Posted by: Patricia Salkin | August 31, 2008

Board Improperly Denied Permit For Adult Bookstore on Grounds That Preview Booths Were Not Accessory Uses

The Connecticut Supreme Court ruled that a town planning and zoning commission

erred when it rejected a site plan application for an adult book and video store on the ground the store’s video preview booths were not a permitted accessory use

 

In 2006, Loring applied for site plan approval to change two units in a shopping plaza from their former uses as a barber shop and karate studio to a retail adult book and video store with video preview booths. The plaza is zoned commercial. Permitted uses

include “basic neighborhood stores” such as bookstores, drugstores, bakeries,   hardware stores, food stores and barber shops, inter alia. Adult bookstores are not a listed use, and appear not to be covered by any of the town’s zoning categories. Nevertheless, none of the commissioners apparently raised the question whether

Loring’s store was a permitted use in the zoning district. Their concerns, rather, centered on the store’s 15 video preview booths.

 

Loring’s counsel, an experienced First Amendment attorney, told the commission that such viewing booths were common in the retail adult video business, because of the unavailability of other means to preview the stock in trade before purchasing it, unlike more mainstream movies. The commission accepted his statement, but voted to reject the site plan because “video preview booths are not a permitted use.” On appeal, the trial court overturned the commission’s decision, finding it was arbitrary and an abuse of discretion.

 

The Supreme Court noted the trial court’s observation that the commission did not state in its decision that an adult bookstore as such was not a permitted use. It said only that video booths were not a permitted use. Therefore, the issue before the court was whether the booths were an accessory to the primary use, an adult bookstore.

 

The Court recited the general principles that inform the analysis whether a given use is an accessory use. It is a use that is customary and incidental to a permitted use. The word incidental incorporates two concepts: the use must not be the primary use of the property but one that is subordinate and minor in significance. However, incidental also incorporates the concept of a reasonable relationship with the primary use. It is not enough that the use merely be subordinate to the primary use; it must also be one customarily associated with that use. The court noted the only evidence before the commission on the specific question whether video booths were an accessory use to an adult video store was the attorney’s extensive remarks on the subject. It agreed with the lower court that the unsworn statement of a party’s counsel is competent evidence before a zoning body. Although the commission was free to give the attorney’s testimony whatever weight and credence it merited, it was not free to reject it arbitrarily.

 

The commission claimed it questioned the attorney’s representations on the basis of personal knowledge of other businesses in the area that offer adult videos for sale or rent. However, the commission did not point to any specific statements or questions from members regarding such businesses. If they intended to disregard the attorney’s testimony because of some special knowledge about adult book and video stores, they should have stated the basis of their opinion on the record, the court said. Because Loring’s store was the first adult book and video store to operate in the town, and there was no evidence in the record suggesting commission members had any personal knowledge of such businesses outside the town, the court said it could not reasonably conclude that the commission members based their conclusion on personal knowledge.

The court pointed out that cases addressing other zoning issues or matters outside the zoning context involving adult book and video stores suggest that preview booths are a common component of such enterprises. And, there was nothing to suggest that such uses are not incidental to the primary use. The court rejected the dissent’s position that the commission was entitled to look at the broadest category of permitted uses that the principal use could occupy to determine whether video preview booths are customary to that use. Custom is determined by reference to similarly situated properties, not by reference to the permitted use at its highest level of abstraction, it said. Thus, the court continued, to determine whether video preview booths are a valid accessory use in this case by comparing the principal use to, for example, a Blockbuster video store would be an inapt comparison. While mainstream video stores and adult video stores are basic neighborhood stores, they are significantly different kinds of video stores. They sell different products, have a different clientele, and therefore have different accessory uses. That the commission framed the issue on appeal by reference to the actual primary use of the store, not by reference to the abstract category of “basic neighborhood stores,” suggested the commission understood that distinction.

 

Loring v. Planning and Zoning Commission of North Haven, 287 Conn. 746, 950 A.2d 494 (7/15/2008 ).

 

The opinion can be accessed at: http://www.jud.state.ct.us/external/supapp/Cases/AROcr/CR287/287CR117.pdf

 

Thanks to James Lawlor, Esq. of the Land Use Legal Report for permission to abstract his review of this case in the July 31, 2008 issue of the Land Use Legal Report.  For information about the bi-monthly newsletter, contact Jim Lawlor at landlaw@verizon.net.


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