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Club lawsuit against county filed in federal court

Plaintiffs cite 1st, 14th amendments violated in zoning dispute

 

by Dennis Sharkey

The owner of a proposed restaurant that will feature a private club with nude dancing is suing the county after being denied a conditional use permit (CUP).

 

The suit was filed in the United States District Court Topeka Division. The documents were served late Friday afternoon to the county.

Proposed strip club in Meriden

Proposed strip club building in Meriden

The suit claims they are seeking a remedy from the U.S. courts because club owner Zach Snyder’s First and Fourteenth Amendment rights of free speech and due process were violated by the county. Snyder claims he has spent hundreds of thousands of dollars already in preparation for the business and that he has been making monthly payments on the property located just outside of Meriden on K-4 Highway.

On Monday Snyder said he still has plans to move forward with a restaurant and bar despite the lawsuit and has begun paving the parking lot. He did not give any time table for a planned opening.

The suit claims that on July 27, 2010, Snyder informed County Planning and Zoning Director Eloise Tichenor and her staff what he intended to do in the county.

Tichenor assured them that the business was allowed under the zoning regulations of the county.

“She showed Snyder where, in the regulations, the county had authorized “sexually oriented businesses (SOB),” the complaint says.

The suit also alleges that Snyder returned with an inquiry about the specific property at 8023 K-4 Highway.

“She further stated that this location would be ‘perfect’ for such use, because it was located near the city of Meriden and next to a busy major road.”

The suit says after acquiring the property the county granted a building permit for a 2,500 square foot expansion to the building knowing what Snyder intended to do with the property.

Meriden Strip Club

File photo--First District Commissioner Lynn Luck looks over photos provided by attorney John Bullock while his client, Zach Snyder, listens in the front row during a recent hearing.

Snyder’s attorneys argue in the suit that the location has historically been used as a restaurant since 1960.

The suit claims that nothing in the county’s regulations or rules guarantees a decision on an application within a specified brief period of time.

“The Planning Commission can delay proceedings by requiring discretionary modifications to the development plan,” the complaint says.

Furthermore the suit claims that the county’s zoning codes do not require a hearing within a specified brief period of time or at all. It also says the county’s rules don’t require hearings to be scheduled at any particular time.

“The Planning Commission can delay consideration indefinitely simply by failing to forward its recommendation to the Board of County Commissioners,” the complaint says.

The suit points out that the decision on the application was deferred two times by the planning commission and once by the county commissioners.

Through the permitting process the suit alleges that Tichenor and former county building inspector Donna Shimmin “repeatedly gave the applicant the impression that there were no major issues with the CUP being approved.”

In the suit Snyder said he was surprised to read the Planning and Zoning staff report on Dec. 21 that recommended denial of the application.

Snyder alleges that when he approached Tichenor about why the staff denied his request she refused to talk to him about the application at all. She allegedly went on to say that she was directed by County Counselor Mike Hayes not to speak with Snyder.

The Independent learned in January that Shimmin had been contacted by Snyder at her home the same day the staff report was released. Upon learning of the phone call, the department fired Shimmin.

The staff report recommended denial “based on speculation that (Snyder’s) use might generate ‘adverse secondary effects’ to the detriment of the general health, safety and welfare of the community.”

Snyder’s attorneys argue in the suit that generic studies from places not associated with northeast Kansas or even the state at all were used as examples.

The suit claims the staff report did not list any distance requirements from schools because none exist. Furthermore the suit argues that the proposed business has no conflicts with the county’s comprehensive plan.

In contrast, the suit alleges that the county has created a “de facto zone out” for adult oriented businesses.

The suit also addresses a moratorium that was enacted five days after Snyder’s application was denied. Commissioners did not deliberate the moratorium but said they had been discussing the issue for months. The only discussion the Independent could verify took place at a regular commission meeting on Jan. 10 when Tichenor requested a moratorium but was told by Chairman Richard Malm that they were not going to act at that time.

“The moratorium ordinance was enacted to thwart, delay, censor, and prevent (Snyder) from engaging in constitutionally protected speech,” the complaint says.

There are three aspects to Snyder’s proposal. The first permit he is seeking is for a restaurant. The second is for alcoholic beverages to be served. The third component is the private club adult entertainment aspect.

The suit says that Snyder inquired about applying for three uses in separate applications but “Tichenor instructed Snyder to include all three proposed uses in a single application.”

Snyder’s attorney John Bullock did request that all three aspects of Snyder’s application be considered separately, however, the commissioners denied all three points in one motion.

The suit addresses how Snyder, his attorneys and those speaking on behalf of the project were treated during the hearing process.

Snyder’s attorneys say that Planning and Zoning Board Chairman Tim Bailey conducted the hearings in a “circus-like” atmosphere that included permitting opposition members to laugh, taunt, jeer and boo those in favor of the project and that several jokes were made at the expense of those in favor. Snyder’s attorneys note that they were even “fearful and intimidated.”

Furthermore the suit addresses a portion of the hearing where Bailey made what could be perceived as a joke about Snyder’s residence and the amount of property taxes that he pays. Bailey’s joke drew laughter from the crowd.

After the hearing Bailey could be seen and heard joking with opposition members about his questioning.

Furthermore, the suit alleges that Bailey was heard telling opposition members that Snyder’s application had “no chance in hell of being approved.”

The suit says that throughout the hearings Bailey made only token efforts to control the crowd and gave up after only a few tries.

Snyder’s attorneys say that most of the county’s testimony and the testimony of those opposed, centered around adverse effects and no concrete evidence was ever presented.

Several times commissioners and planning commissioners disclosed that they had ex parte communications about the business but never disclosed what those conversations were about.

The suit specifically addresses comments made by Malm in January at a meeting of the Jefferson County Republican Central Committee. The committee had convened to elect a new state representative for the 47th District to which Malm was a candidate.

During his speech to the committee Malm specifically referenced Snyder’s business and talked about a bill that was in the House last year but failed in the Senate that would regulate sexually oriented businesses (SOB). Malm pledged that he would be a yes vote for any restrictions on SOBs. Snyder requested that Malm recuse himself from the hearing but he did not.

The suit also alleges that Commissioner Roy Dunnaway was observed holding a “Barbie” doll affixed to a pole. Dunnaway was allegedly heard saying “See what I have to put up with? There’s no way we’re ever going to vote for this.”

The suit also addresses the issue of closed sessions by the Planning Commission and muted discussions between Hayes and Malm during the county commissioner’s hearing on the matter.

After the second and the third hearing of the planning commission, the board met in closed session with Wichita attorney Patrick Hughes.

The suit alleges that a lengthy motion that was read by Planning Commissioner Darrell Hammond was drafted in closed session by Hughes and that Planning Commission members had not seen the motion before it was read. The suit points to one instance where member Paul Johnson attempted to amend the motion to not include an aspect that would require Snyder to purchase the property of anyone within a certain distance if they wanted to sell.

“It was obvious that Hammond was not familiar with the provisions of this motion as he struggled to read it, stumbling over the language and mispronouncing several words,” the complaint says.

Snyder’s attorneys said that the motion contained legal jargon as well as observations that had never been raised up until that point. Furthermore Snyder was not allowed to respond to the items raised.

The suit says that the county has granted conditional use permits in the past for similar businesses. The only difference being the other businesses did not feature nude dancing.

Furthermore, the suit claims the county grants permission to a large motorcycle rally at Lake Perry every summer that features a lot of noise, extra traffic and alcohol consumption.

The suit asks for a permanent injunction prohibiting the enforcement of the county’s zoning regulations and the practices of the Planning and Zoning Department.

Snyder will also be seeking damages for his costs including his attorneys’.

The county has 20 days to respond to the suit.

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Posted by on Apr 1 2011. Filed under County, County Commission, Government. You can follow any responses to this entry through the RSS 2.0. Both comments and pings are currently closed.

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