T & D Video, Inc. v. City of Revere
| Decision Date | 08 June 2006 |
| Docket Number | No. 05-P-109.,05-P-109. |
| Citation | 66 Mass. App. Ct. 461,848 N.E.2d 1221 |
| Parties | T & D VIDEO, INC.<SMALL><SUP>1</SUP></SMALL> v. CITY OF REVERE & others.<SMALL><SUP>2</SUP></SMALL> |
| Court | Appeals Court of Massachusetts |
Ira H. Zaleznik, Boston, for the defendants.
Allen C.B. Horsley, Boston, for the plaintiff.
Present: LAURENCE, KANTROWITZ, & COWIN, JJ.
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 the 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:
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, 670 N.E.2d 162 (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, 11I; 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 enforcement 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, 670 N.E.2d 162.
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. A different judge determined that the plaintiff had a constitutionally protected right to sell adult videotapes that were not obscene, and concluded that the ordinances infringed on this right. Crediting the plaintiff's expert witnesses, the judge found that the combination of the 1995 ordinances and applicable environmental regulations left only one site in Revere where the adult entertainment activity contemplated by the plaintiff would be permitted to take place. This site was 41 Lee Burbank Highway, which the judge found to be patently unsuitable for the operation of a retail business because it was part of a larger parcel, owned by Gibbs Oil Company, that was not subdivided and that was contaminated by petroleum. The judge found in addition that both the 1993 and 1995 ordinances specifically were directed against the plaintiff. Finding that the ordinances effectively banned the plaintiff's protected speech completely, leaving no reasonable alternative avenue of communication for the adult-based content at issue, the judge ruled that the ordinances were unconstitutional both as an impermissible prior restraint on speech and as an impermissible time, place, and manner regulation. He accordingly permanently enjoined the defendants from enforcing the adult entertainment ordinances against the plaintiff. Relying on 42 U.S.C. § 1988 and G.L. c. 12, § 11I, he ordered further that the defendants pay attorney's fees and costs in the amount of $915,027.
The defendants appeal on the merits and on the fee award. At the outset, they attack the decision of the trial judge to exclude from evidence eleven allegedly obscene adult videos drawn from the plaintiff's inventory, challenging his determination that obscenity was not an issue in the case. Next, the defendants assert that various findings made by the judge are not supported by the evidence, and that the legal conclusions regarding the constitutional validity of the ordinances that he based on such findings are erroneous. Finally, the defendants assert that the plaintiff's request for attorney's fees was so excessive that it should have been disregarded altogether or, in the alternative, that the award should be reduced. We affirm the judgment, which declared the ordinances unconstitutional as applied to the plaintiff and permanently enjoined their enforcement. We agree with the defendants that...
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