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Wednesday, July 18, 2012

Failure to Obtain an Adult Use License Results in Loss of Nonconforming Use

In 2006, the County brought an action against George Stamatopoulos to enjoin the operation of his adult merchandise business, Video Magic. The trial court entered an order for the County, and the Appellate Court affirmed in 2008. That same year, Plaintiffs purchased Video Magic from Stamatopoulos and filed a zoning application to operate an adult use establishment; but the County Zoning Board of Appeals (ZBA) denied the application on the basis that Video Magic did not constitute a valid nonconforming use when the Plaintiffs purchased it. On administrative review, the trial court affirmed the denial of the zoning application, and the Plaintiffs appealed. In 2010, the Plaintiffs filed a motion to intervene in the County’s original case against Stamatopoulos. The trial court denied that motion, and the Plaintiffs appealed.

The Appellate Court heard the two appeals together in County of Lake v. George Stamatopoulos, d/b/a Video Magic, 2012 IL App (2d) 110232 & 110720-U. Plaintiffs argued that they should be permitted to intervene in the County’s case against Video Magic because they are a successor in interest and the trial court maintains jurisdiction to modify the injunction. However, based on the significant delay between the 2008 judgment and the 2010 motion to intervene, the Appellate Court determined that it was not an abuse of discretion for the trial court to deny the motion.

As for the appeal regarding their zoning application, Plaintiffs argued that the ZBA was bound by the injunction against Video Magic, prohibiting it from conducting business until it came into compliance with the adult licensing ordinance. However, the Appellate Court rejected Plaintiffs claims of claim preclusion, res judicata and judicial estoppel were inapplicable because there were not identical issues between the County’s injunction against Video Magic’s adult licensing ordinance violations, and the ZBA’s denial of the Plaintiffs’ zoning application.

Next, the Appellate Court accepted the County’s argument that Video Magic never operated as a legal nonconforming use because it failed to comply with the adult licensing ordinance. While not every violation of a licensing statute will discontinue a nonconforming use, where the adult licensing ordinance was clearly designed to assist in the regulation of land use, Video Magic lost its legal nonconforming use status due to failure to obtain a license.

Post authored by Dan Bolin, Ancel Glink


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