New Application:ZBA says Strip Club is ‘Concert Hall,’ Club Will Go Back to Federal Court

May 13, 2017
By

By Seth Daniel

In a highly-anticipated meeting, the Zoning Board of Appeals (ZBA) took on the Phantom Ventures strip club matter once again – after having it remanded back to the Board from a Federal Court judge – and decided that the venture should re-apply as a concert hall/theatre.

After about one hour of debate, the Board voted 3-0 to decide that, having no adult entertainment ordinance after it was deemed unconstitutional, the strip club most appropriately should be considered a concert hall or theatre under remaining ordinances.

“We will need a new application before us and it will have to go through the standard special permit process,” said City Planner John DePriest.

That came after extended debate about what the club should be given that the City’s adult entertainment ordinance in regard to Phantom does not exist – having been struck down by the judge. With the judge sending the matter back to the ZBA to decide upon the use, the Board was tasked to choose between a restaurant, concert hall/theatre or social club – as suggested by Building Inspector Mike McAteer.

Phantom Ventures Attorneys Glenn Alberich and Joe Machete said the Board did exactly what the judge said not to do.

“We’re going back to court,” said Alberich after the vote. “What the judge did not want them to do is exactly what they did…What they have done is look at other categories and decided whether it’s kind of like a restaurant or kind of like a theatre. I don’t think that’s what the judge wanted.”

Alberich argued extensively during the hearing that his clients should be issued a building permit to go forward with their club due to the fact that there is, in their case, no adult entertainment ordinance to apply. Without an ordinance to restrict them, he said they have the right to a permit.

In a decision issued in April, a federal judge in Boston shot down several arguments by Phantom Ventures, but then, in a blow to the City, reviewed the Adult Entertainment Law and found it unconstitutional.

“We are entitled to a permit the moment that ordinance was stricken,” he said. “No law says you can’t have adult entertainment at that location in the industrial district. If there is no law that says you can’t have adult entertainment there, then you can have adult entertainment at that location.”

During the hearing, he told the ZBA his client would likely continue the fight all the way to federal Appeals Court if need be – and he was confident they would win.

“You can engage in your own exercise looking at the provisions and applying one of the uses that you think best applies…We’ll be back in Federal District Court to see if any provisions you applied are as applicable as adult entertainment. The answer will be ‘no.’ If a judge at the District Court does not see it that way, then a judge in the 1st Circuit Court of Appeals will certainly see it that way. If that is where we must go, there is where we’ll go.”

The ZBA was hamstrung most of the night in trying to understand the very narrow focus that they were operating within.

Members struggled to figure out what they were to decide, whether they actually had an application to decide upon and how it was that they would fit an adult entertainment use into a different use.

The Board also was outmanned in their legal representation, as they had only Assistant City Solicitor Stephan Treadway to help them. City Solicitor Cheryl Fisher Watson was on vacation, and attorneys from the City’s insurance company – who have been representing the City in Federal Court- were not present.

Treadway offered several pointers, including suggesting that the Board consider the concert hall/theatre use when they were seriously considering a restaurant use.

“The question is where would you place it without the ability to place it in the adult use,” he said, “because to simply throw it out would be unconstitutional.”

Those voting for the concert hall/theatre use were DePriest and Members Janet Tatarka and Arthur Arsenault.

In other ZBA news, the Board voted 3-0 to approve a controversial hotel project, a Hampton Inn, on Second Street.

While the plan has gone through a number of iterations, the Board approved a vastly refined plan compared to what came in earlier this year.

The rooms have gone down from 133 to 106, and the Floor Area Ratio (FAR), a measure of density, is down from 1.6 to 1.19. Several landscaping and fencing improvements have also been made, and the details of an easement gate has also been ironed out.

Planner John DePriest warned that it is an industrial district there, and there aren’t any other hotels, so it is likely to be noisy for guests.

“This is in an industrial district and you have neighbors with big trucks and equipment,” he said. “These businesses start early in the morning around 2 or 3 a.m. and go heavy into the day. You should plan for sound proofing being on the property.”

The hotel architect said they have planned for airport quality soundproofing and triple glazed windows.

District 8 Councilor Dan Cortell said he does support the project, which has had measured support from the City and other boards as it has gone through the process.

“It’s a relatively low impact use for the city versus what other things can be there,” he said. “The building at 200 has often been vacant so finding a long-term use is something the City would be looking for.”

  • Meanwhile, the ZBA voted 3-0 to allow Health Resources Center (the former CSAC Methadone Clinic’s name) to expand next door on Crescent Avenue for counseling services only.

“We are not going to use any medications,” said Norma Repucci of HRC. “We will not use any medications at all. No dispensing, no prescribing. None at all.”

The need for counseling services for patients of the Methadone Clinic next door to the proposed new use is great, she said, and they are teaming up with Mass General to provide more of those service.

Dr. Mary Lyons-Hunter of MGH was present and said part of the opiate crisis needs are to provide counseling and case management.

City Manager Tom Ambrosino was in full support of the application, and the City Council had changed the zoning this year in the area just to accommodate the counseling use there at the clinic. Such a use had been blocked under the old zoning.

The average appointment, Repucci said, would be about one hour.

  • A 45-unit building proposal for apartments on 170 Cottage St. was continued to the June meeting.

The proponents need a special permit and variance to construct the project.


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