# Petition for Writ of Certiorari — D. H. L. Associates, Inc. v. O'Gorman

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2000
- **Citation:** 529 U.S. 1110

## Text

oe Court, U.S

a L ED

991536 MAR! 6200

- No. 99- a
IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1999
D.H.L. ASSOCIATES, INC.,
Petitioner,
v.

JOHN O’GORMAN, ETAL., |

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

*WILLIAM C. NEWMAN
THOMAS J. MCCORMICK
LESSER, NEWMAN, SOUWEINE
& NASSER
39 Main Street
Northampton, Massachusetts 01060
(413) 584-7331

*Counsel of Record

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS

QUESTIONS PRESENTED

1. Whether the Court of Appeals violated prin-
ciples of judicial federalism when it refused to
certify the state constitutional questions that are
central to this case and instead decided the com-
plex First Amendment issues presented even
though (a) the federal court’s judgment remands
the state issues to the state court for determina-
tion and (b) the state court’s judgment may well
render the reported federal court decision advi-
sory, all in violation of Arizonans for Official Eng-
lish v. Arizona and contrary to the decisions of the
other Circuits.

2. Whether the Court of Appeals misconstrued
Renton v. Playtime Theatres, Inc. and created a
conflict among the Circuits when, in ruling on the
constitutionality of a local zoning ordinance, it
decided:

(1) that the “reasonable opportu-
nity to open and operate” test
should be applied according to
facts as of the trial date, not
the date four years earlier when
the ordinance was_ enforced;
and

(2) that the municipality met the
“substantial governmental in-
terest” test even though the
town had given no considera-
tion to secondary effects of
adult entertainment at the time
it adopted the ordinance chal-
lenged in this case, but rather

il

had given some consideration
to secondary effects when it
had adopted a previous ordi-
nance. |

LIST OF PARTIES

The petitioner here, which was the plaintiff in
the district court and the appellant in the Court
of Appeals, is D.H.L. Associates, Inc. D.H.L. As-
sociates, Inc. has no parent or publicly held com-
pany owning 10% or more of the corporation’s
stock.

The respondents here, who were the defen-
dants in the district court and appellees in the
Court of Appeals, are John O’Gorman, Robert
Wallace, Warren Allgrove, Jr. and Eileen Farrell,
individually and in their dual capacities as the
Tyngsborough Board of Selectmen and as the Li-
censing Board for the Town of Tyngsborough, and
the Town of Tyngsborough.

ill

TABLE OF CONTENTS

Questions Presented 0.00.0... ce eeeccecceeceeececccc cc. i
I cs eileen capes eisbcvedasdinscccc. il
Table of Authorities... cccceccceccecccecccc. Vi
a ee 1
Statement of Jurisdiction ..........cceecccecccccccc.. 1
Constitutional, Statutory, and Regulatory
Provisions Involved ...........ceecsecceccceeseccescec.. 1
Statement of the Case and of Prior
S55 sannascst, Ans ON RE a 2
co 2
(b) Prior Proceedings .0........ecccoccccceecccccec.. 4+
(c) State Law Developments During the
Pendency of the Litigation ...................... 5
(d) Decisions Below Regarding _
oe a SEO a 8
Reasons for Granting the Writ ........................ 11

1V

Certiorari Should Be Granted to
Resolve the Conflict Among the
Circuits Regarding the Applica-
tion of Anizonans and to Deter-
mine Whether Federalism and
Comity Require That Federal
Courts Defer Deciding Federal
Constitutional Issues When Certi-
fication of State Constitutional
Issues Would Permit the State
Courts to Resolve the Litigation in
Full Or State Grows .ncccccscsccsccscsscccasces 11

A. Arzonans requires certification
when dispositive but unresolved is-
sues of state law are joined with
federal constitutionally based
COUOS GE GOUIONE akin icccctsncaasenssscsssineivs 11

B. The criteria for certification set
out in Arnzonans, that the state
law questions potentially be dispo-
sitive and that they involve issues
of unsettled state law, are met in
ene MID ....5: cs anstanacnphsnenenamianiadnesais 13

1. The state law questions are
potentially dispositive ................. 13

2. The issues involve unsettled
questions of state law ................. 15

C. The First Circuit’s decision is in
direct conflict with other Circuits
and with prior decisions of this
SR MeL My PTTL Oh PoP ee a EOE 16

IT.

D. Article III’s case or controversy re-
quirement and principles of feder-
alism required certification in or-
der to allow the state court to
resolve the state constitutional is-
ES accicitio enna

1. Article III requires the federal
courts to avoid advisory
opinions by deferring federal
constitutional claims when
the case can be decided on
CUNET SOREN fois

2. The principle of judicial fed-
eralism requires the state
courts to initially decide
state constitutional ques-
UD snkcinciaouanierttin

E. The federal courts should defer to
the state courts in areas of sensi-
CLC DOCLET OTIOP | hassles cases cctcdec ues

Certiorari Should be Granted Be-

cause the Court of Appeals Failed

to Properly Apply the Substan-

tial Governmental Interest and
Reasonable Opportunity to Open

and Operate Tests Under Renton

v. Playtime Theatres, Inc., Placing

Its Decision in Conflict With Ren-

ton and the Other Circuits ................00...

vi

A. The lack of opportunity to open
and operate should have been de-
termined as of the time the permit
at issue in the case was denied ........ 24

B. The municipality failed to offer
proof of a substantial governmental
MEDIC OUE, sssssccssonsetncssaseigaebaaaaie 26

COOMDCTIGIONS « -cicndccicdccevscoccdediaanine eee 30

TABLE OF AUTHORITIES
CASES:

3570 East Foothill Boulevard v. City of
Pasadena, 912 F.Supp. 1257 (D.C. Cal.
RG) seseskcinisisuncnenadsalabesaes ele: dae 26

A.F.M., Ltd. v. Medford,
428 Mass. 1021, 704 N.E.2d 184
CRO <occcecsccddsansoncsscaenaguenuneseuenan passim

Arizonans for Official English v. Arizona,
DAD UD. GS CRG SES sincaesencidenseietananaeean passim

Bellotti v. Baird,
S28 U.S. 108 CEPT sisccecectasinel 13n

Burton v. United States,
196 VU.%. Bee CA OOOe ciivintsesciaiGiasenene 14n

Cabaret Enterprises, Inc. v. ABCC,
393 Mass. 13, 468 N.E.2d 612
EROMONED scceconacccuevesceuaucauioaaeeseeeeaeee 5, 15, 18n

vli

Clinton v. Jones,
ee WE CET Garnwddeividindtstdedbsdedaidentes 14n

CLR v. Henline,
702 F.2d 637 (6th Cir. 1983) ..................... 25n

Commonwealth v. Sees,
374 Mass. 532, 373 N.E.2d 1151
SUEY -sanucetcsanedaaidiamcismuaad aes. 9, 15, 18n, 19

Commonwealth v. Upton,
394 Mass. 363, 476 N.E.2d 548
ER GPUEE Wiceudoeseun vin thandirands plkessauicaieenea 18n, 19n

DIA v. City of Toledo,
937 F.Supp. 673 (N.D. Ohio 1996) ............ 26n

Doran v. Salem Inn, Inc.,
SA Was Fe CAFO esbnietiterecksisncsdcnasnds 18n, 19

Fields v. Rockdale County Georgia,
785 F.2d 1558 (11th Cir. 1986) ............. 17,23

Iberra v. Bexar County Hospital District,
624 F.2d 44 (Sth Cir. 1980) ......................... 14

J & B Entertainment, Inc. v. City of
Jackson, Miss., 152 F.3d 362 (5th Cir.
PIFITEE savdniciiniinbannncidbiehaantondantanselacs 27, 27n, 29n

Janra Enterprises v. City of Reno,
818 F.Supp. 1361 (D. Nev. 1993) ........0..... 26n

Meridian v. Southern Bell Telephone and
Telegraph Co., 358 U.S. 639 (1959) . 16, 17, 18

Vill
N.W. Enterprises, Inc. v. City of Houston,

27 F.Supp.2d 754 (S.D. Tex. 1998) ...... 27, 29n

Newport Investments, Inc. v. City of Laguna
Beach, 564 F.2d 893 (9th Cir. 1977) ........... 17

Pustell v. Lynn Public Schools,
BDF ee er CRE ,. TD scnscecsckcciarenss 16n, 23

Quackenbush v. Allstate Insurance Co.,
Re Se FT OE UME sictedicriicc betaine 12n

Railroad Commission of Texas v. Pullman Co.,
Bee ks CREED sintstiimrnciscanetnn passim

Redgrave v. Boston Symphony Orchestra,
855 F.2d 888 (1st Cir. 1988) ............... 15, 18n

Reetz v. Bozanich,
EE OFM CEFN ivicceaasxnncccadecdncdessxexisnes AO, OO

Renton v. Playtime Theatres, Inc.,
AO ae Wes ER CE bie cnianicnadenenasanerensans passim

Rescue Army v. Municipal Court,
eR Wei: CD vsicicenwsnscsspancnsdiavancas fees OO

Spector Motor Service v. McLaughlin,
Ee Es BS CUE Pitieeniucsnannnas 14n

T & D Video v. City of Revere,
423 Mass. 577, 670 N.E.2d 162
LIPUPEEEE vinieinahcanepiadvauseiuntheican cia seaaaed oot passim

Walnut Properties, Inc. v. City of Whittier,
861 F.2d 1102 (9th Cir. 1988) ................... 26n

—x*X ©

CONSTITUTIONAL, STATUTORY, AND REGULATORY
PROVISIONS INVOLVED

United States Constitution

| a passim
PTI TE Doves cccnicescnnscccans 1, 4, 18, 20, 21

Massachusetts Declaration of Rights
PN WD winiiiricacscle ln 1,5, 14n, 15, 16

United States Code

RS BEGG ioe idicisecesnectasavininesaciaicodir 1
POU BE. G USBI ono cicsicccccescsccesscixasascenccasec, 2n
MO GGG ons ocsccccssvcosacaiseascasscccateces 2n
RE BO sc ccscicssninidccssieccensiceccnnsc, 2,5

Rules of the Massachusetts Supreme
Judicial Court

Rule 1:03 (2000) .........0..00000. 2, 13n, 16n, 22n

MISCELLANEOUS:

Clay, H., Human Freedom and State
Constitutional Law, 70 Mass.L.Rev. 161
PN BO scare cteei lec utiehc tas ec 19n

Speer, B., Chief Justice Wilkins and the
Criminal Law, 80 Mass.L.Rev. 125 (Winter
WED si Naini eme aden lad A Re 19n

Utter, Freedom and Diversity in a Federal
System: Perspectives on State
Constitutions and the Washington
Declaration of Rights, 7 Puget Sound
LOO. PE CE éntannececucenateinmcerieisiadanaecens

OPINIONS BELOW

The opinion of the Court of Appeals for the
First Circuit is reported at 199 F.3d 50 (1999)
and is reproduced as Appendix A, post, at App. la
- 26a. The opinion and order of the United States
District Court for the District of Massachusetts
(Keeton, J.) is reported at 6 F.Supp.2d 70 (1998)
and is reproduced as Appendix B, post, at App.
27a - 55a.

STATEMENT OF JURISDICTION

The Court of Appeals for the First Circuit is-
sued its decision and entered judgment on De-
cember 17, 1999. The jurisdiction of this Court is
invoked under 28 U.S.C. § 1254.

CONSTITUTIONAL, STATUTORY, AND
REGULATORY PROVISIONS INVOLVED

1. Article 16 of the Massachusetts Declaration
of Rights provides in pertinent part:

The right of free speech shall not be
abridged.

2. Article III, § 2 of the United States Constitu-
tion provides in pertinent part:

The judicial Power shall extend to all
Cases, in Law and Equity, arising
under this Constitution, [and] . . . to
Controversies....

3. The First Amendment to the United States
Constitution provides in pertinent part:

Congress shall make no law .
abridging the freedom of speech... .

4. Rule 1:03 of the Rules of the Massachusetts
Supreme Judicial Court authorizes the certifica-
tion of certain questions to that court and sets
out the procedures for certifying those questions.
The Rule is reproduced as Appendix D, post, at
App. 56a - 58a.

STATEMENT OF THE CASE AND
OF PRIOR PROCEEDINGS

(a) Introduction

The petitioner filed this case in state court
challenging the constitutionality of a local zoning
ordinance. The multi-count complaint raised
state statutory and constitutional violations, as
well as a single count under 42 U.S.C. § 1983.
The defendants-respondents removed the case to
federal court.! During the course of the litigation,
the question repeatedly arose whether the federal
court could decide the potentially dispositive state
constitutional questions or should instead certify
those questions to the state courts for resolution.
In the end, the federal court did neither. Rather,
it decided all the federal constitutional claims and

1 Subject matter jurisdiction was conferred on the district court
by 28 U.S.C. § 1331 (federal question) and by 28 U.S.C. § 1343
(civil rights).

== ll

3

remanded the state claims to state court for trial
and appeal. :

In civil cases, when the federal courts are
called upon to adjudicate state as well as federal
claims, they must determine if, when, in what or-
der, and by which court the respective state and
federal claims should be addressed. In this case,
the petitioner argued that the district court and,
later, the Court of Appeals should certify the po-
tentially dispositive state constitutional issues to
the Massachusetts Supreme Judicial Court,
where the decided cases clearly favor the peti-
tioner’s position although there is an absence of
clearly controlling precedent. The federal courts,
however, decided the First Amendment questions
and remanded the state issues to the state courts
for adjudication.

At present the case is pending in Middlesex
County Superior Court, where the case originally
was filed. A finding by the state courts that the
ordinance violates the state constitution wil] ren-
der the federal judgment advisory.

In choosing this path for this litigation, the
Court of Appeals (a) ignored the holding of this
Court in Arizonans for Official English v. Arizona?
which required certification of state law issues
under circumstances similar to this case and (b)
placed itself squarely in conflict with other cir-
cuits on the issue of certification of state constitu-
tional claims. By refusing to certify the state law
issues at the heart of this case, reaching the fed-
eral constitutional questions and leaving the state
claims to be decided later, the First Circuit vio-

2 520 U.S. 43, 75-80 (1997).

lated a fundamental principle of Article III juris-
prudence — that federal courts must decline to
decide federal claims when state claims are dis-
positive so as to avoid advisory opinions. Princi-
ples of judicial federalism impose on the federal
courts the responsibility to refrain both from ren-
dering advisory or unnecessary judgments on
constitutional questions and from usurping the
authority of state courts to interpret the state’s
constitution.

(b) Prior Proceedings

In early 1994, the petitioner began offering
nude dancing entertainment to the adult public in
Tyngsborough, Massachusetts (the respondents),
a small town on the New Hampshire border north
of Boston. App. 3a. In response to the “tremen-
dous public reaction” in the town against nude
dancing, the respondents enacted an ordinance
that year placing two small parcels of land, total-
ing approximately ten acres, into an adult zone
within which businesses offering adult entertain-
ment must locate. App. 4a - 5a, & 78a. The peti-
tioner’s property was not included in those par-
cels. Id.

In May 1996, the respondents eliminated the
two-parcel zone it had enacted in 1994. In its
place, the town established a single parcel, 10.4
acre zone composed entirely of land owned by a
single owner who had vociferously opposed adult
entertainment at various town meetings and who
had recommended that the adult zone be located
at the town’s landfill. App. 32a - 33a.

The petitioner has applied for an adult enter-
tainment license, in accordance with state stat-
ute, each year since the creation of the 1994 and

1996 adult zones. The respondents have denied
each application because the petitioner is not lo-
cated in the adult zone. App. 4a - 5a.

On September 7, 1994, claiming violations of
its free speech rights guaranteed by article 16 of
the Massachusetts Declaration of Rights and a
violation of 42 U.S.C § 1983, the petitioner
brought an action in Massachusetts Superior
Court against the respondents seeking declara-
tory and injunctive relief.3

(c) State Law Developments During the
Pendency of the Litigation

Since 1978, article 16 of the Massachusetts
Declaration of Rights has been construed to offer
broader free speech guarantees for adult enter-
tainment than the federal constitution. See
Commonwealth v. Sees, 374 Mass. va2, 3/3
N.E.2d 1151 (1978) and Cabaret Enterprises, Inc.
v. ABCC, 393 Mass. 13, 468 N.E.2d 612 (1984).
Between the filing of the case in September 1994,
and the decision of the Court of Appeals in De-
cember 1999, the petitioner’s state claims were
strengthened due to intervening significant devel-
opments in article 16 jurisprudence. On Septem-
ber 24, 1996, the Supreme Judicial Court decided
T & D Video v. City of Revere, 423 Mass. 577, 670
N.E.2d 162 (1996), and on January 14, 1999, it
decided A.F.M,, Ltd. v. Medford, 428 Mass. 1021,
704 N.E.2d 184 (1999). Both A.F.M., Ltd. and
T & D Video present fact patterns extremely close

3 Respondents removed the case to federal court on November
23, 1994. Trial was held on April 29 - May 1, 1998 and judgment
was entered on May 7, 1998. Timely notices of appeal were filed,
and the Court of Appeals affirmed the judgment on December 17,
1999,

to this case. Both cases affirm that the state con-
stitution provides greater protection to adult en-
tertainment than the federal. Both cases allowed
the adult entertainment club to operate.‘

T & D Video v. City of Revere

In T & D Video, as in the present case, the mu-
nicipality did not justify the enactment of its adult
entertainment bylaw by reference to secondary
effects either during pre-enactment hearings, dur-
ing the meeting at which the bylaw was enacted,

+ Even the respondent’s counsel grudgingly admitted during a
pre-trial hearing that the 1996 Supreme Judicial Court decision in
T & D Video was potentially dispositive of the case.

|Resp’s Counsel]: The plaintiff has as the central
contention for those two motions [to remand and
certify] the T & D Video case, which — we were
discussing it before this hearing and | think the
parties are in some agreement that that case is
really central to where we are right now.

Counsel went on to argue that T & D Video should be consid-
ered a decision under the First Amendment and that the decision
was wrong, to which the court replied,

The Court: All nght. But, you see, if you agree
that the SUC, even if they were thinking of it in
terms of federal constitutional law, decided
squarely against your contention . . . when it’s
brought to their attention that the Supreme Court
of the United States has issued recent decisions
that are contrary to their interpretation of federal
law; . . . I think it’s much more likely that what
they would do is say, “All right. We reach this de-
cision under the state declaration of nights instead
of the First Amendment... .”

App. 65a - 66a.

or within the text of the bylaw. On these facts,
the Supreme Judicial Court held that the munici-
pality “had failed to show that the adult enter-
tainment ordinances were designed to serve a
substantial governmental interest.” 423 Mass. at
982, 670 N.E.2d at 166, citing Renton v. Playtime
Theatres, Inc., 475 U.S. 41 (1986).

The respondents in this case argued that the
Supreme Judicial Court’s decision in T & D Video
was solely based on the First Améndment and
that the Supreme Judicial Court had wrongly de-
cided the case. The petitioner, citing the record of
the case showing the trial court’s reliance on arti-
cle 16, maintained that T & D Video was part of
the state’s article 16 jurisprudence.

Under the First Amendment, as explicated by
the First Circuit in this case, App. 16a - 19a, the
lack of pre-enactment justification specific to the
1996 ordinance has no federal constitutional Sig-
nificance. However, if T & D Video articulates
State law, the lack of pre-enactment justification
is determinative of and fatal to the ordinance.

A.F.M., Ltd. v. Medford

In A.F.M., Ltd., the question presented was
whether a zoning scheme that confined adult
businesses to 0.11 percent of the city’s develop-
able land provided the constitutionally required
reasonable opportunity to open and operate.
Concluding that that amount of land failed to
meet constitutional minimums, the Supreme Ju-
dicial Court held that the regulatory scheme un-
reasonably foreclosed avenues of communication.
This analysis of land availability, according to the
First Circuit, App. 21a - 25a, is of minimal Sig-

nificance under the First Amendment. However,
again, if A.F.M., Ltd. sets forth state constitutional
considerations and is not simply wrongly decided
under the First Amendment, the percentage of
land available is greatly important.

The adult zone in the present case contains
less land than in A.F.M., Ltd. — approximately
0.10 percent of the land in the town. Accordingly,
the petitioner is likely to prevail on its state claim
under A.F.M., Ltd.

(d) Decisions Below Regarding Certification

After removal, the petitioner filed motions to
remand or certify the state constitutional issues
to the state courts.° The district court ultimately
decided against certification, opting instead to
reach the complex First Amendment issues. As
late as the middle of the trial, however, it ex-
pressed concern about the predominant role of
the state constitutional claims in the case.

Now, you [petitioner’s counsel] [ha]’ve
referred to state law... . [I]t seems
to me that even at this late stage,
perhaps the appropriate decision for
me if I conclude you have a claim on
that basis would be to remand this
case to the superior court for that

5 See Motion by DHL to Remand Case to State Court, App. 59a
- 60a; Motion by DHL that the Court Invoke Pullman Abstention
and Remand the State Law Questions to State Court or to Certify
State Law Questions to the Supreme Judicial Court, App. 6la -
63a; Colloquy with the Court during argument on DHL’s Motion
for Summary Judgment, App. 64a - 67a; Colloquy with the Court
during the trial, App. 71a - 77a.

court’s evaluation and determination
of your claim as to whether you’re
right on your state law contention.
That would make a lot more sense
than my deciding it. And then either
after I have decided it, certify[ing] to
the SJC [to ask] did I get it right or
else letting you appeal to the First
Circuit and the First Circuit would
then certify to the SJC very likely[--]
did the trial judge get it right that
this is a matter of state law.

App. 75a.

After trial, the district court entered a final
judgment which reached the federal constitu-
tional claims and decided them adversely to the
petitioner. App. 55a. The court also remanded
the state law claims to Middlesex County Superior
Court. Id.

With regard to certification, the Court of Ap-
peals ruled that

[b]jecause we are not convinced that
State law provides an independent
and sufficient basis for deciding the
case, we conclude that the district
court did not err by remanding the
case to state court for determination
of [the Petitioner’s] remaining state
law claims after its adjudication of
the federal issues.

App. 25a.

10

The irony of this case is that the federal court’s
remand to state court has the same effect as cer-
tification, i.e., it requires the state courts to re-
solve the state law questions, but it does so ina
way that inverts the traditional order of constitu-
tional decision making. Here, the federal consti-
tutional questions have been decided first, and
the opinion is at serious risk of being rendered
advisory if and when the state court comes to a
different result under state law.

1]

REASONS FOR GRANTING THE WRIT

I, CERTIORARI SHOULD BE GRANTED TO
RESOLVE THE CONFLICT AMONG THE
CIRCUITS REGARDING THE APPLICA-
TION OF ARIZONANS AND TO DETER-
MINE WHETHER FEDERALISM AND
COMITY REQUIRE THAT FEDERAL
COURTS DEFER DECIDING FEDERAL
CONSTITUTIONAL ISSUES WHEN CERTI-
FICATION OF STATE. CONSTITUTIONAL
ISSUES WOULD PERMIT THE STATE
COURTS TO RESOLVE THE LITIGATION
IN FULL ON STATE GROUNDS.

A. Arizonans requires. certification
when dispositive but unresolved is-
sues of state law are joined with
federal constitutionally based
causes of action.

In Anzonans for Official English v. Arizona, 520
U.S. 43, 75-80 (1997), this Court rechristened
Pullman® abstention as “certification” and elevated
the doctrine to one of central importance in cases
involving federal constitutional issues.

In litigation generally, and in con-
Stitutional litigation most promi-
nently, courts in the United States
characteristically pause to ask: Is
this conflict really necessary? When
anticipatory relief is sought in federal
court against a state statute, respect

6 Railroad Commission of Texas v. Pullman Co., 312 U.S. 496
(1941).

12

for the place of the states in our fed-
eral system calls for close considera-
tion of that core question.’

Arizonans, 520 U.S. at 75 (1997).

In Anzonans, Justice Ginsberg noted that
“(cjertification today covers territory once domi-
nated by a deferral device called ‘Pullman absten-
Ch. ee

Through certification of novel or
unsettled questions of state law for
authoritative answers by a State’s
highest court, a federal court may
save “time, energy, and resources and
hel({p] build a cooperative judicial fed-
eralism.”

920 U.S. at 77 (citations omitted).

The Anzonans Court reversed the lower courts’
refusals to certify to the Arizona Supreme Court
the question of the interpretation of a new article
to the state’s constitution which made English the
official language of the state. The decisions of the
lower federal courts instead reached and decided
the plaintiffs First Amendment claim. The Su-
preme Court ruled that rather than prematurely
reaching the federal constitutional issue, “[a]
more cautious approach was in order,” and that
“the certification requests merited more respectful

7 “Federal courts abstain out of deference to the paramount
interests of another sovereign, and the concern is with principles
of comity and federalism.” Quackenbush v. Allstate Insurance Co.,
517 U.S. 706, 723 (1996).

13

consideration than they received... .” Id. at is A
78.

In Anzonans, this Court, it appeared, had re-
solved the questions of the manner and order in
which a federal court should address state and
federal constitutional questions when the state
law question is unsettled and potentially disposi-
tive. This Court ordered certification.

B. The criteria for certification set
out in Arizonans, that the state
law questions potentially be dispo-
sitive and that they involve issues
of unsettled state law, are met in
this case.®

1. The state law questions are
potentially dispositive.

The first requirement for certification is that an
authoritative answer to the state law question
may render moot the deferred federal constitu-
tional question. Arizonans, 520 U.S. at 78-79. If
the case can be decided on the basis of state law,
then the “cardinal principle” that a federal court
Should avoid unnecessarily reaching federal con-

8 An additional requirement is that the state courts either have
an established mechanism for or otherwise permit certification.
The Massachusetts Supreme Judicial Court has had a rule provid -
ing for certification since the early 1970’s. See Rules of Massa-
chusetts Supreme Judicial Court 1:03 (2000), App. 56a - 58a; Bel-
lottiv. Baird, 428 U.S. 132, 150-51 (1976).

14

stitutional questions is well served. Id.9, 19 “Such
[federal] constitutional adjudication plainly can be
avoided if,” as here “a definitive ruling on the
state issue would terminate the controversy.”
Pullman, 312 U.S. at 498.1!

The standard regarding this criterion for certifi-
cation is that there must be a “fair possibility”
that state law will be dispositive. Iberra v. Bexar
County Hospital District, 624 F.2d 44, 47 (Sth Cir.
1980). Certainty is not required. Indeed, cer-
tainty would defeat the need for certification be-
cause when the state law is reasonably clear, the
federal courts routinely will decide the state issue.

9 The state constitutional law question is whether the local or-
dinance violates the petitioner’s free expression rights guaranteed
by article 16 of the Massachusetts Declaration of Rights. That
issue could be resolved by a certified question as simple as: Were
T & D Video and A.F.M., Ltd. decided under article 16? If the an-
swer were in the affirmative, then this case is resolved. The re-
spondent’s position, which was critically questioned by the district
court, see supra n.4, has been that the two cases were decided
under the First Amendment only, that the Supreme Judicial Court
decided them incorrectly, and that when this error is brought to
the Supreme Judicial Court’s attention, it will decide that art. 16
does not provide greater protection for adult entertainment and
that its decisions in these two cases were wrong under both fed-
eral and state law.

10 As the Court recently reiterated in Clinton v. Jones, 520 U.S.
681, 690 n.11 (1997), “‘If there is one doctrine more deeply rooted
than any other in the process of constitutional adjudication, it is
that we ought not to pass on questions of constitutionality .. .
unless such adjudication is unavoidable,’ Spector Motor Service v.
McLaughlin, 323 U.S. 101, 105 (1944);” and “It is not the habit of
the Court to decide questions of a constitutional nature unless
absolutely necessary to a decision of the case.’ Burton v. United
States, 196 U.S. 283, 295 (1905).”

11 During the litigation, the respondent’s counsel had conceded
the importance of the state constitutional claims. See infran.4.

15

Here, the state court decisions in T & D Video
and A.F.M., Ltd. provide the basis for a strong ar-
gument that the adult zone violates the Massa-
chusetts Declaration of Rights.

2. The issues involve unsettled
questions of state law.

The second requirement for certification is that
the issues involve unsettled questions of state
law. Although the petitioner has a strong state
constitutional argument, the results of that ar-
gument remain uncertain for several reasons.
First, the full contours of the protections offered
by article 16 are not clear. T & D Video and
A.F.M., Ltd., in conjunction with Redgrave v. Bos-
ton Symphony Orchestra, 855 F.2d 888 (1st Cir.
1988), Commonwealth v. Sees, 374 Mass. 532,
373 N.E.2d 1151 (1978) and Cabaret Enterprises,
Inc. v. ABCC, 393 Mass. 13, 468 N.E.2d 612
(1975), indicate that article 16 provides greater
protection for adult entertainment than the First
Amendment. Both T & D Video and A.F.M., Ltd.,
however, arose in the context of motions for a pre-
liminary injunction, without the benefit of a fully
developed trial record. The full parameters of
these decisions thus may be left for further expli-
cation by the Supreme Judicial Court after trial.
Second, the Massachusetts courts must address
the respondents’ contention in this case that T &
D Video and A.F.M., Ltd. were decided under the
federal constitution only. App. 65a.

The fact that the state law issues have been
remanded to the state courts for resolution at-
tests to the uncertain boundaries of article 16 ju-
risprudence and the importance of these state law

16

questions to this case. Under these circum-
stances, where the requirements for certification
are met, the lower courts erred in refusing to cer-
tify the state law issues. !?

Cc. The First Circuit’s decision is in
direct conflict with other Circuits
and with prior decisions of this
Court.

The First Circuit decision on certification con-
flicts not only with Anzonans, but also with long-
standing and clearly enumerated principles of
federalism and other decisions of this court. Me-
ndian v. Southern Bell Telephone and Telegraph
Co., 358 U.S. 639 (1959), for example, involved a

‘2 Prior to Anzonans, many of the Circuits, including the First,
Pustell v. Lynn Public Schools, 18 F.3d 50, 53 (1st Cir. 1994), had
limited certification to cases with exceptional or unique circum-
stances. In Anzonans, this Court rejected that standard, holding
that”[njovel, unsettled questions of state law . . . not ‘unique cir-
cumstances,’ are necessary before federal courts may avail them-
selves of state certification procedures.” Amzonans, 520 U.S. at
79.

Like Arizona, Massachusetts does not require unique circum-
stances. Certification is permitted of matters “which may be de-
terminative of the cause,” and as to which “no controlling prece-
dent” is apparent. Rules of the Massachusetts Supreme Judicial
Court 1:03. App. 56a.

As pointed out by the Court in Anzonans, the

{clertification procedure, in contrast |with absten-
tion], allows a federal court faced with a novel
state-law question to put the question directly to
the State’s highest court, reducing the delay, cut-
ting the cost, and increasing the assurance of
gaining an authoritative response.

Anzonans, 520 U.S. at 76.

17

challenge under both the state and federal
constitutions to a state statute that imposed a
charge on public utilities for the use of public
Streets. There, as here, the lower federal court
reached and decided the federal constitutional
claim. This Court remanded the case to the Dis-
trict Court with directions “to hold the cause
while the parties repair to a state tribunal for an
authoritative declaration of applicable state law.”
Id. at 640. There, as here, the authoritative dec-
laration in the state tribunal would address the
question of the validity of the local law under the
State constitution. The court in Meridian was
clearly concerned that by failing to defer to the
State tribunal, the federal courts, as here, risked
“render(ing] a constitutional decision unnecessar-
ily.” Id. at 641. See also Reetz v. Bozanich, 397
U.S. 82, 85 (1970).

Both the Eleventh and Ninth Circuits have or-
dered certification in cases which, like the pre-
sent, involve potentially divergent conclusions
under the respective state and federal constitu-
tional provisions. In Fields v. Rockdale County
Georgia, 785 F.2d 1558, 1561 (11th Cir. 1986),
for example, certification of the state constitu-
tional issue was required because the due process
provision of the Georgia constitution, at issue in
that case, affords broader protection than its fed-
eral constitutional counterpart. Similarly, in
Newport Investments, Inc. v. City of Laguna Beach,
964 F.2d 893, 894 (9th Cir. 1977), the federal
court ruled that certification was required be-
cause “some of the appellant’s claims were predi-
cated on some of the California Constitution’s
‘mirror image’ provisions of the Federal Constitu-
tion.” Thus, the court ruled, “it was particularly
appropriate that the California courts be afforded

18

the initial opportunity of interpreting the consti-
tution of their own state in relation to the appel-
lant’s complaint.” Id.

The First Circuit’s approach in this case con-
tradicts the holdings of the Ninth and Eleventh
Circuits regarding certification and is at odds
with this court’s holdings in Arizonans and Mend-
ian. We urge this Court to reconcile the conflict
among the Circuits and provide uniform stan-
dards for deferral of federal constitutional ques-
tions when a_ potentially dispositive state
constitutional provision is before the federal
court.

D. Article III’s case or controversy re-
quirement and principles of feder-
alism required certification in or-
der to allow the state court to
resolve the state constitutional is-
sues.

Article 16 of the Massachusetts Declaration of
Rights provides broader free speech protections
than the First Amendment. The development of
an article 16 jurisprudence?? is consistent with

13 See Sees (art. 16 protected nude dancing in bars that serve
alcoholic beverages whereas the First Amendment does not, Doran
v. Salem Inn, Inc., 422 U.S 922, 932-34 (1975)); Cabaret Enter-
prises, Inc. v. ABCC, 393 Mass. 13, 468 N.E.2d 612 (1984)(same);
A.F.M., Ltd., 428 Mass. 1021, 704 N.E.2d 184 (interpreting Renton
more broadly than the federal courts) and T & D Video, 423 Mass.
577, 670 N.E.2d 162 (same). See supra Part (c) of the Statement
of the Case and of Prior Proceedings. Similarly, in Redgrave, supra
855 F.2d at 910, the First Circuit explicitly acknowledged that ar-
ticle 16 provides broader protection for nude dancing than the
First Amendment.

In Commonwealth v. Upton, 394 Mass. 363, 476 N.E.2d 548
(1985), the Supreme Judicial Court explained the reason that
state constitutional protections differ from the federal as follows:

ay eee a

19

the Massachusetts Supreme Judicial Court’s gen-
eral view that it is obligated to independently in-
terpret the state’s constitution. !4

The creation of an independent free speech ju-
risprudence has already placed the decisions of
the Supreme Judicial Court under article 16 in
conflict with the decisions of this Court under the
First Amendment. Compare Sees, 374 Mass. 532,
373 N.E.2d 1151 with Doran v. Salem Inn, Inc.,

The Constitution of the Commonwealth pre-
ceded and is independent of the Constitution of
the United States. In fact, portions of the Consti-
tution of the United States are based on provi-
sions in the Constitution of the Commonwealth.

In particular situations, on similar facts, we
have reached different results under the State
Constitution from those that were reached by the
Supreme Court of the United States under the
Federal Constitution. On occasion, the differences
can be explained because of different language in
the two Constitutions. [Citing Sees]. On the other
hand, in deciding similar constitutional questions,
the two courts have reached contrary results
based on differences of opinion concerning the
application of similar constitutional principles.

Id. at 372, 476 N.E.2d at 555.

'* See Speer, B., Chief Justice Wilkins and the Criminal Law,
80 Mass.L.Rev. 125, 126-33 (Winter 1999)(citing numerous cases
where the Supreme Judicial Court extended greater protections
under the state constitution than is afforded by the cognate fed-
eral constitutional provisions); Clay, H., Human Freedom and
State Constitutional Law, 70 Mass.L.Rev. 161, 163 (Dec.
1985)(same regarding other states); Utter, Freedom and Diversity
in a Federal System: Perspectives on State Constitutions and the
Washington Declaration of Rights, 7 Puget Sound L.Rev. 491, 499
n.29 (1984)(listing states that have interpreted their constitutions
as providing greater protection for individual rights than the fed-
eral constitution).

20

422 U.S 922, 932-34 (1975). See supran.13. As
the present case attests, further conflicts in the
interpretation of these cognate free speech provi-
sions are likely to occur. ,

In cases, as here, which present both state and
federal constitutional claims, where the state
claims may well be dispositive, Article III of the
United States Constitution dictates that the state
issues must be decided first, and federalism dic-
tates that that issue must be decided in the first
instance by the state court.

1. Article III requires the federal
courts to avoid advisory
opinions by deferring federal
constitutional claims when
the case can be decided on
other grounds.

Article III limits federal court jurisdiction to
cases or controversies and precludes advisory
opinions. Rescue Army v. Municipal Court, 331
U.S. 549, 568-69 (1947)(“this Court has followed
a policy of strict necessity in disposing of consti-
tutional issues. The earliest exemplifications...
arose in the Court’s refusal to render advisory
opinions and in applications of the related juris-
dictional policy drawn from the case or contro-
versy limitation. U.S. Const. Art. 3.”). An estab-
lished decisional hierarchy aids courts in avoiding
advisory opinions. When a court decides a case
by construing the common law or interpreting a
regulation or a statute, the constitutional issue,
in effect, becomes moot; a constitutional case or
controversy no longer exists. Jd. Accordingly,
when, as here, a federal court is faced with both a

21

federal constitutional claim and a cognate claim
under the state constitution, Article III of the
United States Constitution requires that the state
claim must be resolved first. Id.

When the federal court, as in this case, acts to
the contrary and decides the federal constitu-
tional question before the state constitutional is-
sue 1s even considered, it runs afoul of Article III
by having rendered an opinion that very well may
become advisory, a result that Article III forbids.
Certification is the process by which federal
courts can avoid this prohibited result.

2. The principle of judicial fed-
eralism requires the_ state
courts to initially decide
state constitutional ques-
tions.

This Court’s cases from Pullman through Anzo-
nans uniformly have championed the position
that federalism requires a “‘scrupulous regard for
the rightful independence of the state govern-
ments,” Pullman, 312 U.S. at 501 (citation omit-
ted), and deferral of federal constitutional deci-
sions “further|s] the harmonious relation between
state and federal authority,” id., by the “‘avoid-
ance of needless friction’ between federal pro-
nouncements and state policies,” Reetz v. Boza-
nich, 397 U.S. 82, 87 (1970) quoting Pullman, 312
U.S. at 500.

That the state courts should have both the first
and the last word in interpreting state law — one
of the grounding principles of both Pullman ab-
stention and certification — is based on the fun-
damental rationale that federalism demands that

22

the federal government must respect the sover-
eignty of the several states. By allowing the state
courts to interpret their own constitutions and
laws, and not attempting to predict what that in-
terpretation might be, the federal courts not only
honor state sovereignty, but also avoid the poten-
tial for conflicting results between those sover-
eigns. The principle incorporates the common-
sense notion that state courts have a greater ex-
pertise in interpreting their law than do the fed-
eral courts. The need for federal courts to defer to
the states is, of course, particularly acute when
the cognate provisions of the state and federal
constitutions diverge.

In the last two decades, independent interpre-
tation of state constitutions has undergone a ren-
aissance. Prior to that time, the likelihood of con-
flicting interpretations of cognate federal and
state constitutional provisions was small. Almost
all state courts had interpreted their constitutions
as affording the same and no greater protection
than that afforded by the federal constitution.
With independent state constitutional interpreta-
tions becoming the norm, the chances for con-
flicting interpretations have increased. See gen-
erally supra n.14.

Where, as here, the relevant state constitu-
tional provision provides broader protection for
individual rights than the First Amendment, and
the federal court not only recognizes this juris-
prudential difference but also determines that
there is no compelling state precedent on the spe-
cific case before it,15 then principles of federalism,
as articulated in Pullman and reaffirmed in Arnzo-

15 See Rule 1:03 of the Rules of the Supreme Judicial Court.

23

nans, require the federal court to certify the state
constitutional question.

E. The federal courts should deter to
the state courts in areas of sensi-
tive social policy.

One final consideration bears note. Federal
courts ought not to enter sensitive areas of social
policy that are best left to resolution by the states
unless no alternative to its constitutional adjudi-
cation is open. Pullman, 312 U.S at 498. The
Courts of Appeal have found certification to be
particularly appropriate in zoning, eminent do-
main, Fields v. Rockdale County Georgia, 785
F.2d 1558, 1562 (11th Cir. 1980), and education
cases, Pustell v. Lynn Public Schools, 18 F.3d 50,
54 (1st Cir. 1994) — areas of law that tradition-
ally have been reserved to the state courts.

The present case not only concerns the tradi-
tionally local issue of zoning but also involves
strong local feelings touching on the less quantifi-
able, but nevertheless distinctly local, areas of
morality and values. App. 3a - 4a & 81a.

In a case such as this, principles of federalism
empower the state courts, not the federal, to ren-
der a decision on state law. Federal courts
should not create the potential for conflict be-
tween the sovereigns that necessarily will result if
and when it turns out that the federal courts
prematurely have rendered a constitutional opin-
ion that is advisory only.!© Certification was re-
quired.

16 As recited above, the petitioner brought this case in the state
court. After the defendants removed the matter to federal court,

24

II. CERTIORARI SHOULD BE GRANTED BE-
CAUSE THE COURT OF APPEALS FAILED
TO PROPERLY APPLY THE SUBSTAN-
TIAL GOVERNMENTAL INTEREST AND
REASONABLE OPPORTUNITY TO OPEN
AND OPERATE TESTS UNDER RENTON
V. PLAYTIME THEATRES, INC., PLACING
ITS DECISION IN CONFLICT WITH REN-
TON AND THE OTHER CIRCUITS.

A. The lack of opportunity to open
and operate should have been de-
termined as of the time the permit
at issue in the case was denied.

The Court of Appeal’s finding that the 1996
adult entertainment zone provided the petitioner
with a reasonable opportunity to open and oper-
ate under Renton is premised upon the incorrect
supposition that the constitutionality of the re-
spondents’ zoning ordinance was to be examined
as of the date of the trial, not as of the date the
permit was denied.!”? See App. 46a. This asser-

the petitioner repeatedly tried to have the case remanded, or ques-
tions certified, to the state court.

17 Testifying at trial, the owner of the adult zone land admitted
that up to the date of trial none of the land in the zone was avail-
able for sale.

Q. Now, with regard to the adult entertainment
zone, those would be lots 14, 15, 16, 17 and

a part of 13, is that correct?

A. That is correct.

Q. Have any of those parcels been available for
purchase to date?

25

tion is simply incorrect. There is no support for
this view in any case.

The question under Renton is whether the chal-
lenged ordinance provided the applicant a rea-
sonable opportunity to open and operate at the
time that the request to provide adult entertain-
ment was denied. The answer to this question in
this case is clearly “no.”

As of December 1996, the date when the peti-
tioner applied for and was denied an entertain-
ment license to include nude dancing, the re-
spondents’ adult entertainment zone consisted
entirely of one 10.4 acre parcel under single own-
ership. App. 82a - 84a. That 10.4 acre parcel
was virtually identical to the “one-available-lot”
1994 zone that the District Court found was most
likely unconstitutional under Renton. App. 47a.!8

Courts have grappled with the potential ambi-
guity of the controlling legal standard, “a reason-
able opportunity to open and operate,” but no
court has upheld a zoning regulation where one
parcel, comprising less than one-tenth of one per-
cent of the land area in a municipality, was avail-
able for use by an adult entertainment establish-
ment.!9

A. No, they haven’t been.

App. 69a. The land owner went on to testify that as of the day of
trial, the parcels \ cre available for sale. In its decision, the trial
court credited this testimony and relied on the fact that the land
was for sale as of the day of trial for its conclusion that the zone
provided a reasonable opportunity for adult businesses to open
and operate. App. 46a.

18 In addition, as of December 1996, the adult zone parcel was
not available for purchase. See supra n.17 and App. 68a - 71a.

19 CLR Corp. v. Henline, 702 F.2d 637, 638 (6th Cir. 1983) (zon-
ing ordinance unconstitutional where “the impact of the . . . ordi-

26

Under Renton, therefore, as of the date that the
petitioner applied for its adult entertainment li-
cense, the respondents’ adult zone did not pro-
vide a reasonable opportunity for an adult busi-
ness to open and operate. By conducting the
Renton analysis as of the time of trial, the Court
of Appeals misapplied Renton and fell out of step
with the other circuits.

B. The municipality failed to offer
proof of a substantial governmental
interest.

Renton v. Playtime Theatres, Inc., 475 U.S. 1
(1986) requires a municipality to have considered
evidence that demonstrates its substantial gov-
ernmental interest when it enacts an ordinance
that restricts expressive activities, including adult
entertainment. Here, the town presented no evi-
dence of any governmental interest at the time it
enacted its 1996 adult entertainment ordinance.
App. 83a. The Court of Appeals ruled that the

nance is to permit two to four restricted uses in a half-mile strip of
the city”). Walnut Properties, Inc. v. City of Whittier, 861 F.2d
1102, 1110 (9th Cir. 1988) (100 acres of land comprising only 1.4
percent of the city’s land area in three areas was insufficient); DIA
v. City of Toledo, 937 F.Supp. 673, 678 (N.D. Ohio 1996) (“courts
have generally found the number to be inadequate if fewer than a
dozen sites or under one percent of the city acreage is potentially
available”); Janra Enterprises v. City of Reno, 818 F.Supp. 1361,
1364 (D. Nev. 1993) (three parcels “is hardly constitutionally suffi-
cient for alternative means of communication”); cf. 3570 East
Foothill Boulevard v. City of Pasadena, 912 F.Supp. 1257, 1266-67
(D.C. Cal. 1995) (0.73 percent of the land available for adult busi-
nesses does not automatically violate Renton, where a jury could
find that there were 26 sites or a minimum of 11 to 16 sites, as
the plaintiff conceded).

Pe eee Te ee Ss ey

abi! nach

}
;

27

lack of evidence was constitutionally insignificant.
The court reasoned that because the respondents
had shown a substantial governmental interest in
enacting an earlier adult entertainment ordi-
nance, the town, as a matter of law, could graft
this earlier finding onto the new ordinance. App.
19a.20

This reasoning, however, not only misconstrues
the purpose of Renton’s substantial government
interest requirement but also conflicts with two
recent cases, J & B Entertainment, Inc. v. City of
Jackson, Miss., 152 F.3d 362 (Sth Cir. 1998) and
N.W. Enterprises, Inc. v. City of Houston, 27
F.Supp.2d 754 (S.D. Tex. 1998), both of which
expressly considered and rejected this very argu-
ment.

In J & B Entertainment, Inc., the municipality,
like the respondents here, presented no evidence
at trial as to its motives in amending its zoning
ordinance in 1995 to restrict adult entertainment.
Rather, like the respondents here, the municipal-
ity claimed that it was sufficient for it to prove
that there had been a substantial governmental
interest in the adoption of an earlier (1991) zoning
ordinance restricting adult entertainment.

The Fifth Circuit rejected that argument. It
found that because Renton

instructs us that a government must
present... “a link between the regu-

20 We note again that the result in the governing state decision,
T & D Video, 423 Mass. at 581-82, 670 N.E.2d at 165-66, is both
contrary to the First Circuit’s holding in this case and consistent
with the Fifth Circuit’s analysis in J & B Entertainment.

OPT Ne, aE Ogee

28

lation and the asserted governmental
interest,”2!

mere reliance on

was inadequate.23 The fact that an earlier zoning
ordinance restricting adult entertainment may
have been enacted with a proper motive is no
guarantee under Renton that a later ordinance,
although similar in form, was also enacted with a
constitutionally proper motive.24 Each and every

the inference that [the municipality]
must have had the same interests be-
cause the composition of the City
Council that enacted the Ordinance
was the same as the City Council
that enacted the 1991 zoning ordi-
nance22

21 Id. at 372.

22 Jd. at 374.

23

[W]e will not hypothesize such an objective or ac-
cept a naked assertion. Rather, we intrude into
the regulatory decision process to the extent that
we insist upon objective evidence of purpose — a
study or findings. Insisting upon findings reduces
the risk that a purported effort to regulate effect is
a mask for regulation of content.

Id. at 372.

24

Prudence also suggests that making the entire de-
termination of whether a challenged ordinance is
constitutional hinge upon the prior experiences of
legislators, absent reasoned explanation, is un-
wise. While the district court’s conclusion that
the prior experiences of legislators can justify a
challenged ordinance without reasoned explana-

5 ea ad a ai

29

ordinance restricting adult entertainment must
serve a:substantial governmental interest--not
just the first one. Later ordinances restricting
adult entertainment do not gain immunity from
scrutiny simply because the first ordinance was
enacted constitutionally.?5

Accordingly, the Court of Appeal’s conclusion
that the respondents had shown a substantial
governmental interest in enacting the 1996 ordi-
nance by relying on evidence submitte i in con-
nection with an earlier ordinance is in conflict
with Renton and the rule of Renton as applied by
the Fifth Circuit. In order to reconcile the conflict
among the Circuits, certiorari should be granted.

tion linking the earlier enactment to the chal-
lenged ordinance may be easily applied in this
case, we may quickly become bogged down in a
morass of line-drawing in future cases. First,
what if some but not all of the legislators have
previously received information on secondary ef-
fects. How many are enough? Half? Two-thirds?
How long can pass between the review of the ma-
terials and the challenged ordinance? What if the
applicable law has changed in the interim?

J & B Entertainment, Inc., 152 F.3d at 375.

25 See N.W. Enterprises, Inc. v. City of Houston, 27 F.Supp.2d
754 (S.D. Tex. 1998), where the municipality, like the respondent
here, attempted to rely on evidence of secondary effects introduced
during passage of an earlier ordinance to substantiate the gov-
ernmental interest in enacting a later ordinance. “[Ejach time a
City chooses to impose new restrictions of protected speech such
as [the municipality] has done by increasing the ordinance’s dis-
tance requirement for sexually oriented businesses, it must satisfy
the requisite constitutional test.” /d. at 811.

30

CONCLUSION

This case presents fundamental questions re-
garding the relationship between the state and
federal courts. We urge this court to grant certio-
rari to remedy the constitutional conflict engen-
dered by the decision of the First Circuit not to
defer the federal constitutional decisions until the
state law issues were resolved and to provide
guidance to the lower federal courts on the impor-
tant federal question of the proper role of certifi-
cation when potentially determinative, but not
clearly established, state constitutional issues
come before them.

Respectfully submitted,

The Petitioner,
by its attorneys,

*WILLIAM C. NEWMAN
THOMAS J. MCCORMICK
LESSER, NEWMAN, SOUWEINE
& NASSER
39 Main Street
Northampton, Massachusetts 01060
(413) 584-7331

*Counsel of Record

APPENDIX TABLE OF CONTENTS

APPENDIX A

Opinion of the United States Court
of Appeals for the First Circuit in
D.H.L. Associates, Inc. v. John
O’Gorman, et al., 199 F.3d 50 (1999) ........ la

APPENDIX B

Opinion and Order of the United States
District Court for the District of
Massachusetts in D.H.L. Associates,
Inc. v. John O’Gorman, et al.,
SF .SURD.2G TO C1GGG) ciccscsccaccccccscccescsacie 27a

APPENDIX C

Rules of the Supreme Judicial Court,
Rule 1:03, Uniform Certification of
PNM OE GI ais oivnccdccnicccsccisievesnsceancasecs 56a

APPENDIX D

Plaintiff's Motion to Remand this Case to
I I odode cta renee esunevieieees ieee 59a

lia

APPENDIX E

Plaintiffs Motion Requesting That the
Court Invoke Pullman Abstention and
Remand the State Law Questions to
State Court or Alternatively to Certify
the State Law Questions to the
Supreme Jia COME ss sissccccnsasasnissnavens

APPENDIX F

Excerpts from the record appendix of a
colloquy between counsel and the
trial court during a pre-trial hearing
on Decesniee 1a, Birt sasassietiectecsisentaces

APPENDIX G

Excerpts from the Record Appendix of
testimony, and colloquies between
counsel and the trial court during
the second day of the three day trial,
Apertl 30, 1900 .ccscastscabasnitintnaionsiassssanseas

APPENDIX H

Excerpts from facts stipulated by the
Parties SOP GORE scsnscssasanierainsieeaserersaies

APPENDIX A

D.H.L. ASSOCIATES, INC.,
Plaintiff, Appellant,

V.

JOHN O’GORMAN, Robert Wallace,
Warren Allgrove, Jr, and Eileen Farrell, Indi-
vidually and in their Capacity as The Tyngsbor-
ough Board of Selectmen, and as the Licensing
Board for the Town of Tyngsborough, and the
Town of Tyngsborough, Defendants, Appel-
lees.

No. 98-1688.

United States Court of Appeals,
First Circuit.

Heard Sept. 16, 1999.
Decided Dec. 17, 1999.

Restaurant owner brought state court action
against town and town officials, challenging mu-
nicipal ordinance regulating adult entertainment
businesses and seeking declaratory relief on fed-
eral and state constitutional grounds. Defendants
obtained removal. The United States District
Court for the District of Massachusetts, Robert E.
Keeton, J., 6 F.Supp.2d 70, held ordinance to be
constitutional, and owner appealed. The Court of
Appeals, Coffin, Senior Circuit Judge, held that:

2a

(1) owner’s claims were ripe for review; (2) owner’s
challenges to former versions of ordinance were
moot; (3) present ordinance was content neutral;
(4) ordinance was narrowly tailored to serve sub-
stantial government interest; and (5) ordinance
permitted reasonable alternative avenues of
communication.

Affirmed.

Thomas Lesser with whom William C. Newman
was on brief for appellant.

Richard Bowen with whom Jonathan M.
Silverstein and Christopher J. Pollart were on
brief for appellees.

Before SELYA, Circuit Judge,
COFFIN, Senior Circuit Judge, and
LIPEZ, Circuit Judge.

COFFIN, Senior Circuit Judge.

Plaintiff-appellant D.H.L. Associates, Inc., has
sought annually since 1994 to persuade defen-
dants-appellees, the town of Tyngsborough, Mas-
sachusetts, and its board of selectmen to license
it to provide nude dancing at its restaurant, “Mat-
thew’s.” D.H.L. has never been successful in this
endeavor because Matthew’s is not located within
the area of Tyngsborough zoned to allow adult en-
tertainmen: In this case, D.H.L. challenges the
constitutionality of Tyngsborough’s zoning ordi-
nance, alleging that even as revised since 1994, it

3a

does not meet the standards set forth in City of
Renton v. Playtime Theatres, Inc., 475 U.S. 41,
106 S.Ct. 925, 89 L.Ed.2d 29 (1986), and thus
violates D.H.L.’s constitutionally protected free-
dom of speech. The district court held the ordi-
nance to be constitutional, and from that judg-
ment D.H.L. appeals. Finding no constitutional
infirmity in Tyngsborough’s zoning ordinance, we
affirm.

I. Factual Background

Tyngsborough, a rural town of approximately
9500 inhabitants, is located about 40 miles from
Boston near the Massachusetts/New Hampshire
border. The Tyngsborough board of selectmen
acts as the town’s executive branch and is au-
thorized to act as the licensing authority for alco-
holic beverage and entertainment licenses. Town
residents voting at meetings constitute the
legislative branch of the town’s government and
as such are responsible for enacting the zoning
ordinances at issue here.

Frm ta ag Air Preece A RS PERE BHR Aaa

The Town has altered its zoning ordinance mul-
tiple times in the past decade. In 1987, the Town,
by a vote of the majority of residents at a town
meeting, established the “B-4 zone,” in which
adult entertainment, as well as other commercial
uses, was authorized. The B-4 zone, although ex-
isting in theory, did not actually contain-any par-
cels of land and was, in fact, a “phantom zone.” In
1992, D.H.L. applied for and was issued both an
: all- alcoholic beverage license and a live enter-

5
4

__

4a

tainment license for its restaurant called “Bo-
gie’s,” later called “Matthew’s,” located in a gen-
eral commercial use zone.

In January 1994, D.H.L. advertised that it
would present nude dancing beginning in Febru-
ary. The following month, an open town meeting
was held in Tyngsborough to discuss adult enter-
tainment and on February 24, the Town notified
D.H.L. that adult entertainment was not encom-
passed within its entertainment license. On
March 7, D.H.L. applied to amend its entertain-
ment license to include adult entertainment, un-
der protest based on its belief that its entertain-
ment license inherently authorized adult
entertainment. On March 28, the board of select-
men held a hearing to consider D.H.L.’s request,
but delayed a decision. The next evening, as a re-
sult of a petition signed by more than 650 regis-
tered voters, a special town meeting was held to
consider adopting an ordinance that would pro-
hibit establishments holding liquor licenses from
offering any form of nude entertainment.

Although the Town did not adopt such an ordi-
nance, town residents at the meeting unani-
mously adopted an amended version of the zoning
ordinance to establish a B-4 zone of two lots of
land. The selectmen subsequently denied D.H.L.’s
application to amend its entertainment license to
include live nude dancing on the basis that the
restaurant was not located within the B- 4 zone.
Each year since then, the Town has reissued
D.H.L.’s entertainment license but refused to ex-

5a

tend it to include nude dancing. Aside from a two-
day license suspension in March 1994, the Town
has never attempted to enforce the limitations of
D.H.L.’s license or otherwise sanction it for its
violation of zoning and licensing regulations, de-
spite the fact that D.H.L. has continued to offer
nude dancing on a daily basis. The Town has,
however, represented to D.H.L. and to this court
that it is delaying enforcement only until this liti-
gation concludes.

In 1994, D.H.L. filed a claim against the Town
and its board of selectmen in state court, alleging,
inter alia, that its state and federal constitutional
rights had been violated and seeking declaratory
and injunctive relief as well as damages. Defen-
dants successfully sought removal of the case to
federal court.

Prior to trial, at a town meeting in May 1996,
the Town established an entirely different B-4
zone comprised of 10.4 acres and consisting of 5
of the 24 lots in Applewood Commercial Park
subdivision. It was the constitutionality of this
zone that the district court upheld following a
bench trial in April 1998. The district court ruled
in favor of Tyngsborough on D.H.L.’s federal con-
stitutional claims, on the grounds that the consti-
tutionality of the 1987 and 1994 zones were moot
issues and the 1996 zone was constitutional, and
remanded D.H.L.’s remaining state claims to state
court for adjudication. D.H.L. appeals, arguing
that the issue of whether its rights were violated
under the prior ordinances was not moot and that

6a

even if the 1996 ordinance were the appropriate
benchmark for consideration, it was not constitu-
tional.

II. Preliminary Issues
A. Ripeness —

[1] Initially, we were concerned that D.H.L.’s
claims were not ripe for review because D.H.L.
has continued to provide adult entertainment de-
spite its lack of a license without sanction. We
have resolved this concern, however, because the
Town has represented to the court, consistent
with a selectman’s testimony at trial, that it is de-
laying enforcement of the ordinance against
D.H.L. only until this litigation concludes. Our ju-
risdiction as a federal court extends only to
“cases” and “controversies,” as authorized by Ar-
ticle III, Section 2, of the United States Constitu-
tion. This means that issues before us must re-
flect a live dispute between adverse parties.

The Supreme Court has explained that the de-
termination of ripeness depends on “the fitness of
the issues for judicial decision” and “the hardship
to the parties of withholding court consideration.”
Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87
S.Ct. 1507, 18 L.Ed.2d 681 (1967).

[2] In situations similar to the present one,
prospective enforcement of an ordinance has been
found sufficient to generate a live case. See, e.g.,
Sable Communications of California, Inc. v. Pacific

7a

Tel. & Tel. Co., 890 F.2d 184, 187 (9th Cir.1989)
(“A threat that emanates from a regulation, com-
pulsory in nature, to which the plaintiff is cur-
rently subject, is real and immediate if the possi-
bility of enforcement is more than hypothetical.”).
When a constitutional claim is at issue, a plaintiff
need not “await the consummation of the threat-
ened injury to obtain preventive relief.” Pennsyl-
vania v. West Virginia, 262 U.S. 553, 593, 43
S.Ct. 658, 67 L.Ed. 1117 (1923).

In this case, it is clear that D.H.L. is subject to
a real and immediate threat of enforcement of
Tyngsborough’s zoning ordinance and therefore
its claims are ripe for our consideration. See Pus-
tell v. Lynn Pub. Schs., 18 F.3d 50, 52 (1st Cir.
1994); Neiderhiser v. Borough of Berwick, 840
F.2d 213, 218 (3d Cir.1988).

B. Mootness

[3] Next, we address D.H.L.’s argument that the
district court erred by holding that the constitu-
tionality of the 1987 and 1994 zones were moot
issues. D.H.L. contends that these issues are, in
fact, dispositive of the case. We review the court’s
determination of mootness de novo. See Verho-
even v. Brunswick Sch. Comm., 1999 WL 721698,
*4 (Ist Cir. Sept. 21, 1999).

“Simply stated, a case is moot when the issues
presented are no longer ‘live’ or the parties lack a
legally cognizable interest in the outcome.” Powell
v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944,

8a

23 L.Ed.2d 491 (1969). The Supreme Court has
described mootness as “’the doctrine of standing
set in a time frame: The requisite personal inter-
est that must exist at the commencement of the
litigation (standing) must continue through its ex-
istence (mootness).” United States Parole Comm’n
v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202,
63 L.Ed.2d 479 (1980) (quoting Henry P. Mona-
ghan, “Constitutional Adjudication: The Who and
When,” 82 Yale L.J. 1353, 1384 (1973)).

We conclude that the validity of the 1987 and
1994 ordinances are moot issues because even if
we were to find the provisions unconstitutional,
D.H.L. would not be entitled to any relief. First,
D.H.L. cannot allege damages from the applica-
tion of the 1987 or the 1994 ordinance because
neither was ever enforced against D.H.L. Al-
though D.H.L. was denied a permit under the au-
thority of the 1994 ordinance, it continued to en-
gage in the prohibited conduct on a daily basis
without repercussion. Although a claim for dam-
ages from a no longer effective ordinance might in
other circumstances save the issue of the ordi-
nance’s lawfulness from a determination of moot-
ness, D.H.L. can make no such claim here. See
City of Richmond v. J.A. Croson Co., 488 U.S. 469,
478 n.1, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989)
(plaintiffs claims not moot even though chal-
lenged ordinance repealed because town refused
to grant contracts to plaintiff while ordinance was
in effect).} .

' Although D.H.L. initially requested monetary damages
from the board of selectmen, it withdrew that claim in light

Pate. Mes

9a

Second, we are without power to grant injunc-
tive and declaratory relief because the 1987 and
1994 ordinances no longer exist. In Diffenderfer v.
Central Baptist Church, Inc., 404 U.S. 412, 92
S.Ct. 574, 30 L.Ed.2d 567 (1972), the Supreme
Court emphasized that it had to “review the
judgment of the district court in light of [state]
law as it now stands, not as it stood when the
judgment below was entered.” See id. at 414-15,
92 S.Ct. 574 (holding that when the only relief
sought was a declaratory judgment that a statute
was unconstitutional, but the statute was re-
pealed pending appeal, the case was moot). The
Court has also stated that when a challenged fed-
eral statute is amended after review by courts of
appeals, the issues presented to the Supreme
Court on appeal are rendered moot. See United
States Dep’t of Justice v. Provenzano, 469 U.S. 14,
15, 105 S.Ct. 413, 83 L.Ed.2d 242 (1984); see
also Burke v. Barnes, 479 U.S. 361, 363, 107
S.Ct. 734, 93 L.Ed.2d 732 (1987) (finding that
case was moot when bill at issue expired after the
court of appeals entered judgment and stating
that “it is not enough that there may have been a
live case or controversy when the case was de-
cided by the court whose judgment we are review-
ing”); United States Dep’t of the Treasury uv.
Galioto, +77 U.S. 556, 559-60, 106 S.Ct. 2683, 91
L.Ed.2d 459 (1986) (concluding that when statute

of Bogan v. Scott- Harris, 523 U.S. 44, 118 S. Ct. 966, 970,
140 L.Ed.2d 79 (1998) (local legislators and non-legislative
Officials performing legislative functions are entitled to
immunity for their official acts).

10a

was altered such that issues decided by court be-
low were moot, the Court must set aside the lower
court’s decision).

[5, 6] D.H.L. attempts to bypass this precedent
through reliance on an exception to the mootness
doctrine for situations in which the defendant
voluntarily ceases the challenged practice. See
City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S.
283, 289, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982)
(holding that when an ordinance’s revision be-
came effective while the case was pending in the
court of appeals, the Court retained jurisdiction
over the question of the constitutionality of the
prior ordinance). This exception applies, however,
only when there is a reasonable expectation that
the challenged conduct will be repeated following
dismissal of the case. See id. at 289 &n.11, 102
S.Ct. 1070 {city had announced an intention to
return to its original conduct after the litigation
was concluded); Northeastern Florida Chapter of
the Associated General Contractors v. Jacksonville,
508 U.S. 656, 662 & n.3, 113 S.Ct. 2297, 124
L.Ed.2d 586 (1993) (challenged statute had not
been sufficiently altered to allow a conclusion that
the conduct would not be repeated). In this case,
the ordinance has been recast apparently for the
purpose of making it more likely to overcome con-
stitutional challenge and it has remained un-
changed since 1996. With no indication of a con-
trary intent, it would be unreasonable to presume
that the Town would return to its prior zoning
plans after the conclusion of this litigation. Thus,

ea

aaa

a. tere aeaeese. ao,

lla

the voluntary-cessation exception to the mootness

‘doctrine is inapplicable here. ©

[7] D.H.L. makes an additional argument that
the issue is not moot, relying on a stipulation be-
tween the parties that if D.H.L. had been issued
an adult entertainment license in 1994, the li-
cense would have been renewed automatically in
subsequent years regardless of alterations to the
zoning code. The critical flaw in D.H.L.’s analysis
is that even if we were to hold that the 1994 zone
had been unconstitutional, such a ruling does not
necessarily lead to the conclusion that D.HL.L.
would have been granted a license in 1994. As
D.H.L. appeared to acknowledge to the trial court,
the Town would have retained the ability, after a
finding of unconstitutionality, to review D.H.L.’s
request and deny it for another, legitimate reason.
An alternative scenario is that the Town might
have created a constitutional adult entertainment
zone before reviewing D.H.L.’s application for a
license and could then lawfully have refused it the
license.?

It is not for this court to speculate as to what
might have happened had the Town’s statute
been struck down before it was superseded by the
1996 zoning ordinance now in effect. Thus, the

2 D.H.L. relies on two cases, both of which are distin-
guishable because the challenged ordinance remained in
effect until the time of the court decision and was the basis
for the court’s grant of injunctive relief. See Dia v. City of
Toledo, 937 F.Supp. 673, 679 (N.D.Ohio 1996); Janra En-
terpnses, Inc. v. City of Reno, 818 F.Supp. 1361, 1366
(D.Nev. 1993).

12a

stipulation between D.H.L. and the Town, that if
D.H.L. had received a license in 1994 it would
have received a license every year thereafter, does
not entitle D.H.L. to a license in the first instance.

III. Constitutionality of the
1996 Zoning Ordinance

[8] We thus turn to the constitutionality of
Tyngsborough’s 1996 zoning ordinance, currently
in effect. In reviewing an appeal from an adverse
ruling after a bench trial, we review the district
court’s legal determinations de novo, “according a
significant amount of deference to the court’s fac-
tual determinations and to most of its resolutions
of mixed fact/law issues.” Globe Newspaper Co. v.
Beacon Hill Architectural Comm’n, 100 F.3d 175,
181 (lst Cir.1996). Tyngsborough’s 1996 zoning
ordinance defines “adult entertainment estab-
lishments” as including those providing live enter-
tainment “which consists of entertainers engaging
in Sexual Conduct’ or ‘Nudity.” See Tyngsbor-
ough Zoning By-Laws § 2.11.46. The ordinance
restricts the location of such businesses to the B-
4 zone. See id. §§ 2.10.00, 2.11.00. It also author-
izes the board of selectmen or the planning board
to grant special use permits for adult entertain-
ment establishments. See id. § 1.16.00.3

3 We note that testimony was given and the parties have
stipulated to the fact that the zoning ordinance requires
that adult entertainment businesses wishing to operate in
the B-4 zone obtain a special permit from the board of se-
lectmen and undergo a site review. See Tyngsborough Zon-
ing By-Laws § 2.11.30 Table of Permitted Uses. Such a
method of zoning combined with licensing may constitute a

13a

[9] Generally, “[t]he power of local governments
to zone and control land use is undoubtedly
broad and its proper exercise is an essential as-
pect of achieving a satisfactory quality of life in
both urban and rural communities.” Schad v.
Mount Ephraim, 452 U.S. 61, 68, 101 S.Ct. 2176,
68 L.Ed.2d 671 (1981). Nevertheless, a town’s
zoning power “must be exercised within constitu-
tional limits.” Moore v. East Cleveland, 431 U.S.
494, 514, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977)
(Stevens, J., concurring). As we have articulated:
“Freedom of speech is among the most precious of
our constitutional rights. Thus, courts have long
recognized that, when governmental action places
speech in special jeopardy, special protections

prior restraint on speech, generally subjected to a substan-
tially stricter review for constitutionality than a time, place,
and manner restriction. See, e.g., FW/PBS, Inc. v. City of
Dallas, 493 U.S. 215, 225, 110 S.Ct. 596, 107 L.Ed.2d 603
(199) (evaluating licensing scheme for sexually oriented
businesses as prior restraint); 11126 Baltimore Boulevard,
Inc. v. Prince George’s County, Maryland, 58 F.3d 988, 995
(4 Cir.1995) (“Following the decision in Renton, the Court
has made clear that otherwise valid content-neutral time,
place, and manner restrictions that require governmental
permission prior to engaging in protected speech must be
analyzed as prior restraints and are unconstitutional if they
do not limit the discretion of the decision maker and pro-
vide for . . . procedural safeguards.” (citing FW/PBS, 493
U.S. at 227-28, 110 S.Ct. 596) (footnote omitted)). Because
D.H.L.’s permit was denied solely on the basis that it was
not located in the B-4 zone, and D.H.L. does not seek review
of the ordinance as a prior restraint on its speech, we
evaluate the statute as a time, place, and manner restric-
tion. We caution, however, that if the permitting process
were not to incorporate adequate safeguards, it would not
pass muster as a constitutional prior restraint.

l4a

must apply.” National Amusements, Inc. v. Town
of Dedham, 43 F.3d 731, 736 (Ist Cir.1995).

A. Appropnate Level of Scrutiny

[10] We begin our analysis by noting that the
activity which is being restricted, nude dancing, is
presumably constitutionally protected speech.
The Supreme Court has described nude dancing
as “expressive conduct within the outer parame-
ters of the First Amendment, though .. . only
marginally so.” Barnes v. Glen Theatre, Inc., 501
U.S. 560, 566, 111 S.Ct. 2456, 115 L.Ed.2d 504
(1991) (plurality opinion).

[11-13] We next determine what level of scru-
tiny we should apply to the restriction on this
constitutionally protected activity, which corre-
lates directly to whether the ordinance is content-
based or content-neutral. An ordinance is not
content-neutral if the government has adopted it
“because of disagreement with the message it
conveys.” National Amusements, 43 F.3d at 737
(quoting Ward v. Rock Against Racism, 491 U.S.
781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661
(1989)). Further, a “regulation that serves pur-
poses unrelated to the content of expression is
deemed neutral, even if it has an incidental effect
on some speakers or messages but not others.”
Ward, 491 U.S. at 791, 109 S.Ct. 2746; see also
Tollis Inc. v. San Bernadino County, 827 F.2d
1329, 1332 (9th Cir.1987) (“[The content-neutrai]
requirement is met if the involved ordinance is
‘aimed to control secondary effects resulting from

15a

the protected expression’ rather than at inhibiting
the protected expression itself.” (quoting Interna-
tional Food & Beverage Sys. v. City of Fort
Lauderdale, 794 F.2d 1520, 1525 (llth Cir.
1986))).

In National Amusements, an ordinance that
prohibited the showing of motion pictures be-
tween 1:00 a.m. and 6:00 a.m. was deemed to be
content-neutral because it did not reference the
substance of the speech it regulated and did not
appear to have arisen as a means of suppressing
a particular message. See National Amusements,
43 F.3d at 737-39. The Court in Renton grappled
with an ordinance that prohibited adult motion
picture theaters from being located within 1000
feet of any residential zone, family dwelling,
church, park, or school, and concluded that the
ordinance, although it treated theaters that spe-
cialized in adult films differently from other thea-
ters, was content-neutral because it was aimed
not at the content of the films but rather at the
secondary effects of such theaters on the sur-
rounding community. See Renton, 475 U.S. at 47-
49, 106 S.Ct. 925 (concluding that “at least with
respect to businesses that purvey sexually explicit
materials, zoning ordinances designed to combat
the undesirable secondary effects of such busi-
nesses are to be reviewed under the standard ap-
plicable to ‘content-neutral’ time, place, and
manner restrictions” (footnotes omitted)).

[14] Thus, it is clear that an ordinance such as
Tyngsborough’s, if aimed at combatting the sec-

16a

ondary effects of nude dancing rather than the
content of the message expressed by nude danc-
ing, is content-neutral. In determining whether
the Tyngsborough ordinance is aimed at secon-
dary effects, we note that a town is “entitled to
rely on the experiences” of surrounding cities and
towns: “The First Amendment does not require a
city, before enacting such an ordinance, to con-
duct new studies or produce evidence independ-
ent of that already generated by other cities, so
long as whatever evidence the city relies upon is
reasonably believed to be relevant to the problem
that the city addresses.” Id. at 51-52, 106 S.Ct.
925 (holding that ordinance was validly designed
to serve the substantial government interest of
preserving the quality of urban life). Moreover, the
Supreme Court has noted that a municipality’s
interest in protecting and preserving quality of life
“must be accorded high respect.” See Young uv.
American Mini Theatres, Inc., 427 U.S. 50, 71, 96
S.Ct. 2440, 49 L.Ed.2d 310 (1976) (plurality opin-
ion); see also Barnes, 501 U.S. at 583, 111 S.Ct.
2456 (Souter, J., concurring) (stating that the in-
terest of government in “preventing prostitution,
sexual assault, and other criminal activity” is
“plainly a substantial one”).

D.H.L. challenges Tyngsborough’s assurance
that the ordinance was enacted to combat secon-
dary effects and alleges that it did not rely on any
“studies” of secondary effects. The district court,
however, found that the record showed a “rea-
soned basis for evaluation of potential secondary
effects as sufficiently likely to occur and to involve

17a

Significant consequences for community welfare
to justify the challenged zoning ordinance,” even
though such evidence did not appear explicitly in
town meeting minutes. Specifically, the court
credited the testimony of John O’Gorman, chair-
man of the board of selectmen, regarding his in-
struction to the town administrator and the spe-
cial town counsel, prior to the enactment of the
1994 zoning ordinance, to gather information
about how other localities addressed adult enter-
tainment and secondary effects issues. O’Gorman
testified:
I as the chairman of the Board of Selectmen
instructed the town administrator along
with special counsel to research all that
they could with regard to adult entertain-
ment, how it could be controlled, how it
could be zoned, what other communities
were doing, what other jurisdictions were
doing with regard to adult entertainment.
. . . [We did this to] learn as much as we
could about adult entertainment and how it
could be controlled, how it could be zoned
within our community.

O’Gorman also testified that at the time of the
1994 zoning changes, the Town was aware that
the two clubs in town that allegedly offered adult
entertainment generated more police calls than
other clubs. He stated that the public reaction to
a proliferation of unlicensed adult entertainment
was “tremendous” and many residents expressed
great concern.

18a

The district court also noted that a document,
prepared for the 1994 special town meeting, evi-
denced public discussion prior to the ordinance’s
enactment? and that testimony substantiated the
Town’s claim that it relied on its impression, sup-
ported to at least some extent, that adult enter-
tainment establishments placed greater demands
on police because more calls were generated from
those establishments. See National Amusements,
43 F.3d at 742 (noting that legislatures may rely
on evidence of past problems with a particular ac-
tivity and need not conduct an investigation to

* The document stated in part:

The issue of adult entertainment, as I have stated before,
is extremely emotional and complex, one which requires a
great deal of thoughtful, objective consideration. Our office
has been grappling with this issue for only three (3) short
weeks. During this period we have had to identify and un-
derstand the rights of the community, the nghts afforded to
operators of adult entertainment establishments and the
avenues available to the community for regulating and con-
trolling adult entertainment establishments. Additionally we
have been attempting to provide proper assistance and
guidance to the citizen[{s] of Tyngsborough who have sought
answers to very tough questions. The [Town’s] Executive
Administrator has devoted nearly all of his time over the
past (2) weeks in pulling together information from other
communities on adult entertainment. We have come to find
out through this research that there is no quick or uniform
solution to the issues before us.

. . . . By law, we must be impartial and objective.....
We will, we must, rely heavily on [advice] of our hired coun-
sel on these legal matters. Let me say again, though, that
we clearly understand your feelings on these matters. To-
gether, as a community, [let’s}] work within the legal system
to resolve these difficult issues.

19a

corroborate each incident). At the special town
meeting, an open forum was held to educate the
public on methods of zoning adult entertainment
businesses and to allow citizens to express their
concerns about the secondary effects of these
businesses. We therefore conclude that the dis-
trict court did not err in finding that ordinance
was designed to combat secondary effects and is
content-neutral. We also note that although sec-
ondary effects were more pointedly considered by
the Town when enacting its 1994 zoning ordi-
nance, the discussions that took place at that
time can certainly be considered to pertain to the
justifications of the 1996 modification of the zone.

B. The Application of the Renton Test

[15] Because the ordinance does not create an
outright ban on adult entertainment and was en-
acted to address the secondary effects of adult en-
tertainment rather than its content, it is a time,
place, and manner restriction. See, e.g., Tollis,
827 F.2d at 1332 (“Like the ordinance involved in
Renton, the ordinance before us is obviously a
time, place, and manner regulation, as it does not
ban adult theaters altogether.”). As the Supreme
Court explained in Renton, the intermediate scru-
tiny test for determining the constitutionality of a
content-neutral time, place, and manner zoning
restriction on adult entertainment is whether the
ordinance is narrowly tailored “to serve a sub-
stantial government interest and allows for rea-

sonable alternative avenues of communication.”
See Renton, 475 U.S. at 50, 106 S.Ct. 925 (citing

20a

Clark v. Community for Creative Non-Violence, 468 —
U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221
(1984)).

1. Narrowly Tailored to Serve a Sub-
stantial Government Interest

[16] We have already determined that Tyngs-
borough considered secondary effects when it
created the B-4 zone. We have also explained that
a municipality’s concern about secondary effects
is a substantial government interest. Finally, to
determine whether the ordinance fully satisfies
the first prong of the Renton test, we must deter-
mine whether Tyngsborough’s ordinance is suffi-
ciently narrowly tailored to meet its interest.

[17] A content-neutral time, place, and manner
restriction is narrowly tailored if it “promotes a
substantial government interest that would be
achieved less effectively absent the regulation.”
Ward, 491 U.S. at 799, 109 S.Ct. 2746 (quoting
United States v. Albertini, 472 U.S. 675, 689, 105
S.Ct. 2897, 86 L.Ed.2d 536 (1985)). In Renton,
the Court held that the ordinance was narrowly
tailored because it “affect[ed] only that category of
theaters shown to produce the unwanted secon-
dary effects.” Renton, 475 U.S. at 52, 106 S.Ct.
925. In the instant case, Tyngsborough’s ordi-
nance, which applies directly to adult entertain-
ment providers, does not reach other forms of en-
tertainment. Further, Tyngsborough’s use of a
zoning mechanism to restrict such an activity
confines the impact of the restriction to govern-

~

2la

ance of the location of such activity and does not
impact other aspects of the activity. Thus, the or-
dinance is sufficiently narrowly tailored to ad-
dress the Town’s substantial interest in combat-
ting the secondary effects of adult entertainment.

2. Reasonable Alternative Avenues of
Communication

Moving to the second prong of the Renton test,
we evaluate whether Tyngsborough’s ordinance
allows reasonable alternative methods of commu-
nication. The essence of this question is not
“whether a degree of curtailment” of speech ex-
ists, but rather “whether the remaining commu-
nicative avenues are adequate.” National Amuse-
ments, 43 F.3d at 745 (holding that the
limitations created by an ordinance were not un-
constitutional because the challenger’s evidence
“does not call into legitimate question the ade-
quacy of the alternate route of communication’).
D.H.L. alleges that the Tyngsborough ordinance
does not provide it with a reasonable opportunity
to open and operate, relying heavily on the fact
that only .09867% of the land within the town’s
borders has been designated as the B-4 zone.
D.H.L. contends that even if the owner of the B-4
lots were willing to sell the land to an adult enter-
tainment establishment, which D.H.L. contends
the owner is not willing to do, such a small per-
centage of land does not constitute a reasonable
opportunity.

22a

D.H.L. misses the mark, however, in emphasiz-
ing this single factor. As the district court recog-
nized, determining whether Tyngsborough’s ordi-
nance provides a reasonable opportunity for adult
business to open and operate requires an evalua-
tion of multiple factors. See, e.g., 3570 East Foot-
hill Blvd., Inc. v. City of Pasadena, 912 F. Supp.
1257, 1265 (C.D.Cal.1995) (“[C]ourts have looked
to a variety of relevant factors, including the per-
centage of land theoretically available to adult
businesses, the number of sites potentially avail-
able in relation to the population of the city, the
number of sites compared with the existing num-
ber of adult businesses, or the number of busi-
nesses desiring to offer adult entertainment.”).
Thus, the fact that Tyngsborough allocated only
10.4 acres of its 10,540 acres to the B-4 zone is
relevant but not dispositive. As the Court of Ap-
peals for the Fifth Circuit has held, “[t]here is no
requirement in Renton . . . or elsewhere that a
specific proportion of a municipality be open for
adult businesses or that a certain number of sites
be available.” Lakeland Lounge v. City of Jackson,
Mississippi, 973 F.2d 1255, 1260 (Sth Cir.1992);
see also North Ave. Novelties, Inc. v. City of Chi-
cago, 88 F.3d 441, 445 (7th Cir.1996) (stating
that “acreage, standing alone, is largely irrele-
vant”).

Because there is no single dispositive evalua-
tive consideration, an analysis should encompass
a variety of factors, including the percentage of
acreage within the zone compared to the acreage
available to commercial enterprises in general. As

i
|
4

23a

the district court noted, “Tyngsborough is a rural
town in which the total acreage in the only com-
mercial district that could properly be identified
as the principal business district occupies very
little of Tyngsborough’s total acreage.”

The number of sites available to adult enter-
tainment businesses is also relevant. See Interna-
tional Eateries of America, Inc. v. Broward County,
Florida, 941 F.2d 1157, 1165 (11th Cir.1991).
Reasonable alternative avenues for communica-
tion have been found to exist when six adult
businesses were operating in a town and more
than six sites existed in the zoned area. See Lake-
land Lounge, 973 F.2d at 1260 (“As a matter of
arithmetic, . . . there are more ‘reasonable’ sites
available than businesses with demands for them

.

In this case, the district court held that all of
the five lots in the B-4 zone were potentially
available, crediting the testimony of Walter Erik-
sen, owner of the land within the B-4 zone, that
although he had delayed placing the lots on the
market in hopes that they would increase in
value, they were now available to any purchaser
for the right price.5 Despite D.H.L.’s protestations

5 We note that we have viewed Eriksen’s expression of
distaste for adult entertainment establishments at the 1994
town meeting. We disagree with D.H.L., however, that this
makes the lots unavailable to it. There is no indication in
the record that Eriksen will attempt to unilaterally repeal
the ordinance by refusing to sell to adult entertainment es-
tablishments, especially in light of the funds that he has
committed to the development of the commercial park and
his willingnéss to sell to any purchaser for the right price.

eT,

24a

that the cost of development would be too high,
Renton instructs that D.H.L.’s protection extends
only so far as to put adult entertainment provid-
ers on an equal footing with other purchasers and
does not require that they be able to obtain sites
“at bargain prices.” See Renton, 475 U.S. at 54,
106 S.Ct. 925 (“That respondents must fend for
themselves in a real estate market, on an equal
footing with other prospective purchasers and
lessees, does not give rise to a First Amendment
violation.”).©

Because we agree that all of the lots in the B-4
zone are potentially available and other relevant
factors do not negate the significance of this
availability, we hold that Tyngsborough ordinance
provides the constitutionally mandated “reason-
able opportunity to open and operate.” We note
that one other establishment, the “Blue Moon,”
has lawfully offered adult entertainment in
Tyngsborough since before the enactment of the
1987 zoning ordinance and thus has a right to
continue operating despite the fact that it is not
located in the B-4 zone. Although the Blue Moon
operates on a grandfather permit, even if it were
to be required to move into the B-4 zone, which it
is not, that would leave five sites for two busi-
nesses.

6 D.H.L. contends that the fact that restrictive covenants
that would have prohibited adult entertainment were con-
sidered by the landowner also indicates that the zoned lots
are not available. As the district court noted, the restrictive
covenants were not imposed, and if they had been, the case
would be entirely different.

25a

Moreover, each of the five lots, as stipulated by
the parties, is suitable for development and has
gas, water, and electrical lines available. The sites
are accessible to the public as they are located in
a commercial park with newly developed road-
ways. Although the parties have not supplied us
with data about the number of businesses that
would like to offer adult entertainment, we have
not been shown that any business except D.H.L.
has been denied an adult entertainment permit
since the enactment of the 1996 zone. For these
reasons, we hold that Tyngsborough’s ordinance
provides D.H.L., and other businesses wishing to
offer adult entertainment, with a reasonable al-
ternative avenue for communicating their consti-
tutionally protected speech.

IV. Certification

On a final note, we address very briefly D.H.L.’s
argument that the district court erred by declin-
ing to certify state law questions to state court
prior to determining the federal constitutional is-
sues. Because we are not convinced that state law
provides an independent and sufficient basis for
deciding the case, we conclude that the district
court did not err by remanding the case to state
court for determination of D.H.L.’s remaining
State law claims after its adjudication of the fed-
eral issues.

In conclusion, because we hold that the consti-
tutionality of the 1987 and 1994 Tyngsborough
zoning ordinances is moot and the existing ordi-

26a

nance is constitutional, the judgment of the dis-
trict court is affirmed.

27a

APPENDIX B
D.H.L. ASSOCIATES, INC., Plaintiff,
Vv.

John O’GORMAN, Robert Wallace, Warren All-
grove, Jr., and Eileen Farrell, Individu-
ally and in their Capacity as the Tyngs-
borough Board of Selectmen, and as the
Licensing Board for the Town of Tyngs-
borough, and the Town of Tyngsborough,
Defendants.

No. CIV. A. 94-12328-REK.

United States District Court,
D. Massachusetts.

May 7, 1998.

Restaurant owner challenged municipal ordi-
nance regulating adult entertainment, seeking
declaratory relief on federal and state constitu-
tional grounds. Defendants, the town and town
officials, rermoved case to federal court. The Dis-
trict Court, Keeton, J., held that: (1) secondary
effects were properly considered when enacting
ordinance; (2) ordinance provided reasonable op-
portunity to open and operate protected adult en-
tertainment, and, therefore, did not violate Fed-
eral Constitution; (3) declaratory judgment was
not warranted; and (4) district court would not

28a

exercise supplemental jurisdiction over state law
claims.

So ordered.

Thomas Lesser, William Newman, Lesser,
Newman, Souweine & Nasser, Northampton, MA,
for D.H.L. Associates, Inc., Plaintiffs.

Joyce F. Frank, Jonathon M. Silverstein, Rich-
ard P. Bowen, Kopelman and Paige, P.C., Boston,
MA, for John O’Gorman, Robert Wallace, Warren
Allgrove, Eileen Farrell, Tyngsborough, the City
of, Tyngsborough Board of Selectmen, Licensing
Board for the Town of Selectmen, Defenaarits.

Opinion
KEETON, District Judge.

A key characteristic of this case is that it in-
volves interests of parties to the case that appli-
cable law recognizes as interests deserving special
protection.

Plaintiffs invoke the law’s special protections
for interests in freedom of expression and asso-
ciation, for which the applicable legal pr~ ctions
exist not only in the First Amendment o. the Con-
stitution and laws of the United States but also in
state law that in some instances provides protec-
tions beyond those arising under the First
Amendment, federal statutes, and federal-law
precedents. Defendants invoke the law’s special

2 eV

29a

protections for interests of a local community and
its citizens in (among other things identified in
later Parts of this Opinion) community and citizen
choices about how, when, and in what circum-
stances and ways children receive education
about human sexuality, sexual orientation, and
explicitly sexual practices in places that are open
to the public.

This opinion begins with a statement of back-
ground facts, mostly undisputed, in Part I. Part II
identifies commercial and economic interests and
issues arising from various ways in which they
may be relevant to the federal-law claims in this
case. Part III begins with a brief statement of
conclusions of law that I have reached with re-
spect to authoritative guidelines for decision in a
case such as this. Immediately following that
brief statement of conclusions is an explanation
of the analysis and reasoning that have led me to
conclusions about the appropriate legal tests to
be applied.

Part IV concerns plaintiffs claim for declaratory
judgment and issues of federalism that bear upon
allocating authority among federal courts, on the
one hand, and state and local institutions and
agencies, on the other hand. These issues may
have to be considered if plaintiffs do not show a
preemptive entitlement to the relief they claim
under the Constitution and laws of the United

States.

30a

The remaining Parts of the Opinion treat other
issues that must be resolved to reach an outcome
in-this case, and other issues that might be deci-
sive should a higher court take a different view of
one or more of the matters I have thought deci-
Sive.

I. Background

The Town of Tyngsborough is located 40 miles
from Boston on the border of New Hampshire.
Tyngsborough’s population is approximately
9,500 people. The Board of Selectmen sets town
policy, and also acts as the town licensing author-
ity with respect to alcoholic beverage (“pouring”)
and entertainment licenses.

In 1987, the Town of Tyngsborough, by Town
Meeting, adopted a B-4 zone that the zoning ordi-
nance declared would allow adult entertainment.
The official zoning map (plaintiffs Exhibit No. 2) in
effect at that time, however, and in effect until
1994, did not contain any parcel zoned B-4. As
John O’Gorman, Chairman of the Board of Se-
lectmen, testified, the 1987 B-4 zone was a
“phantom zone.”

In July, 1992, DHL Associates, Inc. applied for
and the Board of Selectmen issued alcoholic bev-
erage and live entertainment licences for the res-
taurant then-called “Bogie's” located at 350 Mid-
dlesex Road in Tyngsborough. In late January,
1994, DHL advertised the fact that it would be
presenting nude dancing beginning on February

Sla

10, 1994, at the 350 Middlesex Road location.
On February 24, 1994, the Town of Tyngsborough
notified DHL that offering nude dancing was in
violation of its entertainment licence. Asa result,
the Town suspended DHL’s alcoholic beverage li-
cense for a two-day period. Although DHL has
continued to offer nude dancing entertainment,
the Town has not taken any further action
against DHL, according to the testimony of John
O’Gorman, because of this pending litigation.

DHL was not the only establishment that began
offering live nude dancing entertainment in
Tyngsborough in February, 1994. The advertise-
ment of the prospective nude dancing entertain-
ment caused concerned citizens to call their Se-
lectmen. In response, the Selectmen asked the
Town Administrator to research the issue of adult
entertainment, and the Board held an open Town
Meeting on February 14, 1994, to discuss adult
entertainment in Tyngsborough. Seventy-five citi-
zens attended the February 14, 1994 open Town
Meeting.

Also at the February 14, 1994 Town Meeting,
the Selectmen were presented with a Petition for a
Special Town Meeting (plaintiffs Exhibit No. 28)
to consider adopting Mass. Gen. L. ch. 138, § 12B
prohibiting establishments that hold alcoholic
beverage licenses from offering any form of nude
entertainment. The Petition contained the signa-
tures of over 650 registered Tyngsborough voters.
So long as a Petition contains more than 200

32a

such signatures, the Selectmen are obligated to
hold a Special Town Meeting.

Once the Town Administrator verified that the
required number of qualified signatures appeared
on the petition, Articles and a Warrant for.a Town
Meeting were prepared. In this instance, at a
regularly scheduled meeting of the Board of Se-
lectmen on March 7, 1994, the Selectmen signed
the Warrant. At that same March 7, 1994 meet-
ing, DHL applied to amend its entertainment li-
cense in order to offer nude dancing entertain-
ment at the 350 Middlesex Road location then
(and now) called “Matthew’s,” though some of its
patrons still called it “Bogie’s.” The Board of Se-
lectmen delayed acting on the license application.

On March 28, 1994, the Board of Selectmen,
acting as the licensing authority, held a hearing
on DHL’s application to amend its license. The
Selectmen delayed decision rather than voting on
the application that night.

The next evening, March 29, 1994, the Special
Town Meeting was conducted, at which four Arti-
cles relating to adult entertainment were pre-
sented to the voters. One of those Articles con-
cerned re-zoning nine parcels, comprising 27
acres, as the B-4 zone to allow for adult enter-
tainment. Voter opposition to the nine parcel
proposal was apparent. Walter Eriksen, a private
citizen and real estate developer, proposed rezon-
ing the closed town landfill as the B-4 zone. John
O’Gorman moved to amend the Article so that

33a

only two parcels, a 4.41 and a 3.47 acre tract,
would be placed in the B-4 zone. The Town Meet-
ing unanimously adopted the amended Article
and the other three Articles in their original form.

Although the tracts re-zoned B-4 were located
in an industrial zone, the tracts were in close
proximity to residences and to the Notre Dame
School. The 4.41 acre lot, at the time of the re-
zoning, and today, is occupied by a commercial
self-storage business called Dover Storage.

After the Special Town Meeting and after a sec-
ond hearing on DHL’s application to amend its
entertainment license, the Selectmen denied
DHL’s application, and the reason given, albeit
belatedly, was that DHL was not located in the B-
4 zone. In December of each year since, the
Board of Selectmen have granted DHL an enter-
tainment license that.does not allow nude danc-
ing.

On May 21, 1996, the Town of Tyngsborough,
by a Town Meeting, eliminated the 1994 B-4 zone
and established a new, B-4 zone on Cummings
Road. The 1996 B-4 zone was located on prop-
_ erty owned or then under contract for sale to Ap-
plewood Construction, which in turn is owned, by
Walter Eriksen. Applewood Construction is de-
veloping an industrial park that will include five
lots zoned B-4.

In 1994, seeking relief in a judicial forum, DHL
Associates, Inc. filed a case in Middlesex Superior

34a

Court. The original complaint sought declaratory
relief on federal and state constitutional grounds,
as well as damages against the Board of Select-
men. The defendants in the case removed the
case to this court (Docket No. 1, filed November
22, 1994). Asa result of the decision in Bogan v.
Scott-Harris, __ U.S. __, 118 S.Ct. 966, ___
L.Ed.2d___— (1998), plaintiff's claims, with respect
to the legislative activities of the Board of Select-
men became unsupportable. Plaintiff's remaining
claims, founded on constitutional grounds, were
tried before this court in a non-jury trial on April

29, 1998 through May 1, 1998.

II. Commercial and Economic Interests and
Their Relevance

The plaintiff is a for-profit corporation that has
operated a restaurant at 350 Middlesex Road in
Tyngsborough under one name or another from
about 1992 to the present. Through most of the
years it has had a “pouring” license and an enter-
tainment license. DHL’s permits do not authorize
adult entertainment at 350 Middlesex Road, but
in fact the Town has not attempted to stop DHL’s
offering adult entertainment at that site in disre-
gard of licensing and zoning requirements. In
addition, other entities in Tyngsborough are pro-
viding adult entertainment, either with formal au-
thorization or in violation of the licencing terms
that the Town has not attempted to enforce while
this case has been pending.

35a

Because of plaintiff's commercial interest, if a
distinction between commercial and noncommer-
cial expression made a difference in outcome, this
case should be treated as one involving a mix of
municipal impediments to commercial speech, on
one hand, and restraints on the interests of plain-
tiff and others in non-commercial expression and
freedom of association, on the other hand.

Ordinarily a need exists for invoking the dis-
tinction between commercial and non-commercial
expression only if the claims at issue would merit
relief under the legal tests applicable to non-
commercial expression. If claims would not merit
relief under those legal tests, a determination that
in some respects the claims were for protection of
commercial rather than non-commercial forms. of
expression and association would weaken rather
than strengthen the arguments for relief. In the
circumstances of this case, however, commercial
aspects may be significant in ways other than
their bearing on protection for commercial
speech. Comparisons among total economic con-
sequences flowing from alternative proposals for
accommodating clashing specially-valued, inter-
ests, as well as comparisons between economic
impacts on the plaintiff and economic impacts on
the community, may be factors to be considered
in applying a totality-of-the-circumstances legal
test (or a multifactor test short of a totality-of-the-
circumstances test) for determining whether a
federal-law claim for injunction or declaratory re-
lief is meritorious.

36a

III. Authoritative Guidelines for Decision

A. Summary of Conclusions About Guide-
lines

When specially-valued interests are present on
only one side of a case in court, the law ordinarily
treats an asserted need for protection of those
specially-valued interests, if supported by proof,
as outweighing opposing interests that the law
does not recognize as specially-valued. If, how-
ever, an asserted need for protection of opposing
specially-valued interests is also supported by
proof, then neither set of interests can be treated
as entirely outweighing the other except by mak-
ing a decision that disregards or denies protection
for some interests that the law ordinarily recog-
nizes as specially-valued.

[1] After full consideration of all the sources of
authoritative guidance for decision of which this
court is aware, including all the state and federal
constitutional, statutory, and decisional sources
cited by the parties in their submissions to the
court in this case, I conclude that in a case in
which evidence supports assertions of specially-
valued interests on both of the opposing sides, a
court must aim for a resolution of the controversy
that accommodates the clashing interests in an
equitable and just way, if it is feasible to do so,
rather than holding that one set of interests is
more highly valued than the other and requires
that the other set be sacrificed under a legally-

37a

imposed bright-line rule of priority among spe-
cially-valued interests.

[2] A method of decision compatible with this
aim is a two-part, factors-weighing method under
which the court (1) considers, as a question to be
answered, whether each among plausible alterna-
tive outcomes is a fair and appropriate resolution
within the limits defined by law, and (2) consid-
ers, as factors to be weighed and evaluated, bear-
ing upon the answer to that question, each asser-
tion about one or the other of the clashing sets of
interests that is supported by evidence and might
plausibly be asserted to weigh significantly more
favorably to the set of specially-valued interests
on one side than to the set of specially-valued in-
terests on the other side.

peer Ftv Sion Oe nel i ADM Gey BP ED AOAB I TB SOC.

B. The Renton Standard and Application
I. Introduction

[3] Under Renton v. Playtime Theatres, Inc.,
when a court is considering a constitutional chal-
lenge to a municipal zoning ordinance regulating
adult entertainment, the appropriate inquiry is
“whether the . . . ordinance is designed to serve a
substantial governmental interest and allows for
reasonable alternative avenues of communica-
tion.” 475 U.S, 41, 50, 106 S.Ct. 925, 89 L.Ed.2d
29 (1986). This statement of the ultimate ques-
tion to be answered is in its nature one that re-
quires the deciding authority, whoever that may
be (e.g., municipal or agency official, or jury or

38a

judge, or some combination of these), to apply a
standard of judgment rather than a set of bright-
line rules. What are the “factors” to be considered
in applying that standard? Is the standard a to-
tality-of-the-circumstances test or something very
close to it?

2. Secondary Effects

[4] The community concern about “secondary
effects,” as that concept applies in this case, is
not concern about the dissemination of offensive
expression itself, but rather concern about dete-
rioration of an area within the town, as evaluated
from a community perspective that takes into ac-
count adult businesses in the area, and the like-
lihood of an increase in crime and other negative
effects associated with the deterioration. See
Young v. Amencan Mini Theatres, 427 U.S. 50, 71,
n. 34, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). The
town of Renton enacted the challenged zoning
ordinance to prevent the secondary effects caused
by adult theaters. Renton, 475 U.S. at 43, 106
S.Ct. 925. The Court of Appeals for the Ninth
Circuit found the Renton ordinance unconstitu-
tional because Renton had enacted the ordinance
without the benefit of studies of secondary effects
relating to the town of Renton itself. Instead, the
town had relied on studies produced by and for
the city of Seattle. See id. The Supreme Court
held that Renton could rely on studies of other
cities, noting that reliance on studies of other cit-
ies is permissible “so long as whatever evidence
the city relies upon is reasonably believed to be

39a

relevant to the problem that city addresses.” Jd. at
91-52, 106 S.Ct. 925.

[5] Plaintiff DHL argues, persuasively, that as
applied to the present case, Renton means that
the legislative body of Tyngsborough must do
more to justify their zoning ordinance than say
“we are scared of secondary effects.” The record
must show some reasoned basis for evaluation of
potential secondary effects as sufficiently likely to
occur and to involve significant consequences for
community welfare to justify the challenged zon-
ing ordinance. In this case, however, plaintiff's
contention fails at the next step because that con-
tention, as framed by plaintiff in its argument, is
that the showing of the reasoned evaluation must
appear in the minutes of the Town Meeting or in a
transcript or other record of the Town Meeting at
which the challenged legislative action was taken.

[6] In this case, as a finder of fact, I find that
the reasoned basis for the legislative decision was
persuasively shown by the evidence at trial. I find
credible and probative the testimony of John
O'Gorman regarding his direction to Town Admin-
istrator and Special Town Counsel almost six
weeks in advance of the legislative action, to
gather as much information as could 'be obtained
about how other cities and towns, large and
small, were addressing issues regarding making
some provision within the town for legally pro-
tected adult entertainment while also dealing ef-
fectively with secondary effects on Police and fire
resources, public safety, and compliance with

ae

40a

building and licensing requirements. Also, Mr.
O’Gorman’s testimony was supplemented and
corroborated by evidence received at trial regard-
ing the Article prepared for Special Town Meeting
upon which the Selectmen voted on March 29,
1994, evidence of the public discussion occurring
in advance of the meeting, and a stipulation and
testimony about the greater demands on police
from calls to or near places of adult entertain-
ment requiring police response, than from other
areas of the community in general. In summary,
the evidence in this case was distinctly contrary
to plaintiffs argumentative characterization of be-
ing nothing more than citizens and legislative offi-
cials saying “we are scared of secondary effects.”

3. Reasonable Opportunity to Open and
Operate

[7] The reviewing authority (an agency or a
court) must examine the legislative process to see
if the legislative body properly considered secon-
dary effects, and then must examine the ordi-
nance to see if it provides reasonable opportunity
to open and operate, protected adult entertain-
ment. See Renton, 475 U.S. at 50, 106 S.Ct. 925.
Although the 1987 and 1994 B-4 zones likely did
not provide reasonable opportunity within identi-
fied zones, those ordinances have been super-
seded and their flaws and vulnerabilities are not
the basis for injunctive or even declaratory relief
with respect to the future. The 1996 zoning ordi-
nance is the one in effect since its enactment.
Thus, the constitutionality of the 1987 “phantom

4la

zone” and constitutionality of the 1994 single-
available-lot-zone are not within the scope of a
live controversy now before the court about
whether the 1996 ordinance meets the required
standard.

[8] Renton requires only an inquiry into
whether a site is potentially available as con-
trasted with “actually” available. See Renton, 475
U.S. at 53, 106 S.Ct. 925. The court must con-
sider “whether relocation sites provided to a busi-
ness may be considered part of an actual busi-
ness real estate market,” and then “after
excluding those sites that may not properly be
considered to be part of the relevant real estate
market, [whether] there are an adequate number
of potential relocation sites for already existing.
businesses.” Topanga Press, Inc. v. Los Angeles,
989 F.2d 1524, 1529 (9th Cir.1993), cert. denied,
911 U.S. 1030, 114 S.Ct. 1537, 128 L.Ed.2d 190,
(1994). This is not to say that the Constitution
requires communities to make some minimum
percentage of land available for the operation of
adult businesses. See North Ave. Novelties, Inc. v.
Chicago, 88 F.3d 441, 445 (7th Cir.1996), cert.
denied, ___ U.S. __, 117 S.Ct. 684, 136 L.Ed.2d
609 (1997).

[9] The Court of Appeals for the Ninth Circuit
set out a series of factors it considered in evaluat-
ing the reasonableness of the opportunity to relo-
cate existing businesses in light of zoning
changes:

42a

(1) First, although Renton stresses that the
First Amendment only requires a relocation site to
be potentially available rather than actually avail-
able, the requirement of potentiality connotes
genuine possibility . . . we need determine only
that property is not “potentially” available when it
is unreasonable to believe that it would ever be-
come available to any commercial enterprise. (2)
Second, . . . relocation sites which are within
manufacturing or industrial zones that are rea-
sonably accessible to the general public may also
be part of the market. (3) Third, areas in manu-
facturing zones which have proper infrastructure
may be included in the market. (4) Fourth, when
a relocation site suits some generic commercial
enterprise, although not every particular enter-
prise, it too may be said to be part of the real es-
tate market ... . (5) Fifth, and most obvious,
those relocation sites which are commercially
zoned are part of the market. Topanga Press, 989
F.2d at 1531. Tyngsborough’s 10.4 acre B-4 zone
qualifies under Topanga Press in that the five Ap-
plewood parcels are potentially available, are ac-
cessible to the public, have proper infrastructure
(or at least the possibility of proper infrastruc-
ture), suit some generic commercial enterprise,
and are zoned as part of the market.

Availability of these five parcels, however, is not
the only touchstone. The decisionmaker must
also decide whether or not the five parcels offer
enough to be reasonable, especially in light of Mr.
Eriksen’s testimony that the sites have not yet
been available for sale, and in light of his vocal

43a

opposition to adult entertainment in Tyngsbor-
ough.

[10] Regardless of whether or not the private
property owner’s personal stance on the issue is
relevant, the amount of land offered is without
question relevant, although not alone dispositive.
Many courts have considered the percentage of
the community’s total land that is available for
adult entertainment in the analysis of what
amount of land was reasonable. See, e.g., Alex-
ander v. Minneapolis, 928 F.2d 278, 283 (8th Cir.
1991) (finding the 13.5% of commercially zoned
land in the city to be adequate); Walnut Proper-
ties, Inc. v. Whittier, 861 F.2d 1102, 1109 (9th
Cir.1988), cert denied, 490 U.S. 1006, 109 S.Ct.
1641, 104 L.Ed.2d 157 (1989) (finding only a frac-
tion of the appropriately zoned 99.5 acres was po-
tentially available in light of 1,000 foot distance
restriction and that it could hardly be compared
to the 520 acres upheld in Renton); Tri.-State
Video Corp. v. Stephentown, 1998 WL 72331 at *8
(N.D.N.Y.1998) (finding 17% vacancy of 67%
properly zoned land to be adequate); Centerfold
Club, Inc. v. St. Petersburg, 969 F.Supp. 1288,
1303 (M.D.Fla.1997) (finding the availability of
6.3% of the city’s acreage to be adequate); 3570
East Foothill Blud., Inc. v. Pasadena, 912 F.Supp.
1257,1265 (C.D.Cal.1995), aff'd, 99 F.3d 1147,
(finding that where only one adult business ex-
isted, an ordinance that allowed for the opening of
eleven more adult businesses provided reasonable
Opportunity); Janra Enters. v. Reno, 818 F.Supp.
1361, 1364 (D.Nev.1993) (finding three parcels

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44a

insufficient); Schneider v. City of Ramsey, 800
F.Supp. 815, 820 (D.Minn.1992), aff'd, 12 F.3d
140 (8th Cir.1993) (finding 2.5% of a rural com-
munity sufficient showing of reasonable opportu-
nity); International Eateries of Am., Inc. v. Broward
County, 726 F.Supp. 1556, 1567 (S.D.Fla.1987)
(finding .03% of county land available to be in-
adequate).

Here, Tyngsborough has made 10.4 of its
10,540 acres (.09867%, or less than one-tenth of
one percent of the land) in the town “available.”
This, however, is not the end of the inquiry to be
made under the multi-factor test that this court
(or some other decisionmaker) must apply to de-
cide whether Tyngsborough has failed to provide a
reasonable opportunity for adult entertainment
businesses to open and operate. The question in-
troduced in Part II of this opinion must be ‘exam-
ined more closely. The comparison between the
number of total acres of land in Tyngsborough
and the acres declared to be “available” for adult
entertainment businesses is only one factor of the
applicable multi-factor legal test. Tyngsborough
is a rural town in which the total acreage in the
only commercial district that could properly be
identified as the principal business district occu-
pies very little of Tyngsborough’s total acreage.
This much is clear from the record, even though
no party proffered evidence as to the precise acre-
age occupied by businesses in Tyngsborough.
Most of the precedents cited by plaintiff involve
regulation of adult entertainment establishments
in urban cities. A mere acreage comparison may

eV" O

SS Sa

45a

be appropriate in a city in which most of the land
area is developed, but in a rural community,
where most of the land is undeveloped open
space, a mere acreage comparison is not an ade-
quate basis for determining the reasonableness of
what the town has made available.

Regional availability may also be relevant where
a single town is both rural and small. Again,
however, the record in this trial does not include
evidence that would enable the court to make
findings of regional availability with precision.

[11] Plaintiff also argues that the five parcels
zoned B-4 are not potentially or actually available
because all five sites are owned by a single indi-
vidual, who is on the record at Town Meetings vo-
cally opposing any zoning to permit adult enter-
tainment. Plaintiff also

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0768%3A1. Public record. Not legal advice.