WHATELY — Threats of possible litigation from the lawyer for the hopeful owners of the Castaway Lounge have prompted the town to reconsider where a strip club can hypothetically go. The Planning Board decided Tuesday night to change the town’s bylaws from not allowing adult entertainment anywhere — besides the grandfathered-in Castaway Lounge — to allowing any new business strictly in industrial zoning areas and by special permit only.
The vote will face a public hearing, scheduled for the Planning Board meeting Aug. 28, and will have to pass at a Town Meeting with a two-thirds vote.
This decision was made somewhat begrudgingly by board members who cited the character of the town and the will of the voters. It was under the advice of Town Administrator Brian Domina and Whately’s town counsel to make the alteration.
“Brian is concerned because our bylaw prohibits adult entertainment in all districts of town, it’d be considered a constitutional violation of freedom of speech,” Planning Board member Judy Markland said.
Domina was not at Tuesday’s meeting. Markland said the idea to change the zoning bylaws was at the town administrator’s urging.
From the beginning, local attorney Tom Lesser, who represents the two Boston businessmen interested in buying the strip club, has cited the First Amendment, saying the town cannot stop the club because it’s a matter of free speech for the nude dancers.
Markland noted the First Amendment has taken on new meanings over the past decade or two, which is likely why when the town’s bylaws were approved by the state attorney general’s office in the 1970s, there was no objection to prohibiting adult entertainment in Whately.
Conceivably, the two businessmen could say they no longer want to do business at the location of the Castaway Lounge and decide to use their adult entertainment license elsewhere in town. They would then run into the town’s prohibition, which could trigger a lawsuit, since it’s the town’s understanding that it needs some zoning to allow for that type of business.
While Lesser has not said he will sue the town, he has spoken in hypotheticals about it and has said he has litigated similar cases and won them.
“If they took the town to court, it’d be a big expensive case and we’d likely not win,” Markland said.
Markland was asked by her fellow members if there was a sense of hurry to make this change, to which she nodded.
The Select Board has already granted a new adult entertainment license to the two Boston businessmen, but there has been more legwork to complete the town’s needs.
At last week’s Select Board meeting, tempers flared between the prospective buyers and some residents as a variance over security at the club hit yet another roadblock.
If Town Meeting approves the proposed change to the bylaws, the law will go into effect retroactively as of when the public hearing for the revised bylaw was first legally posted.