Castner v. City of Oakland

Opinion

MILKES, J.

*

Richard A. Castner, plaintiff, appeals the superior court’s denial of his request for a peremptory writ of mandate to compel the City of Oakland to grant him a conditional use permit for the operation of an “adult” bookstore.

[96]

Castner operates an adult bookstore with motion picture machines in the City of Oakland. The city passed an ordinance banning adult entertainment activity within 1,000 feet of a residential zone. Castner’s bookstore is located less than 600 feet from a residential zone. As a nonconforming activity, Castner’s bookstore needed to obtain a major conditional use permit to continue operation beyond the ordinance’s one-year grace period. At the end of the grace period the Oakland Planning Commission denied Castner’s application for a conditional use permit. This decision was affirmed by the Oakland City Council. Castner then filed a writ of mandate challenging the validity of the ordinance. The superior court denied his request for a peremptory writ.

The Oakland ordinance defines “adult entertainment activity” as: “Any commercial activity, whether conducted intermittently or full time, which primarily involves the sale, display, exhibition, or viewing of books, magazines, photographs or other materials, distinguished or characterized by an emphasis on matter depicting, describing, or relating to human sex acts, or by an emphasis on male or female genitals, buttocks, or female breasts.”

Castner contends the ordinance is unconstitutional because it causes him to lose his vested right to operate an adult entertainment business which was in existence before the ordinance was enacted. However, California cases have firmly held zoning legislation may validly provide for the eventual termination of nonconforming property uses without compensation if it provides a reasonable amortization period commensurate with the investment involved.

(National Advertising Co.

v.

County of Monterey

(1970) 1 Cal.3d 875, 878 [83 Cal.Rptr. 577, 464 P.2d 33];