Posted by: Patricia Salkin | September 2, 2019

SC Appeals Court Finds Statute and Challenged Ordinance Do Not Conflict Even in Light of “Any Aggrieved Person” Language of Adult Regulation in Zoning Ordinance

This post was authored by Matthew Loeser, Esq.

In 2011, Cricket Store 17 d/b/a Taboo applied for and was granted a license to operate the City of Columbia’s only licensed adult business. Scott Bergthold, an attorney retained by the City, drafted a zoning ordinance to regulate adult business locations for the City. This ordinance, sections 17-371 to -376 of the City of Columbia Code of Ordinances, was enacted in 2012. Section 17-374(a) of the ordinance provides: “No variance from any of the provisions of this section may be granted by the zoning board of adjustment. No special exception regarding any of the requirements of this section may be granted by the zoning board of adjustments.” Taboo brought constitutional challenges against the ordinance in federal court and lost. Following this, the Zoning Administrator rejected and returned Taboo’s application for special exception, finding the ordinance prohibited Taboo from filing an application for special exception. In this case, Taboo appealed the order of the circuit court, which affirmed the decision of the City of Columbia Board of Zoning Appeals in denying Taboo the right to request a special exception from the city ordinance.

The City first contended res judicata barred Taboo’s claims. This claim was rejected as the federal litigation affirmed the constitutionality of the ordinance generally and as applied to Taboo. Here, Taboo was not alleging the ordinance was unconstitutional or could not be applied to it on a substantive basis. Accordingly, the court held res judicata did not bar Taboo’s arguments in this case.

Taboo alleged the circuit court erred in not finding section 17-374(a) of the ordinance conflicted with section 6-29-800 of the South Carolina Code, which created local zoning boards of appeal. The City argued the ordinance prohibited the granting of a variance in this case and the “any aggrieved person” language in subsection (B) of the enabling statute was proscribed by the subject matter limitations set forth in subsection (A). Additionally, section 6-29-800(A)(3) enabled governing bodies “to permit uses by special exception subject to the terms and conditions for the uses set forth for such uses in the zoning ordinance.” The court held that since local governing bodies were permitted to pass a prohibitory ordinance like 17-374(a), the current statute and challenged ordinance did not conflict even in light of the “any aggrieved person” language in subsection (B). As such, the order of the circuit court was affirmed.

Cricket Store 17, LLC d/b/a Taboo, Appellant, v. City of Columbia Board of Zoning Appeals, 2019 WL 3680052 (SC App. 8/7/2019)


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