Variances allowing nonconforming uses should be unusual because they are individual waivers of local legislation. The city's appeal thus requires us to decide whether the ordinance is constitutional under art.
ndue The city and licensing board appeal from the legal conclusion underlying the award that Mendoza was the "prevailing party. As a professional wedding photographer for thirteen years, I have witnessed hundreds of magical weddings.
In response, the city advances studies analyzing the harmful secondary effects of adult entertainment to support the trial judge's finding that nude dancing constitutes a new use not within the scope of the variance. See Warren v.
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We thus review the judge's legal analysis de novo, with the recognition that this case does not involve any party's specific challenge or defense of the variance itself. This leaves the judge's ruling on the scope of the variance in a peculiar posture, as the judge next invalidated the city's adult entertainment overlay district and special permit process.
In the context of woemn variances, we are confident that property owners will be able to defend zoning enforcement actions against them so long as they confine their uses to the variances' terms. In addition, the city's attorney submitted to the licensing board summaries of studies that analyzed the secondary effects of adult entertainment on certain cities.
The variance decision, recorded at the registry of deeds, provides, in relevant part: "In the matter of the petition of Cathleen Viveiros for permission to operate a restaurant, lounge, bar, function facility, theater, hall or other place of amusement, entertainment or assembly fal use and dimensional requirements in an Industrial Park District [IP].
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Neither party disputes, however, that art. For a content-neutral restriction of expressive conduct to pass constitutional muster, it must 1 "further an important or substantial governmental interest. It's just to continue the existing use to satisfy the powers that be as far as use of the land is concerned.
The city's zoning ordinance authorizes such use variances. The indecency ordinance includes a statement of legislative purpose: "It is the purpose and intent of this section to address and mitigate the deleterious secondary effects of public nudity, since such secondary effects have been found as a result of numerous studies, and after other public input, to include increased crime, adverse impacts on public health, adverse impacts on the business climate of the city, adverse impacts on the property values of residential and commercial properties, and adverse impacts on the quality of life in the city, all of which secondary impacts are adverse to the health, safety, and general welfare of the city and its inhabitants.
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Several days before the licensing board issued its written denial, the city enacted a public indecency ordinance, which, inter alia, banned public nudity in Fall River. Scope of Mendoza's variance. For these reasons, the judgments of the Superior Court are affirmed. Motions for partial summary judgment were heard by John A.
Infollowing the closure of the airport in the Fall River Industrial Park, counsel representing the owner of Oliver's, Cathleen Viveiros, appeared before the board of appeals and obtained a zoning variance for the property. Public Entertainment. Zoning Bd. In its appeal from this judgment, the city challenges each of the judge's three grounds for invalidating the ordinance, urging us to adopt the controlling First Amendment analysis of the ordinance under Erie for the purposes of art.
Second, the "plaintiff must obtain an enforceable judgment against the defendant from whom fees are sought.
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That the evidence marshaled by the city in support of its stated rationale to combat "secondary effects" of the proscribed conduct singles out establishments like Mendoza's and not other forms of public nudity seems a strong indicator that the ordinance is directed at the form of nudity common in adult entertainment. It has truly been my passion and dream come true to work side-by-side with my gorgeous brides and their families during one of the most memorable moments of their lives.
Although the Supreme Court has said that nude dancing is "expressive conduct within the outer perimeters of the First Amendment, though. Danvers, supra at SinceOliver's has operated as a restaurant and bar at its present location, adjacent to an airport in the Fall River Industrial Park. Declaring the ordinance unconstitutional, the judge found that 1 the ordinance was a content-based restriction on speech that was not precisely drawn to serve a compelling State interest; 2 even if the ordinance were content neutral, it would nevertheless be unconstitutional because it was not narrowly tailored to serve a ificant government interest and failed to provide ample alternative channels of communication; and 3 the ordinance was unconstitutionally overbroad in that it punished expressive conduct with no connection to the alleged secondary effects of public nudity.
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Playtime Theatres, Inc. Womrn of Boston, Mass. We turn first to the level of scrutiny to be applied. See Texas State Teachers Ass'n v. Attorney's fees and costs under 42 U.
As the judge held, the judgments provide Mendoza substantive rights to prevent the city's enforcement of its invalidated ordinances against Oliver's. Helgemoe, F. Wunsch, James L.
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Another bus was brought in to take the students to school. Members of the general public also addressed the licensing board, opposing Mendoza's application. The new district again did not include any part of the Fall River Industrial Park.