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.

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.

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]

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.

As Bill Doak says, so I do…

Bill Doak, editor of the East Hartford Gazette, once wrote an editorial in the EH Gazette which said, in other words of course, if all we bloggers do is tear things down without offering an idea of how to build things up then we can go to hell because we are useless. You know Bill, you are right. In recognition of this I offer the following to the readers.

I’ve been thinking about the public hearing coming up on the 20th which will be a continued opportunity for residents to speak on the proposed changes to section 503.3 Special Permits which would make Adult Businesses a permitted use for all 177 I-3 zoned properties in town.

What I’ve been thinking is how does this I-3 concept compare to a Roberts Street zone. Conveniently at the last hearing the counsel for the P&Z had not calculated the maximum club density, despite the fact that they had done so for the N. Meadows/Prestige plan. What I found in figuring it out myself is that the current proposed I-3 plan can support up to an estimated 25 new adult businesses based solely on the 1000′ between businesses requirement.

Here is a slightly more zoomed in map of the I-3 zones for more clarity.
I-3 Zones – Large

Now for your viewing pleasure here is the GIS map I threw together to represent a Roberts Street zone.
Roberts St Adult Zone

I’ll guide you through my Roberts St map. First you’ll notice the blue outline, these are 39 I-2/B-3 zoned parcels on Roberts St. Notice that the Masters Club property is not highlighted, though I have labeled it, this is because the GIS information is incorrect and lumps it together with a Church Street parcel. The total size of this adult zone would be 104 acres give or take a bit. You’ll also notice I’ve put labels on some parcels. The labeled parcels are the parcels that an adult business would be required to purchase to achieve the maximum density of 4 clubs. I labeled these parcels based on their current ownership.

Moving left from the Masters Club parcel the first properties that comply with the 1000′ buffer are labeled with their current owner CL&P. I don’t foresee CL&P selling the properties to an adult business.

The labeled property to the far left is the first property that meets the 1000′ requirement from the CL&P cluster. That property is owned by the State of CT. I can’t see the State selling to an adult business either.

To the far right we see two parcels labeled vacant land. These are the first parcels to the right of the existing Masters Club property which meet the 1000′ requirement. I doubt either are buildable for the purpose of an adult business being less than an acre each.

The result is that we’ve allocated 39 parcels of land comprised of 104 acres as permitted use, but due to the location of Masters Club, which is beyond the towns doing, maximum density could likely never be reached.

If we were to combine this zone with the deal that Mr. Chu has referred to previously we could potentially end up with both lawsuits dropped, the adult club use for both the Venus Lounge and Kahoots property being abandoned ending their grandfathering, and no club on Pitkin Street. This may or may not be feasible, but it ought to be investigated.

Well there you go Bill. I provided some nails and hopefully someone else can provide the hammer.

Public Hearing Video & What is going on behind the scenes?

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The full public hearing video from Thursday night is now available at the bottom of this post, have a look.

I have long thought there was something fishy floating around this whole strip club thing. This whole thing seemed way too political which just doesn’t mesh with a multi-million dollar business deal. Politicians and businessmen do not think alike. My suspicions were confirmed recently when an unnamed (until they decide to come forward officially) person from the strip club side of the aisle filled me in on a bit of the history. Here is the gist of what was conveyed.

It seems that this whole lawsuit issue came about when Masters Club LLC originally sought to follow the proper procedure to get approvals during the purchasing process of the Roberts Street location while the property was under contract. According to the source Masters Club spoke with persons of top authority in town who overstepped their proper role and jurisdiction by unequivocally telling Masters Club that there was no way their type of business could open and a permit could not even be filed.

Masters Club decided that the particular location, whose features are unmatchable in this area, was too valuable to give up on and decided to fight for their right to apply for a permit. They filed a lawsuit and here we are.

Now, this is where things begin to get bad for us as residents. The Mayor was quick to come out in the media with assurances that our zoning and ordinances were both legal and enforceable in court. To this day her public stance is that our ordinances and zoning will win in court. At the same time the ordinances were stripped from the town code and plans were made for rezoning. If our current regulations were enforceable why strip them? If our zoning was fine, why change it?

It’s important to realize that this whole process has been going on since about last October and according to this person multiple olive branches have been extended to resolve the issue in a win/win manner. One such branch came in the form of a letter (which prompted a meeting in which the deal was denied by the Mayor) to the Mayor which was CC’d for the P&Z and Council. It appears that this letter, which included an offer that seems too good to refuse, was withheld from the P&Z members until recently and it’s not known for sure if all council members have seen it even today. This letter, to my knowledge, despite being weeks old has not been received through the town clerk yet.

What was the offer? In exchange for allowing Masters Club to locate on Roberts Street Pitkin Street Entertainment (Kahoots) would cease to exist through a private deal between Pitkin St and Masters Club. The letter clearly said that if accepted Masters Club would be the ONLY club in town. There were no details on the plight of the Venus, though I’m sure it was discussed in the private meeting.

To date we have a moratorium that is expiring in October, no ordinances to protect our neighborhoods, a zoning plan that is guaranteed to lose in court next month and rushed and poorly thought out zoning proposals that will deny Masters Club their location at the expense of our neighborhoods.

It seemed pretty clear why the North Meadows/Prestige Park zones were a bad idea. They would totally alter the atmosphere and quality of life of the neighborhoods targeted. That plan was shot down, and I’m grateful.

Now the plan before the P&Z would do the same exact thing as the last plan but it’s being given a less dangerous sounding description, removal of special permit requirements. Well, the fact is that removal of the special permit requirements with only a 1000′ buffer between adult establishment requirement would open much more of the town to adult businesses than the last plan would. Consider this GIS map which I posted previously.

I understand the logic behind these zoning choices. It’s true that these zone changes may in fact not allow a location that Masters Club or Pitkin St wants, but the danger is that they may create many locations that another Venus Lounge would gladly accept. It makes no sense whatever to block one or two clubs by legislating an invitation for seedier joints to come to town.

As I see it there a handful of certainties that face us.

1. Mr. Gerard is right, if we do nothing we lose anyway.

2. The choices that have been put before us are not the best choices possible.

3. Politics are obscuring the most obvious and beneficial resolution to this problem.

4. The majority of people polled think Roberts Street is the best place for a strip club in town.

5. Despite direction from the Mayor to officials to keep the public informed she herself has not been straight forward and citizens have been excluded at every step through executive mid-day meetings and secret deal sessions. I fail to see the need for executive joint P&Z/Council sessions to discuss zoning and ordinance strategy which according to Mr. Dayton at the last hearing is not being done directly for either lawsuit. At every step we hear one thing only to find the story is belied by their official actions.

To sum up my thoughts, when dealing with businessmen you must act like a businessman. When listening to politicians, remember that’s what they are.

[googlevideo=http://video.google.com/videoplay?docid=1879378848442215125&hl=en]

Town Council/P&Z Closed Strip Club Meeting Tonight

The Town Council will meet this evening with the Planning & Zoning Commission as well as Gary Zalucki, Zoning Enforcement Officer, in an executive (closed) meeting to discuss the pending lawsuits vs. Masters Club LLC & Pitkin St. Entertainment LLC.