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Richmond bookstore still prohibited, says Supreme ruling |
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Friday, 20 November 2009 |
By ANDREW MARTIN
RICHMOND – An “adult” bookstore remains prohibited in town after a state Supreme Court ruling was issued last Monday upholding the decision of a lower court.
The opinion on the case – Martel Investment Group, LLC v. Town of Richmond – was issued by Supreme Court Justice Maureen McKenna Goldberg.
This matter goes back to Sept. 15, 2005, when Martel purchased the former site of Bickford’s restaurant at 1210 Main St. in Wyoming village. The investment group intended to “open an adult entertainment business in the building, which was not disclosed to the town,” Goldberg wrote. A month later, Martel received a building permit to renovate the former restaurant and it was indicated the site would be a “retail” use, nothing further.
It is unclear when the town learned of Martel’s intentions. But on Nov. 17, 2005, the Planning Board proposed an amendment, which was adopted two months later, to prohibit “adult entertainment businesses” throughout town, except for in an industrial zoning district.
Martel was informed that a development plan review was required because the site was changing its use from restaurant to retail. By the time the company applied, its intended adult entertainment use was prohibited and its development plan review was rejected.
As a result, Martel sued the town on May 3, 2006, and after more than a year of deliberation, a lower court judge entered a summary judgment in the town’s favor. The investment group then appealed that judgment to the state’s highest court with five arguments.
Goldberg addressed each argument, with the primary one being that the town was “impeded” from enforcing its zoning ordinances since the building official had already issued a building permit.
She wrote that a building-permit applicant is responsible for ensuring that his or her application conforms to the relevant zoning ordinances. Martel’s failure to comply with the zoning ordinance, Goldberg wrote, is neither mitigated nor excused because the town building official erred.
Goldberg addressed another argument in which Martel believed it had a vested right in a building permit. But the justice wrote that Martel submitted its development plan review request after prohibition of the intended business occurred.
“As such, Martel’s application was not substantially complete before the prohibition was enacted,” Goldberg wrote. “Therefore, there is no ‘safe harbor’ of substantial completeness that can be invoked.”
Retired Chief Justice Frank Williams, who resides in Richmond, did not participate. |
