January 28, 2023

The Nerve

Where Government Gets Exposed

Small business owner wins zoning battle, but legal issues still loom

thenerve.org

By RICK BRUNDRETT

Jeremy Sark says he’s no longer worried about Mauldin officials closing his longtime U-Haul dealership, though the Upstate city hasn’t abandoned a controversial zoning practice at the center of his case.

The Mauldin City Council without comment during a meeting last month reversed a zoning change that would have forced Sark to move his North Main Street dealership by Dec. 31 after nine years in operation.  The decision came after Sark in September sued the Greenville County city of about 26,000, City Council, Mayor Terry Merritt and David Dyrhaug, the city’s business and development services director.

The Nerve in October examined Sark’s case in-depth.

A key legal issue in the case involved a little-known zoning practice known as “amortization,” which Sark’s lawsuit contended was used by the city to try to circumvent the state constitution’s ban on the taking of private property for private use. S.C. voters in 2006 overwhelmingly approved strengthening the state constitution to better protect private property owners from government land grabs.

Under “amortization” – which a longstanding state law allows – the process often involves rezoning an area where a targeted business is located – making that business a “nonconforming use” – and requiring it to close after a certain period without paying anything to the property owner.

The city of Mauldin a year ago amended its zoning ordinance to ban the rental or sale of “moving trucks, trailers, intermodal containers and temporary portable storage units” in virtually all zoned areas of the city. Sark in his lawsuit contended the city changed the zoning to attract a private developer as part of its plan, known as the “City Center” project, to turn the city’s center into a “walkable downtown area.”

Although Sark could continue to operate his automotive repair shop, called Sarks Automotive, at his current location, where he’s been since 2013, the zoning change would have forced him to move his U-Haul dealership to another part of the city by Dec. 31.

But the City Council at its Dec. 19 meeting changed its collective mind and revised the zoning ordinance to allow Sark to keep his U-Haul business at his North Main Street site – located over a mile from the proposed City Center project – though one of his attorneys says another nearby U-Haul dealership wasn’t exempted.

“It helps me keep going, so that’s good,” Sark told The Nerve when contacted last week. “I don’t think they need to run people off.”

Sark said while’s he not opposed to the City Center project, he doesn’t believe city officials should discriminate against longtime businesses such as his. He contended in his lawsuit that potential investors and developers reportedly told the mayor that the city’s Main Street looked “old,” specifically pointing out an existing U-Haul dealership.

Sark last year told The Nerve he would have to lay off an employee if forced to move his U-Haul dealership. He said he currently has 15 workers at his North Main Street site, along with general manager Marie Dougherty.

Sark and John Abney Jr., who owns the property where Sarks Automotive and the U-Haul dealership are located, were represented for free by the Virginia-based Institute for Justice; and the Columbia-based Nelson, Mullins, Riley & Scarborough firm, which was ranked last year as the state’s largest law firm.

On its website, the Institute for Justice describes itself as a “nonprofit, public interest law firm” with a mission to “end widespread abuses of government power and secure the constitutional rights that allow all Americans to pursue their dreams.”

‘Unconstitutional practice’

In a written response last week to The Nerve, Institute attorney Seth Young, who is one of the plaintiffs’ lawyers, said while Sark was successful in getting the city to reverse course in his case, another U-Haul operator who also has a food store at the same location eventually will have to close the truck rental business, noting the site abuts the City Center project area.

That business owner wasn’t a plaintiff in Sark’s lawsuit. Young contended that Mauldin officials are “continuing on with their unconstitutional practice of amortization.”

“In other words, the City did not have some sudden change of heart and choose to act in keeping with the South Carolina Constitution,” he said.

Asked if he were concerned that the city could try again to force Sark to move his U-Haul business, Young replied, “Because we did not win in court and because they haven’t actually renounced amortization, it’s a possibility they could try this again as it relates to Jeremy.” He added, though, he doesn’t believe any such city action likely would occur “at least in the short-term.”

In the meantime, Sark’s lawsuit will remain on file “until we have the signed amended ordinance in hand,” Young said.

Sark told The Nerve that under the city changes approved last month, he can have only two instead of four U-Haul trucks parked in front of his business, though he doesn’t think that will affect his revenues because “I can still run them 24/7, and after hours I can still rent them and park them in front.”

The Nerve last week sent written questions to city attorney Daniel Hughes, asking, among other things, about the city’s position on amortization, and whether it planned to use the process in the future against other businesses, including Sark’s. Hughes didn’t respond by publication of this story.

In the city’s formal response to Sark’s lawsuit, Hughes wrote that the city’s decisions in the case were “within the sound and lawful discretion of the City officials, were in accord with the criteria provided by State law and the provisions of the pertinent City Ordinances, were supported by the facts and evidence, and were not arbitrary, were not clearly erroneous, and were correct as a matter of law.”

Besides raising the amortization issue, the suit also alleged the city violated Sark’s equal rights and due process protections under the state constitution.

In an interview last year with The Nerve, Institute attorney Bob Belden contended that amortization is “something cities do to avoid their compensation obligation under eminent domain,” adding, “It allows them, in their view, to take property on the cheap.”

“Amortization pulls the rug out on property and business owners,” Belden said in a prepared statement after the City Council’s action last month. “We hope that other South Carolina cities won’t follow Mauldin’s lead by even trying to use amortization to deprive people of safe, reasonable property uses.”

Contacted last week, Scott Slatton, spokesman for the Municipal Association of South Carolina, said his organization was “unaware of any amortization” cases statewide within the last five years.

Brundrett is the news editor of The Nerve (www.thenerve.org). Contact him at 803-394-8273 or rick@thenerve.org. Follow him on Twitter @RickBrundrett. Follow The Nerve on Facebook and Twitter @thenervesc.

Nerve stories are free to reprint and repost with permission by and credit to The Nerve.

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