V.I.P. Zoning Letting to Attorney Silver

BYRNE & BYRNE 2-H l''ARMING'!'ON COMMONS 790 1"ARMING'!'O!'/ AVENUE

FARMINGTON. CONNECTICUT 06032 TEI,EPHONE

THOMAfI P. BYRNE

(860)

STEVEN E. HYRNE

677-7:~!s

h'AX (860) 677-!S262

November 2,2009 Attorney Daniel A. Silver Silver & Silver LLP One Liberty Square New Britain CT 06051 Re:

228 Queen Street LLC Southington VIP. Slore

Dear Attorney Silver: I have been retained by the Town of Southington as special legal counsel in the matter of the issuance of a zoning permit to your client, 228 Queen Street LLC. This permit was issued to your client in connection with the planned opening of a V.l.P. store in Southington. The purpose of this Jetter is to clarify under what authority and conditions the zoning permit was issued and outline the remaining zoning pennitting process for your client's planned use.

While the issuance of the zoning pennit allowed your client to obtain a building permit and commence its renovation of the premises for its business use, a certificate of occupancy is needed before the actual planned use can begin. Pursuant to Section 14足 02.3A "No certificate of occupancy shall be issued without first issuing a certificate of zoning compliance by the zoning enforcement officer stating that all conditions of the zoning permit have been met." [emphasis added].

The zoning pennit issued to your client for a proposed retail use in the commercial B-2 zone was so that your client could "open a retail store for the sale of clothing, hosiery, novelties, gift cards, party supplies, tobacco products, accessories, personal care items, books, magazines and DVD's.'d This zoning permit included your client's comment that "the total amount of tht~se products which are defined in Section 2-19 of the Southington Zoning Regulations will not exceed five.(5%) percent of the entire store inventory."z The purpose of this letter is to place you and your client on notice as to how the Southington Planning and Zoning Commission interprets the language contained in this section of its zoning regulations. By providing this notice, the Commission intends to avoid any misunderstandings which may arise.

I

Zoning Penni! Application 12393.

2 Id.

-2足

A planning and zoning commission, under COIUlecticut law, has been vested with the authority to interpret its zoning regulations and decide whether it applies in a given situation.) Pursuant to this authority, the Southington PlaIUling & Zoning Commission makes the following interpretation and clarification regarding Section 2-19 of the zoning regulations.

Section 2-19, which is entitled "Sexually Oriented Business", provides in relevant part as follows: "Any business that features, sells, or rents films, motion pictures, video cassettes, slides, books, magazines, newspapers or other forms of visual or audio presentations in which more than 10% of the total presentation time OR

more than 10% of the stock material is devoted to the showing of material that is characterized by any emphasis upon the depiction or description of specified sexual activities or specified anatomical areas."

Only when your client's proposed use of its property on Queen Street complies with both 10% limitations of this section of the regulations4 will it be a permitted use for that location. In determining whether this section's terms are complied with, the following interpretations will apply.

First, it is not enough that your client's total store inventory of sexually oriented items is 10% or less of the total inventory of goods and products that are featured, sold or rented.

To comply with this regulation, the presentation time of audio and video items or products which have an emphasis on the depiction or description of specified sexual activities or specified anatomical areas must also be 10% or less of the total presentation time of the store's inventory of these audio and visual items or products. By presentation time, it is understood to mean the running or playing time of a movie, DVD, cassette or other similar electronic or film recording. For written material, it would be the number of pages. Since it would be difficult to equate playing time with pages when determining, the reasonable interpretation of Section 2-19 is that these differing types of media will be evaluated separately so that this regulations can be applied in a fair and consistent manner.

R. FULLER, CONNECTICUT LAND USE LAW AND PRACTICE 2 NO, SEC. 34.13 citing Jeffrey v. Planning & Zoning Commission, 155 Conn. 451 (1967) and Lawrence v. Zoning Board ofAppeals, 158 Conn. 509

3

(1969),

In Gelinas v. Hartford, 65 Conn. App. 265, 281 (2001), the Appellate Court stated that "The disjunctive 'or' can be construed as 'and' where such construction clearly appears to have been the legislative intent."

4

-3足 Second, by stock material, this means sales floor stock and does not include items kept in storage or backroom areas. In addition, in detennining the quantity of stock material, the items placed for sale must be in their original packaging and in the amount/quantity that the manufacturer intended for sale.

Third, in detennining what items intended for sale at your client's store will be counted as coming within Section 2-19 of the zoning regulations, your client's limitations stated on the list attached to the zoning application will be modified to include books, collectibles, gags, miscellaneous and sensual well ness products as well as those items marked by your client as it is the Planning & Zoning Commission and its authorized agent which need to detennine whether a product comes within the scope of section 2-19 of the zoning regulations. In short, any item, good and/or product that is featured, sold or rented at your client's proposed store which is devoted to the showing of material that is characterized by any emphasis upon the depiction or description of specified sexual activities or specified anatomical areas will be counted towards detennining whether the store is a retail establishment or a sexually oriented business.

In accord with the usual office practices of the Southington Land Use Department, authorized agents of the Southington Planning & Zoning Commission will make an inspection of your client's store in order to make a determination of whether it is in compliance with all conditions set forth in the zoning permit. A referral may be made to the Planning & Zoning Commission if further interpretation is needed regarding whether the proposed use of the Queen Street store is in fact a permitted retail store or whether it is a Sexually Oriented Business. s You and your client's cooperation in this process have been greatly appreciated and I trust that it will continue.

Steven E. Byrne

If it is determined that the use is a Sex uall y Oriented Business as defined by Section 2-19 of the zoning regulations, then Section 11-17 would appJy which states in part that "No building shall be used ... for a sexually oriented business if ... it is situated ... within a 750 foot radius in any direction of a single family or multi-family zone ... '.

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December 7. 2009 AHorney Daniel A. Silvcr Silver & Silver LLP One Liberty Square New Britain CT 06051 Re:

228 Queen Street LtC SOIl/hing/oll fl. I. P. S/ore

Dear At10mey Silver: This letter is sent in response to your letter to Attorney Mark Sciota dated November 1<J. 2009 and to clari Iy my letter to you dated November 2. 2009. First, I must disagree with your premise that the land use stalT of the town of Southington knew the nature or your client's busint!ss when the zoning pernlit was initially 'lpplicd for and then issued, I have rcad statements in the prt!ss as well as heard from slafT that your client represented thut this V.I.P. store would be difl"crent lrom any of his other stores. in eftcct presenting a new husiness model ror him. In addition~ he stated that he would insure that his store would comply with the zoning regulations. It was in light of these representations that the zoning permit was issued. The next step in the approval process will be a certilic'lte of occupancy, which can only be issued if the land usc staIr confinn that your client"s store docs indeed comply with the zoning regulations.

In this casco Section 2-19 of the rcgulmions figures prominently. Your represcntmion that absolutely no viewing on site of IiIms. motion pictures. video casselles. slides. books. magazines and newspapers which describe or depict specilied sexual activities or specified anatomical areas will lake place is accept\..'<.I. This will allow us to lOCus on that part of section 2-19 which provides that no more than 10% of the stock material can he devoted to the visual presentation of material that is characterized by ony emphasis upon the depiction or description of speci lied sexual octivities or speci lied anatomical areas.

In applying onl), lor a zoning pennit to conduct a retail usc. your client ean not exceed this 10% limitation. Sinee your letter states a disagreement as to what stoek items will he counted toward this 10% figure. I have been instructed to present to you the Planning & Zoning Commission's interpretation.

077路?~tll:I

-2足 In making Ihe dett'mlinatioll :L<l to whal SltlCk ilc."f11S lOhall Ix: CIIUllh:d IO\\1Ird Ihe to'',O Iimitatil)11, any ilcm Ihitt d~1'icls or dl."!'cribcs a specified sC:l:ual m':lh'ily or l:pcciJied :l1I:Ilomical UN:I shall he C\lunt~-d in dett'nnining \\11t'lhcr YOllr dien!"s S{\lrc ml..'Cl~ the uefinitilll1 of n "sc):uully OriclI\C.-d bu:;illi..'SS", There[lIre, any visual pNscnlnlioll of any ih:IIl, good anti/or pmdllCI 1b.11 ill featured. sold or renled al your client's prllpo:;..-d store which depicl.~ or describe:; a spcd(kd scxual aClivity or specified unalumie.d area will bc counted lo\\..n!J.. determining whctlwr Ihe slore is a reillil c:;t.1hlishl1lClll Ill' n sc):ually t)ricntcd busine;ss.

Ilru~1 IfllII Ihis leller will sc:rve 10 clarify this issue for your elienl ~1 Ihal he c:m pl'\.-pare 1111: invenwry of hill SIOn: hI n manner 111411 wilt compl)' wilh Ihe .wning rel;l.UlaliulIs, Again. your ctlopenllion onlhis mailer is nppn:d,,\cd,

Ver';llruJy youn;.

Slcvcn E, Byrne cc.:

Mary Savage-Dunham, T(I\\'n I'l:mner Frnnk Vinci. Zonint; Enrorc.:m<:nl OffK'<:r

SILVER &~SILVER' LLP Attorneys at Law

One Liberty Square New Britain, Connecticut 06051

Daniel A. Silver Daniel@lawsilver.com

Tel. (860) 225-3518

Abraham S. Silver (1940 - 1977)

Brian M. Silver" Brian@lawsilver.com "ALSO ADMITTED IN Ph

Pax (860) 348-0612 November 19,2009

Mark Sciota, Esq. Town Attorney 75 Main Street P.O. Box 610 Southington, CT 06489 Re:

228 Queen Street LLC

Dear Mark: I am writing in response to the November 2,2009 letter from Stephen Byrne on behalf ofthe Southington Planning and Zoning Commission regarding my client, 228 Queen Street. For the following reasons, I take issue with the representations made by Mr. B)1I11eand further dispute the notion that the Commission can adopt an interpretation of its zoning code that differs from the interpretation under which 228 Queen Street .received a zoning permit.

First, Mr."B)irneis incorrect when he states that the legality of228 Queen Street's proposed business will be judged by both the 10% ll1vento.ry limitation and the 10% presentation tIme standards set forth in Section 2-19 ofthezoning code. The 10% presentation time limitation does not, and cannot, be applied to 228 Qm~enStreet. As an initial matter, 228 Queen Street will not be in the business of "present[ing]" or "featur[ing]" sexually explicit material. While the business will offer expressive adult merchandise for sale as a small portion of its overall invento.ry, it will not present these movies for viewing or consumption on site. Thus, there is no amount of "total presentation time" by which to judge what constitutes 10 percent ofthat time.

Moreover, to apply the 10% presentation time limitation against 228 Queen Street ~vculd impose an unreasonably high burden on the exercise of 228 Queen Street's protected First Amendment rights. In order to discern what constitutes the total presentation time of all DVDs for sale at the store, 228 Queen Street would be required to watch each and eve.ry movie it sells, to record the total length of the film,and to account forthenumber of minutes in each item in which Given. that the 足 inventory of the store changes daily as sexually explicit conduct is depicted.

- . customers make purchases and items are restocked, 228 Queen Street would need to employ a vast workforce to watch each and eve.ryDVD eve.ry single day to ensure that the presentation time limitation is satisfied. -As thisscertario demonstrates, ifthe 10% presclltation time limitation is read to apply to 228 Queen~treet, the provision wouldimpose such a heavy and exacting burden on the business that it would violate the First Amendment. . . .'

Finally, the Town's zoning enforcement officer, Mary Savage, was intimately aware ofthe

, proposed natuteof 228 Queen Street's business and concluded that it satisfied the 1 0% of total presentation timeptovision when she issued the zoning permit., Ms. Savage had extensive meetings with myself and 228 Queen Street's owner regarding the products that would be sold, and she was also familiarwith. thenatlire and inventory ofthe business asa result ofher previous employment in Manchester where a similar business is located. After reviewing the proposed business plan, Ms. Savage granted the zoning permit on the basis that the business would not constitute a sexually oriented businessundefSection2-19 ofthe zoning code. Any re-interpretationofthe zoning code to reach the opposite conclusion is now barred by the doctrine of municipal estoppel.

In addition to Mr.BYme' s mcorrect interpretationo[ the 10% presentation time limitation, Mr. Byrne also in'lproperly.suggeststliat<'collectibles, gags, miscellaneous and sensual wellness products" will be counted. as adult in determining whether the store me,ets the 10% stock material limitation in Section 2-19. As an initial matter, theinc1usibn oftheseprooucts in the inventory count is not supported by a plain reading ofthe zoningcode. By its very tenus, Section 2-19 only includes "films,moti6npicture~,video cassettes, slides, books, magazmes,newspapers or other [mms of video or audio presentatiQn"asadultpr6ducts. Collectibles, gags, and sensual wellnessproducts do not fall within this list.' Theyclearly cannot be classified as films 1 motion pictures, videos, slides, bookS, magazines, or newspapers. Also~because they contain ]J.ovideQ or audio tracks or recordings, they also cannot constitute other fomIS oivideo or alldio presentation. As such, Mr. Byrne errs in concllldingthattb.eseprodtictswill be treated as adult merchandise for the purpdseofdetennining whether'thestote's invent()ry isco.ritamsmore than '1 O%adult.products.,.' MoreQver,路becail.se.M{).

Savage was awa.r~that.~e 228 Queen Street intended. to carrytheseitems When she made her deteqnination tRatthebusiliessw()uld notbe sexually oriented; .the Town is estoppedfrominclt.i.ding , , this merchandise in its count now~ ,For these rep:s6ns, Mr. Byrne is incorrectinexphlining that 228 Queen Street's proposed . business will coI1stitute:a sexually oriented business. The zoningpennit issued by the Town is valid in.aH 'respects, and 228.Queen Street has路 vested constitutional rights in路theestablishnrent and operation of itsbu~iriess, It inteilds exercise those rightswithiIi the bolitidsof the law.

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