Posted by: Patricia Salkin | March 25, 2017

Fed. Dist Court of MA Holds Adult Live Nude Dancing was not an “Art Use” Permitted as of Right

In this case, Plaintiff Phantom Ventures, LLC, appealed the City of Chelsea Zoning Board of Appeals’ denial of a building permit to renovate a building for a live nude dancing venue with the sale of food and alcohol.  The Zoning Board found that live nude dancing was not permitted where the building was located. Plaintiff’s Amended Complaint sought a declaratory judgment that the decision of the Zoning Board was incorrect, or that the proposed use was grandfathered based on the prior owner’s use of the property. In the alternative, Plaintiff challenged Chelsea’s Code of Ordinances as unconstitutional.

At the outset, Defendants first argued that Plaintiff’s suit was mooted by the City of Chelsea’s adoption of a revised definition of “adult entertainment establishment.” The court rejected this argument, finding that Plaintiff was continuing to seek redress for the denial of the permit in 2015, and continuing to challenge the constitutionality of the Code so that it may obtain a permit in the present. As such, the issues presented were live and the parties were found to have legally cognizable interests in the outcome. Plaintiff first argued that it was entitled to a building permit when it applied because live adult nude dancing was not specifically delineated as an activity within the Code prior to the recent amendment, and the Zoning Board should have found that adult live nude dancing was an “Art use” permitted as of right in the Industrial District. The court determined that the Zoning Board did not err in rejecting Plaintiff’s contention that nude dancing fell within the definition of Art use, because Art use was defined as “the creation, manufacture or assemblage of visual art, including two or three dimensional works of fine art or craft, or other fine art objects created, manufactured or assembled for the purpose of sale, display, commission, consignment or trade by artists or artisans; or classes held for art instruction.” The court found that this definition referred to the creation of physical objects, rather than performance art such as dancing.

Plaintiff next argued that the business should be allowed as of right as a pre-existing use under state law. This argument was rejected by the court since the “grandfather” provision of the Massachusetts zoning enabling statute explicitly stated it “shall not apply to establishments which display live nudity for their patrons…” As to the constitutional claims, the court noted that Plaintiff failed to demonstrate that the Code was an unconstitutional total ban on “adult entertainment establishments”, as there was no evidence indicating that there was no available land in the Highway Business or Shopping Center Districts. The court also rejected the Plaintiff’s argument that the Code was facially unconstitutional because the special permit process vests too much discretion in the Zoning Board.  Here, the Board’s discretion was not unbridled due to the Code’s requirement that the Zoning Board consider six mandatory criteria and that the decision be written.

Lastly, the plaintiff claimed that the Code was an unconstitutional time, place, and manner restriction because it allowed “adult entertainment establishments” only in certain districts within the City. Here, the City failed to show that the Code’s requirements limiting “adult entertainment establishments” to the Highway Business or Shopping Center Districts were enacted as a means of ameliorating the secondary effects of adult entertainment. The court found this provision was severable, as striking the “adult entertainment establishment” portion of sections 34-300 of the Code would not render the remaining code contradictory or incoherent. Accordingly, the court remanded the case to the Zoning Board for further consideration.

Phantom Ventures LLC v. DePriest, 2017 WL 903456 (D. Mass. 3/7/2017)


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