The Sound of Silence

Your application to plop an adult bookstore in our town’s commercial shopping center is hereby …

Dennis Loring filed a “site plan application seeking to locate an adult, sexually oriented book and video store in a shopping plaza in North Haven.” The commission said no. The trial court said yes. And now the Connecticut Supreme Court says … Yes (majority) with a no (dissent).

The issue: whether Mr. Loring’s proposed accessory use of 15 “video preview booths” is “customarily incidental“ to his proposed primary use of an adult book and video store, “and hence a valid accessory use.” The supreme court said it was an accessory use, and for this reason, the application should have been granted.

One highlight from the opinion. At the hearing before the commission, the attorney for the proposed store, Dan Silver, detailed why “preview booths” were an accessory use to adult video stores. Mr. Silver based his statements on, among other sources, his 35 years of representing adult businesses. He offered to testify under oath if the commission deemed it necessary. But the commission was silent, with 2 members more or less agreeing that Mr. Silver’s statements about accessory use were accurate. The commission still denied the application. [Full disclosure: I know Dan Silver and consider him a friend.]

On appeal, the trial court accepted Mr. Silver’s representations and proffer as fact because the town did not object to, much less contradict, his statements. As any attorney who’s read his or her words in a court transcript can attest, you — the attorney — can be hanged on your words. Yes indeed. The court will rule against your adult entertainment client while quoting your words as the “fact” supporting its decision. It’s not often, though, that you see the court go the other way: using the government’s lack of words (or evidence) to overturn an administrative decision. It seems like the right result here:

[I]f the commission members intended to disregard Silver’s expert testimony because of some special knowledge they had regarding what is customary for adult book and video stores, they should have stated the basis of their opinion on the record to allow the plaintiff an opportunity to rebut that evidence. Because it was undisputed that there were no other adult book and video stores then or previously operating in town and there is no evidence in the record to suggest that commission members had any personal knowledge of such businesses outside of the town, we reasonably cannot conclude that the commission members based their conclusions on personal knowledge. (internal citation omitted).

It’s an interesting opinion because it applies settled law to undisputed facts — and still generates a dissent.

Now that’s [adult] entertainment!