T & D Video, Inc. v. City of Revere

848 N.E.2d 1221, 66 Mass. App. Ct. 461
CourtMassachusetts Appeals Court
DecidedJune 8, 2006
DocketNo. 05-P-109
StatusPublished
Cited by23 cases

This text of 848 N.E.2d 1221 (T & D Video, Inc. v. City of Revere) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
T & D Video, Inc. v. City of Revere, 848 N.E.2d 1221, 66 Mass. App. Ct. 461 (Mass. Ct. App. 2006).

Opinion

Cowin, J.

The defendants appeal from a judgment of the Superior Court declaring that defendant city of Revere’s adult entertainment zoning ordinances effect unconstitutional restrictions of expression under the First Amendment to the United States Constitution and art. 16 of the Massachusetts Declaration of Rights, and enjoining enforcement of those ordinances against the plaintiff, T & D Video, Inc. The defendants appeal also from the Superior Court order awarding attorney’s fees and costs to the plaintiff.

1. Background. We set forth certain underlying facts based on unchallenged findings by the trial judge, supplemented where appropriate by undisputed evidence in the record. We reserve for later discussion in connection with certain issues those facts that the parties do dispute. On September 2, 1993, Thaddeus Drabkowski, a shareholder of the plaintiff corporation, signed a lease on behalf of the corporation as tenant to occupy property at 55 American Legion Highway in Revere. Drabkowski and his fellow shareholder, Del Paone, intended to open at that location an adult video store to be called “Moonlite Reader IV.” Drabkowski and Paone began renovating the premises to prepare the space for use as a video store, and visited the Revere city clerk in order to complete a business certificate.

When they requested the appropriate paperwork at the city clerk’s office, Drabkowski and Paone were informed that in order to obtain a business certificate for a video store, they first would have to complete additional paperwork from the city solicitor’s office. The additional paperwork was an “agreement” stating that no adult videos or related materials would be sold at the store. Drabkowski and Paone refused to sign the agreement, but notwithstanding their refusal, a business certificate dated September 14, 1993, was issued by the city clerk.

On September 16, 1993, the mayor of Revere submitted to [463]*463the city council a proposed “adult entertainment” amendment to the Revere zoning ordinance. This amendment was adopted by the city council on November 8, 1993, as §§ 17.08.065 through 17.08.069, and § 17.16.045, of the Revere zoning ordinance.3 Section 17.16.045 provided:

“Adult entertainment establishments, adult bookstore[s], adult videostore[s], adult motion picture theatre[s] and advertising signs or devices erected, constructed, placed, altered, converted or otherwise changed may be allowed by special permit in the I [general industrial] District in conformance with the following minimum criteria:
“A. Adult Entertainment Establishments, adult bookstore^], adult videostore[s], adult motion picture theatrefs] and advertising signs or devices may not be located less than 1000 (one thousand) feet from the nearest lot line of: each other; public or private nursery schools; public or private day care centers; public or private kindergartens; public or private elementary schools; public or private secondary schools; playgrounds; parks; conservation areas; churches; residential uses; and residential districts.
“B. A 30 ft. wide landscaped strip shall be provided along the property line fronting a public or private way.
“C. Adult Entertainment Establishments, Adult Bookstores, Adult Videostores, Adult Motion Picture Theatres and advertising signs or devices are to be limited to lots greater than 25,000 square feet but not more than 40,000 square feet.
“D. Adult Entertainment Establishments, Adult Bookstores, Adult Videostores, Adult Motion Picture Theatres and advertising signs or devices may not be allowed within a multi-use building or building containing other retail or consumer uses.
[464]*464“E. All advertising signs and adult entertainment uses, adult bookstores, adult videostores, and adult motion picture theatres shall not be located within 100 ft. of a public or private way and must be set back a minimum of 100 ft. from all property lines.
“E No adult use advertising sign shall contain any moving, flashing or animated lights, or visible moving or movable parts.”4

These provisions effectively prohibited any adult establishments from operating in Revere because the combination of lot size restrictions and setback requirements rendered it virtually impossible for a structure to be built that did not violate the ordinances. See T & D Video, Inc. v. Revere, 423 Mass. 577, 582 (1996).

After renovations on the plaintiff’s store had been completed, the store’s landlord obtained a retail occupancy permit for the premises. On August 31, 1994, the plaintiff sought a sign permit for the store. The defendant building inspector of Revere denied the plaintiff s application for a sign permit because the store did not comply with the requirements of the adult entertainment ordinances. The denial for the sign permit also notified the plaintiff that its intended use was not permitted at its location. After this denial, the plaintiff appealed to the defendant zoning board of appeals of Revere, which affirmed the decision of the building inspector.

While that appeal was pending, the plaintiff instituted this action against the defendants pursuant to 42 U.S.C. § 1983; G. L. c. 12, §§ 11H, 111; and G. L. c. 40A. In this proceeding, the plaintiff seeks a judgment declaring that the adult entertainment ordinances violate its rights under the First Amendment to the United States Constitution and art. 16 of the Massachusetts Declaration of Rights, as amended by art. 77 of the Amendments to the Massachusetts Constitution, by infringing impermissibly on its freedom of expression, together with an injunction prohibiting the enforcement of the ordinances with respect to the plaintiff’s proposed adult video store. A judge of the Superior Court entered a preliminary injunction barring [465]*465enforcement of the ordinances against the plaintiff’s operation; the order granting the preliminary injunction subsequently was affirmed by the Supreme Judicial Court. See T & D Video, Inc. v. Revere, supra at 583.

Shortly after commencement of this action, but prior to entry of the preliminary injunction, the city administration submitted to the city council proposed amendments to the adult entertainment ordinances. The proposed amendments were adopted on May 1, 1995 (following entry of the preliminary injunction). The 1995 ordinances lowered the setback requirement for adult establishments from one hundred feet to thirty or fifty feet, depending on the type of establishment,5 and revised the lot size requirements for adult video stores from 25,000 to 40,000 square feet to 16,000 to 66,000 square feet.6 Otherwise, the adult entertainment ordinances largely remained unchanged from the 1993 version. More specifically, under the 1995 ordinances, adult uses remained limited to the I district (later renamed the technology enterprise district); still were required to be 1,000 feet or more from each other as well as from schools, churches, parks, playgrounds, conservation areas, residential uses, and residential districts; and still required a special permit in order to operate.

A jury-waived trial was conducted with respect to the 1995 adult entertainment ordinances.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Phantom Ventures LLC v. Depriest
240 F. Supp. 3d 239 (D. Massachusetts, 2017)
Chen v. Wen Jing Huang
33 Mass. L. Rptr. 499 (Massachusetts Superior Court, 2016)
Miller v. Boldluc
33 Mass. L. Rptr. 170 (Massachusetts Superior Court, 2015)
Anderson v. American International Group, Inc.
32 Mass. L. Rptr. 280 (Massachusetts Superior Court, 2014)
Diminico v. National Grange Mutual Insurance
30 Mass. L. Rptr. 654 (Massachusetts Superior Court, 2012)
Harper v. Commonwealth of Massachusetts Executive Office of Transportation
30 Mass. L. Rptr. 562 (Massachusetts Superior Court, 2012)
Byrnes v. Lukes
30 Mass. L. Rptr. 413 (Massachusetts Superior Court, 2012)
Langadinos v. Southern New England School of Law, Inc.
30 Mass. L. Rptr. 276 (Massachusetts Superior Court, 2012)
CJ/Queen Annes Gate Apartments v. Anderson
2012 Mass. App. Div. 128 (Mass. Dist. Ct., App. Div., 2012)
Evans v. Lorillard Tobacco Co.
29 Mass. L. Rptr. 226 (Massachusetts Superior Court, 2011)
HERA Development Corp. v. Vocational Advancement Center, Inc.
28 Mass. L. Rptr. 409 (Massachusetts Superior Court, 2011)
Currier v. National Board of Medical Examiners
27 Mass. L. Rptr. 414 (Massachusetts Superior Court, 2010)
Haddad v. Wal-Mart Stores, Inc.
920 N.E.2d 278 (Massachusetts Supreme Judicial Court, 2010)
Pantazis v. Tsourides
26 Mass. L. Rptr. 283 (Massachusetts Superior Court, 2009)
McCarthy v. Quirk Nissan, Inc.
2009 Mass. App. Div. 159 (Mass. Dist. Ct., App. Div., 2009)
Perfectyourself.com, Inc. v. Accusoft Corp.
25 Mass. L. Rptr. 415 (Massachusetts Superior Court, 2009)
Mustapha v. DaimlerChrysler Co.
23 Mass. L. Rptr. 480 (Massachusetts Superior Court, 2008)
T & D Video, Inc. v. City of Revere
450 Mass. 107 (Massachusetts Supreme Judicial Court, 2007)
Killeen v. Westban Hotel Venture, LP
872 N.E.2d 731 (Massachusetts Appeals Court, 2007)
Kohn v. Barker
22 Mass. L. Rptr. 451 (Massachusetts Superior Court, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
848 N.E.2d 1221, 66 Mass. App. Ct. 461, Counsel Stack Legal Research, https://law.counselstack.com/opinion/t-d-video-inc-v-city-of-revere-massappct-2006.