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Unpublished Opinion No. 2004-UP-553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.”