that according to testimony in front of the Board, a bridge was being constructed across the Atlantic Intracoastal Waterway very near Thee DollHouse and a nearby tram ferried persons across the Intracoastal Waterway.  The court held:  “What this testimony shows is that even though there may be a natural barrier now, there may be a bridge in the future.  . . . [Z]oning is not only concerned about present conditions, but focuses on the future as well.” Id. at 221, 516 S.E.2d at 448-49.         

In the present case, Excitement argues that a strip of natural vegetation provides an adequate natural buffer.  As the Board recognized, the natural vegetation that currently exists could disappear at any time whether through a natural occurrence or through clearance for development.  We find no error in the Board’s determination that Excitement is in violation of Horry County Code of Ordinances, Appendix B, section 526.

CONCLUSION

Based upon the foregoing reasoning, the order of the circuit court is

AFFIRMED.

HEARN, C.J., HUFF and KITTREDGE, JJ., concur. 


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] When Excitement procured its original business license, it did not meet this definition of “Adult Video Store.”