(A) The owner or operator of a nonconforming adult business use may file an application with the City Clerk for an extension of the amortization period described in § 155.603. In order to secure an extension of time, the owner must submit to the City Clerk a written request for such extension at least 90 days but no more than 180 days prior to the expiration of the amortization provision. No application for extension received after that date shall be considered, except as provided in § 155.604(C). Such written request shall state:
(1) Whether the owner or operator of the adult business has timely applied for an adult business regulatory license under Chapter 125, whether such license has been denied, and, if the license has been denied, on what grounds it was denied;
(2) Whether a previous extension has been requested and granted, as well as the date of the previous request; and
(3) The efforts that will be made to conform by the conclusion of the extended period.
(B) Within 28 days of receipt of the completed application, the City Manager shall set the matter for a public hearing with notice of such hearing to be made by the City Manager pursuant to Cal. Government Code §§ 65091 and 65905.
(C) The matter shall be heard by the Director of Planning and Development or his or her designee (hereinafter "Hearing Officer") which may include a third party hearing officer (e.g. a retired judge). The Hearing Officer shall render a written decision on the application for an extension of the amortization period within four city business days of the public hearing required by this section. The failure of the Hearing Officer to render any decision within the time frames established in any part of this section shall be deemed to constitute an approval allowing for a one-year extension.
(D) Notwithstanding any provisions in this section regarding the occurrence of any action within a specified period of time, the applicant may request additional time beyond that provided for in this section or may request a continuance regarding any decision or consideration by the city of the pending application. Extensions of time sought by applicants shall not be considered delay on the part of the city or constitute failure by the city to provide for prompt decisions on applications.
(E) In rendering its decision to grant or deny the extension, the Hearing Officer shall determine whether the adult business has been provided with a reasonable amortization period commensurate with the financial investment involved. If the Hearing Officer determines that the amortization period is not reasonable, it shall prescribe an amortization period that is commensurate with the financial investment involved. The burden shall be on the applicant to establish that an extension should be granted. The Hearing Officer shall consider the following facts in making its determination:
(1) The amount of the adult business owner's financial investment, excluding goodwill, in the existing adult business through the date of passage and approval of this subchapter;
(2) The amount of such investment that has been or will be realized through the effective date;
(3) The life expectancy of the existing adult business;
(4) Whether any such structures have depreciated below a reasonable salvageable value, taking into consideration the applicable Internal Revenue Service depreciation schedules;
(5) The existence or nonexistence of obligations pursuant to any lease, sublease and/or extensions to that lease or sublease, as well as any contingency clauses therein permitting termination of such lease;
(6) The cost of relocating the business to a site conforming with the provisions of this chapter;
(7) The ability of the business and/or landowner to change the use to a conforming use;
(8) The date upon which the property owner and/or business operator received notice of the nonconforming status of the use and the amortization requirements; and
(9) The effects on the health, safety and welfare of surrounding businesses and uses if an extension is granted, including any prior incidents of illicit sexual activity at the adult facility.
(F) The Hearing Officer's decision shall be in writing, and shall be hand delivered or sent by certified mail to the applicant, and shall be noticed in accordance with the provisions of this code.
(G) Amortization extensions that are granted shall specify a certain date for closure, and shall not be valid for operation at any other location. If the Hearing Officer grants the application, the applicant may continue operation until the date specified for closure in the written order granting the amortization extension.
(H) The decision of the Hearing Officer shall be final and subject to judicial review pursuant to Cal. Code of Civil Procedure § 1094.8. Any applicant or license holder whose license has been denied pursuant to this section shall be afforded prompt judicial review of that decision as provided by Cal. Code of Civil Procedure § 1094.8. Notice of the Hearing Officer's decision and findings shall include citation to Cal. Code of Civil Procedure § 1094.8.
(Ord. 979, passed 12-14-06; Am. Ord. 978, passed 1-11-07)