Red Bluff Trade Center LLC et al v. Horry County et al
ORDER: The Court GRANTS, in part, Plaintiffs' Motion for Partial Summary Judgment (ECF No. 40 ) and Defendants' Motion for Partial Summary Judgment (ECF No. 39 ). Signed by Honorable Sherri A Lydon on 4/15/2020. (mcot, )
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Red Bluff Trade Center, LLC and Red Bluff )
Horry County and Horry County Council,
Case No.: 4:17-cv-03354-SAL
OPINION AND ORDER
This matter is before the Court on the parties’ cross-motions for partial summary judgment.
ECF Nos. 39, 40. At issue is whether state law preempts Horry County ordinances regulating
mining. Plaintiff Red Bluff Rock, LLC obtained the necessary mining permit pursuant to state law;
however, it was prohibited from operating a mine after Defendant Horry County Council denied
applications for a mine permit required by local ordinance. Arguments were heard on March 31,
2020, and this matter is ripe for the Court’s consideration.
In October 2007, Plaintiff Red Bluff Trade Center, LLC (“RBTC”) purchased a 53.83-acre
parcel of real estate situated in Horry County (the “Property”). Plaintiff Red Bluff Rock, LLC
(“RBR”) wishes to operate a mine on the Property to extract limestone, sand, and fill dirt. RBR
obtained the necessary permit to operate the mine from the South Carolina Department of Health
and Environmental Control (“DHEC”) in August 2017, pursuant to the South Carolina Mining
Act, S.C. Code Ann. §§ 48-20-10 to -310 (“Mining Act”) and regulations promulgated thereunder.
See S.C. Code Ann. Regs. 89-10 to -350. Plaintiffs further represent that they complied with Horry
County Code of Ordinance, app’x B, art V, § 532 (the “Horry County Mine Zoning Ordinance”),
which sets forth conditions for landowners’ conditional use of land as a mine. Plaintiffs were not,
however, able to obtain a mine permit from Defendant Horry County Council, as required under
Horry County Code of Ordinance, ch. 13, art. VI (the “Horry County Mine Permit Ordinance”).
The parties’ present dispute concerns whether state law preempts the Horry County Mine Permit
Ordinance. 1 The Court begins with a brief discussion of the respective regulatory schemes
governing mining put in place by South Carolina and Horry County.
The Interstate Mining Compact and the Mining Act
In 1972, South Carolina joined the Interstate Mining Compact by enacting S.C. Code Ann.
§§ 48-21-10 to -30. This legislation recognizes that “[t]he states are in a position and have the
responsibility to assure that mining shall be conducted in accordance with sound conservation
principles, and with due regard for local conditions.” Id. § 48-21-10(a)(5). The purposes of the
Interstate Mining Compact include “assist[ing] the party states in their efforts to facilitate the use
of land and other resources affected by mining, so that such use may be consistent with sound land
use, public health, and public safety . . . .” Id. § 48-21-10(b)(4). Pursuant to Section 10, Article III
of the Interstate Mining Compact, each member state agreed that it would “formulate and establish
an effective program for the conservation and use of mined land” to accomplish, among other
things, “[t]he protection of the public and the protection of adjoining and other landowners from
damage to their lands and the structures and other property thereon resulting from the conduct of
mining operations.” In addition, state programs are to establish mining standards “in ways that will
reduce adverse effects on the economic, residential, recreational or aesthetic value and utility of
The Plaintiffs argued in their written motion for summary judgment that the Horry County Mine Permit
Ordinance and Horry County Mine Zoning Ordinance were preempted by the Mining Act. With respect to
the argument regarding the Horry County Mine Zoning Ordinance, however, Plaintiffs’ counsel clarified
during the hearing on this matter that, while Plaintiffs’ motion, ECF No. 40, seeks a declaration that the
entire Horry County Mine Zoning Ordinance is preempted, they only take issue with the cross-reference
to the Horry County Mine Permit Ordinance.
land and water.” Id. Thereafter, South Carolina passed the Mining Act, S.C. Code Ann. §§ 48-2010 to -310.
The Mining Act has two stated purposes: to provide that (1) “the usefulness, productivity,
and scenic values of all lands and waters involved in mining within the State receive the greatest
practical degree of protection and restoration;” and (2) “no mining may be carried on in the State
unless plans for the mining include reasonable provisions for the protection of the surrounding
environment and for reclamation of the area of land affected by mining.” S.C. Code Ann. § 48-2020. The Mining Act grants DHEC the authority to issue mining permits, S.C. Code Ann, § 48-2030, and provides that DHEC has ultimate authority over all mining, and the regulation and control
of mining activity. Id. Under the Mining Act, no operator may engage in mining unless DHEC has
issued a permit for the proposed mine. Id. § 48-20-60. Permits may only be issued or modified as
set forth in the Mining Act and regulations promulgated thereunder. Id.; see also S.C. Code Ann.
§ 48-20-70; S.C. Code Ann. Regs. 89-10 to -350.
The Mining Act also allows for localities to pass and enforce zoning laws, provided they
are consistent with the Mining Act:
No provision of this chapter supersedes, affects, or prevents the enforcement of a
zoning regulation or ordinance within the jurisdiction of an incorporated
municipality or county or by an agency or department of this State, except when a
provision of the regulation or ordinance is in direct conflict with this chapter.
S.C. Code Ann. § 48-20-250. The General Assembly thus, in enacting the foregoing language,
expressly saved non-conflicting zoning laws from preemption.
Horry County’s Ordinances Regulating Mining
The Horry County Mine Zoning Ordinance
The South Carolina Local Government Comprehensive Planning Enabling Act of 1994,
S.C. Code Ann. §§ 6-29-310 to -1640 (“Planning Enabling Act”) “authorizes local governments
in South Carolina to adopt zoning ordinances to regulate land use within their jurisdictions.” Cty.
of Charleston v. S.C. Dep't of Transportation, 803 S.E.2d 316, 317 (Ct. App. 2017). In accordance
with the authority conferred by the Planning Enabling Act, Horry County enacted its zoning
ordinance. See Horry County Code of Ordinance, app’x B, art. I.
On February 7, 2006, prior to RBTC’s purchase of the Property, Horry County Council
created the Horry County Mine Zoning Ordinance by passing Horry County Ordinance 141-05,
setting forth requirements for the conditional use of land as a mine. See Horry County Code of
Ordinance, app’x B, art. V, § 532. The Horry County Mine Zoning Ordinance provided as follows:
Unless exempt, a certificate of zoning compliance must be obtained by the
property owner or operator of any mining operation prior to removal of excavated
materials to be hauled off-site. If all excavated material is kept on-site, no review or
approval is required. The following levels of review and approval are hereby
established for mining operations where the excavated material is hauled off-site.
4. All other mining activity shall be allowed only as a conditional use in the AG1,
AG2, FA and CFA zoning districts subject to the following conditions:
a) A pre-construction meeting with county engineering must be held to assess
road conditions and develop a maintenance plan, regarding grading and
watering, that addresses impacts of the mining operation to include dust in
populated areas and road conditions.
b) Mine operator must maintain paved roads accessing site for two hundred
(200) feet of site access in the direction of travel and control dust in populated
c) Mining operations must be screened and buffered by a six (6) foot high
opaque screen of natural vegetation within a one hundred (100) foot buffer
area or a six (6) foot high berm within a fifty (50) foot buffer area. Berms
must be graded, shaped and grassed. Provided, however, that no screen is
required along any property boundary where the mining operations are
setback five hundred (500) feet, or more from the property line. These
screening and buffering provisions shall supercede the requirements of the
landscape, buffer and tree preservation standards.
d) Mine operator will submit a traffic routing plan to county engineering. Traffic
plan should minimize impacts to surrounding residences to the greatest
reasonably extent possible. Reasonableness analysis should include but is not
Certificates of zoning compliance are issued by the Zoning Administrator. Horry County Code of
Ordinance, app’x B, art. XIII, § 1303.
limited to physical limitations and financial costs. Plan may be modified if
e) Operational hours are 6:00 a.m. until 9:00 p.m. unless otherwise authorized
by County Council. Hours may be extended for public projects of limited
duration upon notice to the zoning administrator.
f) Mining operations will be conducted in accordance with Horry County and
DHEC regulations. Mine operator will obtain a county stormwater permit.
g) Mining operations must be conducted in accordance with all county, state,
and federal regulations.
Horry County Code of Ordinance, app’x B, art. V, § 532.
The Horry County Mine Permit Ordinance
On the same day the Horry County Mine Zoning Ordinance became law within “The
Zoning Ordinance of Horry County, South Carolina,” see id., app’x B, art. II, Horry County also
created a separate Horry County Mine Permit Ordinance, codified under “Offenses and
Miscellaneous Provisions.” See Horry County Code of Ordinance, ch. 13, art. VI. Again, this
requirement was not included within the zoning ordinance regulatory scheme set out by Horry
County. The Horry County Mine Permit Ordinance requires that all mining operations allowed as
conditional uses pursuant to the zoning ordinance shall also “be required to obtain a mining permit
pursuant to the provisions of this article.” Id. § 60. The Horry County Mine Permit Ordinance sets
forth application procedures:
To initiate a request for a mining permit, the following information shall be
submitted to the county engineering department along with an administrative fee of
two hundred fifty dollars ($250).
(1) Permit requests shall identify the property owner(s), parcel
identification numbers of parcels for which the permit is sought,
operator's name, address and telephone number.
(2) Applicant shall identify the nature of the material to be excavated, the
duration of the DHEC approval sought and the acreage of staging and
(3) Upon request, applicant also may be required to furnish copies of all
documents provided to DHEC, including, but not limited to, the
reclamation plan for the site.
(4) A copy of the proposed road maintenance and traffic routing plans shall
(5) Applicant shall specify days and times and propose ways of mitigating
any negative impacts on surrounding property owners.
(6) A mining permit application affecting the same parcel or parcels of
property or part thereof cannot be initiated more than once every twelve
Id. § 61. All requests for mining permits are placed on the Horry County Council agenda for a
public hearing. Id. § 62. In determining whether to issue a mine permit, the Horry County Mine
Permit Ordinance states that Horry County Council is to consider (1) “the adequacy of the
transportation network,” and (2) “compatibility with the surrounding community.” Id. § 63.
Rezoning the Property to Allow Mining
When RBTC purchased the Property, mining was disallowed under the applicable Horry
County zoning designation of “High Bulk Retail.” On February 21, 2017, however, Horry County
both rezoned the Property to “Commercial Agriculture” and made mining a conditional use on
property so zoned. See Horry County Ordinances 06-17 and 13-17. The “Rezoning Review Sheet”
associated with the Property, dated December 15, 2016, notes that the proposed use for the
Property was mining. ECF No. 41-4 at 2. Twenty-six property owners were notified of the potential
rezoning, but no public comment was received. A representative for Plaintiffs was present during
the rezoning review to answer any questions. The narrative section states as follows:
The applicant is requesting to rezone . . . in order to establish a mining operation .
. . . To the South of the site, along Highway 905, is a convenience store in the
Neighborhood Retail Services district and residential in the Limited
Forest/Agricultural districts. Directly east of the site, in the Neighborhood
Commercial district, are several commercial buildings currently vacant. Northeast
of the site are several residential SF10 districts. This [rezoning] will also require a
text amendment allowing mining in the [Commercial Agriculture] District. The
Envision 2025 Plan denotes this area as a Rural Area, intended to support
compatible residential and commercial development at current zoning and to
promote the rural lifestyle found throughout these areas.
ECF No 41-4 (emphasis in original). Horry County Council approved the rezoning request and
deemed mining a conditional use on the rezoned property. Horry County Ordinances 06-17 and
Denial of the Horry County Mine Permit
Following the rezoning of the Property, and after a thorough review of RBR’s proposed
mining operation, DHEC issued a mine operating permit on August 16, 2017. The DHEC permit
grants RBR “the right to conduct active mining operations” within the Property, see ECF No 41-5
at 6, subject to conditions in the permit, including RBR obtaining all other necessary “State and
Federal permits.” Id. at 4, 8-12.
On April 3, 2017, while its mine permit application with DHEC was pending, and having
satisfied the requirements of the Horry County Mine Zoning Ordinance, RBR filed an application
with Horry County for a mining permit pursuant to the Horry County Mine Permit Ordinance. The
Horry County Mine Permit Ordinance calls for public notice and hearing, after which the request
for a mining permit is approved or denied by resolution. Id. § 62. The decision to approve or deny
a request is purportedly based on (1) the adequacy of the transportation network, and (2)
compatibility with the surrounding community. Id. § 63. Horry County Council voted to deny
RBR’s mining permit application first on October 17, 2017, and again on March 20, 2018.
Post-Litigation Amendments to the Horry County Mine Permit Ordinance and the
Horry County Mine Zoning Ordinance
On June 5, 2018, following its second denial of Plaintiffs’ permit application, Horry
County Council passed Horry County Ordinance 38-18, amending both ordinances at issue in this
case. The ordinances now require compliance with the Horry County Mine Permit Ordinance
before a landowner may qualify for mining as a conditional use under the Horry County Mine
Zoning Ordinance. As stated above, at the time Plaintiffs were allegedly aggrieved, the Horry
County Mine Zoning Ordinance stated in relevant part that “[a]ll other mining activity shall be
allowed only as a conditional use in the AG1, AG2, FA and CFA zoning districts subject to the
following conditions . . . .” Horry County Code of Ordinance, app’x B, art V, § 532(4). Obtaining
a mining permit from Horry County Council was not one of the conditions listed. See Horry County
Ordinance 38-18. The amendment on June 5, 2018, however, added Subparagraph 532(4)(h) to the
Horry County Mine Zoning Ordinance. Now, the Horry County Mine Zoning Ordinance states, as
a condition placed on conditional use, that “[m]ines are required to obtain a Mining Permit from
Horry County Council.” Id.
This cross-reference is relevant to the Court’s determination where (1) the Mining Act only
saves “zoning ordinances and regulations” from preemption, S.C. Code Ann. § 48-20-250
(emphasis added), and (2) all conditions and restrictions placed on conditional uses of property
must be set forth “in the text of the zoning ordinance.” S.C. Code Ann. § 6-29-720(C)(6).
After a thorough review of the record, the Court finds that DHEC possesses exclusive
authority over mine permitting, and the Mining Act preempts the Horry County Mine Permit
Ordinance, both before and after the ordinance was amended.3 The Horry County Mine Permit
Ordinance (1) conflicts with DHEC’s exclusive authority in this area, and (2) purports to give
The parties disagree regarding the propriety of a declaratory judgment regarding the ordinances as they
existed when RBR’s mine permit applications were denied, where both ordinances have since been
amended. Specifically, Defendants assert that the Court may only render a declaration with respect to the
ordinances as they exist at the time it issues this Order. ECF No. 42 at 6. While the United States
Supreme Court acknowledges that the “repeal, expiration, or significant amendment to challenged
legislation” renders a request for injunctive relief moot, see Fed'n of Advert. Indus. Representatives, Inc.
v. City of Chicago, 326 F.3d 924, 930 (7th Cir. 2003) (citations omitted), the same does not apply to a
request for declaratory judgment, when such relief is a predicate to a claim for damages suffered, and not
merely sought for prospective relief. See id. at 929 (“We recognize that a defendant's change in conduct
cannot render a case moot so long as the plaintiff makes a claim for damages.”); see also Grimm v.
Gloucester Cty. Sch. Bd., No. 4:15-CV-54, 2017 WL 9882602, at *3 (E.D. Va. Dec. 12, 2017) (“[T]he
Court finds that because Plaintiff’s claim for damages rests upon a determination of the constitutionality
of the complained-of action, his claim for retrospective declaratory relief is not moot.”) (citing Powell v.
McCormack, 395 U.S. 486 (1969)).
Horry County Council the right to issue permits separate and apart from its authority to pass nonconflicting zoning ordinances regulating conditional land use. The purpose and effect of the Horry
County Mine Permit Ordinance is an impermissible veto power over DHEC decisions wielded by
Horry County Council. The Court likewise finds that the Horry County Mine Zoning Ordinance is
preempted to the extent that, after its amendment, it incorporates the Horry County Mine Permit
SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure provides that “[t]he court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any material fact and
that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is
“material” if proof of its existence or non-existence would affect disposition of the case under
applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material
fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for
the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court
must construe all inferences and ambiguities against the movant and in favor of the non-moving
party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the
court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Once the movant has made this threshold demonstration, the non-moving party, to survive
the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at
324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to
a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support
of the non-movant’s position is insufficient to withstand the summary judgment motion.
Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are
insufficient to preclude granting the summary judgment motion. Ross v. Commc’ns Satellite
Corp., 759 F.2d 355, 365 (4th Cir. 1985), overruled on other grounds, 490 U.S. 228 (1989). “Only
disputes over facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will
not be counted.” Anderson, 477 U.S. at 248. The issue of preemption is a question of law for the
Court to decide. See Weston v. Kim's Dollar Store, 684 S.E.2d 769, 777 (S.C. Ct. App. 2009),
aff’d, 731 S.E.2d 864 (S.C. 2012).
The powers of local governments in South Carolina are to be liberally construed. Aakjer v.
City of Myrtle Beach, 694 S.E.2d 213, 215 (S.C. 2010) (citing S.C. Const. art. VIII, § 17). A local
ordinance is presumed to be constitutional, and the party challenging an ordinance bears the burden
of proving its invalidity. Id. (citing S. Bell Tel. & Tel. Co. v. City of Spartanburg, 331 S.E.2d 333,
334 (S.C. 1985)). While “[l]ocal governments have wide latitude to enact ordinances regulating
what people can do with their property,” they must, however, “draft their ordinances so that people
can have a clear understanding as to what is permitted and what is not.” Keane/Sherratt P’ship by
Keane v. Hodge, 357 S.E.2d 193, 196 (S.C. Ct. App. 1987). Otherwise, a court “must construe
such ordinances to allow people to use their property so as to realize its highest utility.” Id. In
determining whether an ordinance is valid, a court asks (1) whether the local government had the
power to enact the ordinance, and if so (2) whether the ordinance is consistent with the constitution
and general law of South Carolina. Beachfront Entm't, Inc. v. Town of Sullivan's Island, 666 S.E.2d
912, 913 (2008) (citing Diamonds v. Greenville County, 325 S.C. 154, 480 S.E.2d 718 (1997)).
Plaintiffs do not argue that Horry County lacked the power to enact the Horry County Mine
Permit Ordinance or the Horry County Mine Zoning Ordinance; rather, they contend that (1) both
ordinances are preempted by the Mining Act, and (2) the Horry County Mine Permit Ordinance is
invalid because it is inconsistent with the Planning Enabling Act.
The Horry County Mine Permit Ordinance is Expressly Preempted, Because it
Seeks to Exercise Authority that the Legislature Delegated to DHEC. Further, the
Horry County Mine Permit Ordinance is not Saved by S.C. Code Ann. § 48-20-250
Where it is Not a Zoning Ordinance and is Otherwise in Direct Conflict with the
The Court finds that the Mining Act expressly preempts the Horry County Mine Permit
Ordinance both before and after its amendment on June 5, 2018. First, the Horry County Mine
Permit Ordinance facially seeks to delegate to Horry County Council authority that the General
Assembly expressly delegated exclusively to DHEC. Second, while the Mining Act contains a
savings clause that preserves localities’ power to enforce non-conflicting zoning ordinances, the
Horry County Mine Permit Ordinance cannot reasonably be read to constitute a zoning ordinance,
and even if it could, it would still be in direct conflict with the Mining Act for the same reason it
is expressly preempted.
Because the Mining Act Vests DHEC with Exclusive Authority to Issue
Mining Permits, the Horry County Mine Permit Ordinance is Expressly
Local governments are expressly preempted from issuing mine permits where the Mining
Act exclusively vests DHEC with that authority.
“Express preemption occurs when the General Assembly declares in express terms its
intention to preclude local action in a given area.” Sandlands v. C & D, LLC v. County of Horry,
716 S.E.2d 280, 286 (S.C. 2011) (quoting S.C. State Ports Auth. v. Jasper County, 629 S.E.2d 624,
628 (S.C. 2006)). The Interstate Mining Compact provides in part that “[t]he states are in a position
and have the responsibility to assure that mining shall be conducted in accordance with sound
conservation principles, and with due regard for local conditions.” S.C. Code Ann. §48-21-10
(emphasis added). Consistent with this recognition, the Mining Act declares DHEC “responsible
for administering the provisions of this chapter. This includes the process and issuance of mining
permits . . . .” S.C. Code Ann. § 48-20-30 (emphasis added). The legislature further granted DHEC
“ultimate authority . . . over all mining . . . and the provisions of this chapter regulating and
controlling such activity,” subject only to the appeal provisions of the Mining Act. Id. § 48-20-30.
Defendants urge the Court to uphold the ordinance under the reasoning in Sandlands, but
the case strongly suggests that the Supreme Court of South Carolina would find the Horry County
Mine Permit Ordinance expressly preempted. In Sandlands, the South Carolina Supreme Court
held that the Solid Waste Policy and Management Act, S.C. Code Ann. §§ 44-96-10 to -235, did
not preempt a local ordinance. Sandlands, 716 S.E.2d at 291. The state statute at issue, among
other things, granted DHEC the authority to issue permits to construct solid waste management
facilities. Id. at 286 (citing S.C. Code Ann. § 44-96-290(E) (“No permit to construct a new solid
waste management facility . . . may be issued until a demonstration of need is approved by the
department.”)). The challenged county ordinance established such a facility, which was permitted
by DHEC, and required that all solid waste be deposited at the county’s facility, or a facility
designated by the county. Id. at 284. In holding that the county permissibly regulated the flow of
solid waste within the county, the South Carolina Supreme Court stated that the county would have
been expressly prohibited from issuing permits. Id. at 286. The court found there was “no doubt
the express language” of S.C. Code Ann. § 44-96-290(E) “provides for DHEC’s exclusive
authority in the area of permitting.” Sandlands, 716 S.E.2d at 286 (emphasis in original).
The Mining Act contains language substantially similar to the state statute discussed in
Sandlands. Specifically, S.C. Code Ann. § 48-20-60 provides that “[n]o operating permit may be
issued except in accordance with the procedures set forth in Section 48-20-70. No operating permit
may be modified except in accordance with the procedures set forth in Section 48-20-80 or 48-20150.” The statement in Sandlands regarding the effect of S.C. Code Ann. § 44-96-280(E) and the
intent of the legislature embodied by that statute leads the Court to conclude that the Mining Act
expressly preempts the Horry County Mine Permit Ordinance.
The court in Sandlands distinguished the permissible activity of regulating flow from the
impermissible activity of permitting, and unlike the defendant in Sandlands, Defendants’
challenged activity here is permitting. The Court therefore finds the Horry County Mine Permit
Ordinance expressly preempted by the Mining Act.
Horry County has Exercised its Authority to Regulate Land use Within the
Bounds of State Law, but the Horry County Mine Permit Ordinance Exceeds
the Mining Act’s Savings Clause.
S.C. Code Ann. § 48-20-250 carves out an exception to the preemptive effect of the Mining
Act for (1) zoning ordinances that are (2) not in direct conflict with the Mining Act. Id. The Court
finds that Horry County properly exercised the authority reserved to it when it adopted the Horry
County Mine Zoning Ordinance within Horry County’s authority delegated by the Planning
Enabling Act. The Horry County Mine Permit Ordinance, however, exceeds the scope of the
Mining Act’s savings clause. The General Assembly could not have intended to delegate to
localities the authority to invalidate the purpose and effect of a state issued permit simply where
the county calls its law a zoning ordinance.
Local governments have made similar attempts to frame ordinances to fall within a state
statute’s savings clause and failed. In EQT Prod. Co. v. Wender, 870 F.3d 322 (4th Cir. 2017), the
Fourth Circuit held that a county ordinance purporting to regulate wastewater disposal was
preempted by the state’s complex regulatory scheme governing wastewater injection wells. Id. at
332. In Wender, a county in West Virginia enacted an ordinance banning the permanent disposal
of wastewater. Id. The plaintiff, an operator of natural gas extraction wells, held a permit from a
state agency to engage in precisely the activity that the county ordinance prohibited. Id. The
statutory scheme under which the plaintiff’s permit was issued contained the following savings
clause: “[N]othing herein contained shall abridge or alter rights of action or remedies . . . nor shall
any provisions . . . be construed as estopping . . . municipalities . . . in the exercise of their rights
to suppress nuisances or to abate any pollution.” Id. at 333 (quoting W. Va. Code § 22-11-27). The
county attempted to justify its ordinance as a permissible suppression of nuisances and pollution,
which it had a preexisting right to regulate. Id. The Fourth Circuit rejected the county’s broad
reading of the savings clause and reasoned that , “absent express language clearly vesting in
localities what may be termed the veto power against the issuance of particular licenses,” it would
not infer a right to “nullify” state permits from a “general grant of authority to a locality, and not
even from a grant of power covering licensing itself.” Id. at 334 (quoting Brackman’s Inc. v. City
of Huntington, 27 S.E.2d 71, 78 (W.Va. 1943)) (internal quotations and alterations omitted). The
court gave the savings clause “its more logical reading–not as a self-defeating instrument for
nullification of state permits,” but as a clarification that “possession of a state permit will not
preclude all local regulation touching on the licensed activity.” Id. at 334-35 (citations omitted).
South Carolina courts, like those in West Virginia, do not allow localities to exercise a
“veto power” over determinations made by state agencies pursuant to statutorily delegated duties.
See Southeast Resource Recovery, Inc. v. S.C. Dep't of Health & Envtl. Control, 595 S.E.2d 468,
471 (2004) (holding that county had “no veto authority over decisions made by DHEC.”). The
General Assembly therefore could not have intended, by enacting S.C. Code Ann. § 48-20-250, to
authorize localities to implement independent permitting schemes, capable of nullifying the
“right[s]” granted by state permits, see ECF No. 41-5 at 5 (“[T]his permit grants the operator the
right to conduct active mining operations within the specified affected land . . . .”), justified only
by such schemes’ conclusory characterization as a zoning ordinance. See EQT Prod. Co. v.
Wender, 191 F. Supp. 3d 583, 602 (noting that the savings clause at issue could not be read to
allow a county to “unilaterally prohibit conduct that federal and state law both expressly permit.”).
The General Assembly set out the manner in which localities could regulate land use.
Specifically, the legislature delegated the power to enact zoning ordinances, see S.C. Code Ann. §
6-29-720, as distinct from ordinances enacted pursuant to local governments’ broad police power.
See S.C. Code Ann. § 4-9-25.4 Horry County understood its zoning power and, in fact, enacted
zoning ordinances to regulate which land could be used for mining. The legislature did not intend
to reserve for local county councils a veto power over permits authorized by DHEC. Here, Horry
County Council sought to issue mine permits and to enable itself to deny landowners the ability to
engage in activity that they otherwise had a right to engage in under state law and the provisions
of the Horry County zoning ordinance.
The Court notes that Horry County properly exercised its authority to regulate mining
through its zoning ordinance. To qualify for conditional use of land as a mine, a landowner must
adhere to numerous requirements set forth in the Horry County Mine Zoning Ordinance. These
This Section, titled “Powers of counties,” provides in part as follows:
All counties of the State, in addition to the powers conferred to their specific form of
government, have authority to enact regulations, resolutions, and ordinances, not
inconsistent with the Constitution and general law of this State, including the exercise of
these powers in relation to health and order in counties or respecting any subject as appears
to them necessary and proper for the security, general welfare, and convenience of counties
or for preserving health, peace, order, and good government in them.
requirements appear to be designed to ensure that mines create no more impact to the surrounding
community than reasonably necessary. See Horry County Code of Ordinance, app’x B, art. V, §
532(4)(a)-(b) (road maintenance and dust control); § 532(4)(c) (requiring natural vegetation
screens and buffers along property lines); § 532(4)(d) (requiring submission and approval of traffic
routing plan that details impacts to surrounding residences to the greatest extent reasonably
possible); § 532(4)(e) (limiting hours of operation). These regulations appear to the Court to be
precisely the kind that the General Assembly intended to save from preemption through the
language in S.C. Code Ann. § 48-20-250.
Plaintiffs submit, and Defendants do not contest, that the proposed mine on the Property
satisfied the conditional use preconditions set forth in the Horry County Mine Zoning Ordinance.
Plaintiff submitted traffic and stormwater plans to the appropriate departments in Horry County,
and those departments concluded that Plaintiffs’ plans were satisfactory. ECF No. 40-1 at 17.
Horry County’s Infrastructure and Regulation Committee recommended that a Horry County mine
permit be issued in accordance with the terms and conditions established for the mine by DHEC.
In contrast to the detailed requirements set forth in the Horry County Mine Zoning
Ordinance, the Horry County Mine Permit Ordinance states that Horry County Council shall
“consider the adequacy of the transportation network and the compatibility with the surrounding
community in determining whether the request [for a mine permit] should be approved or
disapproved.” Id., ch. 13, art. VI, § 63. These considerations are wholly accounted for by the
conditions already enumerated in the Horry County Mine Zoning Ordinance, and in fact the county
properly considered the compatibility of mining with the surrounding community when the land
was rezoned under the procedure set forth in the county’s zoning ordinance. ECF No. 41-4. Simply
arguing that the Horry County Mine Permit Ordinance is a permissible non-conflicting zoning
ordinance because the criteria to be considered echo permissible purposes of zoning ordinances
does nothing to cure its defects. Whereas the Horry County Mine Zoning Ordinance is a zoning
ordinance that defines where and how a landowner may engage in mining as a conditional use, the
Horry County Mine Permit Ordinance directly regulates only the activity of mining under
Defendants’ police power.
The Wisconsin case of Zwiefelhofer v. Town of Cooks Valley, 809 N.W.2d 362 (Wis. 2012)
emphasized the distinction between police power and zoning authority and held that a mine permit
ordinance very similar to Defendants’ was not a zoning ordinance. “Although zoning ordinances
are enacted under a municipality's police power, all ordinances enacted under the police power are
not zoning ordinances.” Id. at 365. The plaintiffs in Zwiefelhofer sought a declaration that a town’s
nonmetallic mining ordinance was invalid, where the ordinance did not have the county board’s
approval as required by statute. Id. at 369. The ordinance at issue purported to regulate, among
other things, the location of nonmetallic mines to further appropriate use and conservation of land.
Id. at 367. In furtherance of these stated goals, the ordinance required a permit for the operation of
a nonmetallic mine. Id. In deciding whether to issue a permit, the town’s planning commission
reviewed applications, and distributed the same to adjoining landowners. The planning
commission then made a recommendation to the town board, who considered the recommendation
at a public hearing. Id. Conditions could be imposed on a permit, including those for hours of
operation and traffic volume near the proposed mine. Id. The Supreme Court of Wisconsin, in a
thoroughly reasoned analysis, held that the nonmetallic mining ordinance was an exercise of the
town’s police power, not its zoning power. Id. at 379. In support of its conclusion, the court found
that (1) unlike traditional zoning ordinances, the ordinance did not apply to particular districts but
applied universally to all land; (2) the ordinance did not permit or prohibit anything as of right, but
merely created the potentiality of permitting or conditional permitting; (3) the ordinance did not
directly control the location of mines, rather, it licensed mining based on the nature of the activity;5
(4) unlike traditional zoning ordinances that “endeavor to address and organize comprehensively
all potential land uses” to separate “incompatible uses,” the ordinance applied only to mining; (5)
the ordinance operated exclusively on a case-by-case basis; and (6) the ordinance “grandfathered”
preexisting mines. Id. at 374-77. Considering the foregoing, the Court concluded that although the
ordinance’s “purpose overlaps with the purposes of zoning,” it was an exercise of police power,
not zoning power.
All but the last factor considered by the court in Zwiefelhofer apply with equal force to the
Horry County Mine Permit Ordinanceand lead the Court to conclude that the Horry County Mine
Permit Ordinance is an exercise of general police power pursuant to S.C. Code Ann. § 4-9-25, not
the zoning power delegated by the Planning Enabling Act. The same is not true of the Horry
County Mine Zoning Ordinance, which independently and properly regulates land use within the
structure of the Planning Enabling Act. Only the former ordinance, therefore, is subject to the
savings clause in S.C. Code Ann. § 48-20-250.
The Horry County Code Demonstrates that the Horry County Mine Permit
Ordinance is not a Zoning Ordinance.
“While zoning regulates use based on location, licensing regulates the type of activity conducted
wherever it might be located.” Zwiefelhofer, 908 N.W.2d at 374 n.40 (quoting 1 E.C. Yokley, Zoning Law
and Practice § 2-1 (4th ed. 1978).
The Zwiefelhofer court placed emphasis on use of the word “comprehensive” as used in the Wisconsin
zoning statute. See Wis. Stat. § 62.23(7)(c) (“[Zoning] regulations shall be made in accordance with a
comprehensive plan . . . .”) (emphasis added). The South Carolina zoning statutes are in accord: “[A]
municipality or county may adopt a zoning ordinance to help implement the comprehensive plan.” S.C.
Code Ann. § 6-29-720(A) (emphasis added). “The word ‘comprehensive’ as used in the zoning statute
and the literature does not ordinarily refer to an ordinance that thoroughly . . . regulates a single activity.
The phrase ordinarily refers to an ordinance that addresses what classes of activities might be pursued in
geographical areas.” Zwiefelhofer, 809 N.W.2d at 375.
Defendants argue that the Horry County Mine Permit Ordinance can qualify under S.C.
Code Ann. § 48-20-250 as a zoning ordinance because, although the permit requirement is not
literally in the county’s zoning ordinance, the criteria considered by Horry County Council in
granting or denying a permit application, i.e., the “adequacy of the transportation network” and
“compatibility with the surrounding community,” Horry County Code of Ordinance, ch. 13, art.
VI, § 63, amount to proper zoning considerations. See S.C. Code Ann. § 6-29-710 (enumerating
permissible purposes for zoning ordinances). This interpretation is unpersuasive, where
Defendants seek to characterize the Horry County Mine Permit Ordinance a zoning ordinance for
the purpose of preemption alone. Virtually all other characteristics of the Horry County Mine
Permit Ordinance constitute convincing evidence that it cannot meet the preemption exception of
S.C. Code Ann. § 48-20-250. The county appears not to have intended the Horry County Mine
Permit Ordinance to be a zoning ordinance.
Defendants’ counsel asserts that the Horry County Mine Permit Ordinance allows the
Horry County Council to have the final word on whether or not a landowner may operate a mine
as a conditional use and states that the ordinance is appropriate where mining carries with it
substantial impact to the surrounding community. This argument fails where Horry County’s own
zoning ordinance places this determination with the Zoning Administrator by requiring certificates
of zoning compliance. Horry County Code of Ordinance, app’x B, art. XIII, § 1304, provides that
“[c]onditional uses . . . are declared to possess characteristics which require certain controls in
order to insure compatibility with other uses in the district within which they are proposed for
location.” In light of this declaration, conditional uses in Horry County “shall be permitted” when
the Zoning Administrator, not Horry County Council, certifies that a proposed conditional use
“conform[s] to all regulations set forth” in the Horry County zoning ordinance. Id. §§ 1303(A),
1304(A). In addition, Horry County Code of Ordinance, app’x B, art. IV, § 402 vests the Zoning
Administrator, not the Council, with the responsibility of issuing all “permits” required by the
Horry County zoning ordinance. Horry County Council’s issuance of a permit is therefore
indicative that such permit is not required by the zoning ordinance.
The Location of the Horry County Mine Permit Ordinance within the Horry
County Code of Ordinance Tends to Prove that it is Not a Zoning Ordinance.
The Horry County Mine Permit Ordinance, prior to its amendment, was not even
referenced in the “Zoning Ordinance of Horry County, South Carolina” as the county itself defines
that term. See Horry County Code of Ordinance, app’x B, art. II; see also Town of Hilton Head
Island v. Fine Liquors, Ltd., 397 S.E.2d 662, 663 (S.C. 1990) (finding that an ordinance was
“clearly a land use ordinance” where it was actually located in the locality’s self-designated “Land
Management Ordinance”). The Horry County Mine Permit Ordinance and the Horry County Mine
Zoning Ordinance both became law on the same day; the fact that one is found within the zoning
ordinance and one is not is probative on the question of which intended to be a zoning ordinance.
Defendants argue that the entirety of the Horry County Code should be read together and
that the organization of the code is essentially irrelevant. In support of this proposition, Defendants
cite Horry County Code of Ordinance, ch. 1, § 3, which states that “[t]he catchlines of the several
sections . . . are intended as mere catchwords to indicate the contents of the section and shall not
be deemed or taken to be titles of such sections . . . .” The Court rejects this argument, where this
provision specifically references “sections,” and not “articles,” “chapters,” or “appendices,” and
the county otherwise explicitly deemed Appendix B to be known as “The Zoning Ordinance of
Horry County, South Carolina.” Id. app’x B, art. II. Further, accepting Defendants’ position would
render the General Assembly’s intent–that conditions placed on conditional uses must appear in
“the text of the zoning ordinance”–a nullity. See S.C. Code Ann. § 6-29-720(C)(6).
The Horry County Mine Permit Ordinance, prior to the June 5, 2018 amendments, see
Horry County Ordinance 38-18, existed only in Chapter 13, entitled “Offenses and Miscellaneous
Provisions.” See Horry County Code of Ordinance, ch. 13, art. VI, §§ 60-66. It cannot properly be
considered a zoning ordinance simply because it may further similar purposes to those furthered
by zoning ordinances.
The Appeal Provisions of the Horry County Mine Permit Ordinance Indicate
that it is Not a Zoning Ordinance.
The applicable appeals procedure for the Horry County Mine Permit Ordinance also
indicates that Defendants did not intend for the Horry County Mine Permit Ordinance to be
considered a zoning ordinance. Under the Horry County Mine Permit Ordinance, appeals of
adverse permitting decisions must be taken, if at all, to the circuit court within thirty (30) days of
Horry County Council’s decision to grant or deny a permit application. Horry County Code of
Ordinance ch. 13, art. VI, § 65. If the Horry County Mine Permit Ordinance were a zoning
ordinance, the Zoning Administrator would make conditional use determinations in the first
instance, id. app’x B, art. XIII, §§ 1303, 1304, and appeals would be required to be taken to the
Board of Zoning Appeals established by Horry County, see id. app’x B, art. XIV, § 1400, 1404,
for the purpose of “enforc[ing] the zoning ordinance.” S.C. Code Ann. § 6-29-780; see also Horry
County Code of Ordinance, app’x B, art. XIII, § 1309 (setting forth “the intention of this ordinance
that all questions arising in connection with the enforcement of this ordinance shall be presented
first to the Zoning Administrator and that such questions shall be presented to the Board of Zoning
Appeals only on appeal from the decision of the Zoning Administrator . . . .”).
If the Horry County Mine Permit Ordinance were a Zoning Ordinance, it
Would be Subject to the Planning Enabling Act.
Finally, the record contains additional evidence that the Horry County Mine Permit
Ordinance is not a zoning ordinance. ECF Nos. 44-1, 44-2. On November 2, 2017, after Horry
County Council denied RBR’s mine permit application for the first time, Plaintiff’s counsel
requested a reconsideration of the resolution, or in the alternative, that the county agree to
participate in pre-litigation mediation pursuant to the Planning Enabling Act. See S.C. Code Ann.
§ 6-29-825; ECF No. 44-1. Arrigo Carotti, County Attorney for Horry County, represented to
Plaintiffs’ counsel “the County’s position” that the Planning Enabling Act did not apply to the
Horry County Mine Permit Ordinance. See ECF No. 44-2. Such a position is irreconcilable with
the Horry County Mine Permit Ordinance being a zoning ordinance.
Amending the Horry County Mine Zoning Ordinance to Cross-Reference the
Horry County Mine Permit Ordinance Does Not Save the Latter from
On June 5, 2018, after this litigation commenced, the Horry County Mine Zoning
Ordinance was amended to include, as a precondition to use of land as a mine, the requirement
that a landowner obtain a mine permit in accordance with the Horry County Mine Permit
Ordinance. See Horry County Ordinance 38-18. The Horry County Mine Permit Ordinance is,
however, still in direct conflict with DHEC’s exclusive authority to issue mining permits under
the reasoning in Sandlands. In addition, and in light of all foregoing indicia that the Horry County
Mine Permit Ordinance is not a zoning ordinance, simply cross-referencing the mine permit
requirement in the Horry County Mine Zoning Ordinance does not thereby make the Horry County
Mine Permit Ordinance a zoning ordinance. The Horry County Mine Permit Ordinance still creates
a completely redundant procedure whereby Horry County Council is able to make a determination
on the propriety of mining that has already been properly made in the context of, and through the
procedure set forth in, state law and the Horry County zoning ordinance.
The case of Southeast Resource Recovery, Inc. v. S.C. Dep't of Health & Envtl. Control,
595 S.E.2d 468, 470 (S.C. 2004) instructs that local governments do not have the veto power that
the Horry County Mine Permit Ordinance gives Horry County Council. In that case, the plaintiff
sought to obtain a permit from DHEC to construct a landfill. Id. at 469. Issuance of the permit was
contingent on, among other things, a determination that the proposed landfill complied with all
local zoning ordinances. Id. (citing S.C. Code Ann. § 44-96-290(F)). DHEC maintained a practice
of delegating determinations of zoning compliance to the counties. Id. at 471. Newberry County
initially determined that the plaintiff’s proposed landfill was compliant with its zoning laws, and
DHEC, after concluding that all other requirements were met, issued the plaintiff a permit to
construct the landfill. Id. at 470. Citizens challenged the issuance of the permit, after which
Newberry County revoked its determination of compliance with local zoning ordinances. Id. The
ALJ concluded that the revocation precluded the plaintiff from receiving the permit, and the circuit
court agreed. Id. In reversing the circuit court, the Supreme Court of South Carolina held that
where DHEC is charged with determining whether a proposed landfill is consistent with zoning
laws, the county lacks “veto authority” over decisions made by DHEC. Id. at 471.
The Horry County Mine Permit Ordinance enables Horry County Council to unilaterally
prevent a landowner from engaging in activity that the state has explicitly authorized and does so
outside the county’s self-designated zoning scheme. Horry County Council therefore possesses a
functional veto power over DHEC’s decision to permit a mine.
Although the county is not prohibited from imposing additional regulations that
supplement those enacted by the state, see, e.g., Denene, Inc. v. City of Charleston, 574 S.E.2d
196, 199 (S.C. 2002), it may not do so through means which are expressly preempted, see S.C.
Code Ann. § 48-20-30, and not explicitly saved from preemption. Id. § 48-20-250. Accordingly,
the Court finds the Horry County Mine Permit Ordinance expressly preempted by the Mining Act,
both before and after its amendment on June 5, 2018.
The Horry County Mine Permit Ordinance was Invalid at the Time Plaintiffs were
Allegedly Aggrieved, Because it Placed Conditions on the Use of Land as a Mine
Outside the Text of the Zoning Ordinance.
Prior to the June 5, 2018 amendments to the Horry County Mine Zoning Ordinance,
Defendants exceeded their statutory authority to regulate land use, granted by the South Carolina
Local Government Comprehensive Planning Enabling Act of 1994, S.C. Code Ann. §§ 6-29-310
to -1640 (“Planning Enabling Act”), by imposing conditions on the use of land as a mine in the
Horry County Mine Permit Ordinance, which were outside of the text of the Horry County zoning
ordinance. S.C. Code Ann. § 6-29-720(C)(6). Accordingly, the Horry County Mine Permit
Ordinance was inconsistent with the laws enacted by the state, and was invalid at the time Plaintiffs
were allegedly aggrieved.
The Planning Enabling Act delimits the authority of local governments to regulate land
use for the “general purposes of guiding development in accordance with existing and future needs
and promoting the public health, safety, morals, convenience, order, appearance, prosperity, and
general welfare.” S.C. Code Ann. § 6-29-710. It further provides techniques for achieving these
goals, one of which involves “conditional use” provisions that “impose conditions, restrictions, or
limitations” on a permitted use above and beyond those applicable to all land in the zoning district.
Id. § 6-29-720(C)(6). When this technique is utilized, “[t]he conditions, restrictions, or limitations
must be set forth in the text of the zoning ordinance.” Id. (emphasis added). Applying the plain and
ordinary meaning of § 6-29-720(C)(6), the General Assembly clearly intended that, where a local
government decides to utilize conditional use methodology for regulating land use, all conditions
precedent to such use must appear in the text of the “zoning ordinance,” as opposed to some other
ordinance. Horry County Council determined that Appendix B of the Horry County Code “shall
be known and may be cited as ‘The Zoning Ordinance of Horry County, South Carolina.’” Horry
County Code of Ordinance, app’x B, art. II. Defendants comply with the mandate of the Planning
Enabling Act in other respects. For example, the Horry County Mine Zoning Ordinance is found
within Article V of Appendix B. The provisions of the Horry County Mine Zoning Ordinance state
that “mining activity shall be allowed only as a conditional use . . . subject to the following
conditions . . . .” Horry County Code of Ordinance, app’x B, art. V, § 532(4) (emphasis added).
Prior to the amendments on June 5, 2018, compliance with the Horry County Mine Permit
Ordinance was not listed as one of these conditions. The Horry County Mine Permit Ordinance
was not referenced in, nor were its conditions, limitations, and restrictions set forth in, Horry
County’s zoning ordinance. The pre-amendment Horry County Mine Permit Ordinance was
therefore inconsistent with S.C. Code Ann. § 6-29-720(C)(6).
The addition of subsection 532(4)(h) to the Horry County Mine Zoning Ordinance, see
Horry County Ordinance 38-18, cured the Horry County Mine Permit Ordinance’s deficiency
under the Planning Enabling Act. The reference to the conditions and restrictions of the Horry
County Mine Permit Ordinance now exists and is set forth within the text of the Horry County
Mine Zoning Ordinance, which is within the Horry County zoning ordinance. The requirement of
S.C. Code Ann. § 6-29-720(C)(6) is therefore satisfied.
The Horry County Mine Zoning Ordinance is Preempted to the Extent that it
Requires Landowners to Obtain a Mine Permit from Horry County Council.7
The amended version of the Horry County Mine Zoning Ordinance contains the condition
that a landowner must obtain a mine permit from Horry County Council before the zoning
Plaintiffs’ counsel clarified during the hearing on this matter that Plaintiffs only seek a declaration that
the Horry County Mine Zoning Ordinance is preempted to the extent that it incorporates the requirements
of the Horry County Mine Permit Ordinance.
administrator may issue a certificate of zoning compliance. Horry County Code of Ordinance,
app’x B, art. V, § 532(4)(h) and art. XIII, § 1303 (zoning administrator to issue certificate of zoning
compliance). In other words, the amended Horry County Mine Zoning Ordinance requires
landowners–by simple cross-reference–to submit to Horry County Council’s non-zoning veto
power over DHEC’s decision to permit mining operations on specified land. Having already
concluded that the Horry County Mine Permit Ordinance is expressly preempted by the Mining
Act, the Horry County Mine Zoning Ordinance is inexorably preempted to the extent that it
requires compliance with the Horry County Mine Permit Ordinance. The cross-reference appears
to be little more than an attempt to characterize the permit requirement as a zoning ordinance, an
attempt which necessarily fails considering all foregoing indicia to the contrary.
For the foregoing reasons, the Court GRANTS Plaintiffs’ Motion for Partial Summary
Judgment, ECF No. 40, in part, and DECLARES that Horry County Code of Ordinance, ch. 13,
art. VI, §§ 60-66 is preempted by the Mining Act, S.C. Code Ann. §§ 48-20-10 to -310, both before
and after the ordinance was amended on June 5, 2018, by Horry County Ordinance 38-18. The
Court further DECLARES that Horry County Code of Ordinance, app’x B, art. V, § 532(4)(h) is
likewise preempted by the Mining Act. Plaintiffs’ motion is denied in all other respects.
Defendants’ Motion for Partial Summary Judgment, ECF No. 39, is GRANTED in part, as the
remainder of Horry County Code of Ordinance, app’x B, art. V, § 532 that is not preempted as set
forth herein is a proper exercise of Defendants’ zoning authority.
IT IS SO ORDERED.
/s/Sherri A. Lydon
Sherri A. Lydon
United States District Judge
April 15, 2020
Florence, South Carolina
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