By Scott Smith Kokomo Tribune
---- — A judge threw out a city zoning enforcement action against a Kokomo strip club Tuesday, saying a provision of the city’s zoning code was “incomprehensible.”
Howard Superior Court Judge William Menges dismissed the city’s petition for an injunction against the Tease strip club, 107 E. Markland Ave., ruling the city board of zoning appeals overstepped its bounds when it ruled the club had illegally expanded.
The ruling is a setback to the Kokomo city administration, which had sought to have the club closed for good. The club’s owners have allowed adult entertainment to continue at the club for the past year, despite receiving a “cease and desist” letter from the director of the Kokomo Plan Commission.
“Obviously we’re disappointed in the ruling. At this point we’re still analyzing all the points and we’ll decide the next step after we thoroughly look at it,” Kokomo city attorney Lawrence McCormack said.
In a 10-page ruling, Menges said inconsistencies in the city’s zoning ordinance made the provision used against the Tease “incomprehensible,” and said the fact the club removed an interior wall to expand, rather than adding onto the structure of the building, was reason enough to reverse a December 2012 Kokomo Board of Zoning Appeals ruling.
The club, called The Body Shop under previous owners, became a strip club just prior to the city’s 2006 passage of new zoning rules restricting the location of adult-oriented businesses.
Because the strip club existed prior to the new law, it was effectively grandfathered, meaning it could continue to operate as a legal, non-conforming use.
Properties granted legal non-conforming use status can lose that status, however, if the owners try to expand beyond a set limit.
City officials claimed current owners Brett Morrow and Dustin Ogle illegally expanded the club’s square footage by taking out an interior wall which had separated the club from a former photography business.
Shortly after the expansion, city plan commission director Greg Sheline informed the owners they’d lost their legal non-conforming use by expanding beyond the allowed limits.
Under the zoning ordinance, businesses granted legal non-conforming status can be expanded no more than twice, each time by a maximum of 10 percent.
In upholding Sheline’s decision, the Kokomo Board of Zoning Appeals ruled the business had been expanded once, by 19 percent.
In his ruling, Menges said there didn’t appear to be any point to a rule which allowed for an aggregate expansion of 20 percent, but only if the expansion was performed in two blocks of 10 percent each.
“Under the terms of the ordinance … the [club owners] would have been allowed to expand their non-conforming use by 10 percent one day, and by another 10 percent the next,” Menges wrote. “How allowing this, but prohibiting a single expansion of 20 percent would serve to advance any governmental interest is incomprehensible.”
Menges also ruled the BZA’s contention that the “structure” of the Tease had been expanded was unsupported by evidence.
City officials tried to show the bar had been expanded using a handwritten drawing given to a city inspector showing where an interior wall had been located prior to removal.
Menges said the drawing could be used as evidence, but said nothing had been presented to show that the actual structure of the Tease building had been enlarged, expanded or extended.
“I’m very pleased with the decision. The judge applied the law to the set of facts he had to work with,” said Brian Oaks, the attorney for the club owners. “We’ve argued all along this was an inappropriate determination by the BZA.”
Menges ruled the business can remain as a legal non-conforming use, and denied the city’s request for an injunction against the business. The judge also issued a stay of the board’s zoning decision.
Scott Smith, business editor, can be reached at 765-454-8569, firstname.lastname@example.org, or on Twitter, @JasonSSmith1.