88.0735 Amortization and Regulation of Nonconforming

(a) Any sexually-oriented business which was legally established prior to March 25, 1996, shall be subject to all provisions of this chapter, except as otherwise provided herein.

(b) Any use of real property existing on March 25, 1996, which does not conform to the provisions this chapter, but which was constructed, operated and maintained in compliance with all previous regulations, shall be regarded as a nonconforming use which may be continued until June 25, 2004, after which time all such nonconforming uses shall be terminated unless an extension of time has been approved by the city manager pursuant to Section 88.0740 of this chapter.

(c) Abandonment. Notwithstanding the above, any discontinuance or abandonment of the use of any lot or structure as a sexually-oriented business for a period of one hundred and eighty (180) days shall result in a loss of legal nonconforming status of such use.

(d) Amortization - annexed property. Any adult oriented business which was a legal use at the time of annexation of the property and which is located in the city, but which does not conform to the provisions of this chapter shall be terminated within one year of the date of annexation, unless an extension of time has been approved by the city manager in accordance with the provisions of Section 88.0740 of this chapter.

(e) Any nonconforming sexually-oriented business shall not be increased, enlarged, extended or altered except that the use may be changed to a conforming use.

(f) If two or more sexually-oriented businesses are within one hundred (100) feet of one another and otherwise in a permissible location, the sexually-oriented business which was first established and has continually operated at the particular location is the conforming use and the later established business(es) is nonconforming.

(g) Any sexually-oriented business lawfully operating as a conforming use is not rendered a nonconforming use by the location, subsequent to the grant or renewal of a sexually-oriented business permit and/or license, of a school, public park, religious institution, public building likely to be frequented by minors, residential or other sensitive use within one hundred (100) feet of the sexually-oriented business. This provision applies only to the renewal of a valid permit and/or license and does not apply when an application for a permit and/or license is submitted after a permit and/or license has expired or has been revoked. (Amended by Ord. 196 § 5(part), 2000)

88.0740 Extension of Time for Termination of Nonconforming Use.

The owner or operator of a nonconforming use as described in Section 88.0735(b) or (d) may apply under the provisions of this section to the city manager for an extension of time within which to terminate the nonconforming use, as follows:

(a) Time and manner of application. An application for an extension of time within which to terminate a use made nonconforming by the provisions of this chapter may be filed by the owner of the real property upon which such use operated, or by the operator of the use. Such application must be filed with the city manager at least sixty (60) days but no more than one hundred eighty (180) days prior to the expiration of the time established in Section 88.0735 for termination of such use.

(b) Content of application; fees. The application shall state the grounds for requesting an extension of time. The filing fee for such application shall be the same as that for a variance as is set forth in the schedule of fees established by resolution from time to time by the city council. An application which fails to state a basis upon which an extension may be granted, as set forth in subsection (d) hereinbelow shall be returned to the applicant, as nonresponsive, together with the application fee less any administrative costs of processing the application.

(c) Hearing procedure. The city manager shall appoint a hearing officer to hear the application. The hearing officer shall set the matter for hearing within twenty (20) days of receipt of the application. All parties involved shall have the right to offer testimonial, documentary and tangible evidence bearing on the issues; may be represented by counsel; and shall have the right to confront and cross-examine witnesses. Any relevant evidence may be admitted that is the sort of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. Any hearing under this section may be continued for a reasonable time for the convenience of a party or a witness. The decision of the hearing officer shall be final and subject to judicial review pursuant to Code of Civil Procedure Section 1094.6. (d) Approval of extension; findings. An extension under the provisions of this section shall be for a reasonable period of time commensurate with the investment involved, and shall be approved only if the hearing officer makes all of the following findings or such other findings as are required by law.

(1) For uses which are rendered nonconforming by virtue of their proximity to other uses, pursuant to Section 88.0735:

(A) The applicant has made a substantial investment (including but not limited to lease obligations) in the property or structure on or in which the nonconforming use is conducted; such property or structure cannot be readily converted to another use; and such investment was made prior to March 25, 1996, or prior to the date of annexation; and

(B) The applicant will be unable to recoup said investment as of the date established for termination of the use; and (C) The applicant has made good faith efforts to recoup the investment and to relocate the use to a location in conformance with Section 88.0735.

(2) For uses which comply with the requirements of Section 88.0735, but whose business operations must be modified in order to comply with other provisions of Chapter 7:

(A) The applicant has made a substantial investment (including but not limited to lease obligations) in the property or structure on or in which the nonconforming use is conducted; such property or structure cannot be readily converted so as to comply with the requirements of Chapter 7 within the time period provided in Section 88.0735; and such investment was made prior to March 25, 1996, or prior to the date of annexation; and

(B) The applicant will be unable to recoup said investment as of the date established for modification or termination of the use; and

(C) The applicant has made good faith efforts to recoup the investment and has filed plans with the city which demonstrate the ability and intent to comply with the requirements of Chapter 7 within a reasonable time, but needs additional time within which to make the required modifications. This finding shall be made with respect to each aspect of compliance, and no extension shall be granted for modifications which are required by Chapter 7 and which can be made without additional time. (Amended by Ord. 196 § 5(part), 2000)