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Owner of would-be downtown strip club says officials are playing favorites

Did city officials act unfairly and unconstitutionally when they rejected a plan to reopen the former Rabbit's club on South Calhoun Street? A new federal lawsuit insists they did. (File photo by Kevin Leininger of News-Sentinel.com)
Dino Zurzolo

Are all strip clubs created equal?

Not according to the owner of a would-be downtown “adult cabaret” who claims he has been denied the right to reopen by the very people who claimed they were powerless to prevent the rebirth of a similar club on Coldwater Road last year.

According to paperwork filed with the Allen County Department of Planning Services, department Executive Director Kim Bowman on April 12 denied a “certificate of use” that would have allowed Dino Zurzolo to reopen the former Rabbit’s night club at 1407 S. Calhoun St. According to an appeal statement prepared by attorney James Buchholz, “the stated basis for the denial was that the property is zoned Downtown Core and that district does not permit sexually oriented businesses. However, we submit this was in error for the reason that the operation of an adult cabaret at the location has for many years been a lawful nonconforming use and the right to maintain that nonconforming use has been retained.

“Moreover . . . this appellant was arbitrarily treated differently from Club 44.”

As The News-Sentinel first reported in April 2017, Club 44 was allowed to reopen at the former Stewie’s site at 4030 Coldwater Road despite the objection of several City Council members. Department of Planning attorney Robert Eherenman said at the time a similar non-conforming use could be allowed to operate there despite a 2001 law designed to limit the proliferation of adult businesses. Stewies operated for four years before closing about 18 months before Club 44 came along.

“You can’t zone somebody out of business. People have property rights,” Eherenman said at the time.

Some council members claimed the non-conforming use had been terminated by the 18 months of inactivity at the site, but this argument did not prevail. And that’s precisely Buchholz’ point: The Calhoun Street site operated as a strip club called Poor John’s from 1976 to 2015, then as the Rabbit until late 2016.

After that, Buchholz wrote, the previous owner remodeled the building and “at no time did the owner intend to give up his valuable right as a nonconforming adult nightclub. Indeed, the intent was always to continue that use, as it represents the highest and best use of the property. ” Zurzolo’s 1407 LLC bought the property earlier this year, made additional improvements and is ready to open subject to inspections.

“Our client made the city aware of its intent to operate an adult cabaret on the property. Thus, while the operation of an adult cabaret may have been discontinued during the time of remodeling, there was never any intent to abandon the use,” Buchholz argued, adding that in the case of Club 44, the city “recognized the property did not lose its grandfather rights . . . because the the prior owner and the new owner never exhibited an intent to abandon the use.”

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