The ABC’s of Zoning

Recently, a friend posed a question to me  regarding whether a municipality ordinance prohibiting the sale of liquor within a certain distance of residence, schools, playgrounds, and churches may exceed the State’s statute.

S.C. Code 61-6-120 provides as follows “The department shall not grant or issue any licenses.. . if the place of business is within 300 feet of any church, playground, school within a municipality or within 500 feet . . if situated outside a municipality.

For solely Beer and Wine sales S.C. Code 61-4-520 provides as follows: No permit authorizing the sale of beer or wine may be issued unless: … (6) the location of the proposed place of business of the applicant is in the opinion of the department a proper one.  (7) the department may consider among other factors, as indications of unsuitable location, the proximity to residences, schools, playgrounds, and churches.    This statute is silent with regards to distance whereas the statute specifically addressing liquors is not silent.

Our Court  has  held that a local ordinance is not preempted by State Law if the ordinance does not conflict with state law.   The Court of Appeals specifically addressed this issue when an owner was denied a special exception  to serve alcohol.  For a conflict to exist there must be express or implied conditions that are inconsistent and irreconcilable. Further, if the Statute is silent on the issue then there is no conflict. See McKeown v. Charleston County Board of Zoning Appeal, 553 S.E.2d 484(Ct. App. 2001).
The State Statute is not silent on the issue of distance for businesses selling liquors, but it is silent with regards to beer and wine sales which McKeown addresses. In my opinion, the ordinance which this municipality has adopted conflicts with the statute with regards to the sale of liquor but does not conflict with State statute addressing the sale of  only beer and wine in proximity to a school, church or playground. S.C. Code 61-4-520.

As we know, Southerners take their “spirits” seriously!

Vested Reprieve

Vested Reprieve for Developers

~Erika V. Harrison~ May 26, 2010~

On March 19, 2010, Governor Mark Sanford provided a reprieve for developers when he signed House Bill 4445 (“H4445”), a joint resolution suspending the two year limit of the Vested Rights Act until December 31, 2012. (attached to this e-mail is a copy)

Prior to this joint resolution, an approval, in the City of Charleston for any development project was vested for two years. Pursuant to the City of Charleston Zoning Ordinance Article 9 Part 5 Section 54-962, the applicant could have a maximum of five extensions after the initial vested two year period of the approval.

Now, retroactively, H445 provides that any approval that is valid at any point between January 1, 2008 through December 31, 2012 the running of the period of the development approval and any associated vested right is suspended during the period beginning January 1, 2008 and ending December 31, 2012. Seemingly, H4445 applies to extensions that have been granted beyond the two year Vested Rights Act. Thus, if a developer’s fifth extension is about to expire, H4445 has provided an automatic extension until December 31, 2012.

H4445’s lauded benefit is the costs saving measures it provides. Since submitting an application is no longer required, the developer saves on application fees. The seconds cost saving benefit is the possible lost of the initial investment in the designs and plans for a development especially, if a developer’s fifth extension was to expire.

As the real estate market slowly turns the corner, H4445 comes as welcomed legislation by giving developers a little more breathing room
H4445 Legislation