Agenda - Planning Commission - 01/06/1998

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Page 4 -- December 10, 1997 Z.B. (enacted in 1987) allowed nonconforming uses to continue despite their status provided they did not expand or change to another nonconforming use. In 1989, the county adopted an ordinance that established adult entertainment zoning regulations. The ordinance prohibited the location of adult entertainment establishments within 500 feet of a residential district. It gave nonconforming businesses six years to relocate, should they decide to continue as adult uses. In 1990, the county amended the 1987 zoning ordinance. The amendment allowed nonconforming uses to expand, as long as the expansion met the setback requirements of its district. The amendment did not mention the adult entertainment regulations. Thee Dollhouse was 300 feet from a residential district, so it didn't comply with the adult entertainment regulations. The closest residential property was a golf course, which was separated from Thee Dollhouse by a waterway. The closest residence was 1,600 feet away. The county zoning administrator notified Thee Dollhouse it would have to relocate or change from an adult use by January 1995. Thee Dollhouse challenged the order. It claimed the 1990 amendment effectively grandfathered nonconforming uses because the county enacted it after it enacted the adult entertainment regulations. The amendment restated the earlier provision that allowed nonconforming uses to continue. Thee Dollhouse also requested a variance. It said the only residential property that made it nonconforming was a golf course separated by a waterway. The county Board of Adjustments and Zoning Appeals denied the variance request, finding Thee Dollhouse failed to prove the regulations caused it unnecessary hardship. Thee Dollhouse appealed the decision to a court. The court found the 1990 amendment was not intended to grandfather all nonconforming uses. It also found, however, the board's denial of a variance was arbitrary, considering the lack of any actual residence within 500 feet of Thee Dollhouse. Thee Dollhouse and the county both appealed the court's decision. DECISION: Reversed in part, in the county's rayon The lower court correctly found the 1990 amendment didn't grandfather all nonconforming uses. Thee Dollhouse was not entitled to a variance, because the board's decision to deny one wasn't arbitrary. The 1990 amendment wasn't intended to repeal the regulations that gave adult uses six years to relocate. The amendment simply clarified under what circumstances nonconforming uses could expand. That it was enacted after the adult entertainment regulations didn't mean it repealed all the regulations' provisions for nonconforming uses. Thee Dollhouse wasn't entitled to a variance, because it failed to present any evidence the regulations caused it unnecessary hardship-- an element essential to the granting of any variance. Thee Dollhouse had to show at the least that it would suffer financial loss if forced to clothe its dancers. That the establishment was located far from any actual residence wasn't enough to meet the variance criteria.