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.

Adult Entertainment – My Final and Comprehensive Recommendation

I’ve done a fair amount of research through all this adult mess and I think I’ve finally come to a conclusion on just what is the best plan for East Hartford in my estimation.

Granted I’m no adult entertainment mitigation professional, but then neither are our Mayor, Town Planner, Council Members, Development Director or P&Z members. You’d think that the town’s attorneys would be the ones with the knowledge to make up for that fact, but as it turns out the word on the street is that the best constitutional/adult entertainment attorneys are representing the town’s opposition, Masters Club LLC ( Kim Coleman, Norman Pattis constitutional lawyers) and Pitkin Street Entertainment LLC (Dan Silver 35 years representing adult businesses). Given those facts I suppose I may be equally as qualified to present a plan as anyone else so take this for what it’s worth.

Before I go into it we need to analyze the problems that faced us at the beginning of this, what problems face us now, and what problems may face us after tonight.

East Hartford’s adult zoning regulations have been unconstitutional for years and as of this moment are still unconstitutional. These are the particular reasons.

1. Zoning regulations can not be so restrictive that no, or an insufficiently small, area of opportunity exists for adult businesses to open. Multiple court cases have held that 4.5-5% of a towns land available for business use being available for adult businesses is sufficient to pass this test.
2. A special permit requirement is considered a prior restraint on free speech. Any special permit requirement for adult businesses cannot grant unbridled discretion to the decision making body. Unbridled discretion occurs when the particular requirements for approval or denial are not specifically defined in the special permit regulation or the terms used are ambiguous.
3. Any regulation of adult business must be on the merits of secondary effects. Any regulation which can be shown to be against the content of the speech, for example a regulation to ban strippers, is unconstitutional. A regulation based on reasonable expectations of secondary effects to ensure strippers don’t cause or participate in illegal activities, such as a distance requirement from patrons, is perfectly acceptable.

Clearly the town understands this at least partially. To date the town has lifted most zoning requirements for adult businesses alleviating some of the problem from number 1.

Next the town applied for the establishment of two adult zones which would have had no special permit requirements alleviating 1 and 2 above in the North Meadows and Prestige Park area of town. This application was denied after the residents of town pointed out the absurdity of “regulating for secondary effects”, which is the only way the town can regulate in this case, by placing these businesses in known residential areas.

Now the town has applied to lift the special permit requirements on adult businesses as allowed in I-3 zones which would, when combined with the lifting of regulations already completed, alleviate 1 and 2 above. This application also has the same fault of placing the permitted areas in known residential areas betraying the declared intention of mitigating secondary effects.

Unfortunately both plans on their face appear to be more directed towards complying with 1 and 2 above to win a particular lawsuit rather than complying with 1 and 2 above in an attempt to mitigate secondary effects.

Here is my plan and why it works.

1. Establish I-2A and B-3A zones which replace the current B-3 and I-2 zones on Roberts Street whose rules are identical to the existing zones with the addition of adult businesses as a special use. Remove adult businesses as a special use from I-3 zones.
2. Re-write section 503.3 special permit rules for adult businesses such that they define specific requirements which may be in addition to the requirements already imposed in the I-2A/B-3A zones such as minimum distances from schools and residential zoned properties in unambiguous terms.

That’s it. This plan manages to satisfy all the constitutional requirements of regulating adult businesses. It provides an alternative location of sufficient size (5.5% of East Hartford’s business use properties according to the 2003 plan of development) which is about as removed from neighboring residential areas as possible in East Hartford and whose location promotes interstate 84 as the natural travel route to and from any businesses as opposed to residential streets in the heart of town. It removes unbridled discretion from the special permitting process and most important of all it does not contradict itself in the claim of regulating for secondary effects.

Why do I think I’m right on this? That’s the easy one. First, it’s logical. Second I researched and this is what I found:

Mendon, Mass: This city has never had adult regulation until very recently. A neighboring town’s battle and success in repelling a club based on clear zoning regulations inspired them to pass regulations. What Mendon has done is demonstrated three important parts of regulating adult businesses. In their regulations they established a strict zone for adult businesses to locate. They implemented a special permit requirement which has clearly defined requirements for approval. Most importantly they are proof that the moment you pass a regulation defining an adult zone you will get adult businesses. Mendon has had two applications covered by their new rules. The first was denied because it was just down the street from the defined adult zone. The second application is for a location inside the new adult zone which means if all the requirements are met by the applicant there will be a club there.

TJS of New York, Inc. v. Town of Smithtown: In this 2008 case the decision clarified for me somewhat what is needed in creating an adult zone.

Zoning ordinances may limit adult entertainment businesses to particular locations provided that “reasonable alternative avenues of communication” remain for adult oriented businesses” [case citations left out] Reasonableness requires an assessment of available alternatives and whether these alternatives afford a reasonable opportunity to locate and operate such a business.

The decision goes on to reference other decisions establishing guidelines to pass a test of “reasonable alternative avenues of communication”. In short past decisions give guidance that around 5% of the total land available for business use, regardless of current use, availability or economic feasability must be available to adult businesses. The Roberts zone meets this test at 5.5% of the total land for business use.

New York State Office Of General Counsel: This legal memorandum expresses the importance and exclusivity of regulating adult businesses only for their secondary effects and surviving related legal challenges.

Blue Moon Entertainment, LLC, v. City of Bates City: The court was only overturning a previous decision here. Their findings in doing so are what interested me. They support my understanding that special permits are perfectly ok so long as they have a clearly defined set of conditions.

First Amendment
activities generally may be restricted by a zoning ordinance that contains “contentneutral”
regulations governing the time, place, and manner of expression, so long as
the ordinance is designed to serve a substantial governmental interest and does not
unreasonably limit alternative avenues of communication. City of Renton v. Playtime
Theatres, Inc., 475 U.S. 41, 47 (1986). If, however, the ordinance requires that an
individual obtain a license or permit prior to engaging in the protected activity, then
the licensing scheme is analyzed as a “prior restraint” on the activity.

A licensing scheme generally
must provide narrow, objective, and definite standards to guide the licensing
authority, Shuttlesworth, 394 U.S. at 151, may only impose a restraint for a specified
and reasonable period, and must provide for prompt judicial review. Freedman, 380
U.S. at 58-59; FW/PBS, 493 U.S. at 228. It must not vest unbridled discretion in the
hands of a government official. FW/PBS, Inc., 493 U.S. at 225-26.