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Towns use zoning to corral porn

GREECE, NY – Mandy Doster doesn’t want her 12-year-old daughter getting on and off the school bus in front of an adult video store.

But that’s what could happen if businessman Jan DeGroote prevails in an ongoing federal lawsuit against the town of Greece over its zoning rules for adult-oriented businesses.

“I have no problem with what he sells and no problem with him having a store, but I do have a problem with it being so near me,” said Doster, whose home is across Lee Road from a former auto-repair shop DeGroote has been fighting to turn into an adult business since 2004.

Municipalities can’t ban businesses featuring topless dancing, nude cabarets or adult videos, books and sexual paraphernalia, but they can use zoning laws to control where those businesses go. Henrietta this week used its law to shut down five massage parlors that town officials said were adult uses operating in places where such businesses are not allowed.

“It’s just not appropriate to have something like that across the street from children’s bus stops,” Doster said.

Zoning professionals say location is a key issue.

“In general, communities need to take a careful look at their overall needs and the proximity of businesses like this to residences and other types of businesses in the town,” said David Kay, president of the board of directors for the New York Planning Federation in Troy.

“Essentially, they need to create zoning that makes sense and places these kinds of businesses where they are most appropriate and keeps them away from where they are least appropriate.”

DeGroote of Greece has been in the adult entertainment business since at least 1976, when he began showing pornographic films at the Monroe Theater on Monroe Avenue in Rochester. He now owns several adult video stores, all called Show World, in Henrietta; Waterloo, Seneca County; and the former theater on Monroe Avenue. He also owns the Cinema Art adult theater in Troy, Rensselaer County.

The stores sell books, movies, magazines, lingerie and novelties. He’s suing Greece because he says the zoning laws are too strict and were changed specifically to keep him from opening a store at 750 Lee Road.

When adult businesses began moving to the suburbs in the early 1990s, towns and villages were unprepared: Without specific zoning restrictions, topless or nude bars and adult bookstores could open in the same places as other businesses. That’s how Henrietta ended up with the Klassy Cat Tavern on West Henrietta Road, Ontario in Wayne County got Ontario Video & News and the town of Ogden got an all-nude dance cabaret just a few hundred feet from a day care center.

“It was inappropriate,” said Ogden Supervisor Gay Lenhard, who was not in office when the defunct Toppers Night Club opened in 1992 at Buffalo and Whittier roads. “The location is right around the corner from a day care and next to a residential area.”

After emotionally charged public meetings, Ogden in 1993 changed its zoning laws and gave Toppers two years to relocate. It closed in 1999.

Henrietta lost a legal battle in 1993 to stop topless dancing at the Klassy Cat, and the loss led to changes to its laws.

After watching what happened in Ogden and elsewhere, officials in other municipalities worked to pass ordinances minimizing the effects of adult businesses on their communities.

In general, Monroe County’s towns and villages and the city of Rochester require that adult businesses be in areas zoned for industrial or manufacturing use and that they be a particular distance – usually 500 to 1,000 feet – from homes, churches, parks, schools and certain other locations. Rochester also requires that such businesses be licensed.

Henrietta was able to shut down its five massage parlors this week because town law labels a business that offers massages but does not have people licensed to do so as an adult use and restricts it to industrial/limited commercial districts.

“Communities really (should) anticipate ahead of time what issues are likely to come up and not assume that because it hasn’t happened before it can’t happen here,” said Kay.

As much as communities might want to prohibit adult uses altogether, they can’t. The U.S. Supreme Court and lower courts have ruled that adult businesses are protected under the First Amendment, said Katherine Daniels, senior planner with the Planning Federation.

DeGroote is pinning part of his legal challenge to Greece on the First Amendment, claiming that the town is using zoning to prevent him from opening a business, as well as that the town wrongly formulated new rules for adult uses soon after he bought the Lee Road property. Late last year, he lost a similar case in state Supreme Court.

Repeated calls seeking comment for this story were not returned by DeGroote or his attorney, Michael S. Deal of Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria LLP in Buffalo.

When DeGroote submitted plans for the Lee Road property on Dec. 15, 2004, Greece’s zoning ordinance said adult businesses could not operate within 1,000 feet of a residential zone, church, school, park or day care provider. Days later, the town approved a proposal that changed the law to say adult businesses could not be within 1,000 feet of a lot with a residence, instead of a residential zone. The proposal was under discussion before DeGroote submitted his plans.

The homes along Lee Road are in an area zoned for industrial use.

Jeff McCann, Greece’s deputy supervisor, said he could not comment on pending litigation. However, he said the restrictions on adult businesses give the town as much control as possible over where such businesses may go. There’s only one other adult business in Greece – Industrial Video & News at 1845 Mt. Read Blvd.

Mosezell Phillips, who lives with his wife and two sons across the street from DeGroote’s property, said he wants the town to have as much control over adult businesses as possible. “I’ve got a 9-year-old and a 17-year-old, and I don’t think having something like that over there would be a good environment,” he said.

In addition to the Klassy Kat and Show World, Henrietta also has the strip club Rick’s Tallyho on East Henrietta Road.

Christopher Roth, Henrietta’s director of building and fire prevention, says the town and its adult business owners have learned to co-exist, the massage parlors notwithstanding.

“I’m not pro-adult business, but we’ve gotten along,” he said. “It seems they understand the parameters and want to be good neighbors as best they can.”

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