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Zoning – Municipal – Overlay District – ‘Reverse Spot Zoning’ – First Impression

By: S.C. Lawyers Weekly staff//April 24, 2023

Zoning – Municipal – Overlay District – ‘Reverse Spot Zoning’ – First Impression

By: S.C. Lawyers Weekly staff//April 24, 2023

Reverse spot zoning – a novel concept in South Carolina – 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. In order to promote family-friendly tourism, Myrtle Beach decided to prohibit certain retail sales in its historic downtown. Unlike the accepted examples of reverse spot zoning, the prohibited retail uses in the Ocean Boulevard Entertainment Overlay District (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. The OBEOD was not a result of reverse spot zoning.

We affirm judgment for the respondent-city.

The ordinance creating the OBEOD prohibits 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

Even were we to accept appellants’ argument that the creation of the OBEOD constituted spot zoning in some fashion, any such spot zoning was legally permissible.

First, the ordinance was consistent with the city’s comprehensive plan. Second, it is fairly debatable that city council enacted the ordinance to promote the public welfare. 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.

We reject appellants’ equal protection challenge on the basis of impermissible spot zoning.

Contrary to appellants’ next constitutional claim, the OBEOD’s boundaries are not irrational. The OBEOD seeks to encourage pedestrian traffic in Myrtle Beach’s historic downtown. While the historic downtown stretches to US-17, the OBEOD excludes many businesses on US-17 where pedestrian traffic is unlikely.

With respect to appellants’ due process argument, we find any contention that the amortization period was too draconian is moot. Any attempts by the city to enforce the ordinance and actually impose 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.

Although appellants assert a takings claim, they have not developed any of the facts necessary to support such a claim.

The ordinance was a valid exercise of the city’s police powers.

Ani Creations, Inc. v. City of Myrtle Beach Board of Zoning Appeals (Lawyers Weekly No. 010-024-23, 16 pp.) (John Kittredge, J.) Appealed from Horry County Circuit Court (Benjemin Culbertson, J.) Reese Boyd and Gene McCain Connell for appellants; Michael Warner Battle for respondents. South Carolina Supreme Court

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