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Judge: More facts needed in adult bookstore zoning

November 19, 2006|by PEPPER BALLARD

A Hagerstown Board of Zoning Appeals' decision that a downtown adult store violated the city's zoning ordinance was sent back to the city board for more information this week, according to court records.

The Hagerstown Board of Zoning Appeals in April upheld Hagerstown Zoning Administrator Steve Bockmiller's decision to issue a violation notice to The Video Store at 23 E. Washington St., but attorneys for the bookstore appealed the decision to Circuit Court.

Circuit Judge John H. McDowell, in an order filed Wednesday, said the city board didn't base its decision on sufficient facts, so the court, therefore, cannot rule on its decision without more facts to support its case.

"The Board, in deciding that the appellant is conducting an adult bookstore business did nothing but make a conclusory statement without any factual underpinnings, nor did the Board attempt to relate its conclusion to the definition of an adult bookstore as found" in the code, McDowell wrote in his opinion.

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In October, Howard Schulman, an attorney for 104 W. Washington St. II Corp., the store's owner, argued before McDowell that the board did not base its ruling on fact, and did not determine whether or not the store fits the ordinance description of an "adult bookstore."

City Attorney Mark K. Boyer argued during the same hearing that there are a number of sites - between eight and 22 - within the city with the proper zoning to which the store could move.

McDowell wrote in his opinion that the board "failed to adequately factually support its decision" that suitable sites exist within the appropriate zone.

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