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The naked truth: Downtown Fort Wayne strip club denied after similar case was approved last year

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
Michael Murray
Pat Hess

The desire to follow statute and procedure trumped an appeal to equal protection under the law Thursday night, and as a result downtown Fort Wayne won’t be getting a strip club any time soon.

By a 4-0 vote, the Fort Wayne Board of Zoning Appeals affirmed Zoning Administrator Kim Bowman’s April 12 decision to deny a “certificate of use” that would have allowed Dino Zurzolo to open an “adult cabaret” in the former Rabbit’s night club at 1407 S. Calhoun St.

As The News-Sentinel first reported in May, Zurzolo appealed Bowman’s ruling citing the Department of Planning’s decision last year to allow another adult entertainment business, Club 44, to operate at the former Stewie’s site at 4030 Coldwater Road. Although a 2001 city law severely limits the proliferation of adult businesses, attorney Pat Hess argued on Bowman’s behalf Thursday that Club 44 was allowed to reopen as a “non-conforming use” because a similar club had previously operated there and that the location was never considered “abandoned” because Club 44’s owners filed a request to reopen within a year of Stewie’s demise.

But Zurzolo’s attorney, Michael Murray of Cleveland, noted that Stewie’s was closed 17 months before Club 44 opened and that Rabbit’s, which closed in late 2016, would have reopened in less time than that had Bowman allowed it. Murray said the building’s previous owner, Fort Wayne Building LLC, never intended to abandon the property and had made $200,000 in improvements in anticipation of reopening before a cash shortage made it unable to complete the project. “It was a valuable right to operate there” as a result of a previous use no longer allowed under current zoning laws, Murray said.

Zurzolo said he bought the property in February and made additional improvements worth about $75,000. “There was an adult business (on Calhoun) for 40 years; it was grandfathered in,” Murray argued. ” ‘Abandonment’ must be shown to be intentional; discontinuation isn’t enough.” The Rabbit’s site operated for years as Poor John’s.

Hess told the BZA Murray’s argument was “laudable,” but ultimately prevailed by citing a Dec. 1, 2017 letter from Bowman to the previous owners informing them more than a year had passed since Rabbit’s closed and that the property therefore could no longer be considered a non-conforming use.

“The rules say that if you disagree (with such a ruling) you have 30 days to appeal,” Hess told the board. When no appeal was filed in time, he said, “the bird had flown the cage. (Bowman) couldn’t go back in time. She had no choice to deny; her hands were tied.”

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Murray, however, suggested Bowman had no legitimate reason to issue the Dec. 1 letter because Zurzolo had not yet submitted an application to operate there. “She jumped the gun,” he said. “This case is no different than Club 44.”

Zurzolo, meanwhile, said the previous owners never informed him of Bowman’s letter denying non-conforming use status.

BZA attorney Robert Eherenman said Bowman wrote her letter in response to the previous owners’ notification that they intended to reopen.

BZA member Connie Haas Zuber said her vote was “not out of dislike of any business, but out of respect for our process and state law. The error here was by the previous property owner.”

Zurzolo said he will evaluate Thursday’s vote and take “appropriate” action. And regardless of whether the decision ultimately prevails, he and Murray promised they will also challenge the city’s limitations adult businesses in federal court on First Amendment grounds.

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