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754 Orange Ave. Inc. v. City of West Haven

April 30, 1985

754 ORANGE AVE., INC., APPELLEE,
v.
CITY OF WEST HAVEN, CONNECTICUT, DANIEL KREVOLIN, INDIVIDUALLY AND AS ZONING ENFORCEMENT OFFICER FOR THE CITY OF WEST HAVEN; STEVEN DI PIER, INDIVIDUALLY AND AS BUILDING OFFICIAL FOR THE CITY OF WEST HAVEN; MICHAEL N. D'ERRICO, INDIVIDUALLY AND AS CHIEF OF POLICE OF THE CITY OF WEST HAVEN; LAWRENCE MINICHINO, INDIVIDUALLY AND AS MAYOR OF THE CITY OF WEST HAVEN, APPELLANTS



Appeal from the grant of a preliminary injunction by the United State District Court for the District of Connecticut, T.F. Gilroy Daly, Chief Judge, enjoining appellant from enforcing its municipal zoning and licensing ordinance against appellee's contemplated use of leased premises as an "adult bookstore." Affirmed.

Oakes, Meskill, and Pierce, Circuit Judges.

Author: Oakes

OAKES, Circuit Judge:

This case comes to us in a somewhat confused posture. The parties' briefs refer to zoning ordinances, to a licensing and permit ordinance, and to a building permit, all of which bear on the proposed operation of an "adult bookstore" that would offer "sexually explicit books and magazines" and include coin-operated viewing machines exhibiting "sexually explicit films." Appeal is by the City of West Haven, Connecticut ("the City"), from the grant of a preliminary injunction by the United States District Court for the District of Connecticut, T.F. Gilroy Daly, Chief Judge, enjoining the City from enforcing its zoning and licensing ordinances against appellee 754 Orange Avenue, Inc. ("754 Orange"), and ordering the City to issue a building permit to 754 Orange as had been previously ordered by the district court. Since the case was briefed, however, the City has complied with the building permit portion of the injunction, and that issue is therefore moot. Although the zoning and licensing issues are not moot, the City conceded on oral argument, as it had not in its brief, that the City's prohibition on coin-operated viewing machines in retail stores is invalid. For the parties' guidance, however, we will treat the zoning and licensing ordinances as if such a concession had not been made, since the controversy as to the location of an "adult bookstore"--a term the ordinance does not define--is a live and viable one. We affirm the grant of the preliminary injunction.

FACTS

754 Orange leases premises that the district court located at 760-762 Orange Avenue, West Haven, Connecticut, but that the parties stipulated to be located at 761 Orange Avenue. At these premises, 754 Orange intends to operate an adult bookstore that would offer, in addition to books and magazines, films that are accessible to its customers through individual coin-operated viewing booths. The parties stipulated that the books and magazines, as well as the films, portray "sexually explicit" activity. Precisely what "sexually explicit" means is, so far as the record discloses, left to the reader's as well as to the court's imagination.

On February 24, 1984, 754 Orange applied to the City for a building permit, apparently to make renovations necessary to conduct the business of the bookstore, and presumably pursuant to a building ordinance that the parties have not seen fit to include in our record. Although we assume that the sale of books and magazines was a permitted use under the City's then-existing zoning ordinances and therefore posed no bar to the issuance of a building permit, the City's zoning ordinances did contain a section that arguably imposed restrictions, if not a prohibition, on 754 Orange's contemplated use of its leased premises. Entitled "Use Group 10," section 32-2.7 of the City's 1967 zoning regulations, as amended effective May 1, 1982, identifies a category, Use Group 10, which "consists of all indoor or outdoor recreation centers, and amusement, athletic and entertainment facilities." Under section 32-2.7, uses falling within Use Group 10 are prohibited in "residential areas or local commercial districts . . . due to the traffic and noise that they generate" and allowed only by Special Permit in other zoning districts. A special permit is to be granted by the Planning and Zoning Commission subject to five enumerated considerations--"location on the street system and impact on traffic patterns," "type of structure located in," "off street parking," "distance of schools, parks and playgrounds," and "method of operation." In addition to the foregoing considerations, section 32-2.7 authorizes the Planning and Zoning Commission to "set any restrictions it deems necessary to insure the health, safety and welfare of the general public including screening, security, personnel, minimum floor space and hours of operation," and to recommend the revocation of a Special Permit on a finding "that the permitted use is generating excessive noise, loitering, littering or traffic hazards." Section 32-2.7 also contains a list of uses that are "among those included in Use Group 10"--a list that, when 754 Orange applied for its building permit, contained the entry "Amusement Centers." Finally, section 32-2.7 grants the Director of Planning discretionary authority to permit temporary fairs or carnivals operated as fund raising activities and to permit:

A maximum of four (4) coin operated amusement machines or game tables . . . in any sitdown eating or drinking facility, recreation or social club or amusement facility as an accessory use if the applicant can demonstrate that these machines or tables are clearly incidental to the primary business, and that they will be operated and maintained in such a manner so as to prevent excessive noise, loitering, littering or traffic hazards.

The Planning Director's discretion is limited, however, in that "[n]o coin operated amusement machines or game tables shall be permitted in any retail store, wholesale establishment, office or manufacturing facility."

The extent to which section 32-2.7 of the City's zoning ordinances in its then-current state was applicable to the use contemplated by 754 Orange for its leased premises is unclear. The installation of coin-operated viewing booths in a bookstore might arguably convert a bookstore into an "amusement center" and therefore make applicable the Special Permit provision of section 32-2.7, conditioning the use of the leased premises on approval of the City's Planning and Zoning Commission after submission of information about the operation of the business.*fn1 It is also unclear but arguable that 754 Orange's coin-operated viewing machines are "coin-operated amusement machines" within the meaning of section 32-2.7, thereby engaging either the four machine maximum imposed upon "clearly incidental" uses of such machines, or the flat ban against them in retail stores. Perfectly clear, in contrast, is the inapplicability of the "distance to schools, parks and playgrounds" provision of the then-current section 32-2.7, which states that "no commercial recreational facility shall be located on a property within a one-thousand (1000) feet radius of a park, playground or public or private primary or secondary school," since 754 Orange's leased premises are between 1,000 and 1,500 feet from May V. Carrigan Middle School, the nearest school, park, or playground.

As if the City's zoning ordinance were insufficient to confuse the status of the use contemplated by 754 Orange for its leased premises, the City also has a licensing and permit ordinance that raises similar issues of applicability while authorizing a different mode of enforcement. Adopted on September 27, 1982, section I of this ordinance establishes, inter alia, a license requirement for "mechanical amusement device[s] (including video games)." The licensing and permit ordinance also provides, at section II, that "the [p]olice [d]epartment . . . shall in its reasonable discretion and subject to its approval issue the above stated licenses and permits and shall provide suitable forms and blanks and applications and and shall keep suitable records of all licenses and permits and applications." Furthermore, under its provisions, the police department may "revoke a license or permit for any breach of the terms and conditions thereof, upon giving to the person to whom the same is issued notice of such revocation, and making a record thereof." There is no provision for appealing to any court a denial of a license or permit application or a revocation of a license or permit; instead, appeal must be mad within ten days to the City Council.

None of the foregoing issues concerning the applicability and enforcement of the City's zoning and licensing ordinances were addressed, much less resolved, when 754 Orange applied to the City for a building permit. Instead, the City's Building Official, defendant Steven Di Pier, simply refused to issue the building permit. In response, on April 23, 1984, 754 Orange filed this action in the district court under 42 U.S.C. ยง 1983 (1982) for injunctive relief and a declaratory judgment against the City and against Daniel Krevolin, Steven Di Pier, Michael N. D'Errico, and Lawrence Minichino, who were the City's Zoning Enforcement Officer, Building Official, Chief of Police, and Mayor, respectively. An order to show cause issued, and on May 4, 1984, the district court ordered that the City's Building Official issue a building permit no later than May 7, 1984. The permit did not issue, a motion for contempt was filed, and on May 14 a hearing was held on the contempt. On May 23, following the filing of an amended complaint on May 15 and a stipulation of facts by the parties, the district court issued the following order:

Based on the pleadings and representation of counsel in this matter, it is hereby ordered that the defendant Steven Di Pier as building official for the City of West Haven and/or his successors or whomever is empowered either on a permanent or temporary basis to issue building permits on behalf of the City of West Haven, Connecticut, to [sic] issue a building permit for the plaintiff's leased premises known as 760-762 Orange Avenue, West Haven, Connecticut. Counsel for the plaintiff is to be notified immediately by counsel for defendants upon appointment of any person who becomes authorized to issue building permits in the City of West Haven.

In another order issued the same day, the district court ordered that defendant Lawrence Minichino, the City's Mayor, in no way impede or obstruct the issuance of a building permit to the plaintiff. The Mayor responded by removing the defendant Steven Di Pier from the position of Building ...


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