Posted by: Patricia Salkin | February 20, 2011

OH Appeals Court Finds Application by Adult Entertainment Establishment Not Subject to Nonconforming Use Regulations but Application was Otherwise Defective

Plaintiff operated an adult-entertaining establishment and sought to expand its building’s office and add a bar area. Township had previously passed zoning resolutions to regulate the zoning of adult-entertainment businesses. The permit application was denied and plaintiff appealed.  Township concluded that plaintiff was seeking to expand or alter a non-conforming use which was a violation of a local zoning regulation.  The lower court ordered the Township to issue the permit and the Township appealed.

Township first alleged that the trial court erred when it reversed the Township’s decision because the proposed expansion constitutes an impermissible expansion of a non-conforming use. Here, the court looked to the zoning resolution in question and determined that it did not permit “conversion, enlargement, or structural alteration of any building used for any purpose other than that permitted.”  Both parties agreed that that establishment in question is a non-conforming use. Plaintiffs alleged that the expansion was not to be used for nude dancing but Township asserted that the entire establishment constitutes a non-conforming use.

The Court agreed with the trial court and rejected the Township’s argument because the establishment contained conforming uses.  The Court also determined that plaintiff’s application was defective because there were parking, buffering and signage problems.  As such, the Court determined that the Township did not err by denying plaintiff’s application as it currently stands.

Rowe v. Carlisle Twp. Bd. of Zoning Appeals, 2011 WL 332670 (Ohio App. 9th Dist., 2011)

The opinion can be accessed at: http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2011/2011-ohio-395.pdf


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