Tuesday, Jul 22, 2008    Text size: 

The court majority said that the North Haven planning and zoning commission had not offered sufficient evidence when it ruled in 2005 that the video preview booths were not a permitted use.

The case had been argued before the court in November.

"We're very satisfied and pleased that the court upheld the lower court's decision," Loring told XBIZ. "It's been a long time coming and we feel they made the right decision."

In testimony before the planning commission and the state Supreme Court, attorney Daniel Silver, representing the store, said that adult videos cannot be advertised in mainstream, so stores need to provide an opportunity for customers to view the videos. Because the booths are customary and important to adult stores around the country, they are "accessory" to the business, according to Silver.

An attorney representing the planning commission before the state Supreme Court in November argued that it was up to the public, not an industry, to determine what was customary in a community.

After the commission ruled that the video booths were not a permitted use and that parking was not adequate for a use that included the booths in August 2005, Silver appealed the case at a lower court. That court sided with him, ruling that the denial of the site plan was illegal and arbitrary but it didn't order the commission to take any action. Loring and Silver went back to court to modify the decision.

New Haven Superior Court Judge Thomas J. Corradino then ruled that the zoning commission must approve the site plan but not until all appeals had been exhausted.

The state Supreme Court majority, made up of Chief Justice Chase T. Rogers and justices Joette Katz and Richard N. Palmer, ruled that the commission "failed to explain why the use was not incidental to the primary use. Therefore, in the absence of actual knowledge or factual evidence to contradict Silver's testimony, the trial court properly concluded that the record did not contain substantial evidence to support the commission's conclusion that the video preview booths are not a valid accessory use to the primary permitted use of an adult book and video store."

The dissenting justices, Flemming L. Norcott Jr. and Peter T. Zarella, said there was substantial evidence, explaining that the commission "reasonably could have determined that the booths did not constitute an accessory use," as defined in the town's zoning regulations, which consider the adult book and video store a "basic neighborhood store."

The dissenting justices said the decision to affirm the judgment of the trial court "improperly invades the discretion accorded to the commission, whose decision in this case was supported by substantial evidence, and an even more substantial dose of common sense."

Loring told XBIZ that the next step is to get a building permit from the city for the buildout of the store, and the store should open in eight weeks.

When asked if he expected any problems getting the permit, Loring said," We're hoping not, but you never know."