A. Any adult use or establishment regulated under the provisions of this Chapter which is non-conforming on September 10, 1998, shall be subject to an amortization period expiring three (3) years therefrom, except that the that the amortization period shall expire one hundred eighty (180) days therefrom for §§ 11.13.100 through 11.13.115, 11.13.125, and 11.13.135. Any adult use or establishment regulated under the provisions of this Chapter which is non-conforming on September 10, 1998, only because it does not have an approved AUDP from the City shall not be subject to an amortization period.
B. An adult use or establishment operating as a conforming use with an approved AUDP from the City shall not be rendered a non-conforming use by the subsequent location of residential zones, residentially developed planned district zone property, religious institutions, public or private schools, day care facilities, or parks within the locational limitations of this Chapter. For purposes of this section, a use shall be deemed to be subsequently located if it commences following the date an application for an AUDP is deemed complete pursuant to § 11.13.210.
C. Amortization; notice. The City Planner shall provide written notice to the adult use business owner (and lessee/operator, if known by reference to City's business license records) and property owner at least one hundred twenty (120) calendar days prior to the expiration of this amortization period. This notice is not mandatory and lack of notice shall not be deemed to prevent the City from initiating an action seeking declaratory injunctive relief against the owner and/or operator of such business. However, if notice of expiration of amortization period is now given, any application by the owner or lessee/operator of the business for an extension of the amortization period shall not be denied on the grounds that it is untimely.
D. Amortization; application for extension.
1. The adult use business owner may file an application with the City Planner for an extension of the amortization period. The applicant must state:
a. The reason why an extension is necessary;
b. Whether a previous extension had been requested and granted, as well as the date of the previous request; and
c. The efforts that will be made to conform by the conclusion of the extended period.
2. The adult use business owner's application shall be made in writing and shall be accompanied by the required fee as established by the City Council. The application shall include all information which the applicant contends satisfy the eight factors set forth in division E. of this section.
3. Any application for an extension of the amortization period shall be made prior to the expiration of the amortization period unless the Planning Commission determines that good cause exists for the late filing of the application.
E. Amortization; decision to grant or deny.
1. The Planning Commission shall hold a public hearing, noticed as required pursuant to the Zoning Code, as set forth in Tile 17 of this Code, at which time it shall consider the evidence and testimony regarding the request for an extension of the amortization period. The Planning Commission shall grant or deny an application for extension of the amortization period. The Planning Commission shall make its decision within thirty (30) calendar days of the filing of the request.
2. In rendering its decision, the Planning Commission shall determine whether the adult use has been provided with a reasonable amortization period commensurate with the investment involved. If the Planning Commission determines that the amortization period is not reasonable, it shall prescribe an amortization period that is commensurate with the investment involved. The burden shall be on the applicant to establish that the extension should be granted.
3. The Planning Commission shall consider the following factors in making its determination:
a. The adult use owner's financial investment in the business;
b. The present actual and depreciated value of business improvements;
c. The applicable Internal Revenue Service depreciation schedules;
d. The remaining useful life of the business improvements;
e. The remaining lease term;
f. The cost of relocating the business to a site conforming with the provisions of this Chapter;
g. The ability of the business and/or land owner to change the use to a conforming use; and
h. The secondary effects of the adult use on the health, safety and welfare of surrounding businesses and uses if the adult use is permitted to extend the amortization period.
4. The Planning Commission's decision shall be in writing, and shall be hand delivered or sent by certified mail to the applicant, and shall be posted at City Hall and on the outside of the adult use.
F. Amortization; appeal. Any interested person may appeal the decision of the Planning Commission to the City Council in writing within ten (10) calendar days after the written decision of the Planning Commission in accordance with the provisions of § 11.13.215.
G. Amortization; public nuisance. The City Council declares to be a public nuisance any parcel where an adult use is operating and where the amortization period as a legal non-conforming use has expired and no application for an extension is on file or has been granted, or no application for an AUDP is on file or has been granted.
('65 Code, § 23-24.15) (Ord. No. 98-006, § 20 (part))