Agenda - Planning Commission - 03/02/2006

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Page 8-- February 10, 2006 Adult Entertainment -- Business claims it should benefit from ordinance's amendment Amendment ,;as not in place at time of its zoning appeal Citation: 321 News & Video Inc. v. The Zoning Board of Adjustraent for the City of Gastonia, Court of Appeals of North Carolina, No. COA05-345 (2005) NORTH CAROLINA (1~06/05) -- 321 News & Video Inc. operated an adult establishment featuring both an adult bookstore and a mini-movie theater. The city of Gastonia's zoning ordinance prohibited more than one type of adult use within the same structure, imposed a 500-foot separation requixement between adult uses and certain enumerated uses, and prohibited any adult establish- ments from being within 1000 feet of each other. In October 2003, the ci~amended the ordinance to exempt from compliance estabLishments within 1,000 feet of each other. However, the city did not amend the ordinance as it pertained to more than one type of adult use in the same structure. The zoning administrator cited 321 for operating both the bookstore and the theater at the same location. 321 appealed to the Gastonia Zoning Board of Adjustment, which denied its appeal. 321 sued, and the court ruled in favor of the board. 321 appealed, arguing that since the city amended its ordinance in October 2003 to allow existing adult establishments located within 1,000 feet of another to be exempted from the zoning ordinance separation requkement, it should be allowed to continue to operate two adult uses in one establishment. DECISION:Affirmed. As of May 2003, when the board made its ruLing, the city had not amended the zoning ordinance to exempt existing adult establishments located within 1,000 feet of each other from compliance with the ordinance. In fact, the city did not amend the ordinance until five months after the board's decision. 321 could not argue that the board erred in failing to apply an amendment to an ordinance that was not in effect at the time the board ruled. In fact, 321 conceded that it was in violation of the zoning ordinance. Thus, the board did not err in denying its appeal. see also: Mann Media Inc. v. Randolph County Planning Board, 565 S.E. 2d 9 (2002). see also: Godfrey v. Zoning Board of Adjustment, 344 S.E. 2d 272 (1986). GET YOUR NEWSLETTER ONLINE FREE WITH LIVE LINKS AT: www, quinlan, com 146 2006 Quinlan Publisl~ing Group. Any reproduction is prohibited. For more information please call (617~ 542-0048.