Agenda - Planning Commission - 05/04/2006

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April 10, 2006--Page 3 ... adverse to public interest." The appeal court found that the question of neighborhood compatibility was addressed in the commission proceedings. While the commission did not explicitly define the ordinance in question, it did discuss the code's requke- monte and the compatibility of Premier's proposed building with the neighbor- hood. Additionally, there was information in the record that stated that the proposal did not meet other provisions of the code. The trial court found that the commission had competent, substantial evi- dence to deny Premier's request, and the appeals court agreed. The lower court had relied upon matters that were addre§sed during the commission's review to reach its decision. Premier's clahn that the court had appl/ed incorrect law by assigafing Pre- ruler, and not the city, the burden of proof in this case was also dismissed. Given its fa/lure to meet the criteria discussed above, Premier had not established that its proposal should have been approved; thus, the burden to show otherwise never shifted to the city. see also: Town of Manalapan v. Gyongyosi, 828 So.2d 1029 (2002). see also: Broward County v. GB.V. Iht'l, 787 So.2d 838 (2001). Taking-- City shuts down "swingers" club Owner wants compensation fo.r regulatory taking Citation: Mutschler v. City of Phoen£~, Court of Appeals of Arizona, Div. I, Dept. E, No. I CA-CV 04-0203 (2006) ARIZONA (0~14/06) -- Mutschler owned Guys & Dolls, a"swingers" club In response to this and other similar' businesses, the City of Phoenix passed an ordinance declaring publ/c nuisances of businesses that provided the opportu- nity for viewing or taking part in live sex acts. After a police raid on the property, Guys & Dolls had to close. The property was leased to another business, but it generated significantly less revenue than before. Mutschler sued, claiming that the city had engaged in an unconstitutional taking by taking away all economically viable use of his property. The court ruled in favor of the city. Mutschler appealed, arguing that compensation was required for the clos- ing of his business. DECISION:Affirmed- Public nuisances were not protected property interests under the state or U.S. Constitutions. Consequently, IVlutschler's operation of a swingers' club that included live sex acts constituted the type of public nuisance for which compensation was not required. . A public nuisance was defined as an unreasonable interference with a © 9006 Qu~nlan Pubiisl~ing Group. Any reproduction is prohibited. For more intormatlon please cai (617) 542-0048. 55