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Zoning Municipal – Adult Business – Variances Precluded – Civil Practice – Res Judicata

By: renee.sexton//August 16, 2019

Zoning Municipal – Adult Business – Variances Precluded – Civil Practice – Res Judicata

By: renee.sexton//August 16, 2019

Although Bostic v. City of W. Columbia, 268 S.C. 386, 234 S.E.2d 224 (1977), found an ordinance that flatly prohibited variances conflicted with the enabling legislation at issue, the current enabling legislation specifically authorizes local governing bodies to “preclude the granting of a variance for a use of land, a building, or a structure that is prohibited in a given district.” S.C. Code Ann. § 6-29-800(A)(2)(d)(i). The ordinance prohibiting variances is not in conflict with the enabling legislation.

We affirm judgment for the respondent-board of zoning appeals.

Even though appellant filed a prior lawsuit in federal court, since the federal litigation concerned the constitutionality of the ordinance, and since the current litigation challenges citations and an application rejection—both of which came about after dismissal of the federal litigation—res judicata does not bar appellant’s arguments on appeal.

City of Columbia Code of Ordinances § 17-174(a) 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.”

Appellant contends use of the word “may” means the board had the discretion to grant its request for a special exception. We disagree.

Use of the term “no” at the beginning of the ordinance reveals the intent that variances or special exceptions to the ordinance will not be allowed. To construe this ordinance as discretionary requires one to read out the word “no” in a way that contorts its plain meaning and renders it superfluous. Consequently, we affirm the circuit court’s finding the ordinance did not permit the board discretion to grant appellant’s request for special exception.

Affirmed.

Cricket Store 17, LLC v. Columbia Board of Zoning Appeals (Lawyers Weekly No. 011-074-19, 7 pp.) (Aphrodite Konduros, J.) Appealed from the Circuit Court in Richland County (Robert Hood, J.) Thomas Goldstein for appellant; Peter Balthazor and Scott Bergthold for respondent. S.C. App.

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