Toybox owner will see town in court
Preston, owner of Trevor’s Toybox, has filed an appeal from the Zoning Board’s denial of rehearing in Merrimack Superior Court.
The Zoning Board ruled in May that the proposed use was passive adult entertainment prohibited in that zone and that a window displaying “sexual paraphernalia visible from the exterior of the building” was also a violation.
“It is our position that the ZBA misinterpreted both of those sections of the ordinance in this case,” said Matthew Serge, the attorney representing Trevor’s Toybox.
The store does not fall under the passive adult entertainment category and would not be carrying sexual paraphernalia as defined under the ordinance, Serge said.
The “overbroad interpretation and application” of the zoning ordinance in this case violates his client’s right to due process, Serge said, and the ZBA’s decision unreasonably interferes with the business’s right to free speech.
Town Administrator David Jodoin said selectmen were informed of the court action and would meet with ZBA officials and a lawyer to decide on their next steps.
“The selectmen are waiting for information from the attorney and plan on proceeding,” Jodoin said.
Preston first filed papers with the town in March to change the use of an appliance repair shop on Main Street to a retail space for Trevor’s Toybox. The new store intended to sell leather clothing and bondage accessories including whips and handcuffs. A short time later a display showing two leather-clad mannequins holding handcuffs and a whip was placed in the window.
The town code enforcement officer sent a notice of violation classifying the proposed store as a passive adult entertainment use that was allowed only in commercial districts and stating that the business was displaying sexual paraphernalia in its window in violation of the town ordinance.
Trevor’s Toybox requested an appeal of administrative decision in April, arguing that the code enforcement officer incorrectly identified the business as a passive adult entertainment and incorrectly identified the window display as exhibiting sexual paraphernalia. The ZBA denied the appeal, finding that the proposed use was not allowed in that zone and that the window was displaying sexual paraphernalia visible from the exterior of the building.
A request for rehearing filed June 10 was denied on the grounds that no new evidence was presented to the ZBA.
The town must file a written response by Sept. 3. A hearing is scheduled for November 12.