Madain, applied for a permit to open an adult oriented cabaret in the city. The application was denied on the grounds that the cabaret would be placed three hundred feet of a planned church, which would not be allowed under the city’s “sensitive use ordinance.” Madain sued, contending that the church did not fall into the definition of the sensitive use ordinance, and that, because his application was filed prior to that of the Church, he should be given preference under the interpretation of the ordinance. Mr. Madain argued that his application was entitled to priority and further that he attempted to file the application on an earlier date (December 2, 2008), yet the application was not accepted until a later date (December 18, 2008). In addition, Madain contended that the city planning manager had known several weeks prior that he desired to open the business at the intended location. He also maintained that one city employee told the church of his intention to open the cabaret at that site and, therefore, the church quickly filed its own application in response so that his would be thwarted. This, he maintained, was manipulation by the city in order to give the church preference under the ordinance. Madain argued that the city council abused its discretion in “misinterpreting the sensitive use ordinance to give the church’s permit application priority based upon the date it was filed,” as well as “failing to consider and make finding relevant to his contention that he had been deterred from filing his own application.” The court reversed the trial court’s findings and remanded the case, finding that the city council abused its discretion in not addressing Madain’s points regarding whether city employees had manipulated the filing of permits so that it could help the church “in gaining priority over Madain’s adult caberet.” In addition, the court held that the definition of the city’s sensitive use ordinance is not legally clear.
Madain v. Stanton, 111 Cal. Rptr. 3d 447 (Ca. App. 4th Dist. 06/23/10).
The opinion can be accessed at: http://www.courtinfo.ca.gov/opinions/documents/G042218.PDF
I believe that Mr. Madain should be allowed to operate an adult cabaret in the desired location because he filed the application first. The church has no right to file an application later, therefore not allowing Mr. Madain to operate his adult cabaret because of the sensitive use ordinance in place. If the church was allowed to operate at the desired site thus denying Mr. Madain his adult cabaret, I don’t see how any adult cabaret could operate in that jurisdiction. Once a person files an application for the adult cabaret, any city employee can contact an organization that is subject to the sensitive use ordinance and ask them to file their own application 300 feet from the potential adult cabaret, and then manipulate the filing dates to give the sensitive use preference. If this were to happen, the city ordinances could be seen as restricting adult uses, which has limited protection under the first amendment. I understand that the court remanded because the city council did not address whether city employees had manipulated the filings of permits and I think this is the right decision. It will be interesting to see how the remand plays out.
By: Adam Puffenberger on November 11, 2010
at 2:48 pm