Agenda - Planning Commission - 10/05/1999

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Z.B. September 10, 1999 -- Page 5 topless entertainment. At trial, it was undisputed the previous occupants had vio- lated the 10 p.m. restriction, but the village denied that it knew of the violations. One of the owners argued their previous restaurant had advertised live music with start times before 10 p.m. and said he had actually seen certain village officials in the restaurant while live bands were performing before 10 p.m. The judge found the owner's testimony vague and said the owners didn't prove the village knew about the violations at the owners' previous restaurant or any of the previous occupants' businesses. Despite this, the court con- cluded the village had selectively enforced the restriction against the club. The court said the owners didn't have to prove the village knew about the other violations because it was clear the village intentionally used a dormant restriction to punish the owners for their constitutionally protected right to offer topless entertainment. The court noted the village had acted with dis- criminatory intent when the mayor spoke out against topless dancing. The village appealed. DECISION: Reversed. The owners didn't prove the village selectively enforced the zoning restriction. The owners didn't prove the village intentionally treated the Diamond Club differently than it did similar establishments. Although there was no doubt the previous occupants violated the zoning restriction, and the village never en- forced the restriction against them, the owners didn't show the village knew about the violations. Without such proof, there was no way the owners could show the village singled out the Diamond Club. Even if the village's conduct and the mayor's public statements showed the village opposed the owners' constitutionally protected expression, the owners couldn't establish an equal protection violation unless they showed the village knew of the other viola- tions but declined to prosecute them. Citation: LaTrieste Restaurant v. .Village of Port Chester, 2nd U.S. Circuit Court of Appeals, Nos. 98-7233(L) & 98-9073(XAP) (1999). The 2nd Circuit has jurisdiction over Delaware, New York, and Vermont. see also: United States v. Fares, 978 F. 2d 52 (1992). Solid Waste -- City says dumping of grass clippings amounts to illegal landfill MISSOURI (8/3/99) -- Teefey owned 36 acres of property in an agricul- tural district in Kansas City. He had a house on the property, but also ran a landscaping and nursery business there. The business grew trees and plants for sale and provided landscaping and lawncare services. The city inspected Teefey's property after a neighbor complained Teefey's dumping on the property created noise, pollution, and odors. The codes ad- ministration department cited Teefey for violating the zoning ordinance after the inspection revealed he was dumping grass clippings and twigs for compost