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other things,having the deck. The contention in the lawsuit is that the deck is an expansion of the <br /> prior use. It is non-conforming and, therefore, not permitted. The case was scheduled for trial last <br /> month. The City Attorney's office and I determined that perhaps a better way of going about this <br /> was to come forward to the Council and ask for the special exception. The only difference with <br /> the special exception is that the deck will be a permitted use. With the petition filed with the <br /> ABZA we also filed written commitments. The commitments assure there will be no live music <br /> on that deck at all and the deck will close at 11:00 p.m. every day the bar is open. As far as the <br /> lawsuit is concerned,there is conflicting evidence before the court right now. We have a <br /> bartender that signed an affidavit who says that under the prior operation, they used the backyard <br /> to serve drinks,play games and have music. The person who claims to be the prior owner signed <br /> an affidavit saying they didn't use the backyard. The court is going to have to hear all that and <br /> make a decision. The difference with your action is this. If Mr. Burg were to prevail in court and <br /> we can prove there was a prior use of the backyard, which would make this deck lawful,there <br /> would be no restriction on the use of that deck. This proposal comes with written commitments <br /> that are enforceable against not only him but any subsequent owner of the real estate. Again,the <br /> commitments are that there will be no music what-so-ever outside and that the deck will be <br /> closed at 11:00 p.m. You don't get that any other way. <br /> Committee Chair Davis asked, Let's say we pass this. With passing this, it comes with the <br /> commitments? <br /> Committeemember Gavin Ferlic asked, So if we do grant this exception,the lawsuit is dropped? <br /> Mr. Masters replied, It would make the lawsuit moot, yes. <br /> Committeemember Ferlic followed up, If we do not pass this, you would proceed forward with <br /> the lawsuit? <br /> Mr. Masters confirmed, That is correct. Also,there was a report done in the South Bend Tribune <br /> stating the tavern was a chronic nuisance violator. First of all, it only takes a lot of complaints to <br /> become a chronic nuisance violator, the complaints don't even have to be proven. My client <br /> entered an agreement with the City in effect from Maw through November 2016 to <br /> remediate any chronic issues. There has not been a single valid citation issued against this <br /> property for noise violations. There was one (1) citation issued by the South Bend Police that <br /> was rescinded because there was no proof they exceeded the noise levels. Part of the chronic <br /> violation agreement had required my client to maintain a decibel meter while they had music to <br /> determine if they were violating. Any time the police were called by the one (1) complaining <br /> neighbor, the police came out and verified they were not in violation. You get a person calling a <br /> lot and getting a lot of complaints, you become a chronic nuisance, even though you never <br /> violated anything. My client satisfied those requirements last November. <br /> Councilmember Dr. David Varner inquired,And that agreement was in writing? <br /> Mr. Masters confirmed, Yes. It was between the South Bend Police Department and my client. <br /> We are trying to resolve two (2)problems. One (1) is the lawsuit with the City and secondly, as <br /> the ABZA pointed out, by having the written commitments,to assure there be no adverse impact <br /> 3 <br />