Agenda - Planning Commission - 10/05/2006

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r.-- .!. ,,~. C' Z.B. ~. September 10, 2006-Page 3 The appeals court noted that "the constitutional right of the individual to use private property has always been subservientto public welfare.". see also: Lucas v. S. C. Coastal Council, 505 U.S. 1003, 12_0 LEd.2d 798 (1992). !{ , \, Adult Entertainment - City introduces new code while adult business permit pending Developer claims change made solely to deny his application Citation: Smith v.City of South EI Monte, Court of Appeals of California, 2nd App:' Dist., 4th Div., No. B187277 (2006) CALIFORNIA (07/20/06) - Smith submitted an application to the city of South E1 Monte for an adult business permit. At the time, the relevant zoning code stated that adult businesses could not be located within 500 feet of parks or property zoned for residential use. Under an ordinance adopted in 1999, the distance was measured from the primary entrance of the business to the prop- erty line of the sensitive use. . Before the application was voted on, the city council passed two "urgency ordinances" modifying the chapter of the code regulating adult business permits. The fIrst changed the means of measuring the distance between adult businesses and sensitive uses so that the measurement was taken from property line to property line, The second created an "overlay" zone, which expanded the zones in which adult businesses could operate to include manufacturing zones. Subsequently, the city manager denied the application because the pro- posed business location, under the new ordinance, was within 500 feet of a park and residential-use property. Smith appealed the decision to the city council, claiming that the ~arlier ordinance should have applied. . At the hearing, the city explained that ithad always used the property line of an adult business, not the primary entrance, to measure the distance be- tween sensitive uses, and the code was changed inadvertently when the 1999 ordinance was adopted. The city had never intended to change that part of the code and had not realized the change until 2004, because no one had submitted an application since the ordinance changed. The city council upheld the city manager's decision. Smith appealed, asking the court to block the city from enforcing the new ordinances, claiming that they were introduced solely to block his application. DECISION: Affinned. A permit application had to comply with the law existing at the time that the permit was to be issued, including any ordinance that was passed while Jhe application was pending. The exception to this rule was when an ordinance was passed with the sole purpose of defeating a development project. Smith argued that the city changed its zoning laws to defeat his application, offering as proof: 1) the timing of the ordinances' enactment; 2) maps showing @ 2006 Quinlan Publishing Group. Any reproduction is prohibited: For more information please call (617) 542-0048. 79