United States District Court, D. Massachusetts
MEMORANDUM & ORDER
TALWANI UNITED STATES DISTRICT COURT.
Phantom Ventures, LLC, appeals the City of Chelsea Zoning
Board of Appeals' (“Zoning Board”) denial of
a building permit to renovate a building for a live nude
dancing venue with the sale of food and alcohol. Am. Compl. 1
[#19]; Defs.' Resp. Pl.'s Facts Ex. 13
[#31-13]. The Zoning Board found that live nude
dancing was not permitted where the building is located.
Plaintiff's Amended Complaint
(“Complaint”) [#19] seeks a declaratory judgment
that the decision of the Zoning Board was incorrect or that
the proposed use is grandfathered based on the prior
owner's use of the property. In the alternative,
Plaintiff challenges Chelsea's Code of Ordinances (the
“Code”) as unconstitutional in several respects.
Currently pending before the court is Plaintiff's
Motion for Partial Summary Judgment [#22] and
Defendants' Cross-Motion for Summary Judgment
[#29]. For the following reasons, Plaintiff's Motion
for Summary Judgment [#22] is GRANTED IN PART
and DENIED IN PART. Defendant's Cross-Motion for
Summary Judgment [#29] is GRANTED IN PART and DENIED IN
PART, and the matter is REMANDED to the Zoning Board for
further consideration of Plaintiff's permit application.
The Code of Ordinances of the City of Chelsea at the Time
the Dispute Commenced
adopted in 2005, the Code includes zoning regulations to
“promote the health, safety and general welfare of the
inhabitants of the city.” Chelsea, Ma., Code of
Ordinances ch. 34 § 34-1. The Code divides the City of
Chelsea (“the City”) into fourteen districts,
delineating the types of buildings and activities that are
permitted in each. Chelsea, Ma., Code of Ordinances ch. 34
§ 34-27. The districts include various residential
districts, business districts (including the Retail Business
District, the Highway Business District, and the Shopping
Center District), industrial districts (including the
Industrial District where the property at issue is located),
and other districts. Chelsea, Ma., Code of Ordinances ch. 34,
purpose of the Industrial District “is to provide for
research, manufacturing, wholesaling, and related
distribution activities in locations with suitable access and
where such activities can occur without an adverse impact on
residential areas.” Chelsea, Ma., Code of Ordinances
ch. 34, §34-27(k). The purpose of the Highway Business
District “is to provide areas for retail businesses
serving vehicles and for automotive sales and
services.” Chelsea, Ma., Code of Ordinances ch. 34,
§34-27(h). The purpose of the Shopping Center District
“is to provide areas of retail and services development
with more than one establishment on one lot with shared
common facilities and on-site parking.” Chelsea, Ma.,
Code of Ordinances, §34-27(i). The purpose of the Retail
Business District is to provide a downtown area with the
range of business sales and services which generally
constitute a central business district. Chelsea, Ma., Code of
Ordinances ch. 34, §34-27(f).
Code provides a table of principal use regulations denoting
where specific activities or buildings may be located within
the fourteen districts in the City. Chelsea, Ma., Code of
Ordinances, ch. 34 §34-300. The Code also states that if
an activity can be classified under more than one of the
described uses, the more specific, more restrictive
classification shall govern. Chelsea, Ma., Code of
Ordinances, ch. 34, §34-49(c). The Code states further
that “[a]ny building or use of premises not herein
expressly permitted is hereby prohibited.” Chelsea,
Ma., Code of Ordinances ch. 34 §34-49(a).
use” is allowed within the Industrial District without
any need for a special permit, and in the Retail Business
District and Highway Business District with a special permit.
Chelsea, Ma., Code of Ordinances, ch. 34 §34-300. The
Code defines Art use 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.”
Chelsea, Ma., Code of Ordinances, ch. 34 §34-241.
concert halls and cinemas” are allowed in the Retail
Business District and Shopping Center District without a
special permit, and in the Industrial District with a special
permit. Chelsea, Ma., Code of Ordinances, ch. 34
§34-300. Restaurants, with or without the sale of
alcohol, are allowed in the Retail Business District, Highway
Business District, and Shopping Center District without a
special permit, and are not allowed in the Industrial
District. Chelsea, Ma., Code of Ordinances, ch. 34
entertainment establishments” are allowed by special
permit within the Highway Business District and Shopping
Center District, and not permitted in the Industrial
District. Chelsea, Ma., Code of Ordinances, ch. 34
§34-300. At the time of the permit denial, the Code
provided that Adult entertainment establishments included and
were defined as “(1) Adult bookstore means an
establishment having as a substantial or significant portion
of its stock in trade books, magazines and other matter which
are distinguished or characterized by their emphasis
depicting, describing or relating to sexual conduct or sexual
excitement as defined in M.G.L. c. 272, § 31” and
“(2) Adult motion picture theater means an enclosed
building used for presenting material distinguished by an
emphasis on matter depicting, describing, or relating to
sexual conduct or sexual excitement as defined in M.G.L. c.
272, § 31.” Chelsea, Ma., Code of Ordinances, ch.
The Property's Prior Use
in the late 1970s, the property at 200 Beacham Street
(“the property”) was operated under the name King
Arthur's Motel and Lounge (“King
Arthur's”) as an entertainment facility with live
adult nude dancing. Pl.'s Rule 56.1 Statement Material
Facts, Pl.'s Mem. Supp. Mot. Summ. J. (“Pl.'s
Facts”) 3 [#23], Defs.' Resp. Pl.'s Facts
(“Defs.' Facts”) ¶ 3 [#31]. King
Arthur's closed in 2014. Defs.' Facts ¶ 20
[#31], Ex. 8 [#31-8].
The Permit Request and Denial
is a licensee of the lessee of the current property owner.
Pl.'s Facts 2 [#23]. On June 10, 2015, Plaintiff applied
for a building permit to renovate the property for use as a
“nude adult cabaret/sports bar.” Id. at
3, Ex. A 28 [#24-1]; Defs.' Facts ¶ 4. Chelsea's
Zoning Enforcement Officer denied the application, stating
that “adult entertainment establishments are not a
permitted use within the Industrial Zoning District, in which
this structure is located.” Aff. of Thomas S.
Fitzpatrick in Supp. Pl.'s Mot. Partial Summ. J
(“Fitzpatrick Aff.”) [#24] Aff. Ex. 1
(“Denial Letter”) 18 [#24-1]; Pl.'s Facts 3
[#23]; Defs.' Facts ¶ 5 [#31]. The Denial Letter
explained that “adult entertainment
establishments” were permitted by special permit within
the Highway Business District and Shopping Center District.
Id. The Denial Letter further stated that while the
previous use at the property was an adult entertainment
establishment “as is defined in the City of Chelsea
Ordinances, ” the proposed use did not have
pre-existing, non-conforming use protection. Id.
(citing Mass. Gen. Laws, ch. 40A § 6 (2016)).
appealed the denial of the building permit, arguing that a
nude adult cabaret/sports bar was an “Art use”
under the Code, and was not an “adult entertainment
establishment” as the Zoning Enforcement Officer found.
Pl.'s Fact 3 [#23]; Defs.' Fact ¶ 6 [#31],
Fitzpatrick Aff. Ex. A 2 [#24-1]. In the alternative,
Plaintiff argued that the proposed use was grandfathered.
Fitzpatrick Aff. Ex. A 13 [#24-1]. The Zoning Board held a
public hearing on the appeal. Pl.'s Facts 3 [#23];
Defs.' Facts ¶ 8. At the close of the public
hearing, the Zoning Board unanimously voted to uphold the
denial of the building permit. Pl.'s Facts 4 [#23];
Defs.' Facts ¶ 9 [#31]. On October 5, 2015, the
Zoning Board filed its written decision upholding the denial
of the permit with the City Clerk. Pl.'s Facts 4 [#23];
Decision of Zoning Board of Appeals 3 [#24-1]. This action
The Amendment of the Code
November 7, 2016, while this action was pending, the Chelsea
City Council voted to amend the definition of “adult
entertainment establishment” under the Code. Defs.'
Additional Papers in Supp. Pending Mot. Summ. J. 2
[“Defs.' Additional Papers”] [#55]. As
amended, “adult entertainment establishments” now
includes “adult bookstores, adult motion picture
theaters, adult paraphernalia stores, adult video stores,
or establishments which display live nudity for
their patrons as defined by Chapter 40A, Section 9A of
the Commonwealth of Massachusetts General laws, as amended .
. . .” Id. (emphasis added).
role of summary judgment is “to pierce the pleadings
and to assess the proof in order to see whether there is a
genuine need for trial.” Garside v. Osco Drug,
Inc., 895 F.2d 46, 50 (1st Cir. 1990) (quoting
Fed.R.Civ.P. 56 advisory committee's note). Summary
judgment is proper when “the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). “A dispute is genuine if the evidence about the
fact is such that a reasonable jury could resolve the point
in the favor of the non-moving party. A fact is material if
it has the potential of determining the outcome of the
litigation.” Patco Constr. Co. v. People's
United Bank, 684 F.3d 197, 206-07 (1st Cir. 2012)
(internal quotation marks and citations omitted). In ruling
on a motion for summary judgment, the court views the record
in the light most favorable to the nonmovant and draws all
reasonable inferences in the nonmovant's favor.
Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.
The Revision to the Code Does Not Moot the Case
contend that Plaintiff's suit has been mooted by the City
of Chelsea's adoption of a revised definition of
“adult entertainment establishment.” Defs.'
Suppl. Mem. 6 [#47]. Plaintiff responds that regardless of
the amendment, Plaintiff was wrongly denied its permit in
June 2015, and that at the time, “the issuance of [the]
permit [was] a matter of duty, not discretion.”
Pl.'s Reply Defs.' Suppl. Mem. 15 [#50] (citing
Framingham Clinic, Inc. v. Zoning Bd. Of Appeals of
Framingham, 415 N.E.2d 840, 849 (Mass. 1981)). Plaintiff
argues further that its facial challenges under both the
First Amendment and Article 16 of the Declaration of Rights
in the Massachusetts Constitution must be considered. Am.
Compl. ¶¶ 98-106.
“case is moot when the issues presented are no longer
‘live' or the parties lack a legally cognizable
interest in the outcome.” City of Erie v. Pap's
A.M., 529 U.S. 277, 287 (2000) (plurality opinion)
(internal quotation marks omitted). Here, Plaintiff continues
to seek redress for the denial of the permit in 2015, and
continues to challenge the constitutionality of the Code so
that it may obtain a permit now. Except as to the question of
whether the “adult entertainment establishment”
included nude dancing at the time of permit decision, the
issues presented remain live and the parties have legally
cognizable interests in the outcome.
Plaintiff Is Not Entitled to a Declaration that the