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Zoning board hears adult business appeal

March 17, 2006|by ANDREW SCHOTZ

HAGERSTOWN - The latest round of an 18-year battle over pornography reached the Hagerstown Board of Zoning Appeals on Wednesday.

The board was asked to decide whether The Video Store, an adult shop on East Washington Street, is operating in a zone that doesn't permit it and if such a restriction is unfair.

After more than two hours of testimony on business economics and sexual anatomy, the board went on to another case.

The board wrapped up its agenda, nearly six hours of various hearings, at about 12:45 a.m. Thursday - then postponed making any decisions.

The board likely will meet again in the next few weeks. It must issue written decisions within 30 days.

The city's ordinance prohibits adult bookstores or adult mini-motion picture theaters in a C-3 (commercial central) zone, which is where The Video Store is now.

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The city allows adult businesses in C-2 (commercial general) zones, if they're 1,000 feet away from any church, school, park, hospital, nursing home, public or quasipublic facility for senior citizens "or similar land uses for human care and needs."

Testifying for The Video Store, Annapolis land-use consultant Shep Tullier said he found 40 possible C-2 business areas in the city. But zoning restrictions, economic obstacles or both eliminated about four-fifths of them, Tullier said.

Howard J. Schulman, a Baltimore attorney representing The Video Store, said the city's zoning intentionally hampers anyone trying to run an adult business. "Six or seven sites don't make a market," he said.

Attorney Mark Boyer, representing the city, said opportunities clearly exist. "Eight of 40 doesn't sound great, but that's eight locations that they concede," he said.

Boyer alleged that Tullier underestimated the possibilities by ruling out vacant land.

The city changed its ordinance to crack down on adult businesses in 1988.

The Video Store challenged and appealed the city's ordinance for two years. Finally, the U.S. Supreme Court declined to hear the case, leaving the ordinance intact.

Last year, the city denied the shop an adult business license, alleging it violates a prohibition on closed video booths and is operating two uses not allowed in its zone.

The Video Store also has challenged the constitutionality of the city's 2002 adult entertainment ordinance. A Washington County circuit judge has sided with the city, but The Video Store has appealed to the Maryland Court of Special Appeals.

Tullier testified for more than an hour Wednesday about all of the city's C-2 tracts, frustrating people waiting for a hearing on a proposed cement and concrete plant.

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