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.
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.
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.
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.
- 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.
- 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.
- 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.
- 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.
- 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.
Last Chance, speak now or forever hold your peace…
Tonight is the continuation of the public hearing for the zone change to remove special permits for adult businesses in I-3 Zones.
The hearing starts at 7:30 according to the agenda, but get there are 7:00 just in case. The hearing will be in the town council chambers at the town hall.
This especially pertains to you if you live within about 1/2 mile of an I-3 Zone (North Side of East Hartford).
You didn't think I made this stuff up did you?
I happened on a copy of the letter from Mr. Chu to the Mayor, which was Cc’d but not timely delivered or in some cases not delivered at all to commissioners and councilmen, where he references the deal he made to the Mayor.
Notice that this letter does not bear a stamp from the Town Clerk. Is it common practice for official correspondence to NOT be stamped and recorded?
As the person from the strip club side explained Mr. Chu was unable to sign this letter before it was delivered to the Mayor, presumably by his counsel, because he was out of state on business. This is a confirmed correspondence.
Note, I have removed Mr. Chu’s phone number for obvious reasons.
While this letter may not appear to say a whole lot I’m informed the letter for legal reasons could not contain details and Mayor Currey was let in on it’s secret details. Word has it that this deal has a very short shelf life. Once either the Masters Club or Pitkin Street start their active court battle (September) the mutual benefit derived from their coming together as businessmen and settling will no longer exist.
Something that has bugged me since the last hearing was the suggestion, though I don’t recall of the top of my head if it was Dayton or Gerard who said it, that commissioners must follow the rules for ex parte communication and could not discuss the zoning application with anyone until the public hearing resumes next week. That struck me as a gag order and bad government so I looked up our ex parte ordinance.
From Section 15-13 of the ordinances:
An official, officer, or employee shall not consider any ex parte or private communications from any person, which he or she knows is or reasonably may be intended to influence unlawfully the decision on the merits of any matter where a determination is required by law to be made on the record after opportunity for hearing to interested parties.
It seems clear from the above that a communication in itself regarding the application is not a violation of the ex parte rules. In fact it seems the ex parte rules don’t preclude the commissioners from talking to anyone about the application unless they know they may be about to receive a bribe, extortion attempt, threat or some similar form of unlawful influence.
Public Hearing Video & What is going on behind the scenes?
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]
Time to speak up on strip clubs… again.
In case you haven’t been made aware by a friend, family or the town announcement system there will be a public hearing tonight before the Planning & Zoning Commission to discuss yet another zone change in favor of adult businesses.
We should all take the opportunity tonight to thank Planning & Zoning Commission members Paul Roczynski, John Ryan, John Grottole and Kathy Salemi for voting against the creation of new adult zones which would have permitted 6 or more adult businesses to infiltrate residential neighborhoods and for not changing their vote under pressure from the mayor. The people spoke clearly at the last hearing and at least these four were listening.
On tonight’s menu is a proposal to remove the special permit requirement for adult businesses in an I-3 zone making them a permitted use. In combination with our current ordinances that means an adult business can be located anywhere in an I-3 so long as it’s not within 1000 feet of another one.
From the agenda:
TEXT AMENDMENT APPLICATION: To allow adult-oriented establishments as a permitted use with special requirements in the existing Section 503 Industrial III (I-3) zone.
This is the entire substance of the agenda. The actual proposed text is not listed and the special requirements it will presumably include are not described.
The hearing will be tonight at 7PM in the town council chambers. Speak up, and don’t be afraid to offer an alternative.
On a side note I was just going through some of the older news stories on this issue. It appears that as far back as January and throughout this process the Mayor has told the media that there were multiple places in town Mr. Chu could have called home and that she was confident our zoning and ordinances would hold up in court. In fact, her story in each of these reports seems to be that she has confidence our zoning and ordinances will stand up in court.
Flash forward to today. We now know that in fact there was not a single place a strip club could have located under the then existing ordinances when Chu came to town (something the Mayor had to be aware of). Then the Town Council went and removed all the restrictions and implemented an 8 month moratorium, a de facto admission that the administration had zero confidence in the existing ordinances. It also seems odd that she captured the media opportunity to stand sword in hand to defend the residents of the 5 or so residential properties near the roberts street location but was then perfectly willing to sacrifice entire neighborhoods to the I-3A/B-3A zone changes when the cameras weren’t there. I can’t help but wonder if our Mayor is trying to play both sides on this issue.
Why must every action taken in regards to the new adult zoning and ordinances be discussed in executive session. We the people have a right to know what is going on here. As expressed at the last public hearing these new ordinances and zoning changes aren’t supposed to be directly targeted at Masters Club LLC. or Pitkin Street Entertainment, so why then is it proper for the administration to hide behind these two lawsuits in executive session when discussing the changes. It seems clear that someone is afraid of proving Kim Coleman’s assertion that that town is acting in bad faith to be true.
EDIT: Here are the areas in town which are zoned I-3 (according to GIS) making them potential strip club locations. Also, please note that it appears that Prestige Park would be targetted by this change (being the main I-3 zone). It seems tonight’s proposed change may just be a repeat of the last proposal sans North Meadows.
Government On Demand – Joint Council P&Z Meeting
If you weren’t aware the Town Council and P&Z Commission met in a joint meeting last night at 6:30 to discuss needed regulatory and zoning changes to bring the city into compliance with constitutional tests the courts are likely to apply regarding the restrictions of first amendment rights applied to adult establishments.
The town retained the firm Harrall-Michalowski Associates Inc. to do a study of our current zoning and regulations concerning adult establishments and the zoning and regulations of other areas that have faced this issue previously. They presented some suggested regulatory changes to the council and zoning changes to the P&Z. Changes suggested include allowing adult establishments in the areas known as Prestige Park and the Meadows.
The topic of the night was secondary effects. Secondary effects are important, as explained by Kim Coleman (legal council for Masters Club LLC.), because a way the town can restrict the free speech rights of an adult establishment (or any other group) is by demonstrating secondary effects sufficiently harmful to warrant a restriction.
For his part Mr. Dayton, the town planner, presented a considerable compilation of police reports and incidents to councilors and commissioners demonstrating the secondary effects of the existing adult establishments. Was it enough to make the case? Kim Coleman says no.
In my discussion with Coleman after the meeting she conveyed that although secondary effects can be a valid reason for limiting free speech rights the argument doesn’t work here because the town has made a mistake in the areas they chose to recommend for adult establishment use because as the maps distributed by the town’s consultant show the two designated areas have a considerably greater residential concentration and therefore greater likelihood of secondary effects than the currently disputed site on Robert’s Street.
In reviewing the maps I can’t help but to agree with her on that point. While Prestige Park has a benefit in that the club would be somewhat cordoned off inside the industrial park it has a large negative in that it’s positioning provides for no direct highway access and worse it’s central location in proximity to surrounding highways guarantees that visitors would come from every direction and would have to use residential neighborhoods and streets throughout town as their route to the club which would likely translate into a lot more intoxicated persons driving in the surrounding residential areas day and night.
While the Meadows location does have some of the benefits that the Roberts Street location has, such as almost direct highway access from Rt 2, I-84 and I-91 as well as relative isolation, it’s a very mixed area with about a quarter of the properties being residential. The location of the residential properties makes it unlikely that any of them would be able to escape exposure to adult establishments located in that area.
To add insult to injury the largest vacant lots to be developed are located directly adjacent to residential properties.
With the shortcomings of these areas in mind it must be considered that more than just Masters Club LLC is on the table here. The town is required to make it possible for future developers to have the opportunity to come to town and this isn’t a town with a lot of real estate to consider which wouldn’t have a close proximity to undesirable properties such as houses, schools and churches. In that thread these areas may not be better than the Robert’s Street location but they may be the best we can get and still allow for future development as required.
So what happens now? Well have to wait and see. The lawsuit filed by Masters Club is at least temporarily halted in trade for the town paying their legal fees to date totaling over $13,000 and as my conversation with Coleman suggests temporarily is the key word so long as the town fails to provide a zone with ample development potential which would suffer less secondary effects than the Robert’s Street location.
On Wednesday the 30th at 7PM there will be a public hearing on the proposed zoning changes at town hall in the council chamber. I strongly encourage anyone who can to attend and bring talking points. Especially if you live around prestige park or in or around the meadows area.
Video and documents are below.
Video of Joint Meeting of Town Council and P&Z
[googlevideo=http://video.google.com/videoplay?docid=-5783303058047656075&hl=en]
Video of Interview with Kim Coleman
[googlevideo=http://video.google.com/videoplay?docid=1159489258476165436&hl=en]
Adult regulations from other communities.
Adult Establishment Regulations – Seattle, Washington
Adult Establishment Regulations – Freetown, Massachusetts
Adult Establishment Regulations – Burlington, Iowa
Adult Establishment Regulations – Delaware County, Ohio
Maps of recommended adult zones.
Adult Establishment Map
School and Church Location Map
Proposed Prestige Park Zone
Prestige Park Land Use Map
Proposed North Meadows Zone
North Meadows Land Use Map
