A San Diego Superior Court judge April 3 denied the city of Chula Vista a summary judgment that would have avoided a trial in its case against Eyecandy Showgirls.
Judge Richard Strauss wrote in his tentative ruling that the adult-oriented business does not violate the city’s zoning codes that were adopted in 2010 and 2014 because the business is located at 215 Bay Blvd., not on E Street where there are residentially-zoned properties.
He also stated that there is no school, park or religious institution nearby that would make Eyecandy in violation of any zoning codes.
Deborah Fox, outside counsel for the city of Chula Vista, argued that because Eyecandy is essentially on the corner of two streets — one of them zoned for residential use — it needs to meet the city’s zoning ordinance.
“Eyecandy is on two streets so under the buffer requirements it needs to be 500 feet from any residential zone on E Street, and 500 feet from any residential zone that might be on Bay (Boulevard). In this case, there isn’t one on Bay (Boulevard),” she said.
She added that the actual distance of Eyecandy to residentially-zoned property on E Street is only 475.95 feet away, which she said does not meet the required 500-foot buffer to meet city code.
Roger Diamond, an attorney for Eyecandy, said it’s impossible for Eyecandy to be on a residential property because a trolley station cuts right through it.
Fox said that the city has a future mixed-use project planned near Eyecandy that could make the area more residential. The project, she said, includes a transit-oriented development where the ground level is commercial and the top is apartment.
Diamond contends that he was never made aware of future plans in the area.
Diamond said the city’s business license states that Eyecandy is on Bay Boulevard, the Board of Equalization also lists Eyecandy on Bay Boulevard and he said mail gets delivered to 215 Bay Blvd.
Diamond said none of those agencies mention E Street as Eyecandy’s location.
“This was not some devious scheme to pick the incorrect address of the location,” Diamond said.
Fox said the zoning rules were established long before Eyecandy came into town. She said Eyecandy is “ignoring” the city’s zoning ordinance and failed to do its due diligence of the law when it picked its current location.
Diamond contends that the city of Chula Vista modified its zoning ordinance against adult- oriented businesses after Eyecandy arrived.
He added that Eyecandy “enhances the neighborhood” because before Eyecandy had arrived its building, as well as several neighboring buildings, were abandoned and rundown.
Diamond showed the judge before and after pictures of the location to prove that the area had been spruced up since Eyecandy moved into the area.
“The property has been very much enhanced and beautified by my client operating it,” he said.
Fox said she is prepared to go to trial.
“I think the judge was very thoughtful and said there were a lot of issues he felt needed to be sorted out about the location of Eyecandy versus its mailing address, so now we’re going to go to trial on April 24.”
Chula Vista City Attorney Glen Googins said despite not getting a summary judgment, he thinks the city has a strong position.
“It would have been great to win the case with a summary judgment motion, but that’s difficult to do,” he said. “All this really means is that the judge found there were facts in dispute between the parties, so he couldn’t rule in the city’s favor without the full benefit of a trial. The city’s litigation team did take advantage of its time in front of the judge to brief him on the merits of our position. And it sounds like we made significant headway. Although this ruling went against us, we still think the city has a strong case and we’re looking forward to presenting it in greater depth at trial later this month.”
Diamond said he is pleased with the outcome and thinks the city should drop the lawsuit.
“We are very pleased about (the judge’s decision), he is right on,” Diamond said. “There’s no reason for this lawsuit to continue on. It’s a total waste of money for the taxpayers.”
