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Real "Strip" Center Canít Be Grandfathered
by Ron Davis
A striptease club located in a New Hampshire shopping center must cease to offer live entertainment despite the efforts of the club operator and shopping center owner to prevent the loss.
The shopping center, located in Seabrook, has leased space to the club operator under a long-term agreement since 1990. Initially, the tenant merely sold adult books, magazines, video tapes, and similar items. But a year later he expanded into coin-operated booths for the viewing of adult video tapes, then began offering mud-wrestling entertainment.
Seabrook town officials granted licenses to operate the video booths, but when the club operator began the mud-wrestling events there, the Seabrook building inspector stepped in. He advised the club operator that a change of use in his leased premises from retail to live entertainment would require site plan approval by the Seabrook Planning Board.
The club operator complied by halting the live entertainment. But then he learned that the tenants in the adjacent space at the shopping center had moved out. So he leased that space and began hosting bachelor parties and mud-wrestling events there. Later, he installed two booths for viewing live nude dancing and striptease performances. Those booths were apparently so popular with customers, in fact, that he then stopped hosting bachelor parties and mud wrestling.
Just prior to his leasing the adjacent premises, however, Seabrook town officials enacted a law prohibiting "sexually oriented" businesses from operating within 1,000 feet of places of worship, 300 feet from residences, or 500 feet from the Seabrook town boundaries. The shopping center location is only a couple of hundred feet from a church and several homes.
But the new Seabrook law had a grandfather clause that seemingly protected the club operator from enforcement. Because the club operator had been in business at the shopping center before the law's enactment, he believed his club qualified as a "lawful nonconforming" enterprise and was thus not subject to site plan approval.
Nevertheless, Seabrook officials attempted to enforce the law and stop the club operator from offering live entertainment.
The New Hampshire Supreme Court, in siding with Seabrook officials, explained, "Although the use of the tenant's business existed before the city enacted the law [prohibiting sexually oriented businesses], it does not qualify as a nonconforming use because it was not a lawful preexisting use. When the club operator converted the neighboring unit from a retail establishment to a venue for mud wrestling, he changed the use from 'retail' to 'commercial entertainment.' This change was sufficient to trigger the city's law because it constituted a change from one permitted use to another.... The public safety, health, and welfare were implicated by the introduction of live entertainment. Because the change in use did not receive site plan approval, it was illegal and therefore ineligible to later qualify as a lawful nonconforming use." (Town of Seabrook v. Vachon Management, 745 A.2d 1155 [N.H. 2000])
Decision: February 2000
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