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Geezers Detail Their Fight Against Capitol Video; “Capital Video wanted to be seen as reasonable”

Northampton, Massachusetts []- It started in December, at a meeting of the Northampton Planning Board, and ended just the other day, when we received a copy of the six-page Settlement Agreement we had struck with Capital Video Corporation.

Inside the FedEx-delivered letter were two checks made out to us individually, the modest fruit of the labor and expenses we’d expended over the last six months appealing the Northampton Planning Board’s approval of the Site Plan presented by Capital Video for a porn shop at 135 King St. The agreement, it should be noted, is with Capital Video, and not with the City of Northampton, which did, however, sign a Stipulation of Dismissal, thereby closing the case.

Our legal adventure began on a rain-soaked Monday, Jan. 8, when we went into Boston and filed an appeal with Massachusetts Land Court, naming the seven members of the Northampton Planning Board and Capital Video Corporation as defendants. Later, we laughed at our jitters when signing the documents and waiting for a clerk to assign our case a number and judge.

What were we getting ourselves into? While eating lunch at the Au Bon Pain on Cambridge Street, we watched two young women from Greenpeace standing outside in the pouring rain futilely trying to interest passersby in their cause. We wondered if our cause, as important it was to us, would end up as fruitless seeming as theirs. Would our case have any impact? After all, the porn shop, located 240 feet from our house near the foot of Summer Street, would be able to open for business anyway, no matter what we did.

The decision to file, acting as our own attorneys, was not an easy one. Earlier, with the Jan. 9 filing deadline looming, we sat by our woodstove, debating the pros and cons. We were going up against a formidable lawyer, an expert in land use issues. What would the financial impact be for us? (A terrifying thought!) Did we, after a year of being cooped up thanks to a broken leg in the family, want to tie up our lives, once more, with a court case?

On the other hand, we are retirees, with time to do research, prepare documents, respond to requests, participate in conferences, strategize, and perform the other tasks involved in a lawsuit. And, we are both writers who’ve had projects over the years that involved handling and analyzing legal documents and testimonies, and for one of us, years of experience in communications. We felt we could get “our story” across. The cost of hiring an attorney was out of the question (upwards of $25,000, we were told, if we went to trial,) and there did not seem to be a groundswell of financial or moral support among neighbors or city residents for appealing the Planning Board’s approval.

And so, it would be two 68-year old Northampton taxpayers, plaintiffs Michael A. Kirby and Lucille J. Stone, vs. the City of Northampton and the Capital Video Corp.

[Details of Agreement Are Confidential]

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. Since seeing the final text of the municipal ordinance passed by the City Council in 2006, our expectations have been minimal. We knew that the operation could not be stopped from opening on the highly trafficked corner of King and North streets. The city’s inclusion of a 1,000 sq. ft-exemption into the ordinance meant that existing locally owned operations were protected, and, therefore, doomed attempts to restrict Capital Video to industrial and commercial areas remote from schools, churches, social service agencies, and residential streets.

What we would fight for was how the operation looked to the neighborhood, and the impact it would have on traffic.

The agreement does permit us to talk about the legal action; it frees us to let off some steam. We were not the only victims at the Northampton Planning Board the night of Dec. 14. Before the planning board ran roughshod over the concerns of the neighbors and residents about the porn shop, it disregarded the objections Florence Savings Bank had with the extensive new development on the former Lia Honda site, at King and Finn streets.. At times, the bank attorney’s attempts to be recognized were summarily ignored.

Two major issues affecting our town, and afterwards, two lawsuits.

Why? Politics creeps in everywhere, and it is having an impact on the Northampton Planning Board. Sensitive to criticism that its policies are inhibiting industrial and commercial development, the planning board and the planning department are now ramming things through; the hotel downtown, the King Street development, the porn store. In the audience the night of Dec.14 were former councilors Bill Dwight and Alex Ghiselin pushing for approval as-is of the development on the Honda land, one of the biggest proposed in a number of years. Cheerleading for Capital Video was the assistant chair of the planning board, George Kohout, who spoke, at times, as if he were representing the Rhode Island-based chain of porn stores.

This is how it went down. On Dec. 6, about a week before the hearing, Anthony Nota of Capital Video sent Carolyn Misch of the planning department the conceptual plans for the store, and pictures of the “type of material that will be displayed in the windows.” Depicted were some racy scenes with manikins featuring bondage and lesbian sex scenes. When one of the members of the planning board waved them around, rumblings from board members indicated that the applicant might be in trouble. The exhibits seemed clearly in violation of the new ordinance that prohibited erotic signage and displays. Leslie Rich, head corporate counsel for Capital Video, withdrew the exhibit, contending that a mistake had been made. Then, their local lawyer, Michael Pill, leaped into the fray.

“We made a mistake,” said Pill, pivoting about and glaring at the board. “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.”

He pointed his finger at board members, hunched over, and shifted into full battle mode. “I’d love that. I’d make a fortune. A lot of lawyers will have a lot of fun. I’d make a fortune.”

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.

Our take on the legal process was that once we got over our jitters on the day of filing the suit, life got progressively easier. They saw we kept to the deadlines and were prepared to go to trial. Within weeks, we were in the settlement mode; it was clear from early on Capital Video wanted to be seen as reasonable, and good neighbor. We have no illusions that its operation will not have an impact on our neighborhood and the wider community. It will be no bed of roses for any of us.

We came out of this six-month business feeling positive about the Land Court option for self-representation. When your back is against the wall and you don’t have deep pockets, it can work. An afternoon in Land Court reading comparable cases will give you the idea of what language and format you have to use. The Court was helpful, assigning us a clerk and directing us to its on-line publication, “Deciding Whether to Represent Yourself,” which we downloaded for reference.

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.

These last few weeks we’ve seen Capital Video put in two maple saplings and landscaping behind a newly built decorative stonewall in front of 135 King St.. The bike rack that the Planning Department wanted has been installed. The latter addition puts Northampton on the map, perhaps, as the only municipality in the U.S. to have a fully accessible porn shop right on the route of a major bike trail. The extension of the Norwottuck Rail Trail goes by the shop’s side windows on North Street.

And, when reading the Gazette one morning some weeks ago, we couldn’t help but chuckle that the Northampton Historic Commission designated 135 King St. an architecturally significant example of an early auto dealership, which puts the building on the city’s one-year Demolition Delay order.

Chalk up one more first for our new neighbor.


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