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The town must revise its adult zoning bylaw to protect itself from potentially damaging litigation, Dedham officials said last night, while acknowledging that the difficult part is where to locate the controversial zone for R-rated bookstores, video stores and clubs.
Concerned residents and Dedham business representatives agreed, saying that placing adult zoning on Allied Drive near Rte. 128 was especially problematic. An article on the Nov. 17 special Town Meeting warrant would eliminate Dedham's 18-year-old adult zone in the corner of town between Boston and Canton. It would be replaced by a new adult-uses overlay district in two areas near Rte. 128 - one on Allied Drive, and the other next to University Avenue and Blue Hill Drive close to the Rte. 128 train station.
Both areas include parcels that are split between Dedham and Westwood.
The proposal, jointly sponsored by the Board of Selectmen and Planning Board, will require a two-thirds vote at town meeting to be approved. It would also need to be reviewed and approved by the state attorney general, Planning Board Chairman Michael Podolski said at a public hearing attended by about 25 people and selectmen.
Town Counsel George Pucci said the bylaw revision, which he suggested, was driven in part by a recently settled lawsuit brought against the town in 2004 by Capital Video, the parent company of Amazing, Dedham's only adult business. The Rte. 1 establishment is an adult book and video store.
Podolski said Amazing got into a dispute with the landlord and applied to the Zoning Board of Appeals to move to the back of its current building. When the zoning board denied that move, Amazing sued, he said.
While the lawsuit was settled in early fall with Dedham not paying damages or plaintiff attorney fees, Pucci said the case revealed a potential liability for the town.
Since the bylaw was adopted in 1990, the U.S. Supreme Court and the state Supreme Judicial Court have found that adult businesses have a right to offer entertainment, books and so on as constitutionally protected speech, Pucci said.
The current zone is on a single large parcel east of the New York, New Haven & Hartford Railroad tracks with no road access from the town of Dedham. That makes it "an illusory zone," Pucci said: "You're setting that up purposely so that a retail use cannot really viably locate there."
If a court determined that zone is unconstitutional, Pucci said, "That means the adult use can go anywhere it wants in the town. And at that point, you're not even talking about an opportunity to impose permit requirements on it. Then you're talking about nude dancing, you're talking about books, videos - any type of operation that you can think of then has this blanket right to try and locate anywhere where they want in the town."
The town must revise its adult zoning bylaw to protect itself from potentially damaging litigation, Dedham officials said last night, while acknowledging that the difficult part is where to locate the controversial zone for R-rated bookstores, video stores and clubs.
Concerned residents and Dedham business representatives agreed, saying that placing adult zoning on Allied Drive near Rte. 128 was especially problematic. An article on the Nov. 17 special Town Meeting warrant would eliminate Dedham's 18-year-old adult zone in the corner of town between Boston and Canton. It would be replaced by a new adult-uses overlay district in two areas near Rte. 128 - one on Allied Drive, and the other next to University Avenue and Blue Hill Drive close to the Rte. 128 train station.
Both areas include parcels that are split between Dedham and Westwood.
The proposal, jointly sponsored by the Board of Selectmen and Planning Board, will require a two-thirds vote at town meeting to be approved. It would also need to be reviewed and approved by the state attorney general, Planning Board Chairman Michael Podolski said at a public hearing attended by about 25 people and selectmen.
Town Counsel George Pucci said the bylaw revision, which he suggested, was driven in part by a recently settled lawsuit brought against the town in 2004 by Capital Video, the parent company of Amazing, Dedham's only adult business. The Rte. 1 establishment is an adult book and video store.
Podolski said Amazing got into a dispute with the landlord and applied to the Zoning Board of Appeals to move to the back of its current building. When the zoning board denied that move, Amazing sued, he said.
While the lawsuit was settled in early fall with Dedham not paying damages or plaintiff attorney fees, Pucci said the case revealed a potential liability for the town.
Since the bylaw was adopted in 1990, the U.S. Supreme Court and the state Supreme Judicial Court have found that adult businesses have a right to offer entertainment, books and so on as constitutionally protected speech, Pucci said.
The current zone is on a single large parcel east of the New York, New Haven & Hartford Railroad tracks with no road access from the town of Dedham. That makes it "an illusory zone," Pucci said: "You're setting that up purposely so that a retail use cannot really viably locate there."
If a court determined that zone is unconstitutional, Pucci said, "That means the adult use can go anywhere it wants in the town. And at that point, you're not even talking about an opportunity to impose permit requirements on it. Then you're talking about nude dancing, you're talking about books, videos - any type of operation that you can think of then has this blanket right to try and locate anywhere where they want in the town."
Such cases could also leave the town liable to pay plaintiffs' attorney fees "in seven figures," Pucci said.
The attorney from Kopelman & Paige said the new bylaw is a proactive, strategic move that would "correct any potential constitutional issues with the current bylaw and make it strong so that it can hold up to any constitutional challenge in the future."
Selectmen Chairman James MacDonald said his board discussed the revised bylaw in executive session while the Amazing litigation was pending, "because, quite frankly, we were afraid."
"We were afraid that our current area could be constitutionally challenged, thereby opening up the town to potential lawsuits and excessive legal fees," he said. "We understand that this is not an easy subject to talk about."
The revised adult zone will include a 150-foot setback between adult businesses and adjoining properties.
Since about 80 percent of Dedham is residentially zoned, that left few places where the town could place its new zoning, said Town Planner Arthur Noonan.
Town Meeting member John Caruso said he understood why the new zoning was necessary but that town officials have "now opened the door for a strip club to come in" on Allied Drive, close to his home on East Street.
Martin Healy, a lawyer speaking for the Bulfinch Cos., the owners of 20 Care Matrix Drive, said the adult zoning could devalue Allied Drive as a commercial area for mainstream businesses. High visibility from Rte. 128 for an adult site would not be good for Dedham, he said.
""We don't really want these uses near us either," Healy said.
Daily News staff writer Edward B. Colby can be reached at 781-433-8336 or ecolby@cnc.com.
