CONDITIONAL USE PERMIT REQUIREMENT FOR THEATER-RESTAURANT IN M1 USE DISTRICT

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It is Slrbmitted t~Yat neither objection has merit, for the reasons set forth below. In addition, it may be noted that Harlequin cannot reasonabl.h apply for a conditional use permit with one hand and contend that the City may not require it to obtain one with the other. If Harlequin is serious in making sucYY a contention its course is to operate its theater-restaurant Y~a.th~ut a C.U.P.; it can then either wait for the City to bring ar action against it for violation of the zoning laws and raise such contentions in defense, or it can bring an action to enjoin the City's enforcement of the zoning regulations against it. But it cannot require the City to issue a C.U.P. on grounds that no C.U.P, is required. It has been held that a party suing to force a public agency to issue a permit waives his objections to the ordinance granting that agency its discretionary power. Minney v. City of Azusa (Ct. of App., 1958) 330 P2d 255. I The City's zoning regulations (511~~~', Ci~~tpter 41) do, by ~.zeir express terms, require Harlequin to obtain a conditional use permit to operate the proposed restaurant-theater in an M-1 .zone. Section 41-472 sets forth the uses permitted in an M-1 zone. Subsections (a) through (g) set forth various unconditionally ~~ermittefl industrial uses. Subsection (h) sets forth various non-.industrial. uses, Znd reads in part as follows: h) ~"he following non-industrial uses: (1) Accessary commercial uses which are necess.:~xy yet incidental to a permitted use under this section; ... (10) Restaurants and employee cafeterias; ... (13) T'he following uses subject to the issuance of an approved conditional use permit as prescribed in Article V of this chapter; (a) Any retail or service use permitted in any commercial district; ... ." A.ttY-ough Section 41-472 in^ludes "resi:aurants" as an unconditionally permitted use, the proposed Harlequin facility cannot reasonably be cemsidered s~.nnply as a "restaurant" for zoning pux-p,~ses. Whether a use is unconditionally permitted, conditiana,l~..y permitted, or prohibited is a matter of construction of the zoning or_~~3s.nance. Harlequin appears to be contending for a canstruc~tinn of the ward "restaurant" to include any facility which servers food, no matter what other uses may be made of the propert~~ . :~ucYz a construct ion is contrary to the obvious purpose of zoning requla`ivn, which is to limit. the uses which may be m~~cie of t_he pr.cm.s~s. Even def.ini_ny t2ye term "restaurant" 132