Restaurant Row Associates v. Horry County

489 S.E.2d 641, 327 S.C. 383, 1997 S.C. App. LEXIS 75
CourtCourt of Appeals of South Carolina
DecidedJune 9, 1997
Docket2673
StatusPublished
Cited by6 cases

This text of 489 S.E.2d 641 (Restaurant Row Associates v. Horry County) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Restaurant Row Associates v. Horry County, 489 S.E.2d 641, 327 S.C. 383, 1997 S.C. App. LEXIS 75 (S.C. Ct. App. 1997).

Opinion

PER CURIAM:

Restaurant Row Associates and The Afterdeck, Inc., d/b/a Thee DollHouse (“Thee DollHouse”), an adult entertainment establishment located in Horry County, brought this action on November 16, 1994, appealing the denial of its request for a variance from the Horry County Adult Entertainment Zoning Ordinance, Ordinance 92-89, by the Horry County Board of Adjustments and Zoning Appeals (“the Board”). The circuit court reversed the Board on the ground that its decision was arbitrary and capricious. Both parties appeal from the circuit court’s order. We affirm in part and reverse in part.

FACTS

Thee DollHouse commenced its business as an adult entertainment establishment in the area near the city of Myrtle Beach known as “the Grand Strand” in March 1988. Thee DollHouse is a business featuring entertainment in the form of recorded music and exotic dance performances by female dancers who are sometimes topless. The business also serves alcoholic beverages and offers a light dinner menu.

On September 30, 1989, a year and a half after Thee DollHouse commenced business, Horry County adopted Ordinance 92-89, which established adult entertainment zoning regulations. Under Ordinance 92-89, now codified in the Horry County Zoning Code as Section 526, businesses existing at the time of the ordinance’s enactment that were in violation of the ordinance were granted a six-year amortization period in which to recoup their investments and seek other locations should they desire to continue as an adult use.

Thee DollHouse is a nonconforming use under the ordinance because it is located 350 feet from a residential district and therefore violates the requirement prohibiting the location of an adult entertainment establishment within 500 feet of a *387 residential district. The residential district in question is occupied by a golf course and contains no residences. The business is separated from this zoning district by the Atlantic Intracoastal Waterway.

On January 6, 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 Board. The first challenged the strict definition of “Adult Cabaret” as used in the ordinance. The second 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 based in part on the fact that the only residential property that rendered Thee DollHouse “nonconforming” was a golf course located at least 350 feet across the Atlantic Intracoastal Waterway.

The Board heard the petitions on September 12, 1994. In the course of the Board’s hearing of Thee DollHouse’s petition for the variance, the Board received a staff report prepared by the Horry County Zoning Administrator. The report stated that Thee DollHouse had to meet the four criteria found in S.C.Code Ann. § 6-7-740(2) and in Horry County Ordinance 23-87. The Zoning Administrator made no recommendation to approve or deny the variance application.

R. Bruce McLaughlin, AICP, a consultant, testified for Thee DollHouse. He reviewed his credentials for the Board and was qualified as an expert in the field of land use planning. McLaughlin proceeded to offer extensive testimony, including a written report, supporting Thee DollHouse’s claim that it met the variance criteria. The Board also heard comments from several members of the public before McLaughlin made some final rebuttal comments.

After hearing all the evidence, the Board denied Thee DollHouse’s request for a variance as well as its other two petitions.

*388 Thee DollHouse then appealed to the circuit court, which heard the three consolidated appeals on January 12, 1995. 1 The circuit court held Horry County Ordinance 26-90 did not grandfather in adult uses, but further held that the denial of Thee 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 also noted the following facts: (1) the nearest residence is located over 1600 feet away; (2) Thee DollHouse is opposite a four-lane highway and major traffic artery; and (3) Thee DollHouse does not appear to adversely affect the surrounding neighborhood’s crime rate, property values, or general quality of life.

THE COUNTY’S APPEAL

The County argues the circuit court erred in reversing the Board’s denial of the variance, arguing the Board correctly found Thee DollHouse failed to prove an unnecessary hardship. 2 We agree.

A zoning board’s findings of fact are final and conclusive on appeal. Bishop v. Hightower, 292 S.C. 358, 356 S.E.2d 420 (Ct.App.1987). Appeal to the circuit court is only for a determination of whether the board’s decision is correct as a matter of law. Id.-, S.C.Code Ann. § 6-7-780 (1976). On appeal from the circuit court, the Zoning Board’s decision should not be interfered with “unless it is arbitrary or clearly erroneous.” Bishop, 292 S.C. at 360, 356 S.E.2d at 421.

The statutory authority of the Board to grant a variance is governed by S.C.Code Ann. § 6-7-740 (1976 & Supp.1996), which provides as follows:

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 *389 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.

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Bluebook (online)
489 S.E.2d 641, 327 S.C. 383, 1997 S.C. App. LEXIS 75, Counsel Stack Legal Research, https://law.counselstack.com/opinion/restaurant-row-associates-v-horry-county-scctapp-1997.