Agenda - Planning Commission - 10/07/1997

Home

." ~l, ~: I _ i r Z.B. September 25, 1997 - Page 3 - ! constitutionality. He also opened the store without getting the general zoning and building occupancy permits. The town posted a stop work order at the store. It cited Bishop for failing to get the zoning permit and certificate of occupancy, and for performing plumbing work without a permit When Bishop failed to cure or appeal the violations, the town sued him. The court issued a temporary injunction against Bishop, closing the store until the case was resolved. The parties resolved Bishop's federal case when the town agreed not to enforce the conditional-use-permit ordinance against Bishop. The town proceeded with its lawsuit against Bishop, seeking a permanent injunction barring him from operating the store and seeking civil forfei- ture, penalties, and litigation costs. Bishop counterclaimed that the adult- business zoning ordinance was unconstitutional and the town was implic- itly trying to enforce it through the general zoning and building: occupancy codes. The court ruled for the town, deciding that the general zoning and building occupancy regulations were different from the zoning ordinance requiring a special permit for adult-oriented businesses. The court ruled Bishop waived his right to challenge the law's constitutionality in court by failing to pursue an administrative appeal. The court found the town was merely citing Bishop for failing to get the same permits all other businesses had to get. The court also ruled there was no factual dispute that Bishop did plumbing work at the store without the necessary permit. At a later hearing, the court assessed Bishop more than $85,000 in forfei- tures and costs, finding that Bishop's violations were willful and knowing and that he "ignored the town's sensibilities." Bishop appealed, arguing the town's adult business ordinance prevented him from opening his business anywhere within the town, and that complying with the general zoning and occupancy requirements would have been futile. Bishop said anyone reading the conditional use ordinance would believe he had to get the town's permission before op(~,ning an adult bookstore. The town claimed Bishop could not challenge this law because he was not cited under it, but rather was cited for violating general zoning provisions. DECISION: Reversed in part and returned to the trial court. The court overturned the zoning and building occupancy violations and the attorney's fees awarded to the town. The court upheld the plumbing code violation. The court overturned almost $84,000 in forfeitures against Bishop. The trial court erred in finding Bishop did not have the right to challenge the zoning ordinance as a defense to the zoning and building occupancy violations. The town created special rules for adult bookstores, putting them in a special class. The town could not then claim it treated adult bookstores the same as any other business. The town's zoning scheme unlawfully chilled Bishop's free speech rights.