A Sunrise Beach man is taking a lakefront restaurant and bar to court, filing a lawsuit in Camden County Circuit Court April 1 for a temporary restraining order and preliminary injunction along with a petition for preliminary and permanent injunctions, to stop outdoor music at the business.
Richard Danowsky and wife Karla live approximately 300 feet from Paradise Tropical Restaurant and Bar at the 24 mile marker.
According to the lawsuit documents filed by attorney Tom Loraine on behalf of Danowsky, the outdoor entertainment at Paradise, owned by Tucker Investments, LLC, violates the restrictions of the county's B-1 zoning code and deprives Danowsky of his "right to the quiet use and enjoyment of his property." The petition for permanent injunction states that the suit is an action to enforce Camden County zoning laws "arising from failure of Camden County to prevent zoning violations."
In addition to stopping the outdoor music, Danowsky is seeking to recover civil penalties and attorney fees that resulted from the violations that are detrimental to he and his family's use and value of his property.
The Danowskys bought their home at this location while it was still under construction in 2000. They have been living there full time since 2002.
At the time of their purchase, there was a small family restaurant operating there that the neighborhood often enjoyed, according to Danowsky.
The lakefront zoning district in Camden County was effective beginning in 2004.
At some point, the restaurant changed hands, and in 2007-08, things changed, Danowsky says.
"Suddenly our happy life was changed," he says. "It quickly became an 'animal house' environment nightmare."
According to Camden County Planning & Zoning (P&Z) Administrator Don Hathaway, the property on which Paradise Restaurant is located is zoned B-1 general commercial under which outdoor entertainment is not allowed by the county unified land use code.
An application was made in November 2007 to rezone the property to B-2 which would allow outdoor entertainment. That initial request was dropped and revised, Hathaway says, to a B-1 request for part of what Tucker owns at the location. There is also a house owned by Tucker at the site which is mainly used as a vacation rental. It is located between the restaurant and the Danowskys' home.
A conditional use permit (CUP) was needed for the venue if it wished to have outdoor entertainment, according to Hathaway, but no CUP application was then filed.
According to Danowsky, the restaurant went ahead with a major expansion with large outdoor decks and loud music was first played outdoors Nov. 10, 2009. The music is played during the hours of operation of the business, including late night hours after 11 p.m., the lawsuit documents state.
Page 2 of 3 - The music has continued on a regular basis without an enclosed insulated room by which the loud exterior music could be contained, Danowsky says.
Paradise continued playing outdoor music during the summer and fall of 2011 and 2012, according to Danowsky, and the suit claims that Tucker acted in "deliberate defiance" of the law.
Hathaway says the county has issued two notices of violation to Paradise.
According to the lawsuit documents, the county advised Paradise of the violation on Feb. 28, 2011, May 21, 2012, and July 25, 2012.
One of the exhibits attached to the lawsuit is a letter reputedly from Chris Hall, the then county zoning administrator, to the Danowskys dated June 2, 2011.
It states, "Their (B-2) petition was not approved and it was amended to a B-1 request, which does not allow dancing and live entertainment. Specifically, no live music and outside entertainment was stated and agreed to by the petitioners. They stated their only interest was to update kitchen and do deck repair."
The letter continues, "After numerous complaints and investigations, it has been determined by The Planning and Zoning office and the board of County Commissioners that they are in direct violation of their B-1 zoning and are operating with full knowledge of this violation. Legal action has been requested by both the P&Z office and the County Commissioners."
Hall unexpectedly quit as administrative head of Camden County P&Z on June 28, 2011. Commissioners at that time said Hall did not give a reason for leaving. The departure was immediate. He had been director of P&Z for more than eight years. The month before he quit the P&Z Commission had approved a new master plan for the lakewide rezoning district that had been in the works for three years.
In the nearly three years since Danowsky's August 2010 complaint, he said he has repeatedly asked the county to take legal action to enforce the code, but county commissioners have done nothing to stop the outdoor music.
According to Hathaway - hired in August 2011 - the notices of violation prompted the owners to come in and discuss what they could do to resolve the issue, and the county planning office has been working with Paradise to find a way to bring the venue into compliance. The county recently received a site plan and CUP application from Paradise to erect buffering walls to shield the noise.
The screening would not stop the noise outdoors but would muffle it to some extent, Hathaway says.
A public hearing on the proposed CUP has been scheduled for 5:30 p.m. Wednesday, April 17 in the third floor hearing room of the courthouse in Camdenton.
But that hearing could become null if a temporary restraining order is approved by a judge at the lawsuit's April 10 hearing.
Page 3 of 3 - Both Danowsky and Hathaway have also said that Paradise representatives have indicated that they may also seek voluntary annexation into the Village of Sunrise Beach. According to village officials, no official application has been made by Paradise for annexation.
George Tucker of Paradise declined to comment on the CUP application and reported interest in annexation into Sunrise Beach.
He did state that the restaurant and bar is in compliance with the law, and that they are simply working with the county to try to make everyone happy.
Paradise reopened for the summer tourist season March 15.
Presiding Commissioner Kris Franken had not responded to an email seeking more information on the county's course of action with Paradise at press time.