Application File: V-99-98

Application File: V-99-98 Subject: Appeal (A. Banks) Date: Feb. 8, 1999, 2:00 PM

Mayor Jan Jones & members of the Las Vegas City Council

City Hall

400 E. Stewart Ave., 10th Floor

Las Vegas, NV 89101

Honorable Mayor Jan Jones and members of the Las Vegas City Council,

1. Introduction

Application V-99-98, filed December 15, 1998, violates the Zoning Code of the City of Las Vegas, Title I 9A of the Las Vegas Municipal. Code, revised November 1998, in multifarious ways. The application seeks a "variance" to allow the expansion of a non-conforming sexually oriented business where that expansion is explicitly prohibited by the zoning code. The approval by the Board of Zoning Adjustment January 5, 1998, violates the zoning code for the following reasons:

(I) such a "use variance" is specifically prohibited by the Las Vegas Municipal Code; (2) such a "minimum distance variance" is specifically prohibited byte Las Vegas Municipal Code; (3) there is nothing extraordinary about the topography, size, shape, or other condition of the property; (4) the applicant can show no undue hardship; (5) the application is missing essential items such as elevations, landscaping, and properly authenticated plans showing directionality and adjacent streets.

Additionally, it appears that the applicant expanded the business prior to any public hearing on the application. It also appears that this was done with the consent of officers or employees of the City of Las Vegas.

2. Outline of the law and the facts

The following outline of the law and the facts will assist you in understanding the problem.

(1) Subsections (a) and (b) of Code section 19A.04(Sexually-oriented business)(3)prohibited establishment or expansion of any sexually oriented business that is within 1000 feet of any other sexually oriented business, church, public or private school, day care, park or playground."

The letters informed a deputy director of planing that the applicant has already begun construction and/or operations covered under the variance." Section 19A.QQ050(A) states: "No land shall be used, or structure constructed, except in accordance with the regulations and requirements of this Title, including the requirement to obtain applicable permits prior to the use or development of the property" Section 19A.OO.O7O(B) makes it a misdemeanor for any person "to cause, permit or assist in the occurrence or commitment of a violation of any provision of this Title." Subsection D states that "any use of property contrary to the provisions of this Title shall be, and is declared to be, unlawful and a public nuisance."

The Sgro letter suggests that the City of Las Vegas has given a wink of an eye in the intent to unlawful operation of the property. The attached affidavits of licensed private investigators Alan M. Kaplan and Charles McChesney confirm that the proposed expansion has been completed and that the business has been operated in this expanded state since approximately the first two days of 1999, prior to any public hearing on the application.

Section 19k 1 8~O7O(B) prohibits this council from considering any "hardship" "which is solely personal, self-created or financial."

4. Conclusion

That this application could make its way to the Board of Zoning Adjustment at all with no signed, dated, original, and intelligible site and floor p1ans, with no elevations of any kind and no landscaping plans of any kind, does not speak well of this city’s planning process. That, following this, the Board of Zoning Adjustment could then approve a variance that can only be described as an explicitly prohibited "use" or "minimum spacing" variance, without even inquiring about an exceptional condition of the property or an undue hardship, portends a pervasive lack of respect for city planning and state and municipal law. That, in the interim, the City of Las Vegas would allow the unprompted construction and use prior to public hearings on the application, suggests a process that is out of control.

The action of the Board of Zoning Adjustment should be overturned.

Sincerely, CHUCK GARDNER

(2) The applicant’s "Crazy Horse Too" sits within 1000 feet of’ three other sexually oriented businesses. A public park and playground ("Dedicated to the children of Las Vegas") are another few hundred feet away.

(3) Section 1 9A.04(Sexually-oriented business)(4), while allowing the continued operation of a nonconforming sexually oriented business, categorically prohibits its expansion.

(4) Section 19A16.030(A)(1) categorically prohibits the expansion of a nonconforming use "into any other portion of the conforming building."

(5) Section 19A.l8.070(B) states that "the variance process is not available to:

1. Permit a use in a zoning district in which the use is not allowed;

2. Vary any minimum spacing requirement between uses;

3. Relieve a hardship which is solely personal, self-created or

financial in nature.

(6) Section 19(A).l&070(L) provides:

1. In order to approve a Variance application, the Board of Zoning Adjustment and, where applicable, the City Council, must determine that the variance is warranted both under State law and this subchapter. The minimum State law standards are set forth in Subsection. 2 below.

2. Where by reason of exceptional narrowness, shallowness, or share of a specific piece of property at the time of the enactment of the regulation, or by reason of exceptional topographic conditions or other extraordinary and exceptional situation or condition of the piece of property, the strict application of any zoning regulation would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardships upon, the owner of the property, a variance from that strict application may be granted so as to relieve the difficulties or hardship, if the relief may be granted without substantial detriment to the public good, without substantial impairment of affected natural resources and without substantially impairing the intent and purpose of any ordinance or resolution.

(7) The applicant failed to provide landscaping plans, adjacent land uses and streets, property lines, elevations, and other necessary items. The site and floor "plans" that were provided are unsigned and undated copies that no engineer or architect apparently wished to take credit for. The floor "plan" does not show "North" and it is impossible to tell whether either plan depicts the property in question, since no streets are rendered. The relationship

82/82/1999 19:16 782—433—9857 CHUCK GARDNER PAGE 83/84

between the floor plan and site plan, if any; can also not be determined; the diagrams appear to have different dimensions. What appears to be a parking diagram appears to have no relationship to the other drawings.

3. The application cannot be approved under any circumstances

The zoning code allows no exception to the prohibition of the expansion of anon-conforming sexually oriented use.

The variance application seeks a categorically prohibited "use variance." [1 9A. I 8.070(B)( 1)] The application seeks a categorically prohibited "minimum spacing" variance.

[19A. l8.070Q3)(2)]

Even if a variance could be granted to allow the prohibited use or vary the minimum spacing, the variance could not be granted, because the applicant cannot show any "exceptional narrowness. shallowness, or shape" of the property or any "exceptional topographic conditions or other extraordinary and exceptional situation or condition" of the property.

Even if the applicant could show such a situation or condition, the applicant cannot demonstrate an undue hardship, i.e., that he could not make valuable use of the property without the variance. Enterprise Citizens v C/ark Co. Comm’rs, 112 Nev. 649, 918 P.2d 305 (1996).

That the variance standard — requiring unusual dimensions, size, shape, or topography — is incongruous in this setting only serves to confirm that we’re looking squarely here at the infamous and illegal "use variance" trick. Sexually oriented businesses are no longer allowed to be constructed or expanded within 1000 feet of other such businesses. The city is not varying building height, setbacks, or parking requirements here. It’s "varying" a use. Another way to look at it is to see the attempt as one to "vary" the neighborhood, or, more accurately, to ignore the neighborhood, specifically the existence in it, within 1,000-feet of Crazy Horse Too, of other such businesses.

Letters in the file from the law firm of Patti & Sgro provide no explanation for the outlawed and infamous "use variance" procedure and the outlawed minimum spacing variance procedure employed here. The letters provide no explanation of an exceptional condition of the property or of an undue hardship. What they do provide is further proof that the application cannot be granted. The letters plead only for understanding of the applicant’s position because the applicant was the first sexually oriented establishment to infect the area. ‘When the new code (19A) was enacted, it was these later establishments, per the letters, that caused the spacing difficulties simply because they were later. The letters also argue that "the additional space would be for locker room type facilities and would not be for public use." All of this is just as disingenuous as it is irrelevant. The additional space, according to the deficient, unsigned, and undated submitted "plans," would indeed expand the public space. Relocation of the locker rooms does not change this.