Agenda - Planning Commission - 11/04/1997

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3<0 Z.B. October 10, 1997- Page 3 "\ Nonconforming Use - City sues tavern owner for expanding adultbusiness Deja Vu of Hammond Inc. v. City of Lake Station, 681 N.E.2d 1168 (Indiana) 1997 Deja Vu of Hammond Inc. ran a tavern in Lake Station, Ind. Its business featured entertainment by scantily clad dancers ~ a permitted use. The city passed a zoning ordinance that created a new zoning district designated "Commercial Entertainment." Because the owner's business didn't comply with the new zoning district, it became a lawful nonconforming use. The owner later renovated the lower level of its building, creating a room called "Bare-Iy Legal" with cabaret-style adult entertainment. A city ordinance stated any legal nonconforming use of a portion of a building could be extended throughout the building. The ordinance also stated "any structural alteration, extension or addition shall ... comply with all provisions of this Ordinance." One provision prohibited enlarging an adult business located within 1000 feet of a church or school without a special exception. The tavern was within 1000 feet of both a church and a school. The city sued the owner, seeking a court order prohibiting it from operating Bare-Iy Legal. The city claimed the owner needed a special exception because it expanded an adult business located within 1000 feet of a church and school. The court issued a temporary order prohibiting- the op"eration of Bare-Iy Legal until the owner got a special exception. The court found that- although the ordinance did allow the extension of nonconforming uses, it also prohibited enlarging adult businesses located near a church or school. The owner appealed, arguing the court incorrectly interpreted the ordinance. It said" the term "structural" in the ordinance meant that only "structural alterations, "structural extensions," and "structural additions" had to comply with all provisions of the ordinance, while mere interior extensions within the building did not. According to the owner, the court's interpretation meant no extension of a nonconforming use could ever comply with all the ordinance's provisions because a use that complied with the ordinance would no longer be nonconforming. DECISION: Reversed in part. The court should no~ have ordered,l the owner to stop operating Bare-Iy Legal. The owner's expansion did not violate the ordinance. . " The word "structural" modified only alterations, not extensions or additions, so all extensions of a nonconforming use - not just structural extensions - had to comply with all the ordinance's provisions. This didn't render the ordinance meaningless; instead, it meant any extension of a nonconforming use had to com- ply with all the provisions except those which made the use nonconforming. However, the court incorrectly found the owner's expansion violated the prohi- bition against enlarging adult businesses. The ordinance prohibited enlarging an adult business, which meant adding to the floor area of an existing building. Deja Vu increased the amount of floor area used in an existing building. see also: Department of Welfare, State of Indiana v. Couch, 605 N.E.2d 165 (1992).