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Tuesday, March 12, 2019 1:00 am

Strip club's lawsuit against city thrown out

Rabbit's owners fought ordinance in bid to reopen

MATTHEW LEBLANC | The Journal Gazette

A federal judge has thrown out a lawsuit against the city by the owners of an adult nightclub who wanted to reopen the business downtown.

Lawyers for 1407 LLC, which owns Rabbit's, 1407 S. Calhoun St., claimed city officials unfairly applied an ordinance regulating sexually oriented businesses and prevented a planned reopening after it closed in 2016. Documents filed in U.S. District Court in Fort Wayne alleged the city violated constitutional rights to free speech and equal protection under the law.

Chief Judge Theresa Springmann rejected both arguments and dismissed the case in a 20-page opinion in late January.

The lawsuit sought to have the city's ordinance overturned. Rabbit's also asked for $500,000 in damages.

At issue was a decision last year by the city's Board of Zoning Appeals to affirm an earlier decision by Zoning Administrator Kimberly Bowman that the club abandoned its nonconforming use in late 2017.

Downtown core zoning prohibits sexually oriented businesses, but Rabbit's was grandfathered under an exemption to the city law for pre-existing nonconforming use. The club's operator “lost its tenancy” in October 2016, according to court documents, and its new owners later indicated the business would reopen after extensive renovations.

They had a year to secure permits to do that under city law, and Bowman in December 2017 sent a letter to the owners stating the nonconforming use had been abandoned. The decision wasn't appealed, court documents say, and 1407 LLC sought paperwork in March 2018 to run a sexually oriented business.

The application was denied and the zoning appeals board upheld the decision.

Springmann's Jan. 25 opinion caps a legal fight that stretched for nearly a year in federal court.

“While (Rabbit's) did not manifest an intent to abandon the nonconforming use status of the property, it did not follow proper procedures to maintain such use,” she wrote.

Lawyers for Rabbit's had argued the city's denial of paperwork necessary to reopen the business amounted to an infringement of First Amendment rights. Springmann wrote in her opinion there are other areas in the city where such a club could operate.

The lawsuit claimed another nonconforming business – Club 44, near Glenbrook Square – was allowed to reopen after a period of inactivity. In that case, Club 44 applied for the required certificate of use within the 12-month period before its nonconforming use expired, Springmann wrote.

City Attorney Carol Helton applauded the ruling in a statement Monday.

“We were encouraged by the ruling,” she said. “We are optimistic that a future private development will go in on that site that meets the permitted downtown zoning district uses.”

mleblanc@jg.net