Kokomo Tribune; Kokomo, Indiana

December 14, 2012

Tease stripped of zoning

Appeals board decision will likely land establishment in court

By Megan Graham
Tribune business writer

— After nearly two-and-a-half hours of deliberation Thursday night, the Kokomo Board of Zoning Appeals decided a gentleman’s club on 107 E. Markland Ave. wrongfully expanded their business.

The city gave Tease a notice of violation after the establishment removed a wall while renovating the building. Because the building was in place before current laws were put in place, Tease was considered a “legal non-conforming business” and needed to adhere to a specific set of regulations to maintain that legal status. One regulation is that a legal non-conforming business cannot expand more than two times, and each time may not expand the existing floor area more than 10 percent. Once a business has violated those regulations, they lose that status.

“We’ve heard no evidence to hear that [the expansion] was not at least ten percent,” said Brian Zaiger, attorney for the city. “They’ve lost their prior ability to operate as they had been. The use of the property reverts to the regular zoning ordinance, which does not allow adult entertainment.”

Current zoning laws do not allow a sexually-oriented business to be in certain proximity to schools and churches, several of which lie within that proximity.

In response to the notice of violation, the owners of the establishment filed an appeal, which was heard by the Board of Zoning Appeals. Brian Oaks, attorney for the establishment, argued that there is no proof that the club was expanded twice over the period of construction. Oaks further maintained that the removal of the wall in question did not, in fact, expand the club more than 10 percent each time. The only measurement available at the meeting was a drawing done to show electric circuits, and its accuracy was unknown.

The attorneys for the city and for Tease debated how to interpret the language used in the zoning ordinances, as well as whether it was the city’s responsibility to tell the club that they were unlawfully expanding.

Mike Ridenour, BZA member, voted to support Tease’s appeal.

“If this bar closed tomorrow, it wouldn’t bother me in the slightest. But I do recognize their right to exist within the laws that are set,” Ridenour said. “We are talking about putting these people out of business and wasting a lot of their money on numbers which are iffy at best.”

The board voted against the appeal in a 3-1 vote. Brett Morrow, one of the owners, said he was “disappointed,” but didn’t wish to comment further.

Oaks said he does not believe Tease is required to close.

“So long as the appeal is pending, I think we’re allowed to stay open,” he said. “They can ask for an injunction if they want to. And then, of course, there are trial rules that govern whether that would be granted or not granted. The ruling today does not shut this down.”

Megan Graham is the Kokomo Tribune business reporter. She can be reached by phone at 765-454-8570 or by email at megan.graham@kokomotribune.com.