Adult entertainment business applicant gets another chance

Last week Ohio’s Fourth District Court of Appeals affirmed a lower court’s decision to vacate a zoning board’s decision to deny a nightclub’s application for a zoning permit. Got that? Sorry. Tortured descriptions of procedure (like that) are almost unavoidable when talking about appellate decisions arising from administrative rulings.

This case presents a typical fact pattern. A would-be adult nightclub applies to the city for a zoning permit. Upon learning more about the nightclub, the city’s zoning board decides that the proposed “use” is unacceptable for the zone. Here, it was the Athens City Board of Zoning Appeals who got somewhat sidetracked. As the court of appeals observed, one member of the Board “repeatedly referred to the ‘immorality’” of the proposed use, while another “member wrongly expressed the scope of the Board’s review as determining whether [the] business would be similar to ‘what’s currently in this … neighborhood.’” Yet another Board member deemed it the Board’s job to determine “what is appropriate for the community.”

The Board probably found itself in a pickle. The nightclub’s proposed use is permitted in the zone under the City’s ordinances, but (some of) the surrounding residents are none-too-happy. What to do? Apply the rule of law. Said the Ohio Court of Appeals: The Board’s concerns ”‘were concerns that should have been (and were, as of the 4-7-08 Code amendments) properly addressed by legislative action of City Council.’”

I’ve appeared before numerous boards on near-identical issues. As I see it, when a zoning board knows that it must approve the adult entertainment applicant, there’s an “easy out” to any concerns about a perceived endorsement of the adult business: Inform the opposing citizens that the legislature made the rules, and that the board is simply applying them faithfully. Not only is this the easy route, it’s the right thing to do.

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