Diamond

MEMORANDUM *

Steve Diamond brought a declaratory judgment action against the City of Grover Beach seeking to invalidate a zoning ordinance that restricts the operation of adult businesses within the city. The district court found against Diamond and issued an order enjoining him from continuing to operate an adult business. Diamond appealed. While his appeal was pending, the district court found Diamond in contempt of the injunction and ordered him to pay a fíne. Diamond appealed the contempt finding as well.

Diamond opened his store on December 28, 2003, over one month before the ordinance was enacted (February 2, 2004) and nearly four months before it took effect (April 15, 2004). Diamond was permitted to open his store because the City stipulated that he could do so. The stipulation arose from a lawsuit Diamond brought challenging the moratorium, and it stated in pertinent part that Diamond “will not use this stipulation or any additional time [his] adult business is permitted to remain open by virtue of this stipulation to support any of [his] arguments.”

Notwithstanding the City’s assertions to the contrary, the stipulation did not prohibit Diamond from acquiring…

dissenting:

Assuming that Diamond’s bookstore qualifies for nonconforming status by virtue of the city’s ordinance, the problem is that he contracted out of the right to assert such status based on time he operated the bookstore as a result of the settlement agreement. The reason Diamond’s bookstore remained up and running, uninterrupted, during the 45 day window was the agreement, the express purpose of which was to permit Diamond to run the business while he looked for a relocation site. Diamond bargained for a grace period, not a shot at squeezing a nonconforming use status out of any gap that might arise. That being the intent of the parties when they signed this agreement, I would read the stipulation accordingly; to permit Diamond now to rely on the 45-day window flips the point of the contract on its head. Had Diamond wanted to roll the dice on a window popping up before the new ordinance took effect, he could have voluntarily shut down during the moratorium and tried to get- things restarted the day after the moratorium ended. He didn’t. What follows from reading the contractual language technically but nonsensibly is a windfall for Diamond. As for the constitutional…