No Relief for Strip Club Kept Out by Zoning Law

(CN) - A strip club builder cannot pursue First Amendment claims against a Massachusetts city that kept him from opening shop in its industrial zone, the 1st Circuit ruled.

Gary Lund applied for a special permit to open Club Martinique in the industrial district of Fall River, Mass., even though a city zoning ordinance bans adult entertainment within that area of town.

After the city and the Zoning Board of Appeals shot him down, Lund sued for declaratory relief, an injunction and compensatory damages in state court, alleging that the ordinances violate his First Amendment rights by forcing him to combine several parcels of land to open his strip club.

Fall River removed the case to federal court, where U.S. District Judge George O'Toole Jr. ruled in its favor last year.

Over Lund's objections, O'Toole held that eight separate sites totaling 28.53 acres, or 0.24 percent of Fall River's developable land, provided more than enough space for Club Martinique.

Lund appealed, but the 1st Circuit affirmed that ruling last week, tossing aside claims that compliance with the ordinances would require Lund to undertake costly redevelopment.

"The proper enquiry looks to restrictions imposed by the government, not to the market effects of other people's commerce or the economics of site clearance," Associate Justice David Souter wrote for a three-judge panel, which the former Supreme Court jurist joined by designation. "Even if we credit Lund's representation that sites identified by the district court are subject to long-term leases, the fact that other competing private parties got ahead of him is not alone of any moment in the constitutional analysis, and the cost of development is nothing more than a business consideration for Lund to weigh."

Fall River has plenty of room for Club Martinique, according to the ruling.

"Here, we think the ordinances provide Lund the opportunity required," Souter wrote. "This conclusion claims substantial support from D.H.L. Associates, where we found no First Amendment violation in [the town of Tyngsboro's] restriction of all but 0.09 percent of developable land from adult entertainment purposes. The percentage available here is more than twice as great, with eight sites available in the city, as compared with the five that we held sufficient in D.H.L. Associates. Lund cannot break free of the gravitational pull of that case."

The 1st Circuit also brushed aside Lund's argument that Fall River's urban character, larger land mass, less parcels available for sale, lack of an "adult overlay district," and unexplained ban on adult entertainment in the industrial district distinguish it from Tyngsboro.

"The District Court made just the comparison Lund stresses, in contrasting rural Tyngsboro with Fall River, 'one of the largest industrial cities in Massachusetts,' while recognizing that "D.H.L. Associates Inc. teaches only that a somewhat higher level of available land might be necessary to assure reasonable alternative locations in a developed urban environment than in an undeveloped rural one," Souter wrote. "The court's conclusion thus rested on explicit consideration of the city's urban nature, and the city's larger land mass was fully acknowledged in evaluating the percentage of available land. The number of parcels available for sale is an economic consideration that has no role in the constitutional analysis, and if the city chooses to allow adult businesses in shopping centers but not in factory districts, there is nothing obviously suspect in the choice. In sum, the differences Lund identified between this case and D.H.L. Associates fail to render the precedent inapt or the district court's analysis inadequate."

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