Agenda - Planning Commission - 10/07/1997

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Page 4 - September 10, 1997 Z.B. them to be in the city. The company showed the city's zoning plan didn't pro- vide for any location where an adult business could operate. The city didn't submit any evidence to the contrary. Although the company operated its business in a zone where adult-oriented businesses were not allowed, it could challenge the constitutionality of the zoning regulations because its free speech rights were violated. The whole zoning scheme thwarted the company's efforts to find alternative sites within the city. see also: Renton v. Playtime Theatres Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). see also: Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464,102 S.Ct. 752, 70 L.Ed.2d 700 (1982). Nonconforming Use - Court orders adult entertainment business temporarily closed City of Glendale v. Aldabbagh, 939 P.2d 418 (Arizona) 1997 Aldabbagh owned an adult entertainment business in the city of Glendale, Ariz. The business would have violated the city's zoning ordinance if not for its status as a preexisting nonconforming use. The county attorney filed nuisance charges against the owner, claiming his club was used "for the purpose of lewdness, assignation or prostitution." The county attorney asked the court to order the business closed for one year. The court ordered the building temporarily closed, pending a hearing, in May 1992. Mer the hearing, the court found the business was used on a continuing basis for the commission of sexual acts for money. It then granted a temporary order closing the business until a trial was held. In December 1993, the county agreed to dismiss the nuisance charges because it had obtained the relief it sought - closure of the business for one year. The owner leased the building to Benz, who applied for a license to operate an adult entertainment business. The city rejected the application, claiming the property lost its status as a lawful nonconforming use because it hadn't been used as an adult entertainment business for more than one year. Under the city's zoning ordinance, a preexisting nonconforming use was lost if it was "aban- doned or ceased to be carried on for period exceeding one year." The city sued the owner, asking the court to declare the business lost its nonconforming use status based on nonuse for more than one year. The city argued that while abandonment required a showing of intent, the ordinance's use of the language "or ceased to be carried on" meant that any nonconforming use not carried on for more than a year was lost, regardless of the owner's intent. The owner argued that despite the ordinance's language, a preexisting noncon- forming use couldn't be lost without a showing of intent to abandon that use. The court ruled the loss of a nonconforming use required a showing of intent to abandon. Because both parties agreed the owner didn't intend to abandon his use of the club, the court ordered the city to issue a zoning clearance to atrOw the property to be used for adult entertainment. ~~ . .~.~ -~. ~ ;.../. .: :: .,#::~:, .'