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Ask Dwayne B. Your Own Question
Dwayne B.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 33098
Experience:  Began practicing law in 1992
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Im sorry we had an appointment this morning at 10. I was

This answer was rated:

I'm sorry we had an appointment this morning at 10. I was not online till 10:20 . To follow up with my C-3 zoning problem we talked about on the 2nd. Do you have some time now?

JD 1992 :

I do have time now, what can I assist with

Customer:

Can we talk at 12 pm today? I am sorry

JD 1992 :

Sure/ 12 central time?

Customer:

eastern in 45 min.

JD 1992 :

I'll be here!

Customer:

thank you so much

JD 1992 :

You're welcome.

Customer:

Ok. I am on line now. Are you there?

JD 1992 :

I am

Customer:

To follow up form the other day. The master deed states "use of commercial units" It list examples as, "up scale" retail and restaurants, offices, travel agency's, etc. What is there now is a restaurant, beauty salon, music store, personal gym, and a social network. This is C-3 and the commercial area is totally separate from the residential.

JD 1992 :

I understand.

Customer:

SOME in the COA , Do not want what I propose to lease. In the seven years it has been in on place. There has never been any vote to keep a business or resident from renting.

JD 1992 :

Do the COA agreements allow them to nix a lease based on anything else?

Customer:

A owner can petition the board for a waver for any restriction. Which waiver shall not be unreasonably with held if such proposed business is compatible with the others.

JD 1992 :

Is the only restriction the one about "upscale"?

Customer:

There are No specific restrictions other than what is allowed in a C-3 zone.

Customer:

There is NOTHING "up scale" there now.

JD 1992 :

In a case like this a term or a provision in a contract has to be specific. Any ambiguous terms are construed against the entity that created the contract, in this case the COA. Since they don't describe "upscale" then if you can offer a definition that is reasonable then a court is bound to use that interpretation even though the other side may offer an interpretation that is more reasobale.

JD 1992 :

In addition, they would have to prove that there is something inherently "not upscale" about that tattoo parlor, tattoo parlors in general, etc. In addition, they have to prove that the shops that are there are more upscale than the place you propose leasing to.

JD 1992 :

Again, a great way to prove that they are not is to take videos of people entering and leaving who have tattoos, which should be easy to do.

Customer:

In the lease/purchase agreement. It is clearly specified as an "up scale" Tatoo Salon. They will ONLY sale body art and local and regional art.

JD 1992 :

By doing that you prove that either 1) upscale people have tattoos or 2) the shops there have a clientele that is not upscale.

JD 1992 :

I think the COA just isn't going to be able to succeed on these grounds.

Customer:

The price of these "custom" tattoos are 2 - 3 times the price of a regular shop. It does not sale any novlity items. sexual or drug related. A client will have to be up scale to afford their tattoo.

JD 1992 :

I think you're focusing on trying to prove it is upscale. What you need to be focusing on is that they cannot prove it is not upscale.

Customer:

Thank you. I think I have it. Can you please make sure I get a copy of our conversation.

JD 1992 :

Sure, I can ask them to send it to you but I'm not sure how long that takes. When you issue your Positive Rating it will shift to a Q and A format and you can then print it outusing your browser's print function.

Customer:

Thank you.

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