Last week, a federal district court in Massachusetts accepted a nude dancing establishment’s argument that the City of Chelsea violated the First Amendment in denying a building permit for renovations to the business’s premises.  In so doing, the court struck down the city’s adult business zoning regulations and directed the city to treat the establishment under other use classifications contained in the code.

Chelsea’s zoning code provides for several zoning districts, including industrial, highway business, shopping center, and retail commercial business districts.  The code allows for an “art use”, 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,” in the industrial district, and by special permit in the retail business and highway business districts.  The code also allows for theater uses in the retail and shopping center districts, and adult entertainment uses in the highway commercial and shopping center districts.  Adult entertainment uses and theater uses are not allowed in the industrial district.

The plaintiff obtained an interest in the property, which had previously been used as a nude dancing establishment.  The plaintiff sought a building permit to renovate the property, but the city denied the request on the basis that the adult entertainment use was not permitted in the industrial zone district, and that the prior nude dancing use did not have nonconforming use protection.  The plaintiff appealed to the city’s zoning board, arguing that the use should be treated as an art use, permissible in the industrial district.  The zoning board affirmed the city staff’s interpretation, and the plaintiff sued in federal court.  In 2016, during the pendency of the case, the city updated its code to clarify the definition of adult entertainment uses.

On cross motions for summary judgment, the court upheld the zoning board’s determination that the nude dancing use was not an art use and that the use was not grandfathered under the nonconforming use doctrine.  With respect to the First Amendment claims, the court found that the city had provided sufficient alternative locations for adult uses in the highway commercial and shopping center districts.  The court also found that the approval criteria contained in the city’s special use permit regulations was not a vague, unconstitutional prior restraint.

Notwithstanding these victories for the city, the court additionally found that the city’s regulations were not narrowly tailored to a significant governmental interest.  Specifically, despite the fact that the city provided after-the-fact evidence of criminal activity surrounding the nude dancing establishment that previously existed on the subject property, the court observed that the city had not conducted any pre-enactment analysis to establish why adult entertainment uses should be permitted only in the shopping center and highway commercial zone districts.  Given this conclusion, the court struck down the adult entertainment provisions of the code, and directed the city to treat adult establishments under other use classifications.

Phantom Ventures LLC v. DePriest, No. 15-CV-13865-IT, 2017 WL 903456 (D. Mass. Mar. 7, 2017).