Legal Council for Masters Club LLC Addresses Tax Payers
Masters Club zoning appeal update.
The Masters Club LLC challenge of the modification of the zoning regulations to permit adult businesses in the I-3 is now in the online system at the state judicial website. The docket can be viewed here:
Docket HHD-CV-08-4039777-S Masters Club LLC v. East Hartford PZC
The docket shows no activity related to a court summons as stated in the appeal as filed. More info on that can, along with the text of the appeal, be found in this previous post:
When strip clubs won’t back down
What I do see is a Status Conference scheduled for October 20th. From Wikipedia:
A status conference is a court-ordered meeting with a judge (or under some circumstances an authorized counsel) where they decide the date of the trial.
One thing is for sure, Justice (or injustice depending on your perspective) sure does move slow.
It appears nothing more has happened in the contract lawsuit Masters Club filed against the East Hartford and Hartford Elks.
Masters Club doesn't get the go ahead
Today was the final scheduled day for the preliminary injunction hearing in Masters Club v. East Hartford and no ruling either way has been made. It appears three days was just not enough time.
The JI has coverage of Wednesday’s events online now and I expect they’ll have some coverage of today’s events online tomorrow. The story is here.
Based on my conversations this evening with people from both sides it sounds like this issue has a long way to go before the preliminary injunction request is resolved. Experts are needed and probably more days in court later this year or even into next year. This means that for now the town’s regulations as they apply to Masters Club and all adult establishments still stand and Masters Club is not coming to Roberts Streets in the near future.
From what I’ve heard the case presented by Coleman was lacking any real punch on the issue of statements that may have been made by the Mayor and witnesses listed on the witness list never made it to the stand or even the court room.
For today East Hartford is the victor, if only by a lack of a ruling. I’ll take it.
It’s a good thing I didn’t try to go see the hearing while I was in New Haven Tuesday after all. The hearing actually happened in Bridgeport so I never would have found it.
UPDATE
The Judge has made an order following the three day hearing:
SCHEDULING ORDER: Following three days of hearings on Plaintiff’s Motion for Preliminary Injunction and after conferring with counsel, the Court hereby issues the following scheduling order: Plaintiff will disclose its experts and provide Defense counsel with a 26(a) report by November 17, 2008. Plaintiff may also depose Defendants’ consultant or other fact witnesses during this time period. Defendants will depose Plaintiff’s experts by December 15, 2008. Defendants will then disclose their experts and provide Plaintiff’s counsel with a 26(a) report by January 21, 2009. (If Defendants choose not to use expert witnesses, counsel should notify the Court as soon as possible, but no later than January 21, 2009.) Plaintiff will depose these defense experts by February 21, 2009. The hearing on the motion for preliminary injunction will be continued on March 2-4, 2009. If, however, Defendants decide not to use any expert witnesses, the Court has set aside January 27-29, 2009, for the continuation of the Preliminary Injunction hearing. SO ORDERED. Signed by Judge William I. Garfinkel on 9/18/2008. (Smith, M.) (Entered: 09/18/2008)
Basically, it will be early March of 2009 before Masters Club can even hope to get an OK to go ahead. Although if they are successful in challenging the last amendment to the zoning regulations this may not hold true since the special permit would be in force again along with all it’s unconstitutionality.
UPDATE #2
The JI has added another article on the hearing as expected.
JI report suggests favorable results for town in strip club battle
The JI has an article by Alex Wood on the first day of the Masters Club v. East Hartford preliminary injunction hearing.
From the sound of the article the judge is not particularly concerned with the motive of the town in creating new regulations. This would mean that Masters Club is sunk, since this is likely the entirety of their case, apart from a potential effort to show through testimony of local land owners that there is insufficient alternative means of communication.
From the article:
The judge asked more than once during Tuesday’s hearing whether Masters Club has considered applying to change the zoning of the Elks Club from I-2 to I-3 to permit development of the club.
Kim Coleman, the Bethany lawyer representing the club, cited several reasons she hasn’t done so, including the ban on alcohol sales in I-3 zones.
“I would not want to change to an I-3 because I could not serve alcohol,” she said.
An issue Garfinkel didn’t clearly resolve Tuesday is whether he will consider the town’s motives for the changes in the zoning regulations.
Coleman maintains that the real purpose of the regulations is to block new sexually oriented establishments, not to reduce their “secondary effects.” She cited testimony Kayser gave in a “deposition” that the PZC changed the zoning regulation to make it constitutional.
“Is that bad?” Garfinkel asked.
“That’s a classic case of a laudatory motive rather than an illicit motive,” the judge added.
This is pure speculation so far, but we’ll see what reports come out today. Maybe I’ll even get a statement, though I wouldn’t count on one until tomorrow evening.
Taxes… worse than strip clubs?
Unfortunately, despite the fact that I was in New Haven on business anyway, I was unable to attend the Masters Club v. East Hartford case in court today. The New Haven Federal District Court requires you to check your cell phones at the door and I could not be separated from my phones during business hours. I’ve not heard any updates yet from either side either.
What I did instead was go to the Raymond Library to conduct some budgetary research for a tax reform proposal I’m working on. What I found was two fold. First, the reference section has a woefully inadequate resource of town budget documents. Quite frankly, there is no where near the information required for an average resident to form a working knowledge of the budget history of East Hartford. I won’t judge too harshly however because the regular reference librarian is on vacation. There may be more information squirreled away which the other librarians don’t know about.
What I did find was interesting. The most interesting part being that student enrollment in the East Hartford School District totalled 7,438 in 1998 and increased to 7,918 in 2007 which represents a 6.4% increase in enrollment. During the same period the employment rolls of the East Hartford School District increased from 934 in 1998 to 1222 in 2007, or 30.8%. Is it any wonder why our school budget is spiralling out of control?
How much does the average employee make? According to the 08/09 BOE proposed budget the answer is $53,315 before benefits. The budgetary impact of these 288 additional employees is huge. Based on the 08/09 adopted budget’s mill rate calculation these employees represent 4.98 mills of the current 31.67 mills. In plain dollars and cents that’s $721.62 that the average taxpayer has no choice but to pay.
What was it that Bill Horan and Barbara Rossi said at budget time earlier this year? They said that taxes don’t cause foreclosures. Well, I’ll counter that by saying when this kind of unchecked excess represents $60/month extra on the “average” persons mortgage and tax increases of 5% or greater come year after year the result is the inability of the homeowner to pay the mortgage and the taxes. The average East Hartford taxpayer today has a burden before state and federal taxes of $382/month.
It can be assumed based on previous unbridled budgetary growth that when budget season ‘09 concludes the monthly tax burden will be over $400 while the median household income in East Hartford remains stagnant or falls and the grand list shrinks.
Stay tuned, major changes for the East Hartford tax system are coming. With any luck these changes will force the BoE to realize it’s strangling this town and they’ll fix these problems voluntarily. If not, we’ll drag them kicking and screaming to an education system that this town can afford.
UPDATE: I did manage to find the exhibits and witness lists filed by the town and Masters Club. When you put them together you get a pretty good idea of what is being argued in court.
East Hartford (Defendant) Exhibit List
East Hartford (Defendant) Witness List
Masters Club (Plaintiff) Exhibit List
Masters Club (Plaintiff) Witness List
My $5 says the Masters Club case is two pronged.
The first prong is an attempt to demonstrate through testimony of Council & P&Z members as well as town officials that certain persons, whether in executive session or out, have indicated that the goal is to prevent clubs from coming to town. *cough* Currey *cough* Any such statement by a town official would likely lose the case right there since it is illegal for the town to regulate speech for reasons other than secondary effects.
The second prong will be ripping apart the claims of regulating for secondary effects. As you’ll see on the witness list a variety of people not named on the case have been subpoenaed to testify in addition to P&Z members. I don’t honestly believe the claim of regulating for secondary effects can be defended here, but good luck to Mr. Gerard.
On the defense side it appears their strategy is to disqualify as much of the plaintiff’s exhibit material as possible followed by an attempt to get Mr. Chu and or his real estate agent to blow the case and finally a vigorous defense of the actions of the P&Z and town hall officials to date as regulating for secondary effects.
I’m anxious to see the resolution of this preliminary injunction hearing and find out if everyone told the truth up on the stand based on what has been told to me over the months. If you are interested here is the relief that Masters Club is seeking.
When strip clubs won't back down
Masters Club has filed an appeal of the Planning and Zoning Commission’s July 31st decision which removed removed the special permit requirements for adult businesses and allowed them permitted use in all I-3 zones. The appeal makes the following claims:
Commission’s decision and administrative findings, inferences, conclusions and decisions relating thereto are:
a. in violation of constitutional, statutory and/or agency regulatory provisions;
b. in excess of the statutory authority of the agency;
c. made upon unlawful procedure;
d. affected by other errors of law;
e. clearly erroneous in view of the reliable, probative and substantial evidence of the whole record; and
f. arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
In short the appeal contends that the text of the amendment was changed substantially enough so as to change the meaning and effect of the application as originally filed prior to the second public hearing. Basically the first application text was typed out incorrectly and had the effect of modifying the special permit rules. The second application text removed the special permit rules entirely as they relate to adult business. It is Masters Club’s claim that the application’s effect can not be modified so severely without a new application being filed, which didn’t happen because of time constraints.
According to the documents the P&Z is being summoned October 7th for a court appearance in Hartford Superior Court which means this action, if successful would not invalidate the change prior to the preliminary injunction hearing September 16,17,18.
The text of the appeal is here.
Masters Club Zoning Appeal
Also, it appears that Masters Club has filed suit against the East Hartford and Hartford Elks. The claim here is that the East Hartford Lodge intentionally misrepresented a lease agreement (which I presume is for the cell tower) by not being forthcoming about an amendment to the lease which they had entered into reducing the lessee’s rent. The complaint further alleges that the East Hartford Elks after the sale transferred half a million dollars to the Hartford Elks out of the sale proceeds of the property making that 500K that the Hartford Elks now possess available for payment of any judgement.
You can read the complaint here. You’ll have to forgive the quality. The Hartford Superior Court clerk charges $1.00 per page to copy (ridiculous) so I snapped pictures with my cell phone of the document and assembled them together.
Masters Club v. Elks
Masters Club is gearing up for trial. I was informed today that I may be subpoenaed, though I can’t imagine why anything I say would matter in court. Update 09/11/08 – It sounds like I won’t have to make a court appearance. Lucky me.
Lawsuits… here are the complaints as filed in New Haven Federal Court
I have three complete complaints for you this evening.
First up, Eubanks v. East Hartford. In this case Jermayne Eubanks alleges that on July 31st 2006 his rights as well as his pride were violated. He is requesting 5 million dollars (not 5 billion as Justia showed) plus legal fees as relief for his injuries.
Eubanks v. Town of East Hartford et al.
Next we have Masters Club. In this suit Masters Club LLC, which we have all become familiar with is suing for an injunction to enjoin the Town from enforcing the zoning regulations or moratorium as well as demanding compensatory and punitive damages and legal fees.
Masters Club LLC v. Town of East Hartford et al.
Finally we have Pitkin St. Entertainment LLC. This lawsuit is substantially similar to the Masters Club LLC lawsuit but includes more supporting reference in the complaint.
Pitkin St. Entertainment LLC v. Town of East Hartford et al.
Exhibits
I’ll let you read and make of these what you will. There is one bit of advice I’ll give you however. Don’t attempt to go anywhere near downtown New Haven on move in day for new Yale students. I learned the hard way.
Video: Town Council – August 26th
The agenda for the council meeting Tuesday night was considerable and unfortunately I ran out of battery before the council ran out of agenda. The video of what I got is below. I believe I only got about 2 minutes through the adult ordinances discussion.
There were some very notable items on the agenda Tuesday.
EHPD K9 Division
Officer Todd Mona and his dog Primo were recognized for their receipt of the 2007 Daniel Wasson Memorial K-9 Award.
The EHPD K-9 Division was recognized for their accomplishments in placing 1st as well as receiving multiple best in show awards in the 2008 Canine Olympics.
EH Allstars Softball Team
The Allstars softball team received recognition for their second championship domination in a row. Councilman Weinberg expressed his excitement at this second win being proof that the first wasn’t a fluke.
The council also discussed and passed the adult ordinances as recommended by the ordinance committee. What was notable in the discussion was when Chairman Kehoe was describing why and what changes were made from the prior version which was spoken on at the public hearing. Although Councilman Horan spoke precisely as required in describing the purpose of the legislation, mitigation of secondary effects, Kehoe and Weinberg betrayed this purpose.
At one point Weinberg made a statement that although federal law (failing to realize it is the constitution not federal law which requires it, or not recognizing the difference in the two) requires us to permit adult businesses in town these ordinances are going to make them not want to come to town. In other words these ordinances are in his view intended to or will have the effect of causing someone who wishes to open or operate a protected adult business to censor their own speech by choosing not to do so. That is unconstitutional as well.
Kehoe in his explanation of the changes to the ordinances explained on multiple items how they were changed in this final version because their lawyer, Mr. Gerard, told them they were indefensible since they could not come up with any plausible way they would mitigate secondary effects. In short, Kehoe admitted through the words that lay between the lines that in drafting these ordinances the primary concern of the council was preventing adult businesses from operating in town with secondary effects being an after thought considered only for constitutional defense. Are these public betrayals of the intent and purpose statement which preface the ordinances enough to give Attorney Silver or Coleman some some rope to hang them with? That I don’t know. Let us hope not.
[googlevideo=http://video.google.com/videoplay?docid=-8509558925591775998&hl=en]
Video: August 20th Special Permit Hearing
Finally I have the special permit video up. I had all kinds of trouble with google video. I must have uploaded the video 5 times and it wouldn’t convert properly on their end. I tried blip.tv as well, but their system seems to have a problem as well in that it only shows about 1 frame/second. Google finally decided to process my video though.
I also received word that channel 5 will be replaying the hearing on Monday.
Here’s a time line breakout so you can jump around to what you want to see.
00:00:50 – Mike Dayton, town planner
00:07:00 – Thomas Gerard, town legal counsel
00:14:50 – 1st Public Comment
00:22:50 – 2nd Public Comment, Susan Skowronek
00:34:40 – 3rd Public Comment, Susan Kniep
01:00:45 – 4th Public Comment
01:03:00 – 5th Public Comment
01:11:20 – 6th Public Comment
01:23:50 – 7th Public Comment
01:28:50 – 8th Public Comment
01:32:30 – 9th Public Comment
01:33:30 – 10th Public Comment
01:40:25 – 11th Public Comment
01:44:45 – 12th Public Comment, Jon Searles (Me) Roberts St Plan
02:01:30 – 13th Public Comment
02:04:25 – 14th Public Comment
02:08:50 – 15th Public Comment, Kim Coleman legal counsel for Masters Club LLC
[googlevideo=http://video.google.com/videoplay?docid=-7854567128234263013&hl=en]
P&Z listens to counsel, application is unanimous.
The P&Z last night unanimously approved the application to remove the special permit requirement for adult uses in the I-3 zones on recommendation from their legal council.
This means two things. First, they have removed one very clear unconstitutional problem from the Masters Club law suit which they were certain to lose on in court. Second, adult businesses can now locate by right in I-3 zones.
I have to give it to the members of P&Z. I would not have had the cajones to take the gamble that between the end of the moratorium and whenever they can change the adult zone layouts (if that’s even on the radar) from all of I-3 to something a bit more constrained and less infectious nobody is going to apply to open a club or other adult business in one of the many I-3 zones. It also seems there is an expectation that the council’s ordinances are going to dissuade businesses who might otherwise come to town from doing so. That’s not a view I share. While a nuisance, the ordinances are wholly manageable and those parts which aren’t will be challenged in court in short order.
P&Z members who voted against N. Meadows/Prestige Park and in favor of last nights application declined to comment on any specific reason for their decision.
I’ll think about it a little more, maybe I’ll come around. Or not. Video to follow. It’s gonna take awhile at over 2 hours in length.
What I can’t seem to get my head around is that all chances of fixing our regs before the lawsuits move forward and the moratorium expires is now gone. The administration has squandered 8 months and only put two plans before the P&Z which were both bad at best. Some of the blame sits with the P&Z for this too. Granted they were listening to their legal counsel and the Mayor et al., but when they saw that they weren’t getting straight answers or constructive plans which meet all the requirements for a constitutional adult zone they had an obligation to make their own plans and start their own discussions. I’ll give them a pass on this because apparently that’s not how things are done in this town, but in the future let this serve as evidence that this is how things MUST be done in town, they’ll happen no other way.
By now you’ve read or heard my plan for a Roberts St zone. If not it’s in the video. It seems obvious that the reason a plan like this, despite having the least secondary impact for our neighborhoods, wasn’t considered is because it effectively would have given Masters Club what they wanted. I can’t help but believe that had Masters Club bought property in Prestige Park instead we’d have seen an adult zone created on Roberts St already and the I-3 wouldn’t be an option from the town’s perspective.
