LAWRENCE E. RAVECH, and SONIA E. RAVECH, as they are TRUSTEES of the MICHAEL BRIAN REALTY TRUST, and BEN-JES Co., INC. v. THE TOWN of HANOVER

In this case, the plaintiffs Lawrence E. Ravech (“Ravech”) and Sonia E. Ravech, as Trustees of the Michael Brian Realty Trust (“Trustees”) and Ben-Jes Co., Inc.. (collectively, “Plaintiffs”), filed a complaint seeking a declaration that provisions of certain zoning bylaws of the defendant Town of Hanover (“Hanover” or “Town”) relating to adult uses in the Town are invalid under the United States Constitution and the Massachusetts Constitution. After trial, on all the evidence, I concur with plaintiffs’ position and decide that the challenged bylaw provisions suffer from constitutional invalidity.

PROCEDURAL HISTORY

On November 21, 2001, Plaintiffs commenced this action by filing a complaint (first complaint) against Hanover, challenging aspects of the Zoning Bylaw of Hanover then in place (“2001 Bylaw”). The first complaint was not verified. Plaintiffs own contiguous parcels of land on Washington Street in Hanover (the locus) within a Commercial District established by the Zoning Bylaw for the town of Hanover. Plaintiff Trustees own the parcel at 778 Washington Street, and Plaintiff Ben-Jes Co., Inc. owns the parcel at 788 Washington Street. Plaintiff Route 53 Video Corporation is a Massachusetts corporation which is the operating entity for the business on those properties. According to their initially-filed complaint, Plaintiffs intend to use the locus for the sales of books, videos, movies, and other matter and for the showing of videos, films, movies or other material in video booths. Plaintiffs admit that “[s]ome or all of the books, videos, and other matter which will or may be sold or shown on [locus] . . . would or may constitute an ‘Adult Use’ . . . .”

The first complaint contained three counts. Count I sought a declaration pursuant to G.L. c. 240, §14A that Section 6.230 B of the bylaw, which regulates the use of land or structures for an Adult Use, is invalid. Count II sought an identical declaration under G. L. c. 231A. In Count III, Plaintiffs alleged violations of their rights under the United States Constitution and Massachusetts Constitution and sought redress pursuant to G. L. c. 12, §§ 11H and 11I.

As additional relief, the complaint requested a preliminary injunction which would enjoin Hanover from applying or enforcing Section 6.230 (B) as to locus. Following oral argument on November 30, 2001, this court (Lombardi, J.) issued an Order Granting Preliminary Injunction on December 10, 2001 (2001 injunction), enjoining the Town from enforcing Section 6.230 B. As part of the 2001 injunction, this court ordered, “Hanover may continue to enforce all provisions of this bylaw not enjoined by this order.”

On May 6, 2002, the Town adopted a new Adult Use Bylaw (“2002 Bylaw”).

On August 28, 2002, the parties appeared and argued Plaintiffs’ Motion to Enforce and/or Enlarge December 10, 2001 Order Granting Preliminary Injunction (modification motion). By order issued on August 30, 2002, this court denied the modification (August 2002 order).

On September 25, 2002, Plaintiffs filed a Motion for Preliminary Injunction Under Prayer 2a of Complaint (2002 injunction motion). In addition, Plaintiffs submitted their Supplemental Memorandum in Support of Motion for Preliminary Injunction Under Prayer 2a of Complaint. On October 2, 2002, Hanover filed a memorandum in opposition to the injunction motion and an affidavit of its town planner, Patrick J. Donovan, dated October 2, 2002. The parties appeared and argued the injunction motion on October 3, 2002. By agreement, the parties submitted a transcript of the preliminary injunction hearing held on November 30, 2001. Following oral argument, this court took the injunction motion under advisement. On October 9, 2002, the court denied the injunction motion.

On October 3, 2002, Plaintiffs filed an Amended and Supplemental Complaint, challenging the right of the Town to apply the 2002 bylaw provision to them, and challenging the validity of the 2002 bylaw.

On June 30, 2008, the parties filed a joint pretrial memorandum with the court (Piper, J.). The parties appeared for a pre-trial conference on July 7, 2008. At the pre-trial conference, the parties agreed that the court first should try the questions whether the restrictions legislatively embodied by th Town in the 2001 and 2002 bylaws were invalid, and defer trying the issue whether the Town could apply the 2002 bylaw to the Plaintiffs. The parties filed a Further Joint Pretrial Memorandum on October 16, 2008 with respect to those two questions. On November 6, 2008, the parties filed a Stipulation of the Parties and a Further Stipulation of Facts. The Parties tried the case before me on November 6 and 7, 2008. Court reporter Karen Smith was sworn to transcribe the testimony The parties introduced 34 exhibits into evidence, and those exhibits are incorporated into this decision for the purposes of any appeal. Four witnesses testified at trial--called by the Plaintiffs: Arthur Borden, John J. Monahan, and Lawrence E. Ravech; called by the Town: Andrew Port. No view of the locus was requested by the parties, or taken by the court. On January 20, 2009, the parties, by their counsel, filed Posttrial Briefs and Proposed Findings of Facts and Rulings of Law. On February 20, 2009, closing arguments were heard. The court reporter, previously sworn, continued to transcribe the testimony and proceedings, and filed the final transcript on March 10, 2009.

BACKGROUND

On all the testimony, exhibits, stipulations, and other evidence properly introduced at trial or otherwise before me, and the reasonable inferences I draw therefrom, and taking into account the pleadings, and the memoranda and the arguments of the parties, I find the following facts and rule as follows:

The Plaintiffs

The Plaintiffs own contiguous parcels of land as 778 and 788 Washington Street, in the Town of Hanover. Plaintiffs desire to use the locus for the sales of books, videos, movies, and other matter and for the showing of videos, films, movies or other material in video booths. Some or all the material that would be available would constitute an adult use under the definitions included in the 2001 and 2002 Bylaws. At no time under the 2001 or 2002 Bylaws was the Plaintiff’s property a site on which adult uses such as these were permitted to be located.

The Town of Hanover

The Town of Hanover has a land area of approximately 9,985 acres and a population of about 14,000 individuals. Approximately eighty-seven percent of the land area in the Town is devoted to residential use. Approximately thirteen percent (or 1,298 acres) is available for nonresidential uses. The Zoning Bylaws of the Town have regulated adult uses in various forms since 1983. At no time has a permitted adult use been located in the Town.

The 2001 Bylaw

At the May 2001 Annual Town Meeting, amendments to the existing zoning bylaw were adopted. The voters readopted Section 6.230 (B), which contained the adult use provisions, while eliminating a signage requirement from that section. The 2001 Bylaw restricts adult uses to locations inside the Commercial District. In addition, under the 2001 version of the zoning laws of the Town, adult uses may not locate within 800 feet of the Residence A district or within 1,000 feet of any other adult use or any establishment licensed under G. L. c. 138, §12 (for an alcoholic beverages “pouring” license). A special permit and site plan approval are required before an adult use can commence operation.

The minutes for Town Meeting suggests the bylaw was readopted in 2001 “for the specific purpose of protecting the Town from the adverse secondary effects of adult uses.” It is unclear whether that purpose ever was conveyed to the voters at Town Meeting at the time they acted. The evidence suggests that the planning board, which had the statutory duty of studying and holding a hearing concerning the proposed 2001 amendment to the bylaw before its presentation to the Town Meeting, did not consider any studies about such secondary effects before recommending the readoption to voters.

The 2002 Bylaw

In 2002, the town planner and the planning board proposed revisions to the adult use provisions of the 2001 Bylaw, with the explicit intention of regulating negative secondary effects associated with adult businesses. The planning board’s file on the revision includes studies from four different cities evaluating such secondary effects. The amendments to the bylaw were adopted at Town Meeting in May 2002.

The revised Section 6.100 of the 2002 Bylaw explicitly states the purpose and intent of the section: [T]o address and mitigate the secondary effects of the Adult Uses referenced herein, which include but are not limited to increased crime, adverse impacts on public health, safety and welfare, decreased property values and neighborhood blight, all of which have been relied upon in considering the enactment of this Section of the Zoning By-law.

The section also explicitly denies any intention to restrict access to material protected by the Constitutions of the United States and of the Commonwealth of Massachusetts.

The 2002 Bylaw restricts adult uses to locations inside the overlay district. Under the bylaw, adult uses are still subject to the dimensional requirements of the underlying zoning districts. Adult uses may not locate within 800 feet of another adult use or within 300 feet of the Residence A district. An Adult Use Special Permit and site plan approval are required before an adult use can commence operation.

DISCUSSION

The issues I must decide today confront me in the context of two separate versions of the challenged zoning laws enacted by the voters in the Town. First, I consider whether the Hanover Zoning Bylaw in effect at the time that Plaintiffs filed their original complaint in November 2001 (2001 Bylaw) is void and invalid under state and federal law insofar as the 2001 Bylaw purports to limit and to regulate the location of Plaintiffs’ retail sales business as a so-called “adult use.” Second, I must resolve whether the Hanover Zoning Bylaw in effect in 2002 (2002 Bylaw) is void and invalid under state and federal law insofar as the later amended bylaw purports to limit and to regulate the location of Plaintiffs’ retail sales business as a so-called “adult use.”

Standard of Review

When a zoning bylaw is challenged as invalid under the First Amendment to the United States Constitution, the threshold question is what level of scrutiny should apply. See National Amusements, Inc. v. Dedham, 43 F.3d 731, 737 (1st Cir. 1995); T & D Video, Inc. v. Revere (T & D Video I), 423 Mass. 577 , 580 (1996). [Note 1] As the First Circuit explained in National Amusements, that inquiry turns upon the relationship between the content and the regulation. Nat’l Amusements, 43 F.3d at 737. If the bylaw is content-based, the courts apply a standard of strict scrutiny. Id. at 736. If the bylaw is content-neutral, the courts employ a standard of intermediate scrutiny. Id. The language of the enactment does not necessarily control on this point. The determination of the relationship between regulation and content is not merely a matter of the presence or absence of reference to content in the bylaw under scrutiny. Id. at 737. As the First Circuit explained, the municipality “need not steer away from content at all costs, or else risk strict scrutiny.” Id. A regulation that serves a purpose unrelated to the content of the expression is deemed neutral, despite the incidental effect it may have on speakers or messages. Id.

In the context of bylaws which restrict expressions of adult content, those bylaws which can be classified as restrictions on the time, place and manner of expression frequently are deemed content-neutral and subject to intermediate scrutiny. See Renton v. Playtime Theatres, Inc., 475 U.S. 41, 49 (1986) (noting that while the government has a “paramount obligation of neutrality” when regulating protected content, uses still may be treated differently based upon the effects their content produces upon their surroundings). If the bylaw effects a time, place or manner restriction, it is presumed to be content-neutral and directed at secondary effects. See D.H.L. Assoc., Inc. v. O’Gorman, 199 F.3d 50, 58-59 (1999) (contrasting a time, place or manner restriction with an outright ban, which would be content-based and subject to strict scrutiny). See also T & D Video, Inc. v. Revere (T & D Video II), 66 Mass. App. Ct. 461 , 469-70 (2006) (upholding the trial judge’s decision to proceed on the assumption that a time, place, or manner restriction is content-neutral).

The intermediate scrutiny standard requires the bylaw to be tailored narrowly to serve a substantial governmental interest. In the context of adult uses, courts undertake a two-part inquiry. First, the court must evaluate the substantial government interest served by the bylaw. See D.H.L. Assoc., Inc. v. O’Gorman, 199 F.3d 50, 59 (1999). Inhibiting the protected expression itself does not qualify as a substantial government interest, but minimizing the secondary effects associated with the protected expression does qualify as a legitimate government interest. See O’Gorman, 199 F.3d at 57. Second, the bylaw must leave open reasonable alternative avenues of communication for the adult expression. See Renton, 475 U.S. at 50.

When evaluating the validity of adult use zoning bylaws, Massachusetts courts have utilized an identical analysis, whether the bylaw is challenged under the First Amendment or the parallel free speech protections contained in Massachusetts Article 16. See D.H.L. Assoc., Inc. v. Board of Selectman of Tyngsborough, 64 Mass. App. Ct. 254 , 256-257 (2005); T & D Video I, 423 Mass. at 580-82.

At the outset I note that that Hanover bears the burdens of production and persuasion with regard to justifying the challenged bylaws. This burden rests on the party seeking to restrict free speech. See A.F.M., Ltd. v. Medford, 428 Mass. 1020 , 1021 & n.3 (1999) (rescript) (“[I]t is the city, not the plaintiff, that is required to show that the ordinance is valid . . .”); Lim v. Long Beach, 217 F.3d 1050, 1054 (9th Cir. 2000) (“[I]t is clear that the burden of proving alternative avenues of communication rests on Long Beach.”).

The 2001 Bylaw

The 2001 Bylaw serves to restrict the locations in which adult uses may operate in the town of Hanover. Because the 2001 Bylaw restricts the “time, place, and manner” of adult expression, the appropriate standard of review is that of intermediate scrutiny. To withstand the constitutional challenge, the bylaw must be tailored narrowly to serve a substantial government interest.

Substantial Government Interest in Curbing Secondary Effects

The Town argues that combating the secondary effects associated with adult uses is a substantial government interest and that the 2001 Bylaw is designed for that very purpose. To support this legislative intent the Town points to the journals from Town Meeting which suggest voters at Town Meeting were asked to readopt the existing bylaw, with a slight modification, “for the specific purpose of protecting the Town from the adverse secondary effects of adult uses.” Plaintiffs allege that the zoning article given to voters contained no reference to the reason for the readoption of the bylaw, and the evidence supports this. Plaintiffs correctly note that in the evidence the Town can point to no studies that were presented to either the planning board or the Town Meeting which describe the secondary effects associated with adult uses. Nor did the Town have any institutional experience with adult uses, as none had existed in the Town prior to that time.

On the topic of what pre-enactment evidence is required before a municipality may adopt this type of bylaw or ordinance, the Supreme Court of the United States has stated, “The First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent 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.” Renton, 475 U.S. at 51-52. The implication of this holding is that the municipality must have relied upon some evidence if it is to demonstrate the proper legislative intent. See Peek-A-Boo Lounge of Bradenton, Inc., v. Manatee County, Fla., 337 F. 3d 1251, 1268 (11th Cir. 2003). See also O’Gorman, 199 F.3d at 57-58 (evaluating pre-enactment evidence before municipality to determine compliance with Renton standard). In T & D Video I, 423 Mass. 577 (1996), the Supreme Judicial Court affirmed an injunction prohibiting enforcement of a municipal bylaw in part due to a lack of pre-enactment evidence before the municipality. Id.. at 581: “The legislative record is barren.”

I find and rule that the Town has failed to carry its burden of persuading the court that the 2001 Bylaw was adopted for the purpose of combating secondary effects associated with adult uses. Unlike the town of Tyngsborough, which exerted significant effort gathering information about how other localities addressed adult entertainment and secondary effects, Hanover did not gather any information whatsoever about adult uses and associated secondary effects. See O’Gorman, 199 F.3d at 58 & n.4. Unlike the town of Dedham, which had substantial experience dealing with the secondary effects of adult uses, the Town of Hanover never at any time has had an adult use within its borders. See Nat’l Amusements, 43 F.3d at 741-42. The Town has not demonstrated that the 2001 Bylaw is narrowly tailored to serve a substantial government interest. Having found that the 2001 Bylaw is constitutionally infirm in this respect, I do not reach the merits of the parties’ additional claims about the validity of the bylaw.

2002 Bylaw

I also must decide whether the 2002 Bylaw is valid under state and federal law. The 2002 Bylaw, though different in many respects from the 2001 Bylaw, still operates primarily to restrict the locations in which adult uses may operate in the town of Hanover. As such, it is properly classified as a “time, place, and manner” restriction and reviewed under the standard of intermediate scrutiny. As with the 2001 Bylaw, the Town is required to prove the bylaw is narrowly tailored to serve a substantial government interest.

Substantial Government Interest in Curbing Secondary Effects

The Town points to multiple sources to demonstrate that the requisite legislative intent existed when the 2002 Bylaw came into being. The planning board drafted the 2002 Bylaw and recommended it to Town Meeting for approval. Planning board files for the 2002 Bylaw include four studies from cities across the country evaluating the secondary effects associated with adult uses. The intent to combat those secondary effects is referenced in four legal notices published in local newspapers announcing the two hearings held by the Board on the proposed bylaw. The intent also is referenced in the planning board’s Report with Recommendation to the Town Meeting. The 2002 Bylaw itself, in Section 6.1.00, specifically states that “[i]t is the purpose and intent of this Section of the Zoning By-law to address and mitigate the secondary effects of the Adult Uses referenced herein.” The text of the bylaw specifies a number of secondary effects and states they have been relied upon in considering the adoption of the bylaw.

Plaintiffs argue that the adult use studies found in the planning board’s files were not presented to the voters at town meeting, nor did the Town conduct any of its own studies. They allege that the Town could not have relied on these studies when creating the 2002 Bylaw, because the modifications made to the existing bylaw were inconsistent with the suggestions contained in these studies.

I find on the evidence, however, that the Town carried its burden of persuasion in demonstrating that the legislative intent behind the 2002 Bylaw was to combat secondary effects associated with adult uses. As the Eleventh Circuit noted in Peek-A-Boo Lounge of Bradenton, Inc., v. Manatee County, Fla., 337 F. 3d 1251 (11th Cir. 2003), “[The] evidentiary burden for the passage of a secondary effects zoning ordinance is not a rigorous one and the Supreme Court has made plain its intention to give municipalities wide latitude to design and implement solutions to problems caused by adult entertainment . . . .” Peek-A-Boo, 337 F. 3d at 1268. The court must be careful not to substitute its own judgment for that of the legislative body. Id. at 1273. The Town has identified pre-adoption evidence including studies, public notices, and recommendations, all of which demonstrate an intent to combat the secondary effects associated with adult uses. The argument of the Plaintiffs--that the resultant bylaw did not incorporate the suggestions of the studies--is without bearing on whether the proper intent has been established. On all the evidence, I find and rule that it has.

Reasonable Alternative Avenues of Communication

The second prong of the intermediate scrutiny analysis requires the municipality to prove that its bylaw has left open reasonable alternative avenues of communication for the protected expression. In the context of adult use zoning bylaws, the municipality must (a) identify the land that remains available under the challenged bylaw and (b) demonstrate that such land is of sufficient quantity that the protected expression is not unduly burdened. It is on this pivotal issue that much of the evidence at trial centered, and I now proceed to make the findings and rulings on the evidence required to decide this question, breaking it up analytically as follows:

Availability

The issue of what land should be considered available under a given adult use bylaw for purposes of constitutional analysis is the subject of some debate. The Supreme Court has said in Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), that adult uses must “fend for themselves in the real estate market,” suggesting that land need not be for sale or lease to be considered available for constitutional purposes. Renton, 475 U.S. at 51. Since then, the federal circuit courts have given us some guidance on the question of “availability.” The Fifth Circuit has suggested that the courts should focus on whether sites are physically and legally available for commercial development. Woodall v. El Paso, 49 F.3d 1120 (5th Cir. 1995). The Ninth Circuit favors a multi-factor analysis addressing infrastructure, public access, and the likelihood that the site ever will become available to a commercial enterprise. Topanga Press, Inc. v. Los Angeles, 989 F.2d 1524, 1530 (9th Cir. 1993). The Eleventh Circuit has noted that “the fact that some development is required before a site can accommodate an adult business” does not render the land unavailable for purposes of constitutional analysis. David Vincent, Inc. v. Broward County, Fla., 200 F.3d 1325, 1134-35 (11th Cir. 2000). The First Circuit has endorsed a multi-factor approach to determining the availability of sites. See O’Gorman, 199 F.3d at 60-61 (finding that sites were potentially available when they were suitable for development, had appropriate infrastructure, were publicly accessible, and were in fact available for purchase from their owner).

I have reviewed the evidence concerning potentially available land in light of the 2002 Bylaw, to determine which parcels remain available for adult use under the relevant provisions of the bylaw. Section 6 prohibits adult uses from locating anywhere outside the Adult Use District, which is set up as an overlay district by Section 3.120 (E). Section 6.1.30 requires a proposed adult use to obtain an Adult Use Special Permit from the zoning board of appeals. Section 6.1.30 (A)(1)(d) prohibits adult uses from locating within 300 feet of the Residence A zoning district. Table 7-1 prescribes the underlying dimensional requirements for all areas within the Adult Use District. A minimum lot size of 44,000 square feet and a minimum lot frontage of 200 feet both are required. Section 4 requires that a proposed change of use for an existing nonconforming lot or structure receive a finding from the planning board that the proposed use will not be “substantially more detrimental to the neighborhood” than the existing use. See 2002 Bylaw, Sections 4.110(A)(1), 4.220(A)(3)(a), 4.330, 4.350(D), and 4.420.

The parties are widely apart on the determinative question of how much land, and how many parcels, truly are reasonably and sufficiently available for the proposed adult use. Plaintiffs have argued that only eight parcels potentially are available under the 2002 Bylaw, and that none of them are actually appropriate locations for an adult use. The Town has identified a total of fifty-eight parcels which the defendant believes are available, but has focused its arguments on eleven parcels (including three in addition to the agreed upon eight) which Hanover says together provide sufficient availability to address constitutional concerns.

Each of the fifty-eight parcels alleged by either party to be potentially available under the bylaw can be categorized by its compliance with underlying dimensional requirements and the steps required to develop it for adult use. To make findings on the availability of the parcels, I have divided them into the following five categories.

Category A consists of parcels which fall within the Adult Use District, remain outside of the residential buffer, and meet the dimensional requirements of the underlying zoning for both frontage and area. Eight parcels fall into this category. They are as set forth on the Appendix to this Decision. To develop Category A parcels for adult uses, a developer would face no additional legal hurdles under the 2002 Bylaw other than the Adult Use Special Permit process outlined in Section 6.130. These, I find on the evidence which I credit, are effectively the only parcels of land within the Town meaningfully available for the adult use of the sort proposed by the Plaintiffs and regulated under the challenged 2002 Bylaw provisions.

The parcels which fall into the remaining categories I determine fail, in any meaningful and significant way, to qualify as available for the protected adult use within the meaning of the decisional law.

Category B consists of parcels which fall within the Adult Use District and remain outside of the residential buffer, but are otherwise nonconforming in that they lack sufficient frontage or area, or contain a nonconforming structure. Forty parcels fall into this category, including three which the Town pressed to have the court classify as fully available parcels. The Town contends that two of those three, Parcels 05-007and 05-078, are currently treated as one parcel, but each is individually nonconforming because it lacks adequate frontage. The Town says that the third, Parcel 05-028, is currently treated as one parcel with Parcel 05-027 (a conforming lot), but individually it lacks sufficient area. To develop Category B parcels for adult uses, a developer would need not only an Adult Use Special Permit, but also a finding under Section 4 of the bylaw by the zoning board of appeal that the adult use will not be substantially more detrimental to the neighborhood than the existing uses located on the parcel (“Section 4 Finding”).

Category C consists of parcels which fall partially within the Adult Use District, but which also fall in part within the residential buffer. Three parcels fall into this category, including the large Hanover Mall parcel, Parcel 18-007, containing 78.66 acres, and in significant part occupied with shopping mall improvements. To develop Category C parcels for adult uses, a developer would have to subdivide the lots, separating the portions within the residential buffer from the portions outside the buffer. In some cases, the developer also would have to include some land from the adjacent parcels in the reconfiguration, so as to avoid creating new nonconforming lots. Assuming that the developer could successfully negotiate with the lots’ owner for the reconfiguration of the parcels, and the sale to the developer of a usable portion, the new lots could be created through the definitive subdivision process or though the more perfunctory method available under G. L. c. 41, § 81P, with a so-called “approval not required (‘ANR’) plan.” In such cases an Adult Use Special Permit would be required, while a Section 4 Finding from the zoning board of appeal would not be required.

Category D consists of parcels that fall within the Adult Use District, but that contain existing buildings that span a number of lots, including nonconforming lots. Five parcels fall into this category. To develop Category D parcels for adult uses, a developer would have to acquire multiple lots, demolish the existing structures which span those lots, and construct new conforming structures on the existing conforming lots. In addition to the Adult Use Special Permit required for the new structures, the demolition of the existing buildings would also almost certainly require a Section 4 Finding that the new use would not be substantially more detrimental to the neighborhood than the existing use. If demolition is not available upon a Section 4 Finding, then the developer would be required to obtain a variance before proceeding with redevelopment.

Category E consists of parcels which fall within the Adult Use District, but which are unavailable because of the current use made of them. Two parcels fall into this category, including one that is burdened by a conservation restriction and another that is used as a cemetery. The facts developed at trial about these two parcels were meager. The parcels appear to be physically and legally unavailable due to the existing uses and use restrictions.

This court must apply the case law on availability to the categories of parcels identified under the 2002 Bylaw.

The eight Category A parcels clearly are available for purposes of constitutional analysis. Plaintiffs have pointed out that a variety of factors make these parcels undesirable for an adult use, including the incompatibility of adjacent uses and the need for demolition or reconstruction. But as the Town correctly notes, the courts have held that parcels need not be perfectly suited for adult uses to be considered available. See David Vincent, 200 F.3d at 1334 (“The ideal lot is often not to be found.”). The analysis should focus less on commercial desirability and more on restraints imposed by the government and physical characteristics of the parcel. Id. at 1335. For our purposes, the eight parcels in Category A I find are available.

On the other hand, I find that the forty Category B parcels fail to qualify as available for purposes of constitutional analysis. Because these parcels are nonconforming, a developer would have to obtain a special permit from the planning board to develop an adult use on these sites. For the board to grant the special permit, it must make a Section 4 Finding that the proposed change, including the proposed use, will not be “substantially more detrimental to the neighborhood” than the existing use. See, e.g., Section 4.220 (3)(a). Such a standard vests the board with wide ranging discretion to make or deny the finding, thus effecting a prior restraint on free speech. The Town points out that the special permit standard for nonconformities applies with equal force to adult uses and non-adult uses, and describes a history of such special permits being granted in the context of non-adult uses. However, the fact remains that the standard is extremely broad, and is one highly deferential to the municipal determination. While that deference is laudable and greatly respected by the courts in the ordinary context of land use determinations about changes involving uses and structures not constitutionally protected, the same is not nearly so much the case for those that enjoy that protection. In the context of free speech restraints, the courts require narrow, objective, and definite standards to protect against arbitrary application and censorship by the special permit granting authority. See T & D Video II, 66 Mass. App. Ct. at 473 (invalidating ordinances in part because they vest unlimited discretion in the permit granting authority to grant or deny the permit), aff’d, 450 Mass. 107 (2007). The Category B parcels cannot be classified as available under the bylaw.

The three Category C parcels lie partially within the residential buffer zone, and thus require division and reconfiguration of lots before they could be developed for adult uses. Our Appeals Court has suggested that parcels which require the granting of either a variance or permission to subdivide from the zoning board do not qualify as available for purposes of this analysis. See T & D Video II, 66 Mass. App. Ct. at 472. Other courts, however, have held that although such reconfiguration presents an obstacle to development, this does not necessarily render the lots legally unavailable as a matter of constitutional analysis. See David Vincent, 200 F.3d at 1135 (affirming finding of availability for sites which required the purchase and reconfiguration of multiple parcels of land). The subdivision and ‘approval not required’ processes under Massachusetts law give the developer the right to subdivide (or to divide land based on a the planning board’s endorsement), provided basic requirements of law for the resulting lots are met. The acquisition and reconfiguration of multiple parcels is a common enough tool among real estate developers that its application should not render sites unavailable under this analysis. Such lots may be said to remain potentially available, though cerainly to a lesser degree than the Category A parcels.

This is particularly so because the general thrust of the law under the subdivision control statute is to permit either subdivision or ANR endorsement unless the applicant fails to meet an objective requirement of the subdivision law and of planning board rules. The decision to grant, deny, or condition a special permit application, to the contrary, is left to far greater municipal discretion. Compare, for example, the provisions of G.L. c. 41, §81M, that “[i]t is the intent of the subdivision control law that any subdivision plan filed with the planning board shall receive the approval of such board if said plan conforms to the recommendations of the board of health and to the reasonable rules and regulations of the planning board pertaining to subdivision of lands,” with the far more discretionary nature of the special permit process: “On a G.L. c. 40A, §17, appeal, review of the board’s decision, while based upon de novo fact finding, is nonetheless ‘circumscribed. ... [That decision] ‘cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.’ ... Even if the record reveals that a desired special permit could lawfully be granted by the board because the applicant’s evidence satisfied the statutory and regulatory criteria, the board retains discretionary authority to deny the permit. ... Even when a zoning board cites no particularized reasons or any specific evidence for its denial decision, its action will be upheld, as will that of a judge affirming that action under G.L. c. 40A, §17, if a rational basis for the denial exists which is supported by the record.” Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 355-356 (2001) (citations omitted). Analyzed in this way, the Category C parcels are not, I find, categorically unavailable for the protected use.

The problem, however, with the Town’s efforts to have these Category C parcels included in the count of what is available to a user intending to set up an adult use within the Town is that the proof of availability was not tangibly and at all persuasively demonstrated at trial. This is so simply because, while there was evidence, which I do credit, that there might have been some theoretical possibility of slicing off from one or more of these Category C parcels enough of a lot to sustain a viable adult use, there was, in the proof brought forward by the defendant, nothing I credit which showed anything more than a theoretical possibility. There was no credible evidence as to any of the Category C parcels which showed a plan of division or subdivision of the larger parcels with any detail or specificity to the degree required to convince the court that such a reconfiguration would be a real world prospect. I find that the splitting off of some portion of these lots, with separate parcels thereby to be generated and to be devoted to an adult use was not sufficiently proven in a way that shows any reasonable prospect of creating actual, measurable, truly available lots which might be expected to be available for this purpose. The Category C parcels fail to carry weight with me as the trier of fact, not because of the legal process of subdivision or ANR division required to generate separate usable lots, but because of the lack of an adequate showing in the evidence which I credit of how those lots would be shaped and sized and really available. I would need to be persuaded in a way which would let me measure and calculate the size of the new and available lots which would be generated, not the size of the larger tracts out of which the new lots would be cut. The municipality carries the burden of proof on this, a burden which the evidence I credit does not permit me to find that the Town has carried. I thus decline to include any portion of these Category C parcels in those I find are genuinely available.

The five Category D parcels are subject to the same problematic restrictions that disqualify the Category B parcels. Because the parcels require a discretionary Section 4 Finding before they can be developed for adult uses, they must be considered unavailable. Although the groups of parcels in Category D contain two conforming lots on which new conforming structures could be built, demolition of existing nonconforming structures would be required prior to the construction. This demolition would require a Section 4 Finding under 4.220 (A)(3)(a).

The two Category E parcels have uses and use restrictions which seem to preclude these parcels from development for adult uses. Lot 05-014 is currently used as a cemetery. This physical characteristic presents an obstacle to development that cannot reasonably be overcome. See Woodall, 49 F.3d at 1124 (teaching that physically unavailable land such as that used for air strip or sports stadium could be excluded from availability analysis). Lot 05-074 is designated as conservation land. No further information about this parcel was provided at trial. The First Circuit has suggested that restrictive covenants prohibiting adult uses can render sites unavailable. See O’Gorman, 199 F.3d at 60 n.6 (1999) (affirming that case would be entirely different had such restrictive covenants been imposed). Thus, in the absence of persuasive evidence from the Town to the contrary, I find that the conservation designation serves as a legal restriction rendering this site unavailable as well. The burden of proving the availability of each of these sites rests with Town, see A.F.M., 428 Mass. at 1021 & n.3, and has not been met.

Sufficiency

After determining which sites qualify as available under the 2002 Bylaw, this Court must determine whether such sites create availability sufficient to leave open reasonable alternative avenues of communication for the protected speech. This standard is extremely fact-dependent, and the inquiry as to what is reasonable varies significantly from community to community.

In Renton, the Supreme Court upheld an ordinance which left 5% of the municipality’s land available for adult uses. Renton, 475 U.S. at 54-55. Since then, courts have tried to clarify the factors to be assessed in evaluating the sufficiency of available sites. The First Circuit has held that the percentage of available land within the town’s borders is not dispositive. In D.H.L. Assoc., Inc. v. O’Gorman, 199 F.3d 50 (1999), the court considered a multitude of additional factors, including the total acreage in relation to the size of the commercial district, and the number of sites in relation to the population of the municipality. O’Gorman, 199 F.3d at 59-60. The court found that five lots, comprising 0.099% of the land within the town’s borders, were sufficient when the population of the municipality was 9,500, the commercial district was small, and the sites were suitable for development and actually available for purchase. O’Gorman, 199 F.3d at 52, 59-60. In A.F.M., Ltd. v. Medford, 428 Mass. 1020 (1999), the Supreme Judicial Court invalidated a zoning scheme that left 0.11% of the city’s land available for adult uses, noting that the small block remaining was “completely occupied” by existing uses. A.F.M., 428 Mass. at 1021. The differing outcomes in these cases demonstrate that the inquiry is fact specific and should be undertaken carefully.

In the instant case, the defendant Town’s population is 14,000. The 2002 Bylaw leaves all or at least some portion of eight parcels available, amounting to maximum of 44.08 acres, or 0.44% of the Town’s total acreage, and potentially less, given the vagaries of the precise manner of the division and development of land which would be necessary in the case of some of these lots. The Town is approximately 87% residential, and 13% nonresidential. The eight agreed available parcels comprise 3.40% of the Town’s nonresidential area. The portions of the three additional Category C parcels which could potentially become available after division and reconfiguration, which I have ruled are insufficiently defined and demonstrated by the credible evidence to be included in the count, would likely increase those percentages only a modest amount, even were I to have included them.

Defendants compare the 2002 Bylaw with the Tyngsborough bylaw upheld by the First Circuit in D.H.L. Assoc., Inc. v. O’Gorman, 199 F.3d 50 (1999). Although the Tyngsborough bylaw left only 0.099% of the municipality’s land available, I find that a number of factors distinguish that case from the case at bar. The town of Tyngsborough had a population nearly 50% smaller than that of Hanover. Id. at 52. The size of Tyngsborough was an important factor in the court’s analysis of sufficiency, which emphasized the rural character of the community. Id. at 60.

Another factor which distinguishes the cases is the effect of the bylaws and ordinances upon the plaintiffs. Tyngsborough’s ordinance required the plaintiff to relocate his existing adult use business to a different part of town. The court there relied upon case law analyzing the number of sites for relocation in relation to the number of existing uses. See id. at 60 (discussing Lakeland Lounge of Jackson, Inc. v. Jackson, 973 F.2d 1255 (5th Cir. 1992). That case law is not directly applicable to the Hanover Bylaw. Furthermore, the Town of Tyngsborough was able to demonstrate at trial that the parcels available under its bylaw were suitable for development and actually available for purchase to any buyer. Id. at 60. In contrast, the Town of Hanover has not demonstrated that any of the eight parcels are actually available for purchase or are suitable for the plaintiff’s particular business. Although the Town need not demonstrate more than that the parcels are part of a potential real estate market, the First Circuit suggests that doing so could result in a greater showing of sufficiency based upon a small number of available parcels. See id.

I also consider the character of the municipalities involved. While the Tyngsborough result rested in part on the rural character of that community, the evidence in the case tried to me shows that Hanover, while far from a large city, is, in relevant respects, significantly more commercial and dedicated to retail and other business oriented uses. The evidence shows that material parts of Hanover are transected by major thoroughfares, including designated state highway routes, which carry traffic not only from one part of Hanover to another, but also passing through the Town. The Town has in its zoning law designated a Commercial District, which consists of the corridor adjacent to Route 53/Washington Street, from Hanover’s northern boundary with the Town of Norwell and generally extending in a southeasterly direction past Route 3 and towards Hanover’s boundary with the Town of Pembroke. The Route 53/Washington Street corridor south of Route 3 is a primary location of commercial, retail and office establishments in Hanover, including the Hanover Mall. The evidence shows that there are many car dealerships and a wide variety of retail stores, within the Town, concentrated in these commercial districts along these thoroughfares. These routes are lined with retail and commercial establishments which serve not only residents of the Town, but the populations of surrounding communities in the region of the South Shore. There is a relatively large shopping mall, the Hanover Mall, and several other “strip malls” and stand-alone commercial and retail businesses in Hanover. While Hanover certainly has a high percentage of its land dedicated to residential use, it would not be fair to characterize the Town as possessing a predominantly rural character. Given its significant business, commercial, and particularly retail segments, I find and rule that Hanover should be expected to provide a somewhat higher level of availability for uses of the sort proposed by Plaintiffs, and it does not.

More compelling than the Tyngsborough analogy is that, advocated for by Plaintiffs, shown in the case of the Medford ordinance struck down by the Supreme Judicial Court in A.F.M. 428 Mass. at 1021. The Medford ordinance was struck down because it limited the plaintiff’s opportunity to open and operate an adult business to an area equal to 0.11% of the land area of the city. Id. The court emphasized that the parcels available under the Medford ordinance were completely occupied by existing uses. Id. Similarly, the parcels available under Hanover’s 2002 Bylaw, comprising no more than just 0.44% of the land in town, are equally occupied by existing uses. The court in A.F.M. held that Medford “did not present any information explaining why it was necessary to restrict adult businesses to such a miniscule portion of the developable land in the city.” Id. Likewise, in the case now before me, I find and rule that Hanover has failed to demonstrate that the bylaw’s limitation of available land, representing less than half of one percent of the Town, constituted a reasonable restriction. I find and rule that the Town of Hanover failed to meet its burden of demonstrating that the avenues of communication it left open for adult uses under the 2002 Bylaw were reasonable.

Having found that the 2002 Bylaw is constitutionally infirm in this respect, I do not find it necessary reach the merits of many of the parties’ additional claims about the validity of the bylaw. Nevertheless, two of the Plaintiff’s additional arguments are worth addressing briefly.

First, Plaintiffs argue that the 2002 Bylaw violates the uniformity provisions of G. L. c. 40A, §4. Plaintiffs note that the overlay district created by the 2002 Bylaw treats some portions of the Commercial and Limited Industrial Districts differently from others with respect to their capacity to accommodate adult uses. Plaintiffs also note that the 2002 Bylaw treats adult uses and other similar commercial uses differently based upon the content of the material being sold. Plaintiffs contend that the disparate treatment is without basis and violates the uniformity requirement. Plaintiffs’ argument is without merit, and I do not rely on it in reaching the result I do in this case. This court, in Tucker’s Wharf Ltd. Partnership v. Moxham, Land Court Misc. Case No. 122297 (1998), held that overlay districts are appropriate zoning tools. Tucker’s Wharf, 1989 WL 1182803 at *5. Moreover, Section 9A of the Massachusetts Zoning Enabling Act authorizes municipalities to enact zoning ordinances that restrict the locations in which adult uses may operate. The first paragraph of G. L. c. 40A, §9A specifically authorizes municipalities to create geographic restrictions based upon proximity to residential districts or to other adult uses. This authorization necessarily contemplates and condones situations wherein an adult use may be permitted in one portion of an underlying zoning district and prohibited in another portion.

Second, Plaintiffs contend that the 2002 Bylaw’s special permit provisions constitute and effect an invalid prior restraint upon speech and expression, in that they lack narrow, definite and objective standards and procedural safeguards. The issue of prior restraint is properly raised when persons must seek the permission of the municipality before engaging in protected free speech. See T & D Video II, 66 Mass. App. Ct. at 472-73. The 2002 Bylaw creates a special permit procedure which must be followed before an adult use can commence operation. The presumption that such restrictions create invalid prior restraints can be overcome by a demonstration that adequate substantive and procedural safeguards exist to prevent abuse of discretion. Id. at 473. On the matter of substantive protections, the Town has demonstrated that the specific adult use special permit criteria enacted by Town Meeting are narrow and objective enough to overcome the presumption of prior restraint. Plaintiffs’ strongest objection is to language which requires the board to determine that “adequate and reasonable safeguards exist” to prevent minors from entering the adult use premises. This provision hardly vests the board with the overly broad discretion that troubled the court in T & D Video II, where a two-thirds vote of the city council could deny an adult use special permit even when all the special permit criteria had been met. See 66 Mass. App. Ct. at 473. This provision is sufficiently pointed and narrow in its focus that it lacks the concern of overbroad discretion which I conclude applies to more generally applicable special permit requirements for some of the proffered parcels, including, for example, those that would require a board determination regarding the relative detriments of the proposed use and the existing one before a parcel may be made available.

On the matter of procedural protections, Plaintiffs contend that the special permit and site plan review procedure as outlined in the 2002 Bylaw fail to prevent adequately an abuse of power by the Town and its boards. Plaintiffs’ strongest objection is their contention that the procedure mandated for these approvals could be held open for an indefinite period of time, thereby effectively denying Plaintiffs a reasonable opportunity to operate. The Town notes that the procedural protections under the 2002 Bylaw incorporate the protections built into G. L. c. 40A, §9A (requiring special permit granting authorities to hold a hearing within sixty-five days of application and to act within ninety days of a hearing). The 2002 Bylaw, in Section 6.130 (A)(1)(b), also explicitly states that the planning board must take action on both the site plan and the special permit requests within ninety days following the close of the public hearings. Plaintiffs rely on the possibility that the planning board could keep the public hearings open indefinitely, never closing them and never having to make a final determination. The special permit and site plan review procedure outlined in the 2002 Bylaw sets out time limits that are both explicit and reasonable, meeting the requirements set forth by the United States Supreme Court in FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990). The substantive and procedural provisions of the 2002 Bylaw are sufficiently protective to overcome the presumption of prior restraint. They come nowhere near to inviting the planning board to engage in an illegitimate abuse of censorial power. T & D Video II, 66 Mass. App. Ct. at 473. Plaintiffs’ additional arguments are without merit.

*****

I find and rule that the 2001and 2002 Bylaws are invalid under state and federal law insofar as they purport to limit and to regulate the location of Plaintiffs’ retail sales business as an adult use. The judgment I will direct be entered in this case will so declare, and will grant permanent injunctive relief prohibiting Defendant from applying the adult use provisions of the 2001 and 2002 Bylaws to Plaintiffs so as to prevent the operation of adult uses within the Town.

Judgment accordingly.

Gordon H. Piper

Justice

Dated: January 11, 2010.

APPENDIX

Category A Parcels:

(1) Parcel 05-028 is a 3.77 acre parcel zoned for Commercial use on which is located a 13,700 square foot building used as a Ford automobile dealership with a sales showroom and service bays. Also used with this parcel is parcel 05-027 which otherwise lacks the requisite frontage and area.

(2) Parcel 05-044 is a 2.3 acre parcel zoned for Commercial use on which is located a 14,000 square foot building used as Land-Rover automobile dealership with a sales showroom and service bays. Also used with this parcel is parcel 05-006 which otherwise lacks the requisite frontage and area.

(3) Parcel 05-058 is a 3.17 acre parcel zoned for Commercial use on which is located a 10,500 square foot building used as a Saturn automobile dealership with a sales showroom and service bays.

(4) Parcel 04-030 is a 15.42 acre parcel zoned for Industrial use on which is located a 55,000 square foot building with 50% of it used for warehousing and 50% of it used for offices.

(5) Parcel 05-030 is a 5.28 acre parcel zoned for Commercial use on which is located a 3-story 23,000 square foot office building used by Rockland Trust, and a 1-story 4,900 square foot building used by a single retail tenant.

(6) Parcel 05-032 is a 4.16 acre parcel zoned for Commercial use on which is located a 2-story 21,150 square foot building used for offices and retail.

(7) Parcel 05-004 is a 1.98 acre parcel zoned for Commercial use on which is located a 1-story 7,300 square foot building used for a fast food restaurant with a drive up window, and other service and retail tenants.

(8) Parcel 05-020 is an 8 acre parcel zoned for Commercial use on which is located a 2 story building with 39,000 square feet of space used by 2 tenants - Peter Harris Clothes and Office Depot.