Agenda - Planning Commission - 10/04/2007

Home

September 1, 2007 I Volume 1 I No. 17 agreement stated in pertinent part that Diamond "[would] not use this stipulation or any additional time [his] adult business [was] per- mitted to remain open by virtue of this stipulation to support any of [hisJarguments." The city stated that it agreed to the settlement on the condition that it created only temporary approval of the book- store while Diamond searched for a new location for his store out- side of the city. However, instead of relocating as promised, Diamond brought a lawsuit against the city, seeking a declaration that the ordinance was 'invalid. The lower court found in favor of the cit-y, and it is- sued an order enjoining Diamond from continuing to operate an adult business. Diamond appealed, and, while his appeal was pendLl1g, the court found him in contempt of the injunction and ordered him to pay a fine. Diamond appealed the contempt finding as well. Decision: Reversed. A legal nonconforming use was one that existed lawfully before a zoning restriction became effective and that was not in conformity with the ordinance when it continued thereafter. Here, there was a 45-day gap between the end of the moratorium and the implementation of the ordinance. The lower court fbund- and the city did not dispute-that during those 45 days, the city's old zonitlg ordinance was in effect. Diamond's obligation under the stipulation ended when the moratorium expired because Diamond was no longer perlTlitted to operate his store merely by virtue of the stipulation but rather under the city's previously existing ordinance. The appeals court found that, because he was operating his store during the 45 days prior to the effective date of the new ordinance in a manner that complied with the old ordinance, Diamond was en- titled to nonconforming use status. Because the injunction was im- proper, the lower court's contempt judgment based' on that injUnc- tion was also improper. Both the decision and the contempt order were reversed. There was a dissenting opinion in this case. The dissenting judge wrote that the reason Diamond's bookstore operated uninterrupted during the 45-day window was the agreement, the express stated purpose of which was to permit Diamond to run the business while he looked for a relocation site. "Diamond bargained for a grace period, not a shot at squeezing a nonconforming use status, out of any gap that might arise," the judge wrote, adding that the majority's finding "fup[ped] the point of the contract on its head." 3 37