Monday, August 24, 2009

Boise Issues Official Justification for Torch II Shutdown

Posted By on Mon, Aug 24, 2009 at 4:51 PM

The Boise City Council will reaffirm its decision forcing the Torch 2 bikini bar to close up shop within six months, in a six-point memo to be considered tomorrow night.

Torch 2 owner Mans Montgomery will appeal the shut down in District Court, according to his attorney. The Boise City Council is making its reasons for denial explicit in case of legal review, said planner Cody Riddle.

The reasoning gives heavy weight to the lower Planning and Zoning Commission decision to revoke the bar's adult entertainment license, arguing that P&Z is rational, not arbitrary and capricious, nor an abuser of its discretion. City Councilors also pat themselves on the back for giving Torch 2 workers six months to find other jobs (or for the bar to relocate).

Anyone know of any bars far away from schools and houses with existent floor to ceiling poles?
(Memo after the jump.)

Memo to Boise City Council

1. The Planning and Zoning Commission did not err in their determination that the Torch II
had been illegally expanded by replacing and enlarging the entrance vestibule without
zoning or building permit approval, and that the penalty for such expansion was
revocation of the non-conforming use status. Revocation is pursuant to B.C.C. 11-09-
03.3 which states in part that “any non-conforming use which is illegally expanded shall
lose its non-conforming use status.”

2. The Planning and Zoning Commission’s decision was not arbitrary and capricious. The
Commission understood the B.C.C sections that applied to non-conforming uses,
determined the Torch II had violated the code by illegally expanding the entrance
vestibule, and correctly determined that the code required that the non-conforming use
status be revoked. The City Council further determined that the non-conforming use
provision (B.C.C 11-09-03.3) does not specify allowance for or exemption of small
illegal expansions of non-conforming uses, it simply says that “any non-conforming use
which is illegally expanded shall lose its non-conforming use status. The City Council
also states that they did not believe the appellant’s contention that the illegal expansion
was intended to be temporary.

3. The Planning and Zoning Commission’s action was not an abuse of discretion, because
B.C.C. specifically charges the Planning and Zoning Commission with making such
determinations on appeal, and the code further contains provision for revoking non-
conforming use status when it is found that a non-conforming use has been illegally
expanded.

4. The Planning and Zoning Commission’s action was not without rational basis, since they
correctly interpreted the code sections which were being enforced, correctly determined
that illegal expansion violated those code sections, and approved the penalty that the code
requires for such violation. The Planning and Zoning Commission further determined
that continued modification of non-conforming uses was contrary to the purpose of such
regulations, which is to abate non-conforming uses over time. The Commission
determined that the Torch II building was in such poor condition that the illegal
expansion warranted the forfeiture of non-conforming use status and that the owner, for
the safety of his own customers, should now be required to find a new location for the
business.

5. The Planning and Zoning Commission’s action was not in disregard of the facts, since all
parties, including the appellant, agreed that the entry vestibule had been illegally
expanded without zoning approval or building permits. The zoning code specifically
states that the penalty for such illegal expansion is loss of non-conforming use status.

6. The City Council determined that while the zoning code requires that the non-conforming
status of the Torch II be revoked, they also understood that this is a business with
employees and as such they granted the appellant a period of six months during which he
may continue to operate the business while he seeks approval of a new location that
meets the zoning code requirements for this type of business.

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