But did it need it?

I have been following the controversy over The Bal Theater showing live events for quite some time, but it wasn’t until last night that I finally understood the positions of both sides: the City and The Bal’s owner Dan Dillman.  Neither side – Dillman or the City – has done a particularly good job of laying the issues on the table.  At yesterday’s Board of Zoning Adjustment (BZA) meeting, Community Development Director Luke Sims finally explained the city’s legal rationale for trying to stop Dillman from offering live entertainment.  I have to say, on its face it looks very weak.

The Bal Theater was built in 1946.  At that time it conformed perfectly with the current zoning laws.  It could show movies and live shows and whatever it wanted without the need of a permit.  Many decades later, however, the city changed the Zoning Code to require businesses in that area to acquire a conditional use permit (CUP) in order to show entertainment of any type. The US Constitution, however, protects the prior use of private properties against changes in zoning law.  That means that the entertainment use of The Bal could continue legally, though now it was deemed “non-conforming”.   The right to use a property nonconformingly is transferred to new owners of that property and stays with the property until the non-conforming use is abandoned.  San Leandro defines abandonment of non-conforming use as discontinuing that use for 180 days or more.

The City acknowledges that The Bal has not abandoned its non-conforming right to show movies, and that it can continue to do so without a permit.  It argues, however, that The Bal was primarily a movie theater and that it only occasionally held live events. It further argues that the latter owners of The Bal only used it for movie showing and did not hold any live events there.  Therefore they say, any-nonconforming right to show live events that The Bal had was discontinued/abandoned and doesn’t exist any longer.  The Bal, therefore, must get a conditional use permit to show live events.

There are a couple of problems with the city’s rationale, however.  First of all, while the Zoning codes of other municipalities specify that the non-conforming use of a property can be discontinued totally or partially, our Zoning code does not – merely saying that a non-conforming use that is “substantially” discontinued for 180 days cannot be re-established.  That means that the city has no legal basis for deeming  just part of a non-conforming right (in this case, the right to show live events) abandoned.  Moreover, the city’s own zoning code calls for the need of a conditional use permit for “entertainment uses” of a property, without differentiating between particular entertainment uses.  What this means is that when the Zoning code was passed, The Bal’s “entertainment uses” as a whole became non-conforming, rather than individual particular uses (e.g. showing movies, having magic shows, etc.).  Without a separability clause in the Zoning Code, the city cannot deem any particular entertainment use abandoned.  And that makes sense.  It would be absurd to say that any theater would have to show the exact same type of entertainment at least once every 6 months to keep its right to show that particular type of entertainment.

The city’s claim that The Bal never showed many live events is problematic as well.  What the city seems to be arguing is that even if The Bal has a non-conforming right to show live events, it cannot show more live events than it actually did before the Zoning Code was changed.  Under California precedent “the continued nonconforming use must be similar to the use existing at the time the zoning ordinance became effective” – but I have found no precedents to back the City’s position that a nonconforming use must be identical in frequency to the pre-ordinance use to be considered “similar” under the law.  The City has not set out the basis for this potential argument either.   Indeed, the Assistant City Attorney, Meyers Nave‘s Richard Pio Roda, remained completely silent during last night’s meeting, even when BZA members asked for clarification on legal matters.  I’m not sure whether that’s because he, himself, is ignorant of zoning law or because the City Attorney’s office understands that they are in very shaky legal grounds when asserting that Dillman does not have the right to host live events at the Bal.

Dan Dillman would not have needed to get any type of permits if he continued operating The Bal as a theater.  However, The Bal is not financially viable on its own, so Dan Dillman decided to use the building to host his Computer Repair business as well.    For that, he did need a Conditional Use Permit and applied for one.  The City granted him one, but used this permit to specify that he could not hold live events at the theater.   Basically, the city tried to blackmail Dillman into giving up his non-conforming right to show live events in exchange for being able to run his computer business.  Not only is this highly unethical, but as the city has no legal right to impose such restrictions on Dillman, those restrictions cannot be legally enforced.

Dillman re-opened the Bal and started to show both films and live events.  After a New Year’s show featuring black comedians, the City sent Dillman a warning saying that he could not show live events.  Thus started a process through which Dillman asked the city to remove the restrictions from his Computer Business conditional use permit which ended with the Zoning Board voting to grant him a new CUP to show live entertainment, albeit with frequency and time restrictions.  Now Dillman will have to decide whether he will accept the CUP as granted or just continue with the non-conforming use of the property.  While the CUP as approved last night does limit his existing rights, he risks a legal battle with the City if he continues operating without it.  It’s likely a battle he would eventually win, but legal battles are expensive and time-consuming.  The City has already been showing bullying tactics against Dillman by sending both uniformed and undercover officers to The Bal, and despite our great financial issues the City might decide to be spiteful and fight Dillman.   On the other hand, if Dillman does abide by the CUP, he risks legally abandoning the nonconforming uses of The Bal by turning them into conforming uses, now limited by a permit that could very well be taken away.

I think it’s time for Dillman to consult a good zoning lawyer.

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Note: This article was amended with clarifications on California law regarding the continuity of use of a property and on Dillman’s legal options.

References:

Zoning Code, Art. 20. 4-2006
A.  Abandoned Uses Shall Not Be Re-Established.  A nonconforming use that is
substantially discontinued or changed  to a conforming use  for a continuous
period of one hundred eighty  (180) calendar days or more shall not be  re-
established,  and  the  use  of  the  structure  or  site  thereafter  shall  be  in
conformity with the regulations for the district in which it is located, provided
that  this  Section  shall  not  apply  to  nonconforming  dwelling  units.
Abandonment  or  discontinuance  shall  constitute  cessation  of  a  use
regardless of  intent  to  resume  the use. The burden of proof  in establishing
whether  a  nonconforming  use  has  been  discontinued  for  less  than  one
hundred eighty (180) consecutive days shall be upon the operator of the use
or person requesting re-establishment.