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1 MINUTES HORRY COUNTY COUNCIL Infrastructure MINUTES HORRY COUNTY COUNCIL Infrastructure & Regulation Committee Meeting November 21, 2013 9:00 a.m. MEMBERS PRESENT: Jody Prince, Chairman; Paul Prince; Gary Loftus; and Bob Grabowski. Council Chairman Mark Lazarus and Councilman James Frazier were also present. MEMBERS ABSENT: OTHERS PRESENT: Chris Eldridge; Pat Hartley; Arrigo Carotti; Anne Wright; Sandee Garigen; Gary Watson; Janet Carter; Sam Graves; Randy Haldi; Barry Spivey; Andy Markunas; David Schwerd; John Danford; Brent Taylor, and Lisa Bourcier. In accordance with the FOIA, notices of the meeting were provided to the press stating the time, date, and place of the meeting. CALL TO ORDER: Mr. J. Prince called the meeting to order at approximately 9:00 a.m. INVOCATION: Mr. P. Prince gave the invocation. Mr. J. Prince introduced the committee members, welcomed Councilman James Frazier to the meeting, along with several members of the Solid Waste Authority Board. He said he appreciated what they did and thanked them for being there. PUBLIC INPUT: There was none. APPROVAL OF AGENDA CONTENTS: Mr. Grabowski made a motion to approve the agenda contents. The motion passed unanimously. APPROVAL OF MINUTES: I&R Committee Meeting – September 12, 2013 and October 3, 2013. Mr. P. Prince moved to approve, seconded by Mr. Grabowski. The motion passed unanimously. DISCUSSION ITEMS: Conditions placed on special exceptions by the Zoning Board of Appeals. Mrs. Carter said that towards the end of 2005, County Council passed an ordinance that required any business that was located within 500-feet of a residential property and served alcohol for on-premise consumption to go before the Zoning Board of Appeals for special exception approval. Basically, what that meant was that the use was allowed in the zoning district – it would have to be allowed in the zoning district to begin with, for instance, like in Highway Commercial, but if they measured 500-feet to the closest residential property, then there had to be a public hearing and notice to surrounding property owners, and then the Board would hold a hearing and place any conditions on the request that they deemed appropriate. 1 During the first year or so of that application, the Board came up with some standard conditions that they pretty much always placed on the approvals. They could vary slightly from time to time, based on the request, but thought the condition that Mr. Grabowski was concerned about was the condition that the special exception expired or required them to come back before the Board when the business changed ownership. They have had some discussions about that over time. For all properties that were out there and existed before 2005 would be regarded as legal non- conforming uses…and you were talking about a lot of restaurants and bars. It’s everything from a Ruby Tuesday’s type of restaurant to a biker bar that was included in the mix. If you were a legal non-conforming establishment prior to 2005 when the law changed, then you were able to just continue on until you have abandoned that use. Probably, 90% or more of the businesses that are out there were out there prior to 2005, and they changed hands all the time. That was approved at the staff level and they go on because they were legal non-conforming uses. They had not abandoned their zoning so, therefore, they got to continue it into perpetuity until they did. They had two different classes of businesses that have been created by this: those that have come into the location since 2005 and those that existed prior to, but thought that today, they were talking strictly about those that have come into existence since 2005 and that have changed ownership and have had to come back before the Board each time…that’s what has raised the concern today. Mr. Grabowski said that was right. He had a situation in his district where a special exception was granted, they sold the business, the business did not change its use, look, appearance, or anything…they didn’t change a thing – they just changed the owner, and the owner had to go before the Zoning Board of Appeals to get that special exception granted again. It just didn’t make sense. The exception was already granted, nothing changed except for the owner’s name, and it just didn’t make sense that he had to do that all over again. He wasn’t advocating that if they changed the nature of the business, then certainly, whatever the new nature of the business was needed to conform to their rules, but he was talking strictly about there being no change in the use of the business other than the ownership, title of it, or whatever – they shouldn’t make them need to come back before the Board. Mrs. Carter said that staff proposed an amendment a couple of years ago that would have had that effect, but that was strongly opposed by some of the Board members, and that amendment never went anywhere…because what they were trying to do was line up the two different types of businesses – those that existed prior to 2005 and those that have come into existence since so that they weren’t treating them so differently, but as she said, there was opposition and that ordinance never made it past the I&R Committee. Mr. J. Prince said he was familiar with Mr. Grabowski’s situation and had the perimeters set by the Zoning Board of Appeals followed that property – no matter what they were…there could be a wide range from the differences in businesses that he assumed the Zoning Board of Appeals could say “Okay, these are the rules that you have to follow here if you want to do this”, and six miles down the road, they could have different rules they could go by. He asked Mrs. Carter if that was correct. Mrs. Carter said that by and large, the rules they applied were the same in every instance, but there were occasional tweaks. For example, they generally didn’t allow outdoor entertainment or outdoor dining, but if the location was appropriate and it didn’t appear that it would create any problems, they would modify that condition from time to time. In one case, they added a condition for security in the parking lot at the request of one of the neighbors that came out, so it varied slightly, but by and large, the conditions were standard and they applied them in most cases. Mr. J. Prince asked if those conditions followed the property as long as that use didn’t change, that would fix the problem. 2 Mr. Grabowski said sure…then they wouldn’t have to go through the Zoning Board of Appeals again. Mrs. Carter said that generally in zoning, zoning did run with the land…it wasn’t person to person, for example with a variance. She could not find any case law in South Carolina on special exceptions, but did find case law in other jurisdictions in other states that said the same thing about special exceptions. They weren’t personal to the individual, but they ran with the land like all regulatory permits. The cases she read equated them to wetlands permits, variances, and other things. Mr. Grabowski said they should mirror that in case they didn’t. Mr. J. Prince said it could still be problematic, especially with the lack of communication. In other words, you bought a parcel that had a special exception plus a condition that they didn’t know about, that could be problematic too, so communication would be very important for the sale of that property and that business. Mr. Grabowski said that was the responsibility of the buyer and the purchaser…he didn’t think that was the county’s responsibility. Mr. J. Prince asked Mr. Grabowski what he proposed they asked staff to do. Mr. Grabowski said to do what the other areas were doing, and have those special exceptions and conditions stay with the property provided there were no changes in the use of the business. Mr. P. Prince said that they needed to understand that when the property changes, and if they made changes, they would have to do that. Mr. Grabowski agreed and said then they would have to comply. If they were changing the use of the property, then they had to get their ducks in a row and go through the process, but if they weren’t changing the use of the property, they didn’t need to make them come back before the ZBA. Mrs. Carter said that one thing she thought the Board was concerned about was, for example, they approved a neighborhood tavern, and then they sold that tavern and it became a biker bar. You were still talking about the sale of alcohol within 500-feet of residential. They believed there was a different impact in different types of businesses. Mr. Grabowski said that the conditions then would still apply – no outdoor use, no outdoor entertainment etc…, so they would still apply. The conditions set forth by the ZBA originally stayed with that property, it didn’t matter who owned it, provided the use was the same. Mrs. Carter said they included a condition of no banners, no bike week vending, etc… Mr. Grabowski said so, if they changed from a tavern to a biker bar, they had the same conditions to abide by. Mrs. Carter said that was correct. Mr. J. Prince asked if a tavern could be a biker bar. Mr. Grabowski said yes.
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