No. Phoenix, AZ: Movement on to stop adult shop near Deer Valley schools

Officials in the Deer Valley School District may use a rare legal maneuver and spend millions of dollars in taxpayer bond money to stop a sex store from opening near two schools.

The district is considering condemning and buying the land where a Castle Boutique Megastore is scheduled to open next month at the northwestern corner of Deer Valley Road and Interstate 17. The store is less than a mile from Deer Valley Middle School and Barry Goldwater High School.

Curious neighbors called the city last month to find out exactly what business shaped like a castle was being constructed by the highway. Then, opposition started with a handful of residents but quickly galvanized hundreds more who are working any way they can to stop the sex shop. Vacant lots, slices of back and front yards and homes have been fair game in Mesa, Scottsdale and Phoenix for condemnation, in which cities and schools can claim land for public use. But this may be the first time a school district has tried to use it to keep what opponents call a bad neighbor from moving in.

"This is not drastic," said David Cantelme, a Deer Valley School Board member who proposed the idea. "They would get fair market value. Whatever their losses, they would be compensated." If the district succeeds in buying the land, the site could be used to build a school facility, such as a central kitchen or a warehouse. Cantelme emphasized that the district is just exploring the issue.

Deer Valley's attorney, Susan Segal, will research the matter, including cost, and report to the board later this month.

Castle Boutique owner Taylor Coleman, who owns four other Castle Boutiques in the Valley, has heard such threats before. The law was not meant to shut down businesses some people don't like, he said. Coleman said the district can't use its governing power to take his property just because it doesn't like his kind of business. The boutiques sell adult merchandise, including lingerie, videos and toys.

"They cannot show a compelling government reason why they need the property, other than . . . to stifle free speech," he said. "If you don't like my content, don't go shopping in the castle."

An attorney specializing in condemnation law said he would give Deer Valley a 90 percent chance of winning the right to take over the property. Arizona courts have been liberal in awarding condemnations for government use, said Bob Kerrick, a Phoenix attorney who has represented property owners. "If in fact the school district will use the land for a legitimate school purpose, then on its face, it looks like they can use eminent domain," he said. "It is the property owner who has a heavy burden in defeating condemnation." But it will cost the school district, Kerrick said.

Coleman estimated he has invested up to $4 million on the project. But what a judge might consider in deciding how much the school district would pay is how much Coleman could get if he put the business up for sale, Kerrick said. "It will cost the district an absolute fortune to acquire," Kerrick said.

A year ago, Deer Valley voters approved $77 million in bonds for school facilities. About $12 million of that is earmarked for support facilities, including a warehouse and central kitchen. Cantelme's idea is to build the warehouse or central kitchen at the Castle Boutique location.

School officials will look into the legality of using voter-approved bond money on such a purchase, and whether they could use $12 million on just one of the listed projects.

"We are just in the investigation stage," said Kent Davis, associate superintendent of administrative services. "We need to look at what benefit it would have for the district." A hefty price tag would be worth it to keep the store from opening, said parent Taggart Barron, who has started a Web site to inform residents of the store's opening. "The cost of buying this property and converting it to a facility the school district can use is much less than the cost of a Castle Boutique on the community," he said. Barron and other residents have picketed at the site, held vigils and public meetings to discuss ways to get the store shut down.

Most residents were angry that they were never notified about the store, even though Phoenix officials do not have to notify anyone that a business is locating in an area zoned commercial. The store meets qualifications of being more than 500 feet from an existing neighborhood or school and 1,000 feet from another existing adult bookstore, Phoenix officials have said. The store is not a video arcade, cabaret or adult theater and does not fall under the Sexual Oriented Business Ordinance, which requires a special license. Barron and others, quoting Phoenix crime statistics and land-use studies, say crime is higher in areas with adult-themed businesses. They are also fighting it on another front.

Opponents have asked the Phoenix Board of Adjustment for a hearing on rezoning a mobile-home park just north of the superstore from commercial to residential. The board will meet Oct. 3 and make a recommendation to the City Council. If zoning is changed, it will put the store too close to a neighborhood. Mostly, Barron said, he worries about children.

"With all the child abductions in the news, I'm looking at this as a proactive way of stopping that in my community," he said.

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"But what a judge might consider in deciding how much the school district would pay is how much Coleman could get if he put the business up for sale, Kerrick said. "It will cost the district an absolute fortune to acquire," Kerrick said."

Arizona Constitution, Art 2, Sec 17

"Whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial decision, and determined as such without regard to any legislative assertion that the use is public."

"No private property shall be taken or damaged for public or private use without just compensation having first been paid,..."

I would say it appears that the school board is following the state's constitution and that is good news for a change when it comes to private property rights.

Here's some interesting tidbits I found:

-On September 4, 2002, the DVAvalanche web site stated the following: "It is discovered that Taylor Coleman submitted his blueprints to the City under the name of "Pinball Land" (sounds innocent). After they were approved, he started building a "Castle Boutique".

On August 23, 2002 Senator Scott Bundgaard sent a letter to City of Phoenix Planning Director, David Richert which states:

"I believe the Zoning Ordinance is very clear that an adult use cannot locate within 500 feet of a residential community. Apparently, through some error in zoning, the obviously residential mobile home Park shows up on your zoning maps as commercially zoned. I imagine that is why the City gave Castle Boutique a building permit to start construction on their shop. The City Design Review Department relied on your zoning maps, which incorrectly show this residential use as zoned commercial."

Senator Bundgaard also sent a letter dated September 5, 2002 to City of Phoenix Attorney, Peter Van Haren which says,

"However, I also would like to know how the city can issue a use permit or operating permit to the Castle Boutique in light of ARS 13-2917 (B) which declares it is a public nuisance for any person to sell, offer to sell, transfer, trade of disseminate any item which is obscene as defined in ARS 13-3501 within 2,000 feet of a private or public school, a public park, or a residential subdivision.

Since the proposed operation of the Castle Boutique is located substantially less than 2,000 feet from a school and a mobile home park, how can the City of Phoenix allow the adult bookstore to operate?

As you are aware, ARS 13-2917 allows you as the city attorney to bring action in superior court to enjoin and prevent this activity from occurring."

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