Accessory After the Fact

The only thing standing between Paul Fox and his seven-year quest to open a topless club is a mobile home parked across the street from his property.

Last week the Adams County Board of Adjustments upheld a previous ruling that determined that Fox's property at 6000 Pecos failed to meet the county's stringent zoning rules for an adult entertainment business. Those regulations, revised in 1994, state that no sexually oriented business may operate within 1,500 feet of a residential home.

That includes a mobile home, even if it's just a trailer occupied by the security guard for the self-storage lot across the street. And even if, as Fox claims, the mobile home wasn't parked on the lot when he filed for his permit in April after buying the building in an otherwise industrial part of unincorporated Adams County.

"Seven years ago I tried to open a topless bar in Greenwood Village," Fox says, "and [the city] set emergency ordinances to prevent me. So I learned my lesson, and this time I did my homework. Everything about the building was perfect. I walked off every step in every direction, did all the research, and when it came up for sale, I nabbed it."

But when the guard moved in across the street, Adams County jumped on Fox just as quickly, contending that even though the "modular home" is classified as an "accessory" attached to the storage facility, it still qualifies as a residence. And when the trailer was issued a permit as an "accessory," it also became a home within 1,500 feet of Fox's proposed club--the only home within 1,500 feet of his proposed club.

At last week's hearing, Fox's attorney, Michael Gross, who works for renowned Denver obscenity lawyer Arthur Schwartz, argued that the mobile home was tacked onto the existing storage facility and was not a dwelling in and of itself. "In this case," Michael Gross said, "accessory use is determining the zoning law. The tail is wagging the dog.

"The intention of the law is to keep adult entertainment out of residential areas," Gross continued. "Since this location is in the most intensive industrial area in the county, it achieves that."

But Adams County officials didn't buy Gross's argument.
"It was our obligation to issue a permit for an accessory use," says Robert Coney, Adams County director of planning and development. "And as a result, it was also our obligation to re-evaluate Fox's building permit."

Fox argues that the county is nitpicking. "Adams County is 100 percent against adult entertainment," he says. "And because of that, they're twisting zoning regulations to meet their needs. You can put an apple on the table, and they'll look at it and call it an orange."

Even though Adams County is tough on adult entertainment, Fox says he's determined to set up shop in the county where he's lived all his life. But suitable locations are few and far between.

Gross estimates that a scant .09 percent of the county's land is zoned for adult businesses. "And most of that," he says, "is railroad tracks and gravel pits." Of the twenty or so adult-oriented businesses currently operating in the county, Gross says the majority were open prior to 1994, when the new zoning regulations went into effect.

Coney points out another catch in those regulations. Not only do the zoning laws restrict sexually oriented businesses from opening within 1,500 feet of schools, residences and churches, they also restrict such businesses from opening within 1,500 feet of each other. "It's the law of diminishing returns," he says. "The more [adult businesses] that operate, the less options there are for new ones."

And that, says Adams County Commissioner Marty Flaum, is precisely what citizens of the county want. "Ten years ago there were fourteen or fifteen topless clubs in Adams County," he says. "Now there are only two. There's no question that we are paying more attention to these types of businesses, because it is the will of the people and, therefore, our job as elected officials. When you've got hundreds of people continually coming to your office complaining about sexually oriented businesses, you've got to address that.

"The whole issue with the Fox case is trying to determine what the intent of the ordinance is," he continues. "Now, if you had five different attorneys look at the definition of accessory use, you'd probably get five different interpretations. But we all know what the intent is. The zoning regulations are sending a clear message [to sexually oriented businesses]. Go someplace else."

Although Flaum says the tough restrictions are the result of public demand, only one community member showed up to oppose Fox's plan.

Gloria Rudden of the Berkeley Neighborhood Association, which is located four blocks north of Fox's property, spoke at the hearing about her fears that area children would be exposed to a sexually explicit business. Students at a private Catholic school several blocks away from Fox's proposed club might wander by, she complained.

Rudden was caught off guard, though, when Fox's attorney pointed out that there are already two adult businesses, a peep show and an adult bookstore on the same block as the school she was defending. (Both of those businesses were in operation before the county's new zoning regulations went into effect.)

"If kids are walking anywhere near my location," Fox points out, "they're skipping school."

Although Gross argued that adult businesses have a constitutional right to operate somewhere in the county, the adjustments board remained unswayed, voting 5-0 to uphold the initial ruling.

"Is there less of an expectation for the quality of life for the people living [in the mobile home] than for those living in a subdivision?" Coney asks. "The answer is no. It doesn't matter if it's Paul Fox's best customer living there or a normal family, we have to make sure the zoning regulations are upheld."

At this point, Fox only wishes he had a best customer--living across the street or anywhere. The building he bought remains empty and in need of major repairs; he estimates he's already lost $35,000, and he has a $62,000 lease payment due next summer. By then, he hopes, the lawsuit he's filed in federal court will have rendered the county's decision unconstitutional.

"I understand the county's concern about having a topless club in a residential area," he says, "but I'm out here in the middle of nowhere.


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