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LLC v. City of Columbia Board of Zoning Appeals

Court of Appeals of South Carolina

August 7, 2019

Cricket Store 17, LLC d/b/a Taboo, Appellant,
v.
City of Columbia Board of Zoning Appeals, Respondent. And City of Columbia Zoning Administrator, Counterclaimant,
v.
Cricket Store 17, LLC d/b/a Taboo, Counterdefendant. Appellate Case No. 2017-000561

          Heard May 16, 2019

          Appeal From Richland County Robert E. Hood, Circuit Court Judge

          Thomas R. Goldstein, of Belk Cobb Infinger & Goldstein, PA, of Charleston, for Appellant.

          Peter M. Balthazor, of Riley Pope & Laney, LLC, of Columbia, and Scott D. Bergthold, of Chattanooga, Tennessee, for Respondent.

          KONDUROS, J.:

         Cricket Store 17 d/b/a Taboo (Taboo) appeals the order of the circuit court affirming the decision of the City of Columbia Board of Zoning Appeals (the Board) in denying Taboo the right to request a special exception from a city ordinance limiting the operation of sexually-oriented shops within the limits of the City of Columbia (the City). We affirm.

         FACTS/PROCEDURAL BACKGROUND

         In 2011, Taboo applied for a license to operate the City's only licensed adult business. The City issued the license on December 5, 2011. On December 19, 2011, the City hired Scott Bergthold, a Tennessee attorney who specializes in handling adult businesses regulation/zoning. The City passed a licensing ordinance to regulate adult businesses. Subsequently, Bergthold 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, (the ordinance) was enacted in November of 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. See Cricket Store 17, LLC v. City of Columbia, 97 F.Supp.3d 737 (D.S.C. 2015) (granting the City's motion for summary judgment), aff'd, 676 Fed.Appx. 162 (4th Cir. 2017), cert. denied, 138 S.Ct. 116 (2017).

         After Taboo's federal claims failed, Taboo applied to the Board for a special exception. However, the Zoning Administrator rejected and returned Taboo's application for special exception by letter dated February 26, 2016, stating the ordinance prohibited Taboo from filing an application for special exception. Meanwhile, the City threatened criminal prosecution against Taboo for violating the ordinance. On January 28, 2016, the Zoning Administrator delivered a written notice of violation letter to Taboo. Taboo then filed two appeals with the Board- one appealing the Zoning Administrator's decision to issue citations and a second one appealing the Board's refusal to accept its application for special exception. The Board accepted both appeals.

         The City scheduled both administrative hearings for April 12, 2016. After the hearings were conducted, the Board affirmed the Zoning Administrator's decision on both counts. Taboo appealed these rulings to the circuit court which affirmed. This appeal followed.

         STANDARD OF REVIEW

         This court reviews appeals from a local zoning board pursuant to the standards proscribed in section 6-29-840 of the South Carolina Code (Supp. 2018). Austin v. Bd. of Zoning Appeals, 362 S.C. 29, 35, 606 S.E.2d 209, 212 (Ct. App. 2004). Findings of fact will not be disturbed unless the record contains no evidence to reasonably support them. Id. However, "[i]ssues involving the construction of ordinances are reviewed as a matter of law under a broader standard of review than is applied in reviewing issues of fact." Eagle Container Co. v. Cty. of Newberry, 379 S.C. 564, 568, 666 S.E.2d 892, 894 (2008).

         LA ...


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