Barred by the town’s zoning code from opening its doors, Trevor’s Toybox, an adult paraphernalia shop, never started selling its wares in downtown Pembroke.
But nearly four years after a Merrimack County Superior Court judge sided with the town and ruled that the store would violate Pembroke’s zoning laws by selling leather clothes, flogs and whips, a sign still hangs above the empty storefront at 145 Main St.: Trevor’s Toybox.
That’s creating a headache for Dana Carlucci, who owns two apartments and a commercial retail space next door at 147 and 149 Main St. He’s asked the town’s zoning board, of which he is a member, to order the property owner take down the sign. (Carlucci has promised to recuse himself from conversations and votes on the board about the matter.)
Carlucci said he’s been having trouble renting his property. A prospective tenant for the commercial space recently backed out of signing a lease, he said, worried their business would be associated with the controversy surrounding Trevor’s.
Carlucci said he had reached out to the property owner, Larry Preston, but never heard back.
“I consider it an illegal sign,” Carlucci said. “Because (the) business that was supposed to go in was never allowed – it was never approved. So my impression is that a sign goes with a purpose.”
The zoning board first heard the issue last week, ultimately giving the discussion a continuance to a later date while they talk to legal counsel.
Bruce Kudrick, chairman of the zoning board, said the law doesn’t appear to be cut and dried here.
“It’s not very clear in our ordinance. And that’s why we want to check on it,” he said.
The town also has to consider a recent U.S. Supreme Court decision that led Pembroke – as well as towns and cities across the country – to rewrite their sign ordinances this year.
In the case, Reed v. Town of Gilbert, all nine justices ruled that content-based sign regulations could be unconstitutional.
“According the United States Supreme Court, if your town has sign regulations that make distinctions between different types of signs based on content, those regulations are most likely unconstitutional violations of the First Amendment,” Tim Corwin, a Lebanon planner, wrote in a 2015 New Hampshire Planners Association newsletter.
Gilles Bissonnette, legal director of the New Hampshire chapter of the American Civil Liberties Union, said he couldn’t comment specifically about the case, but he did say the government was constitutionally barred from regulating speech – including signs – based on content.
“The government is prohibited from restricting speech – whether on a sign or otherwise – based on the viewpoint expressed,” Bissonnette wrote in an email. “These First Amendment interests are heightened when you are dealing with a person’s ability to engage in speech on his or her own private property. As for public spaces, the Supreme Court has also been very speech protective when it comes to signs. In a recent case – Reed v. Town of Gilbert – the Court concluded that it was presumptively unconstitutional for a municipality to discriminate against certain signs based on their content.”
It’s unclear why Preston, who doesn’t appear to be selling anything out of the space or online, hasn’t taken down the sign, although it isn’t unusual for signs of shuttered businesses to stay up. He didn’t respond to a call left at his business.
“They didn’t give any reason why they wanted to keep the sign up,” Everett Hodge, the town’s code enforcement officer, said of Preston.
(Lola Duffort can be reached at 369-3321 or lduffort@cmonitor.com.)