Agenda - Planning Commission - 12/05/1995

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Page 2 -- November t995 Z.B, Adult Entertainment-- Tavern Owner Wants to Offer Nude Female Dancers Instead of Male Strippers Marzocco v. City of Albany, 629 N.Y.S.2d 847 (New York) 1995 In 1990, Marzocco bought property in a highway commercial zone of the city of Albany, N.Y. For 25 to 30 years, the property was operated as a restau- rant and tavern. It was licensed as such by the State Liquor Authority, and was considered a nonconforming use under zoning. When Marzocco bought the property, the tavern catered to the area's gay population and featured male strippers as entertainment. In June 1993, Marzocco began offering topless female dancers instead of male strippers. Several months later, he surrendered his liquor license and turned the operation into a "juice bar." It featured totally nude female dancers and "erotic entertainment." Marzocco applied to the city's Board of Building, Zoning, and Housing Appeals for a use variance. The board denied his request. Marzocco asked a court to review the decision, claiming he was not required to get a use variance because he had not changed the character of his business. He also argued the board was wrong to deny his request for a variance. The court dismissed the case, and Marzocco appealed. DECISION: Affirmed, case dismissed. The lower court properly dismissed Marzocco's case. The board's findings that Marzocco needed a use variance and was not entitled to one were sup- ported by the evidence. Because Marzocco changed the character of his business, he needed a use variance. The board's finding on this point was supported by the evidence. Before June 1993, the bar served food and drinks and offered male strippers as an "incidental attraction." Marzocco then changed the bar's main focus to nude dancing. This fundamentally changed the bar's clientele, and the impact on neighborhood businesses. Also, Marzocco's surrender of the liquor license freed the bar from the Alcoholic Beverage Control Law's restrictions and the State Liquor Authority's oversight. The board's decision to deny the use variance was also supported. Marzocco did not prove denial of the variance would make his property useless, that unique circumstances caused his problems, or that granting the variance would not result in a change in the neighborhood's character. Matter of Oreiro u Board of Appeals of City of White Plains, 612N. Y.S. 2d 509. Matter of Aboud v. Wallace, 463 N.Y.S. 2d 572. Nonconforming Use -- Citizens' Association Challenges Rezoning of Gravel Company's Property Summit-Waller Citizens Association v. Pierce County, 895 P2d 405 (Washington) 1995 Tucci & Sons Inc., a gravel company, owned 37.5 acres in Pierce County, Wash. It used the property as a gravel mine. The area was zoned for general use. Although it had mostly residential and agricultural uses, several industrial uses operated there, for years too. I I I i I I I I I i I I I I