Ani Creation v. City of Myrtle Beach ( 2023 )

The Supreme Court of South Carolina
Ani Creation, Inc. d/b/a Rasta: Ani Creation, Inc. d/b/a
Wacky T's; Blue Smoke, LLC d/b/a Doctor Vape: Blue
Smoke, LLC d/b/a Blue Smoke Vape Shop; ABNME,
LLC d/b/a Best for Less; Koretzky, LLC d/b/a
Grasshopper; Red Hot Shoppe, Inc.; E.T. Sportswear, Inc,
d/b/a Pacific Beachwear; Myrtle Beach General Store,
LLC; I Am It, Inc. d/b/a T-Shirt King; and Blue Bay
Retail, Inc. d/b/a Surf's Up, Appellants,
v.
City of Myrtle Beach Board of Zoning Appeals and Ken
May, Zoning Administrator for City of Myrtle Beach,
Respondents.
Appellate Case No. 2021-001074
ORDER
After careful consideration of Appellants' petition for rehearing, the Court grants the
petition for rehearing, dispenses with further briefing, and substitutes the attached
opinion for the opinion previously filed in this matter.
s/ Donald W. Beatty C.J.
s/ John W. Kittredge J.
s/ John Cannon Few J.
s/ George C. James, Jr. J.
s/ Kaye G. Hearn A.J.
Columbia, South Carolina
June 28, 2023
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Ani Creation, Inc. d/b/a Rasta: Ani Creation, Inc. d/b/a
Wacky T's; Blue Smoke, LLC d/b/a Doctor Vape: Blue
Smoke, LLC d/b/a Blue Smoke Vape Shop; ABNME,
LLC d/b/a Best for Less; Koretzky, LLC d/b/a
Grasshopper; Red Hot Shoppe, Inc.; E.T. Sportswear, Inc,
d/b/a Pacific Beachwear; Myrtle Beach General Store,
LLC; I Am It, Inc. d/b/a T-Shirt King; and Blue Bay
Retail, Inc. d/b/a Surf's Up, Appellants,
v.
City of Myrtle Beach Board of Zoning Appeals and Ken
May, Zoning Administrator for City of Myrtle Beach,
Respondents.
Appellate Case No. 2021-001074
Appeal from Horry County
Benjamin H. Culbertson, Circuit Court Judge
Opinion No. 28151
Heard February 9, 2023 – Filed April 19, 2023
Re-filed June 28, 2023
AFFIRMED
Reese R. Boyd III, of Davis & Boyd, LLC, of Myrtle
Beach, and Gene McCain Connell Jr., of Kelaher, Connell,
& Connor, PC, of Surfside Beach, both for Appellants.
Michael Warner Battle, of Battle Law Firm, LLC, of
Conway, for Respondents.
JUSTICE KITTREDGE: The City of Myrtle Beach (the city) is a town
economically driven and funded by tourism. After receiving frequent criticism from
tourists and residents alike, the city became concerned that the proliferation of
smoke shops and tobacco stores were repelling families from the area due to those
stores' merchandise and advertising practices. More specifically, the city was
troubled with those shops' sale of sexually explicit items, cannabidiol (CBD)-infused
products, and tobacco paraphernalia. Therefore, in an effort to improve the "family
friendly" nature of the downtown area, the city created a zoning overlay district 1 that
prohibited the operation of smoke shops and tobacco stores, among others, in the
city's downtown.
Appellants are nine of the twenty-five affected stores located in the area, and each
was issued a citation by the city's zoning administrator for failing to comply with the
zoning overlay ordinance. Following a complicated legal battle, appellants raised a
host of constitutional challenges to the zoning overlay ordinance. However, the
circuit court found the ordinance survived appellants' veritable barrage. Appellants
directly appealed that decision to this Court. We now hold that, under this Court's
long-standing precedent, the overlay ordinance did not impermissibly spot zone the
city's historic downtown area. We additionally find the overlay ordinance is a
constitutional exercise of the city's police powers. We therefore affirm the decision
of the circuit court and uphold the validity of the ordinance.
I.
A.
In 2011, the city adopted a comprehensive plan that, among other things, set forth
future objectives aimed at increasing tourism and revenue. In the comprehensive
plan, the city noted that tourists and residents had repeatedly expressed concern over
1
See S.C. Code Ann. § 6-29-720(C)(5) (Supp. 2022) (defining an overlay zone as
"a zone which imposes a set of requirements or relaxes a set of requirements imposed
by the underlying zoning district when there is a special public interest in a particular
geographic area that does not coincide with the underlying zone boundaries").
the "noise and behavior of certain groups visiting the area," resulting in "negative
perceptions about Myrtle Beach." Likewise, the city determined that "[c]rime and
the perception of crime [was] a problem that need[ed] addressing." The city
concluded all businesses needed to encourage and support a "family beach image"
and determined that a positive "city image" would foster more tourism. To that end,
the city outlined a number of specific objectives, including its desires to (1) "define
and maintain Myrtle Beach as a family beach"; (2) "revitalize the downtown area of
Myrtle Beach"; and (3) "create an environment[] which ensures that visitors and
residents are safe."
Ultimately, the Myrtle Beach city council effectuated those objectives by enacting
Ordinance 1807 (the ordinance), which created a zoning overlay district—known as
the Ocean Boulevard Entertainment Overlay District (OBEOD)—that encompassed
the historic downtown area of the city. Myrtle Beach, S.C., Code of Ordinances app.
A § 1807 (2019). In creating the OBEOD, the ordinance extensively set forth its
purpose and intent, emphasizing, among other things, the importance of fostering
more family tourism and discouraging things that were "repulsive" to families,
including "unhealthy tobacco use, crudity and the stigma of drug use and
paraphernalia." Id. § 1807.A. As a result, the city council found the displacement
of smoke shops and tobacco stores from the historic downtown area was "in the
interests of the public health, safety, and general welfare." Id. Likewise, city council
stated the presence of smoke shops and tobacco stores heightened the risk of
"negative aesthetic impacts, blight, and loss of property values of residential
neighborhoods and businesses in close proximity to such uses." Id. Finally, city
council noted that despite the creation of the OBEOD, there were numerous other
locations throughout the city available for the continued operation of smoke shops
and tobacco stores. Id.
Following the city council's lengthy recitation of the purpose and rationale
underlying the ordinance, the ordinance prohibited certain retail businesses and
offerings within the OBEOD, including (1) smoke shops and tobacco stores; (2) any
merchandising of tobacco paraphernalia or products containing CBD, such as
lotions, oils, and food; (3) any merchandising of tobacco products more than that of
an incidental nature (i.e., more than 10% of store's inventory); and (4) any
merchandising of sexually oriented material (collectively, the prohibited retail uses).
Id. § 1807.D.
The prohibited retail uses were declared immediately nonconforming upon passage
of the ordinance on August 14, 2018. Id. § 1807.E. However, the ordinance
provided for an amortization period that gave affected businesses until December
31, 2018, to cease the nonconforming part of their retail offerings. Id. The ordinance
likewise stated that, should a business continue engaging in the prohibited retail uses,
it would be subject to suspension or revocation of its business license. Id. § 1807.F.
B.
Shortly before the end of the amortization period, on December 19, 2018, appellants
filed suit in federal court seeking damages, injunctive relief, and a declaration that
the ordinance was unconstitutional. 2 Two days later, appellants filed a motion for a
temporary restraining order, but the parties resolved the motion by consent, agreeing
the city would enforce the ordinance "through use of [the city's] zoning ordinance
administrative procedures."
Six months later, the city's zoning administrator issued individual citations to each
of the appellants for continuing to engage in the prohibited retail uses in violation of
the ordinance. The zoning administrator also requested that each of the businesses
comply with the ordinance. No penalties were imposed on appellants at that time;
rather, the letters were merely the zoning administrator's determination that
appellants' businesses were nonconforming under the ordinance.
Appellants appealed the zoning administrator 's determination to the city's Board of
Zoning Appeals (BZA). At the BZA hearing, the zoning administrator set forth
evidence as to how each appellant was engaged in the prohibited retail uses,
submitting photographs of appellants' stores and merchandise. Appellants' only
witness, Tim Wilkes, conceded each of appellants' stores was engaged in one or
more of the prohibited retail uses. Nonetheless, appellants requested the BZA either
2
The federal lawsuit alleged the ordinance amounted to an unconstitutional taking
and violated appellants' rights to free speech, due process, and equal protection.
Eventually, the federal court dismissed appellants' due process claim, citing the
Burford abstention doctrine. See Burford v. Sun Oil Co., 319 U.S. 315 (1943);
Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 726–27 (1996) (explaining the
Burford abstention doctrine allows a federal court to dismiss a case "only if it
presents difficult questions of state law bearing on policy problems of substantial
public import whose importance transcends the result in the case then at bar, or if its
adjudication in a federal forum would be disruptive of state efforts to establish a
coherent policy with respect to a matter of substantial public concern" (citation
omitted) (internal quotation marks omitted)). The federal court also dismissed the
takings claim without prejudice, finding the claim was not yet ripe. The court stayed
the remaining claims (free speech and equal protection) pending resolution of this
state court proceeding.
declare the ordinance unconstitutional or grant variances to appellants so that they
could continue engaging in the prohibited retail uses. Ultimately, the BZA found
(1) it did not have jurisdiction to declare the ordinance unconstitutional; 3 (2) it could
not grant a use variance because it would allow the continuation of a use not
otherwise allowed in the OBEOD; 4 and (3) appellants' businesses were engaged in
one or more of the prohibited retail uses.
Appellants appealed the BZA's decision to the circuit court, but the circuit court
affirmed the BZA's decision and found meritless appellants' twenty-five grounds for
challenging the ordinance. In relevant part, the circuit court held the boundaries of
the OBEOD were not arbitrary and capricious, citing to the city council's extensive
recitation of the rationale for adopting the OBEOD and locating the boundaries
where it did. See Myrtle Beach, S.C., Code of Ordinances app. A § 1807.A. The
circuit court also found that whether the ordinance promoted the public welfare was
"fairly debatable." In support, the circuit court cited to the zoning administrator's
testimony regarding a number of complaints he had received regarding the sale of
tobacco paraphernalia and sexually oriented merchandise in the historic downtown
where there was a high level of pedestrian traffic by families with young children.
The court thus concluded appellants had failed to meet their burden to show the
ordinance was unconstitutional.
Appellants directly appealed to this Court pursuant to Rule 203(d)(1)(A)(ii),
SCACR, raising five issues challenging the validity of the ordinance on both
procedural and constitutional grounds.5 We address each in turn.
3
See S.C. Code Ann. § 6-29-800(E) (Supp. 2022) (explaining that in exercising its
statutory authority, as outlined in subsection (A), the BZA "has all the powers of the
officer from whom the appeal is taken"). No one contends the zoning administrator
here—the "officer from whom the appeal [was] taken"—would have had the
authority to declare a zoning ordinance unconstitutional.
4
See S.C. Code Ann. § 6-29-800(A)(2)(d)(i) ("The [BZA] may not grant a variance,
the effect of which would be to allow the establishment of a use not otherwise
permitted in a zoning district, to extend physically a nonconforming use of land or
to change the zoning district boundaries shown on the official zoning map. The fact
that property may be utilized more profitably, if a variance is granted, may not be
considered grounds for a variance. Other requirements may be prescribed by the
zoning ordinance.").
5
To be more precise, appellants' brief listed eleven issues on appeal, but because
II.
"A municipal ordinance is a legislative enactment and is presumed to be
constitutional." Town of Scranton v. Willoughby, 306 S.C. 421, 422, 412 S.E.2d
424, 425 (1991) (per curiam); see also Rush v. City of Greenville, 246 S.C. 268, 276,
143 S.E.2d 527, 531 (1965) ("There is a strong presumption in favor of the validity
of municipal zoning ordinances, and in favor of the validity of their
application . . . ."). Courts must make every presumption in favor of the
constitutionality of a legislative enactment. McMaster v. Columbia Bd. of Zoning
Appeals, 395 S.C. 499, 504, 719 S.E.2d 660, 662 (2011) (per curiam) (quoting City
of Rock Hill v. Harris, 391 S.C. 149, 154, 705 S.E.2d 53, 55 (2011)). Thus, courts
may only declare a municipal ordinance unconstitutional "when its invalidity
appears so clearly as to leave no room for reasonable doubt that it violates some
provision of the Constitution." Id. at 504, 719 S.E.2d at 663 (quoting Harris, 391
S.C. at 154, 705 S.E.2d at 55).
More specifically, "The Court will not overturn the action of the City if the decision
is fairly debatable because the City's action is presumed to have been a valid exercise
of power and it is not the prerogative of the Court to pass upon the wisdom of the
decision." Rushing v. City of Greenville, 265 S.C. 285, 288, 217 S.E.2d 797, 799
(1975); see also Rush, 246 S.C. at 276, 143 S.E.2d at 531 (explaining the Court must
exercise "carefully and cautiously" its power to declare a challenged ordinance
invalid on the basis that the ordinance unreasonably impaired or destroyed a
constitutional right). Thus, when a local city council enacts a zoning ordinance after
considering all of the relevant facts, the Court should not disturb the council's action
unless the council's findings were arbitrary and capricious or had no reasonable
relation to a lawful purpose. Rush, 246 S.C. at 276, 143 S.E.2d at 531; Rest. Row
Assocs. v. Horry Cnty., 335 S.C. 209, 216, 516 S.E.2d 442, 446 (1999); see also
Willoughby, 306 S.C. at 422, 412 S.E.2d at 425 ("The exercise of police power under
a municipal ordinance is subject to judicial correction only if the action is arbitrary
and has no reasonable relation to a lawful purpose." (citation omitted)); Aakjer v.
City of Myrtle Beach, 388 S.C. 129, 133, 694 S.E.2d 213, 215 (2010) ("This State's
constitution provides that the powers of local governments should be liberally
construed." (citing S.C. Const. art. VIII, § 17)).
The burden of establishing the invalidity of a zoning ordinance is on the party
attacking it to establish by clear and convincing evidence that the acts of the city
council were arbitrary, unreasonable, and unjust. Bibco Corp. v. City of Sumter, 332
some of the issues overlapped, we have condensed them to five.
S.C. 45, 52, 504 S.E.2d 112, 116 (1998) (citing Willoughby, 306 S.C. at 422, 412
S.E.2d at 425); Rush, 246 S.C. at 276, 143 S.E.2d at 531.
III.
Appellants first argue the ordinance is defective as a matter of law because it was
not adopted following the procedure set forth in section 5-7-270 of the South
Carolina Code. See S.C. Code Ann. § 5-7-270 (2004) (requiring generally that
municipal ordinances be "read two times on two separate days with at least six days
between each reading" prior to being adopted and having the force of law).
Specifically, appellants contend the versions of the ordinance introduced for the first
and second readings were so different from one another that the city council was
required to conduct a third reading prior to enacting the ordinance. We disagree.
Because appellants failed to timely challenge the efficacy of the two readings of the
ordinance, they are statutorily barred from raising this issue. Section 6-29-760(D)
of the South Carolina Code (2004) requires parties to challenge the validity of an
ordinance within sixty days of the decision of the governing body, provided "there
has been substantial compliance with the notice requirements of this section or with
established procedures of the governing authority or the planning commission." The
ordinance was formally adopted and went into effect upon the second reading on
August 14, 2018. Appellants did not file their federal suit or take any other formal
action to challenge the validity of the ordinance until December 19, 2018—well over
sixty days later. As a result, appellants can no longer challenge the validity of the
ordinance under section 5-7-270. See Quail Hill, L.L.C. v. Cnty. of Richland, 379
S.C. 314, 320–21, 665 S.E.2d 194, 197 (Ct. App. 2008) (holding a challenge to the
validity of the enactment of a county ordinance was untimely because the challenge
was made long after the sixty-day window had closed), aff'd in part on this ground
and rev'd in part on other grounds, 387 S.C. 223, 692 S.E.2d 499 (2010).
Even were we to overlook the untimeliness of appellants' challenge and address the
merits of their argument, appellants' suggestion that the two readings of the
ordinance were vastly different is simply untrue. While the city council expanded
the "purpose and intent" section of the original version of the ordinance and added a
number of definitions, the prohibited retail uses in the final version were identical to
those in the original version. If anything, the amendments merely better-defined the
terms used to describe actions or merchandise that qualified as a prohibited retail
use. There is no basis on which to conclude the amendments to the ordinance were
so drastic as to trigger the need for a new first reading. Cf. Brown v. Cnty. of
Charleston, 303 S.C. 245, 247, 399 S.E.2d 784, 785–86 (Ct. App. 1990) (explaining
the purpose of providing public notice related to zoning amendments is to satisfy the
"general principles of due process that require notice which fairly and reasonably
apprises those whose rights may be affected of the nature and character of the action
proposed"). We therefore affirm the circuit court's decision as to this issue.
IV.
Appellants next argue the ordinance violates the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution. Specifically, appellants
broadly contend the creation of the OBEOD was unfair to them because they cannot
sell certain merchandise that similar stores can continue selling in other areas of the
city. Appellants therefore claim the creation of the OBEOD was arbitrary and
capricious because it treated them differently from other, similarly situated
businesses throughout the city. Appellants point to three specific concerns as
evidencing the arbitrary and capricious nature of the ordinance: (1) city council
reverse spot zoned the OBEOD; (2) the boundaries of the OBEOD are not drawn in
straight lines or with any discernable reasoning behind them; and (3) there is no
evidence that the prohibited retail uses affect public safety. We will address each of
these concerns below. 6
A.
Appellants first contend the ordinance constitutes impermissible reverse spot
zoning—a novel issue in South Carolina. We disagree.
There are two types of spot zoning. Traditional spot zoning occurs when a small
parcel of land is singled out for a use classification different from that of the
surrounding area, for the benefit of the parcel's owner(s) and to the detriment of
others. Bob Jones Univ. v. City of Greenville, 243 S.C. 351, 361, 133 S.E.2d 843,
848 (1963); see also id. at 362, 133 S.E.2d at 848 (noting it is "not [] considered []
spot zoning where the proposed change is from one use to another and there was
already a considerable amount of property adjoining the property sought to be
6
Amongst their eleven issues on appeal, appellants raise two takings claims. The
first is a traditional takings claim arising under the Fifth Amendment to the United
States Constitution, which we address further below. The second is a claim that
because the ordinance violated appellants' right to equal protection, the ordinance
took their business without just compensation. Appellants' Br. at 10. We find such
an argument meritless and do not address it further other than to note that takings
and equal protection are two distinct constitutional doctrines with wholly separate
requirements and bodies of case law.
reclassified falling within the proposed [new use] classification" (citing Eckes v. Bd.
of Zoning Appeals, 121 A.2d 249 (Md. 1956))). Typically, traditional spot zoning
singles out and reclassifies a relatively small tract that is owned by a single person
and surrounded by a much larger, uniformly zoned area, such that the small tract is
relieved from restrictions to which the rest of the area is subjected. See Talbot v.
Myrtle Beach Bd. of Adjustment, 222 S.C. 165, 175, 72 S.E.2d 66, 71 (1952) (citation
omitted); Mark S. Dennison, Annotation, Determination whether zoning or rezoning
of particular parcel constitutes illegal spot zoning, 73 A.L.R.5th 223 (1999) ("The
zoning or rezoning of a single tract of land, usually small in size, such that it is zoned
differently from surrounding property may be invalidated as illegal spot zoning.").
In contrast, reverse spot zoning occurs when a zoning ordinance restricts the use of
a property when virtually all the property's adjoining neighbors are not subject to the
use restriction. 83 Am. Jur. 2d Zoning and Planning § 89 (2013). Oftentimes,
reverse spot zoning occurs where a zoning "island" develops as the result of a
municipality's failure to rezone a portion of land to bring it into conformity with
similar surrounding parcels that are otherwise indistinguishable. In re Realen Valley
Forge Greenes Assocs., 838 A.2d 718, 731 (Pa. 2003); Palmer Trinity Priv. Sch.,
Inc. v. Vill. of Palmetto Bay, 31 So. 3d 260, 262 (Fla. Dist. Ct. App. 2010) ("The
properties surrounding Parcel B were all originally zoned AU or EU-2, but they have
been changed to less restrictive zoning classifications as the agricultural character of
the area has changed over the years.").
Thus, spot zoning may arise in two ways: (1) by an affirmative legislative act that
affects the parcel at issue (traditional spot zoning); or (2) by changes to the zoning
map around the parcel at issue (reverse spot zoning). See 39 Am. Jur. Proof of Facts
3d 433, § 3 (West 2023) (describing types of spot zoning challenges).
Spot zoning is not impermissible per se in South Carolina. Rather, as this Court has
previously explained,
[W]here an ordinance establishes a small area within the limits of a
zone in which are permitted uses different from or inconsistent with
those permitted within the larger, such "spot zoning" is invalid where
the ordinance does not form a part of a comprehensive plan of zoning
or is for mere private gain as distinguished from the good of the
common welfare.
Talbot, 222 S.C. at 175, 72 S.E.2d at 71 (citation omitted); see also id. at 175, 72
S.E.2d at 70 (cautioning that courts should not "become city planners but [should
only] correct injustices when they are clearly shown to result from the municipal
action"). Thus, when the Court finds an ordinance constitutes spot zoning, "the
appropriate analysis is to closely scrutinize the following factors: (1) the adherence
of the zoning to the City's comprehensive plan; and (2) promotion of the good of the
common welfare but to only correct injustices which are clearly shown." Knowles
v. City of Aiken, 305 S.C. 219, 223, 407 S.E.2d 639, 642 (1991); see also 39 Am.
Jur. Proof of Facts 3d 433 ("Legal challenges to [spot zoning] are generally based
on allegations and proof of discriminatory treatment of a single landowner,
inconsistency with the comprehensive plan, incompatibility with neighboring uses,
and harm to the general welfare of the community.").
Here, despite Appellants' contentions, the creation of the OBEOD does not fit within
the accepted definition of reverse spot zoning. The prohibited retail uses in the
OBEOD were not the result of a zoning "island" that developed as the surrounding
area was rezoned while the OBEOD was left behind; rather, the OBEOD was created
by an affirmative legislative act by the city. In other words, if anything, the creation
of the OBEOD more closely resembles traditional spot zoning.
However, we find it equally doubtful the creation of this overlay district constituted
traditional spot zoning. The OBEOD is a fairly large area: it overlays at least twenty
distinct zones; it comprises an approximate rectangle measuring slightly less than
two miles by one-quarter mile; and it encompasses over fifty city blocks which are,
of course, further divided into a significant number of individual properties owned
by separate property owners. It goes without saying that creating an overlay zoning
district over such a large, diverse area is distinct from the typical, traditional spot
zoning factual scenario. See Talbot, 222 S.C. at 175, 72 S.E.2d at 71 (noting spot
zoning occurs when an ordinance affects a small area within the limits of a single
zone); Dennison, supra, 73 A.L.R.5th at 223 (explaining spot zoning involves a
single, small tract of land); 39 Am. Jur. Proof of Facts 3d 433 (stating spot zoning
challenges generally require proof the ordinance has affected a single landowner).
Even were we to accept appellants' argument that the creation of the OBEOD
constituted spot zoning in some fashion, we find that argument unavailing.
Specifically, applying the test outlined in Knowles and Talbot, we find any spot
zoning caused by the ordinance was legally permissible. See Knowles, 305 S.C. at
223, 407 S.E.2d at 642; Talbot, 222 S.C. at 175, 72 S.E.2d at 70. First, the ordinance
was consistent with the city's comprehensive plan. Second, as we discuss further
below, it is "fairly debatable" that city council enacted the ordinance to promote the
public welfare. See Rushing, 265 S.C. at 288, 217 S.E.2d at 799 (explaining the
Court will not overturn a municipality's action if the decision is "fairly debatable"
because the action is presumed to be a valid exercise of power, and it is not the
Court's prerogative to weigh in on the wisdom of the decision). Third, the ordinance
did not result in clear injustice to appellants: even after the creation of the OBEOD,
appellants retained ownership of their property—the real estate and the
merchandise—and they presented no evidence that they could not pivot to another
business model. See Helena Sand & Gravel, Inc. v. Lewis & Clark Cnty. Plan. &
Zoning Comm'n, 290 P.3d 691, 699–700 (Mont. 2012) (applying the state's
traditional spot zoning test under a similar factual scenario, rather than some separate
reverse-spot-zoning test, and concluding that because the zoning regulation was
consistent with the county's comprehensive plan, it was not impermissible spot
zoning); cf. S.C. Code Ann. § 6-29-800(A)(2)(d)(i) (noting the BZA may not grant
a variance if the effect of the variance would be to allow a use not otherwise
permitted in a zoning district, and "[t]he fact that property may be utilized more
profitably, if a variance is granted, may not be considered grounds for a variance").
We therefore reject appellants' equal protection challenge on the basis of
impermissible spot zoning.
B.
Second, appellants contend the OBEOD's boundaries are irrational and, to be
constitutional, must ban the prohibited retail uses throughout the entire city. We
disagree.
The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution provides, "No State shall . . . deny to any person within its jurisdiction
the equal protection of the laws." U.S. Const. amend. XIV, § 1. Where, as here,
"there is no suspect or quasi-suspect class and no fundamental right is involved,
zoning ordinances should be tested under the 'rational basis' standard." Bibco Corp.,
332 S.C. at 52, 504 S.E.2d at 116.
Under rational basis review, the Equal Protection Clause is satisfied so long as (1)
there is a plausible policy reason for the classification; (2) the facts on which the
classification is based rationally may have been considered to be true by the decision
maker; and (3) the relationship of the classification to the goal is not so attenuated
as to render the distinction arbitrary or irrational. Nordlinger v. Hahn, 505 U.S. 1,
11 (1992); see also Denene, Inc. v. City of Charleston, 359 S.C. 85, 91, 596 S.E.2d
917, 920 (2004) ("Under the rational basis test, the requirements of equal protection
are satisfied when: (1) the classification bears a reasonable relation to the legislative
purpose sought to be affected; (2) the members of the class are treated alike under
similar circumstances and conditions; and[] (3) the classification rests on some
reasonable basis."). A party challenging a legislative enactment under rational basis
review "must negate every conceivable basis which might support" the enactment
and, therefore, has a "steep hill to climb." Bodman v. State, 403 S.C. 60, 69–70, 742
S.E.2d 363, 367–68 (2013) (quoting Lee v. S.C. Dep't of Nat. Res., 339 S.C. 463,
470 n.4, 530 S.E.2d 112, 115 n.4 (2000)) (internal quotation marks omitted)).
Here, the ordinance explicitly states the city council enacted the ordinance to foster
a more "family friendly" atmosphere in the historic downtown area and encourage
more tourism by families. See Myrtle Beach, S.C., Code of Ordinances app. A
§ 1807.A. The zoning administrator testified that he had received complaints from
families about the prohibited retail uses. The city council found the prohibited retail
uses "repelled" families from the area. We find it is, at the very least, "fairly
debatable" that prohibiting the sale of sexually oriented merchandise and tobacco
paraphernalia would encourage a more "family friendly" atmosphere in the historic
downtown area. See Rushing, 265 S.C. at 288, 217 S.E.2d at 799 (stating the Court
should not overturn a municipality's decision if the action is "fairly debatable").
Moreover, the zoning administrator stated the boundaries for the OBEOD
corresponded with the boundaries of the historic downtown area of the city as much
as was practical. Those boundaries were set long ago based on pedestrian travel
patterns, family-friendly attractions, and historical uses that preexisted the
ordinance. There are two deviations from the historic downtown's boundary lines,
both of which have rational explanations. First, the northwestern edge of the
OBEOD is shifted half a block away from US-17 Business (the boundary for the
historic downtown). Because the OBEOD was created in part to foster more
pedestrian traffic in the historic downtown, and because the city council did not
believe families of pedestrians would readily walk along a busy road such as US-17
Business, the city council felt it unnecessary to include that portion of the historic
downtown in the OBEOD. Second, and relatedly, the boundary line does not run in
a completely straight line along the backs of every property that fronts US-17
Business because it cannot: two properties in the OBEOD are large enough that they
comprise several city blocks, stretching from US-17 Business all the way to Ocean
Boulevard.7 In those two places, the boundary line runs on the US-17 Business side
of the property rather than the ocean-side of the property. The city's decision
regarding where to set the boundaries of the OBEOD is certainly not irrational or
without basis.
Appellants have failed to show by clear and convincing evidence that the location of
or rationale behind the boundaries of the OBEOD is arbitrary and capricious.
Consequently, the boundaries of the OBEOD are valid. See McMaster, 395 S.C. at7
One property contains Pavilion Park, and the other contains Family Kingdom
Amusement Park.
504, 719 S.E.2d at 663 (quoting Harris, 391 S.C. at 154, 705 S.E.2d at 55); Knowles,
305 S.C. at 224, 407 S.E.2d at 642. As the circuit court found, "Zones must have
beginning and terminating points. If the existence of divergent uses across zone
boundary lines were taken per se as an appropriate basis for a constitutional
violation, the entire zone plan in any municipality might well crumble by chain
reaction." (Citations omitted.) The disparate treatment of similarly situated
businesses on either side of the OBEOD boundary line is not a basis on which to
find an equal protection violation. Cf. Bibco Corp., 332 S.C. at 52–54, 504 S.E.2d
at 116–17 (finding a zoning ordinance that prohibited mobile homes from some
residential districts in the city—but not all—survived rational basis review).
C.
Finally, appellants argue the creation of the OBEOD was arbitrary and capricious
because the city did not submit any evidence that the prohibited retail uses impacted
public safety. We summarily dismiss this argument, as appellants—not the city—
had the burden of proof. Rush, 246 S.C. at 276, 143 S.E.2d at 531. The city did not
need to submit anything affirmatively proving its policy decision was correct. Cf.
Nordlinger, 505 U.S. at 11 (noting that the Equal Protection Clause requires only
that the legislative fact on which the classification is apparently based rationally may
have been considered to be true by the governmental decisionmaker). Rather, it was
incumbent upon appellants to submit evidence that the city's policy decision was
based on a faulty factual premise, and the prohibited retail uses had no impact on
public safety. Appellants failed to do so.
Accordingly, we hold appellants have failed to demonstrate the ordinance violated
their right to equal protection, and we affirm the circuit court's decision on this basis.
V.
Next, appellants raise two due process arguments. First, appellants argue the
ordinance does not explicitly provide for a hearing in which an affected vendor could
challenge the zoning administrator's finding that certain merchandise fits within the
ordinance's definition of sexually oriented merchandise. Second, appellants contend
the ordinance imposes an arbitrary and unreasonable amortization period. We
disagree with both arguments.
We reject appellants' first argument as it is based on a faulty factual premise. Rather,
section 6-29-800(A)(1) of the South Carolina Code explicitly provides the BZA has
the authority to hear any appeal "where it is alleged there is error in . . . [a]
determination made by an administrative official in the enforcement of the zoning
ordinance." Section 6-29-800(E) additionally provides the BZA "has all the powers
of the officer from whom the appeal is taken" and, therefore, may determine—just
as the zoning administrator does in the first instance—whether the challenged
merchandise fits within the ordinance's definition of "sexually oriented
merchandise." Further, as occurred here, should an affected property owner disagree
with the BZA's decision, it can appeal the decision to the circuit court and, if
necessary, this Court. 8
Turning to appellants' second due process argument, we find any contention that the
amortization period was too draconian is moot. See Curtis v. State, 345 S.C. 557,
567, 549 S.E.2d 591, 596 (2001) ("An appellate court will not pass on moot and
academic questions or make an adjudication where there remains no actual
controversy. . . . A case becomes moot when judgment, if rendered, will have no
practical legal effect upon the existing controversy." (cleaned up)). Any attempts by
the city to enforce the ordinance and actually impose the provided-for civil penalties
were stymied by the pendency of this appeal. As a result, appellants have had nearly
five years to come into compliance with the ordinance and, apparently, have failed
to do so. We cannot say an effective five-year amortization period is per se
unreasonable.
We therefore reject both of appellants' due process claims.
VI.
Appellants additionally claim the ordinance effects a taking of their property without
just compensation, specifically citing the three-factor test set forth by the United
States Supreme Court in Penn Central Transportation Co. v. City of New York, 438
U.S. 104, 124 (1978) (explaining that, in regulatory takings cases, courts should
examine (1) the economic impact of the regulation on the affected property; (2) the
extent to which the regulation interfered with the property owner's investment-
backed expectations; and (3) the character of the government action). We disagree.
Takings claims are "essentially ad hoc, factual inquiries" that "depend[] largely upon
the particular circumstances in that case." Tahoe-Sierra Pres. Council, Inc. v. Tahoe
Reg'l Plan. Agency, 535 U.S. 302, 322, 336 (2002) (cleaned up); see also Dunes W.
Golf Club, L.L.C. v. Town of Mt. Pleasant, 401 S.C. 280, 314, 737 S.E.2d 601, 619
8
Of course, here, appellants conceded they were engaged in the prohibited retail
uses, so there would be no need for an additional hearing challenging the
determination of the zoning administrator.
(2013) (explaining the question of whether a taking has occurred is a question of law
that this Court must review de novo (citations omitted)). Appellants, however, have
not developed any of the facts necessary to support a takings claim. For example,
they do not quantify the economic impact of the ordinance on their properties—the
first Penn Central factor. See Penn Cent., 438 U.S. at 124. Rather, appellants
merely claim the impact is a "significant amount" that is "dire" and "severe." 9
We are left to speculate about the facts necessary to support appellants' takings
claim. 10 We therefore reject appellants' claim that the ordinance took their property
without just compensation in violation of the Fifth Amendment to the United States
Constitution.
VII.
Finally, appellants claim the ordinance criminalizes the sale of consumer products
that are otherwise legal under state law, and it therefore conflicts with—and must be
9
This lack of specificity stands in stark contrast to other takings cases, where parties
typically quibble over the appropriate numbers to enter into the takings fraction, as
well as the exact percentage necessary to amount to an unconstitutional taking. See,
e.g., Murr v. Wisconsin, 137 S. Ct. 1933, 1941 (2017) (explaining the parties
submitted competing appraisals for the value of the affected properties, including
figures corresponding to the values of the properties with and without the challenged
regulation); Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 534 (2005) (discussing the
exact figures corresponding to the impact of the challenged regulation on each of
sixty-four affected properties owned by the claimant); Tahoe-Sierra Pres. Council,
535 U.S. at 302, 316 n.12 (involving a dispute over how to define and calculate the
denominator of the takings fraction, and detailing the average values of the over-400
affected properties); Palazzolo v. Rhode Island, 533 U.S. 606, 616 (2001)
(explaining the plaintiff in a takings action submitted an appraiser's report to quantify
the amount of damages sought).
10
In fact, appellants make no argument at all regarding the second and third Penn
Central factors, i.e., the extent to which the ordinance impacted their investment-
backed expectations or the character of the government action. We therefore find
appellants have abandoned any argument regarding those two factors. See Video
Gaming Consultants, Inc. v. S.C. Dep't of Revenue, 342 S.C. 34, 42 n.7, 535 S.E.2d
642, 646 n.7 (2000) (stating an issue is deemed abandoned if a party fails to make
an argument as to the merits of the issue).
preempted by—the State's criminal laws. This argument, too, rests on a faulty
factual premise.
The ordinance does not impose any criminal penalties for continuing to engage in
the prohibited retail uses after the amortization period; rather, the penalty provided
for in the ordinance is the suspension or revocation of the nonconforming business's
business license. Myrtle Beach, S.C., Code of Ordinances app. A § 1807.F. Thus,
the ordinance does not criminalize the sale of legal products in contravention of the
State's criminal laws. Compare, e.g., Foothills Brewing Concern, Inc. v. City of
Greenville, 377 S.C. 355, 660 S.E.2d 264 (2008) (upholding the validity of a
municipal ordinance banning smoking in bars and restaurants despite the fact that
smoking was legal throughout the State, and finding significant the fact that the no-
smoking ordinance imposed only civil penalties), with Beachfront Ent., Inc. v. Town
of Sullivan's Island, 379 S.C. 602, 666 S.E.2d 912 (2008) (striking down a municipal
ordinance banning smoking in the workplace because it imposed significant criminal
penalties for violations and, therefore, conflicted with State law that otherwise
allowed smoking in the workplace). We therefore reject this argument as a basis on
which to find the ordinance invalid.
VIII.
After examining the host of appellants' constitutional and procedural challenges to
the ordinance, we hold the ordinance was a valid exercise of the city's police powers.
See Rush, 246 S.C. at 276, 143 S.E.2d at 530–31 ("The authority of a municipality
to enact zoning ordinances, restricting the use of privately owned property[,] is
founded in the police power. The governing bodies of municipalities clothed with
authority to determine residential and industrial districts are better qualified by their
knowledge of the situation to act upon such matters than are the Courts, and they
will not be interfered with in the exercise of their police power to accomplish [their]
desired end unless there is [a] plain violation of the constitutional rights of [the]
citizens."). We therefore affirm the decisions of the circuit court and BZA. 11
11
As a final matter, appellants contend that our decision today overrules three of our
prior decisions: Pure Oil Division v. City of Columbia, 254 S.C. 28, 173 S.E.2d 140(1970); Kerr v. City of Columbia, 232 S.C. 405, 102 S.E.2d 364 (1958); and James
v. City of Greenville, 227 S.C. 565, 88 S.E.2d 661 (1955). We find those cases
manifestly distinguishable from the present case. See, e.g., Pure Oil, 254 S.C. at 34,
173 S.E.2d at 143 ("We have recognized the rule that, when a zoning or building
permit has been properly issued and the owner has incurred expenses in reliance
thereon, he acquires a vested properly right therein of which he cannot be deprived
AFFIRMED.
BEATTY, C.J., FEW, JAMES, JJ., and Acting Justice Kaye G. Hearn, concur.
without cause or in the absence of public necessity. . . . There are no intervening
considerations of public necessity involved under the facts of this case." (emphasis
added)). Here, of course, the city believed the creation of the OBEOD was a matter
of public necessity, as it explained in detail in the purpose and intent section of the
ordinance. See generally Myrtle Beach, S.C., Code of Ordinances app. A § 1807.A.
Thus, our decision today in no way overrules Pure Oil, James, or Kerr.