Mike Kirby and Lu Stone are residents of Summer Street with a full-on view of Capital Video’s prospective King Street porn shop. In January they appealed the Northampton Planning Board’s approval of Capital Video’s site plan. While not a party to this appeal, NoPornNorthampton publicized it with a press release:
The goal of the couple’s appeal is not to prevent any kind of adult store from opening at 135 King, but for Capital Video to prepare a site plan that conforms to Northampton’s Zoning Ordinance and addresses the concerns of the community. Among other things, Northampton’s Zoning Ordinance forbids signs that depict sexual conduct or sexual excitement.
Immediately after the Planning Board rendered its 4-3 approval of Capital Video’s plans on December 14, dissenting board member Kenneth Jodrie called Capital Video’s submission “one of the poorest I’ve seen in a long time, both in terms of the quality of the drawings and making no effort to meet the requirements of what the town has been talking about for the last three months.”
To keep costs reasonable, Kirby and Stone have filed their appeal pro se. They have not engaged a lawyer to represent them at this time, nor is NoPornNorthampton formally involved with their appeal. NoPornNorthampton is a group of Northampton citizens who organized in mid-2006 to raise awareness about porn and who have been critical of Capital Video’s efforts to locate a hard-core pornography shop in the midst of homes, churches, counseling centers and a school of dance.
On December 20, NoPornNorthampton issued an open letter to Capital Video attorney Michael Pill, inviting him to dialogue with the community about the deficiencies in Capital Video’s plans. These deficiencies include adherence to a non-qualifying “Victoria’s Secret standard” for signage, failure to demonstrate safe pedestrian and vehicular flows in and around the site, and failure to address public health and safety issues around the site. Other Capital Video stores, for example, have experienced problems with hazardous trash, such as that seen in Kittery, ME and Meriden, CT.
On August 1, Kirby and Stone announced on downstreet.net that they had reached a settlement with Capital Video:
The language in the agreement we concluded with Capital Video holds it to be confidential between the parties. All we are able to say is that we are satisfied with the agreement… We knew that the operation could not be stopped from opening on the highly trafficked corner of King and North streets…
What we would fight for was how the operation looked to the neighborhood, and the impact it would have on traffic…
“We made a mistake,” said Pill, pivoting about and glaring at the board [referring to Capital Video’s initial proposal of a bondage display for their store]. “We’re admitting (that) for the purpose of trying to get into our business and avoid trouble. These people (Capital Video) are not in business, to get into a legal battle but if you want to deny us, then you can get into a legal battle. You can deny us on the basis of that photograph, we can go to battle… I’d love that. I’d make a fortune. A lot of lawyers will have a lot of fun. I’d make a fortune.” [See video clip]
There was uneasy laughter from the board. They were clearly intimidated by Pill, who is well known for his combativeness and attention to detail as well as his knowledge of Land Court procedures. They ignored prior comments from the city’s Associate Solicitor, Elaine Reall, that if the Capital Video exhibits were withdrawn, the applicant would have to submit new photos to show what their storefront would look like. They ignored board member Kenneth Jodrie, who said that their application was “one of the poorest I’ve seen in a long time,” and approved Capital Video’s alternative standard, a so-called Victoria’s Secret rule, which, according to Atty. Pill, would display nothing more lurid than a Victoria’s Secret window display in a mall, a racy, fluid standard, indeed, for a store spliced into a neighborhood with a dance academy for children, churches, recovery programs, not to say residences in plain sight of the shop…
[During subsequent negotiations,] we found the Capital Video representatives much more civil and respectful than their municipal counterparts, who, we believe, were annoyed with us, dismissing us as cranky meddlers with too much time on our hands. In its response to our initial complaint, the city called our complaint “frivolous and not made in good faith”, and demanded “(our) costs and attorneys’ fees pursuant to G/L/ ch. 231.6f.” They didn’t get them.
An attorney with knowledge in the area told us he had never heard of a municipality trying to invoke this draconian law in relation to an appeal by one of its citizens to a planning board action.
Capital Video has planned $44,000 in renovations to the 135 King St. building, which was added to the city’s register of historic places in June [it’s an early example of an auto dealership]. Outside the building, landscapers recently planted saplings and shrubs and installed a bicycle rack. Inside, though, it’s all bare drywall.
The company hasn’t announced when it plans to open the store, and a message left with a representative there wasn’t returned Thursday.
See also:
An Open Letter to Capital Video Attorney Michael Pill
December 20, 2006: Dr. Michael Pill is a Shutesbury attorney retained by Capital Video to help them establish a porn shop at 135 King Street. Northampton’s Planning Board approved Capital Video’s Site Plan on December 14, but many citizens still have concerns about how Capital Video will respect their interests. Here we ask Capital Video and Michael Pill to dialogue with the community.
Dear Dr. Pill:
We would like to take Capital Video up on its offer to have “a dialogue with the community to work on a plan that will improve the area, and provide a comfortable environment to all.” (Lesley Rich, Letter to Mayor Higgins and City Council Members)
While Northampton’s Planning Board approved Capital Video’s Site Plan (PDF) on December 14, a member of the board called it “one of the poorest I’ve seen in a long time”. We would appreciate reassurances and information on several areas of concern. These include:
- The store’s parking lot will soon abut a bike trail. Many children are likely to come in close proximity to the store and its patrons. Adult enterprises are well known to increase the risk of crime and harassment of passersby. Would you consider monitoring the store grounds with video cameras? How will these grounds be illuminated at night? Perhaps the back of the property can be fenced off from the bike trail? What other security measures can you offer?
- Capital Video’s initial proposal of a bondage display for the store, after promising an upscale, mature and non-offensive presentation, raised concerns that the company cares little for its visual impact on the neighborhood. Maintaining a comfortable environment for pedestrians is an important goal for Northampton. In the Planning Board hearing, the company most recently promised to adhere to a “Victoria’s Secret” standard. We would appreciate seeing specific examples of what this means for 135 King Street, to verify that Capital Video understands what it means to comply with Northampton’s new signage ordinance (PDF)…
- Many homes are close to this store on the South, East and West sides. Noise and pedestrian safety are concerns. What will the hours of the store be?
- Pornographic litter has been a problem around other adult enterprises, and the police have found used condoms in the vicinity of your Kittery store. We also saw what appeared to be soiled blue gloves behind your Meriden store. How will you maintain a clean environment in and around your store?…
- We are concerned that Capital Video will interfere with Northampton’s attempts to present itself as a safe, family-friendly environment for visitors (“Walk Into Something Wonderful”) if it advertises its store with billboards on major roads. Problems with this have been seen in Hartford. Will Capital Video pledge not to advertise its Northampton store with billboards?
Capital Video’s Victoria’s Secret Standard: Not Compatible with Northampton’s Signage Regulations
The problem is, this standard is vague, loose, changing, and itself might well violate Northampton’s site plan approval criteria (PDF), which state that:
No signs, text, graphics, pictures, publications, videotapes, CDs, DVDs, movies, covers, merchandise or other objects, implements, items or advertising, depicting, describing sexual conduct or sexual excitement as defined in MGL Chpt. 272, §31 shall be displayed in the windows or on any building or be visible to the public from the street, pedestrian sidewalks, walkways, or bikepaths or from other areas outside such establishments.
For an example of a Victoria’s Secret store display, here is a 2005 report from Newsweek…
This display [more pictures], almost certainly not in compliance with current Northampton signage regulations, is an example of how Northampton’s Planning Board was hasty in approving Capital Video’s Site Plan. Capital Video has not demonstrated that it knows what it means to comply with Northampton’s laws.
Potential Nuisance Claims Against Capital Video
While most cases concern physical interference with land, as from a sign that blocks the visibility of or access to plaintiff’s business, the tort is not thus limited. For instance, in Frandsen v. Mayer, 155 N.W.2d 294 (N.D. 1967), the court opined that large advertising signs did not constitute a nuisance per se if safely constructed, maintained in a clean and sightly manner, and bearing no objectionable advertisements. The offensiveness of a particular display is a legitimate consideration in a nuisance claim. “[I]n the appropriate case recovery will be permitted under the law of nuisance for an interference with visual aesthetic sensibilities,” where the offending object or display is such as would inconvenience or annoy the average person, not just a particularly sensitive neighbor. Hay v. Stevens, 271 Or. 16, 20 (1975) (finding a wire boundary fence between the parties’ property not a nuisance because it served a useful purpose). [emphasis added]
In Bloss v. Paris Township, 380 Mich. 466 (1968), the town enjoined as a public nuisance defendant’s operation of an outdoor drive-in theater in such a manner that pictures which related to sex and human anatomy and were not appropriate for minors were viewable by children on public streets, on residential properties, and in private homes without the consent of property owners and parents. The Supreme Court of Michigan rejected defendant’s freedom of speech and press claims under the First and Fourteenth Amendments, saying that the constitutional right to free expression does not encompass forcing one’s speech on an unwilling audience, in violation of their property rights. Bloss, p. 471. [emphasis added]…
This display [more pictures], almost certainly not in compliance with current Northampton signage regulations, is an example of how Northampton’s Planning Board was hasty in approving Capital Video’s Site Plan. Capital Video has not demonstrated that it knows what it means to comply with Northampton’s laws.
Potential Nuisance Claims Against Capital Video
While most cases concern physical interference with land, as from a sign that blocks the visibility of or access to plaintiff’s business, the tort is not thus limited. For instance, in Frandsen v. Mayer, 155 N.W.2d 294 (N.D. 1967), the court opined that large advertising signs did not constitute a nuisance per se if safely constructed, maintained in a clean and sightly manner, and bearing no objectionable advertisements. The offensiveness of a particular display is a legitimate consideration in a nuisance claim. “[I]n the appropriate case recovery will be permitted under the law of nuisance for an interference with visual aesthetic sensibilities,” where the offending object or display is such as would inconvenience or annoy the average person, not just a particularly sensitive neighbor. Hay v. Stevens, 271 Or. 16, 20 (1975) (finding a wire boundary fence between the parties’ property not a nuisance because it served a useful purpose). [emphasis added]
In Bloss v. Paris Township, 380 Mich. 466 (1968), the town enjoined as a public nuisance defendant’s operation of an outdoor drive-in theater in such a manner that pictures which related to sex and human anatomy and were not appropriate for minors were viewable by children on public streets, on residential properties, and in private homes without the consent of property owners and parents. The Supreme Court of Michigan rejected defendant’s freedom of speech and press claims under the First and Fourteenth Amendments, saying that the constitutional right to free expression does not encompass forcing one’s speech on an unwilling audience, in violation of their property rights. Bloss, p. 471. [emphasis added]…