Agenda - Planning Commission - 10/01/1996

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~ep[emr>er l~VO- rage theater. It said although the theater was not an allowed, use in that zone, it allowed the renovations because the theater was a preexisting nonconforming use. After ithe renovations were done, the tenant who occupied the building be- gan usingithe theater for live concert performances .(mostly .rock and rol!). Bands would bring their.own lighting and sound equipment. Noise levels were higher during coricerts than during movies. Eventually, after about 60 concerts were held, the buildings department received complaints of the noise. It notified Conforti that using the theater for anything other than movie showings violated the ordinance. Conforti appealed to the city's Zoning Board Of Adjustment, which denied his appeal and then his request for a rehearing. Conforti (eventually joined by the tenants) asked a court to review the board's decision. The court upheld the decision, finding that using the theater for con- certs was .an expansion of a nonconforming use, which the ordinance did not allow. Conforti appealed. He argued that the B~i zone did alloW both movies and concerts. He said nothing in the ordinance referred specifically to either mov- ies or concerts in theater settings, and that both movies and concerts should be considered included within one of the B-1 zone's permitted uses: adult recre- ation centers or recreational facilities. According to .Conforti, the city had ail along beer~ interpreting the ordinance to include movies and concerts in the B-1 zone,'so it could not now change its mind. The deputy building commissioner' said the city did not allow movie the- aters or live entertainment in the B-1 district. Although movies and concerts .could fall.under one of B-l's allowed-use categories,, they typically were al- lowed in only higher-density commercial zones. He pointed to a section of the zoning or~linance that was interpreted to cover movie theaters: It authorized "amusement halls, arcades, and dance halls" in two higher density zones (that were not B-l). As further evidence of its interpretation, the city pointed out that when it granted the 1990 permit for renovations to Conforti's building, it did so only because the theater was a nonconforming use. Conforti next argued that the court incorrectly concluded (he concerts were' an expansion of a nonconforming use. He Said the new use (concerts) was "generically the same as the old [movies]," so it was not an expansion. Both fulfilled the building's purpose of providing "entertainment in'a theater set- ting." DECISION: Affirmed. Holdiag concerts in the theater violated the ordinance as an expansion of a nonconforming use. The ordinance was ambiguous because it did not specifically list movies or concerts as allowed uses in any district. In such cases, the court had to base its ruling on how the city had consistently interpreted its own ordinance in the past. Here, the city consistently Prohibited movies and concerts in B-1 zones.