United States Court of Appeals

For the First Circuit

No. 12-1758

GARY LUND, d/b/a CLUB MARTINIQUE,

Plaintiff, Appellant,

v.

CITY OF FALL RIVER, MA; JAMES HARTNETT, City Planner; FALL RIVER

ZONING BOARD OF APPEALS; DAVID ASSAD, as Chairman of the Fall

River Zoning Board of Appeals; GENE ALVES, as Vice Chairman of

the Fall River Zoning Board of Appeals; RICHARD MATEUS, as Member

of the Fall River Zoning Board of Appeals; ANDREA

MEROLLA-SIMISTER, as Member of the Fall River Zoning Board of

Appeals; JOHN FRANK, III, as Member of the Fall River Zoning

Board of Appeals,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O’Toole, Jr., U.S. District Judge]

Before

Lynch, Chief Judge,

Souter, Associate Justice, *

and Selya, Circuit Judge.

Brian R. Cunha, with whom Brian Cunha & Associates, P.C. was

on brief, for appellant.

Elizabeth Sousa, with whom the Office of the Corporation

Counsel was on brief, for appellees.

April 22, 2013

Hon. David H. Souter, Associate Justice (Ret.) of the *

Supreme Court of the United States, sitting by designation.
SOUTER, Associate Justice. Appellant, Gary Lund,

contends that the City of Fall River’s zoning ordinances violate

the First Amendment by preventing him from opening an adult

entertainment establishment on land zoned industrial without

providing an adequate opportunity elsewhere. The district court

rejected his claim, and we affirm.

I

By the terms of a Fall River ordinance, intending

providers of adult entertainment must obtain a “special permit,”

see Revised Code of Ordinances of the City of Fall River, Mass.,

Rev. Ordinances § 86-85, which may be granted only if the applicant

meets a variety of zoning conditions, see id. §§ 86-88, 86-201. So

far as it matters here, § 86-88 mandates a minimum amount of

parking proportional to the size of the building to be used and

requires it to be surrounded by a four-foot, landscaped perimeter. 

All parking and loading structures must be at least 50 feet from

any street and 750 feet from any residence. Section 86-201 forbids

adult entertainment on a site within an “Industrial District.”

Lund applied for a special permit to open “Club

Martinique” at 139 Front Street, even though he conceded that his

proposal failed to comply with the ordinance. See J.A. 17. 139

Front Street is within an Industrial District and is thus

disqualified as a site for adult entertainment by § 86-201, and

beyond that his proposal would have violated § 86-88 owing to the

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presence of parking spaces closer than 50 feet to the street and

the absence of landscaping. When the City denied his application,

Lund appealed to the Zoning Board of Appeals for variances from the

ordinances, which the Board denied, noting the unequivocal language

of §§ 86-88 and 86-201. See, e.g., id. § 86-88 (“Any building

. . . containing an adult use shall meet the setback requirements

. . . .”); id. § 86-201 (“In an Industrial District, no structure

shall be used except for one of the following uses: Existing mill

buildings may be used for art use, except adult use as defined in

section 86-81 is prohibited.” (ellipses omitted)).

Lund then went to the Superior Court of the Commonwealth

of Massachusetts for declaratory and injunctive relief, as well as

compensatory damages, alleging that the City’s ordinances violate

the First Amendment. He contended that sections 86-88 and 86-201,

individually and in combination, “den[y him] a reasonable

opportunity and accommodation to open and operate, within the City,

an adult entertainment club.” J.A. 21. The City removed the case

to the district court, see 28 U.S.C. § 1441(a), which had

jurisdiction under 28 U.S.C. § 1331.

There, the scope of disagreement narrowed substantially

after an evidentiary hearing on Lund’s request for preliminary

injunction, in which he and the City offered expert testimony about

the amount of legally available land in the City. At the close of

evidence, Lund’s counsel stated, “I don’t think that there’s any

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facts (sic) in dispute here. And I know I said at the beginning

just a preliminary injunction, but I don’t see why . . . you can’t

make a summary judgment decision as well. I don’t think there’s

any factual dispute . . . between the two experts. There are

different scenarios that they’ve presented . . . .” Evidentiary

Hearing Tr. 59, June 3, 2010. The district court responded that

the disputed question was fairly discrete, as addressing the last

of the conditions to be met by adult commerce regulation subject to

intermediate scrutiny under City of Renton v. Playtime Theatres,

Inc., 475 U.S. 41 (1986): whether the ordinances blocking the

proposed adult use provide reasonable alternative means for Lund to

conduct his adult entertainment business.

THE COURT: If that’s the framing of the issue . . . then

I think we have all the evidence we need to decide the

merits of the case one way or the other.

MR. CUNHA [plaintiff’s counsel]: And I don't disagree.

THE COURT: Does the [C]ity disagree with that?

MS. PEREIRA [defendants’ counsel]: No, your Honor.

Evidentiary Hearing Tr. 60, June 3, 2010; see also Lund v. City of

Fall River, No. 10-10310, 2012 WL 1856947, at *2 (D. Mass. May 22,

2012) (“Lund conceded that the sole question presented here is

whether sections 86-88 and 86-201 provide reasonable alternative

avenues of communication.”).

After consideration, the district court entered judgment

for the City on the authority of Renton. See Lund, 2012 WL

1856947, at *2-6. The court found that out of the City’s 11,783

developable acres, 28.53 acres (or 0.24%), on 8 separate sites, are

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available as adult entertainment venues. Id. at 5–7. The court

thus rejected Lund’s objections that he could not have adequate

space within that acreage without combining multiple parcels and

undertaking costly redevelopment to comply with the ordinances; the

district court declined to declare any of the 28.53 acres

unavailable due to such “economic” considerations. See id. at

7–11. Finally, the court held that 0.24% of the City provided Lund

with reasonable room to exercise his protected expressive right,

id. at 9–11, relying upon our decision in D.H.L. Associates, Inc.

v. O’Gorman, 199 F.3d 50, 60 (1st Cir. 1999), which found no

constitutional deprivation in municipal zoning that left only 0.09%

of developable land available for adult entertainment.

This timely appeal followed, there being no question of

our jurisdiction under 28 U.S.C. § 1291.

II

The standard of review that we apply turns on the

character of the proceeding in the period after the case was

submitted to the court at the end of the colloquy just quoted. 

Lund’s counsel expressly proposed treating his motion for a

preliminary injunction as a motion for summary judgment, which

would leave it to the court to draw fair inferences from the

undisputed material facts and determine whether Lund was entitled

to judgment as a matter of law. See Jirau-Bernal v. Agrait, 37

F.3d 1, 3 (1st Cir. 1994). Presumably he intended the court to act

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as if cross-motions for summary judgement were before him, and so

to grant judgment for the City if it was entitled to it as a matter

of law. Looked at this way, the case here would present only

issues of fair inference and legal entitlement, which we would

review de novo, as on a conventional appeal from summary judgment. 

See Shafmaster v. United States, 707 F.3d 130, 135 (1st Cir. 2013).

But the colloquy did not end with simple assent to

proceed on summary judgment. The court’s response spoke of

“hav[ing] all the evidence we need to decide the merits of the case

one way or the other,” and each counsel went on record as having no

disagreement. This sounds more like an agreement for plenary

submission of the case to the judge as fact-finder, and this is

what the judge ultimately understood. His order here on appeal

begins with citation to Federal Rule of Civil Procedure 65,

subsection (a)(2) of which authorizes a court to “advance the trial

on the merits and consolidate it with the hearing” on a motion for

preliminary relief. This also seems to be what Lund’s counsel

understood he had agreed to, for his appeal addresses the merits of

the ruling, not the procedural propriety of the route to reaching

it. Accordingly, we think the better view is to see the order

appealed not as one of summary judgment, but as the product of the

procedural crawl that then-Judge Breyer described in Federacion de

Empleados del Tribunal Gen. de Justicia v. Torres, 747 F.2d 35 (1st

Cir. 1984). 

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[W]here, in a nonjury case, ‘the basic dispute between

the parties concerns the factual inferences . . . that

one might draw from the more basic facts to which the

parties have drawn the court’s attention,’ where ‘[t]here

are no significant disagreements about those basic

facts,’ and where neither party has ‘sought to introduce

additional factual evidence or asked to present

witnesses’ . . . . the standard for appellate oversight

shifts from de novo review to clear-error review. 

EEOC v. Steamship Clerks Union, Loc. 1066, 48 F.3d 594, 603 (1st

Cir. 1995) (quoting Federacion de Empleados del Tribunal Gen. de

Justicia, 747 F.2d at 36). It follows that our review standard is

for clear error on all issues not purely legal, though we will be

candid to say that the result would be the same if the examination

were de novo.

III

Lund’s exceptions to the district court’s ruling boil off

at two. He contends it was error to find that 28.53 acres on 8

sites were “available” for adult entertainment, and he argues that

the available land does not provide him a reasonable opportunity to

open an adult business.

A

After testimony and evidence from both parties’ experts,

the district court adopted the City’s contention that the

ordinances left 28.53 acres for adult entertainment, being 0.24% of

the City’s developable land, comprising 8 sites. The court found

that Lund’s contrary assertions “lack[ed] evidentiary support,

whereas the City’s figure [was] well-supported by the testimony and

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exhibits presented.” Lund, 2012 WL 1856947, at *3. Lund argues

the contrary on three grounds.

First, despite his concession in the district court that

no further trial proceedings were necessary, he says now that a

remand is needed to determine the effect of the § 86-88 limitation

that “[p]arking and loading facilities . . . be set back a minimum

of . . . 750 feet from any structure used . . . for residential

purposes.” He concedes that the district court correctly

considered § 86-88’s 750-foot buffer requirement with respect to

parking but argues that it failed to assess the impact of applying

it to loading facilities. But the answer is that Lund never raised

this claim below. Save for his quotation of the ordinance in a

footnote, the word “loading” does not appear in his motion for a

preliminary injunction, and he did not make this argument at the

hearing. That is the end of the matter here. See McCoy v.

Massachusetts Institute of Technology, 950 F.2d 13, 22 (1st Cir.

1991) (“[T]heories not raised squarely in the district court cannot

be surfaced for the first time on appeal.”).

Second, Lund points out that excluding sites covered by

long-term leases or requiring costly redevelopment would greatly

diminish the quantity of land “available,” and he contends that

declining to weigh the consequences of these leases and costs in

figuring the quantity of available land in the City was error. The

district court rejected this claim as “primarily one of economic

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impact upon his speech-related business,” a consideration that the

Supreme Court “has cautioned against considering in First Amendment

analyses.” Lund, 2012 WL 1856947, at *3.

The district court was correct. The proper enquiry looks

to restrictions imposed by the government, not to the market

effects of other people’s commerce or the economics of site

clearance. Even if we credit Lund’s representation that sites

identified by the district court are subject to long-term leases,

the fact that other competing private parties got ahead of him is

not alone of any moment in the constitutional analysis, and the

cost of development is nothing more than a business consideration

for Lund to weigh. As the Renton Court put it, “That [plaintiffs]

must fend for themselves in the real estate market, on an equal

footing with other prospective purchasers and lessees, does not

give rise to a First Amendment violation.” 475 U.S. at 54; accord

D.H.L. Associates, 199 F.3d at 60. Hence, whether it makes sense

for Lund to finance a costly redevelopment or to pay what current

tenants would demand to break their leases are simply private

business considerations. It is worth noting that our sister 1

It is true, as Lund notes, that we said in D.H.L. Associates 1

that the case would have been “entirely different” if the land had

been encumbered by restrictive covenants precluding its use for

adult entertainment. Appellant’s Br. 32-33 (quoting 199 F.3d at 60

n.6). Lund argues that D.H.L. Associates makes clear that

restrictive covenants are, therefore, relevant to the availability

determination. Maybe so. But restrictive covenants are

substantive land-use restrictions enforceable by the governmental

power of the courts, and, in any case, Lund failed to offer any

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circuits have been quick to reject similar arguments. See, e.g.,

David Vincent, Inc. v. Broward Cnty., Fla., 200 F.3d 1325, 1334

(11th Cir. 2000) (“[T]he economic feasibility of relocating to a

site is not a First Amendment concern.”); Ambassador Books & Video,

Inc. v. City of Little Rock, Ark., 20 F.3d 858, 864-65 (8th Cir.

1994) (“[T]he cost factor is unimportant in determining whether the

ordinance satisfies the standards of the First Amendment.”); World

Wide Video of Wash., Inc. v. City of Spokane, 368 F.3d 1186,

1199-200 (9th Cir. 2004). 

Third, Lund assigns error to the district court’s finding

of 8 sites available for adult use. He argues that treating parcel

C-11-7 as a possible site for more than one adult business was

incorrect because its access drive would need to be relocated and

the existing structure torn down. He argues that parcels D-19-1,

D-19-91, and D-19-93 could not accommodate 6 sites, as the district

court found, because the lots would require sub-division. But Lund

gives us no reason to see these as anything more than further

economic arguments that the district court rightly declined to

consider.

Lund also contends that parcels D-19-1, D-19-91, and

D-19-93 could not meet § 86-88’s requirement of a 50-foot setback

from the street, contrary to evidence introduced by the City. Its

evidence credited by the district court on that issue. The closest

he comes to suggesting otherwise is in a reference to an affidavit

that speaks of “restrictions” without further detail. J.A. 73.

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expert testimony, which the district court credited, was that

access drives could be constructed from William S. Canning

Boulevard that would permit the buildings to be located 50 feet

from the road and thus allow for 6 adult sites. See Evidentiary

Hearing Tr. 46-47, June 3, 2010. We have reviewed the maps

submitted by the parties, along with the relevant testimony, and

see no error in the district court’s acceptance of the City’s

testimony that these parcels could have accommodated 6 sites. 

Lund’s argument about the potential of these parcels therefore

fails to discredit the district court’s conservative estimate that

8 sites were available overall. See Lund, 2012 WL 1856947, at *5

n. 10 (“The actual number available is surely greater.”).

* * *

In sum, we find no error in the district court’s

calculation of available land and now turn to the constitutional

question.

B

That calculation prefaces the last of the questions to be

addressed under the Renton scheme for analyzing a First Amendment

challenge to zoning that limits adult businesses. If a zoning code

passes muster as a time, place, and manner regulation, if it is

content neutral, and if it advances a substantial governmental

interest, the question remaining is whether it leaves reasonable

means of commercial adult activity as an alternative to its

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restrictions. See Renton, 475 U.S. at 46-54; see also City of Los 2

Angeles v. Alameda Books, Inc., 535 U.S. 425, 433-34 (2002)

(plurality op.) (discussing the Renton framework); D.H.L.

Associates, 199 F.3d at 58-59 (same). Lund has conceded that the

ordinances survive Renton’s first two enquiries and that the City’s

interest is substantial, Lund, 2012 WL 1856947, at *2, leaving only

the issue of whether the district court correctly concluded that

the land available under the ordinances allows for “reasonable

alternative avenues of communication.” Renton, 475 U.S. at 50; see

also id. at 54 (“[T]he First Amendment requires only that Renton

refrain from effectively denying respondents a reasonable

opportunity to open and operate an adult theatre . . . .”). 

In D.H.L. Associates, we explained that this enquiry does

not ask “‘whether a degree of curtailment’ of speech exists, but

rather ‘whether the remaining communicative avenues are adequate.’” 

199 F.3d at 59 (quoting Nat’l Amusements, Inc. v. Town of Dedham,

43 F.3d 731, 745 (1st Cir. 1995)). A reviewing court looks to

“multiple factors,” including “the percentage of acreage within the

zone [for adult business use] compared [with] the acreage available

In the district court, Lund argued that the only issue was 2

the sufficiency of space and sites to qualify as reasonable

opportunity. See supra p. 4. In his brief here, he has suggested

in passing that the complete ban on adult business in the

industrial zone removes the ordinances from the category of time,

place, and manner regulations, so as to entail more demanding

scrutiny. He is obviously mistaken and in any event waived the

point in the district court.

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to commercial enterprises” and “[t]he number of sites available to

adult entertainment businesses,” D.H.L. Associates, 199 F.3d at

59-60, there being “no single dispositive evaluative

consideration.” Id. at 60.

This comprehensive canvas accords with the approaches of

other circuits, which have understood the final Renton prong as

calling for a general assessment of whether the ordinances “afford

a reasonable opportunity to locate and operate such a business.” 

TJS of N.Y., Inc. v. Town of Smithtown, 598 F.3d 17, 22 (2d Cir.

2010); see also Isbell v. City of San Diego, 258 F.3d 1108, 1112

(9th Cir. 2001) (“whether [the number of sites] . . . afford[s]

. . . a reasonable opportunity”); Big Dipper Entm’t, L.L.C. v. City

of Warren, 641 F.3d 715, 719 (6th Cir. 2011) (whether “a

‘reasonable opportunity’ to open”); accord BZAPS, Inc. v. City of

Mankato, 268 F.3d 603, 606 (8th Cir. 2001) (rejecting similar

challenge because “numerous locations . . . remain available”);

Ctr. for Fair Pub. Policy v. Maricopa County, Arizona, 336 F.3d

1153, 1170 (9th Cir. 2003) (statute survives “unless the government

enactment will foreclose an entire medium of public expression [in]

a particular community” (internal quotation marks omitted)). The

enquiry is necessarily “fact-intensive,” Big Dipper Entertainment,

L.L.C., 641 F.3d at 719, and the issue of reasonable opportunity

“must be resolved on a case-by-case basis,” Fly Fish, Inc. v. City

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of Cocoa Beach, 337 F.3d 1301, 1310 (11th Cir. 2003) (internal

quotation marks omitted).

Here, we think the ordinances provide Lund the

opportunity required. This conclusion claims substantial support

from D.H.L. Associates, where we found no First Amendment violation

in a Town’s restriction of all but 0.09% of developable land from

adult entertainment purposes. The percentage available here is

more than twice as great, with 8 sites available in the City, as

compared with the 5 that we held sufficient in D.H.L. Associates. 

Lund cannot break free of the gravitational pull of that case.3

Lund calls D.H.L. Associates a distinguishable case and

faults the district court for not dealing with the differences

between the Town of Tyngsboro (the defendant in D.H.L. Associates)

and the City of Fall River. Lund cites the City’s urban character,

its larger land mass, the comparatively small number of parcels

available for sale, the lack of an “adult overlay district” (in

contrast to Tyngsboro), the ban on adult entertainment in the

There are cases from some circuits that would proceed 3

differently if presented with evidence of strong competition from

other adult entertainment companies vying for scarce real estate in

the City. See Fly Fish, Inc., 337 F.3d at 1309 (contrasting cases

that adopt a bright-line rule in which an ordinance can survive

only if “there are more reasonable sites available than businesses

with demand for them” with cases that adopt a more contextual

supply-and-demand test (internal quotation marks and citations

omitted)). We express no opinion on this question because, as the

district court noted, “neither party has presented evidence that

anyone other than Lund has opened or has sought to open an adult

entertainment business under these ordinances.” Lund, 2012 WL

1856947, at *5.

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City’s Industrial District, and the City’s lack of an explanation

for banning adult entertainment there. See Appellant’s Br. 38–44. 

But the district court made just the comparison Lund

stresses, in contrasting rural Tyngsboro with Fall River, “one of

the largest industrial cities in Massachusetts,” Lund, 2012 WL

1856947, at *5, while recognizing that “D.H.L. Associates, Inc.

teaches only that a somewhat higher level of available land might

be necessary to assure reasonable alternative locations in a

developed urban environment than in an undeveloped rural one,” id. 

The court’s conclusion thus rested on explicit consideration of the

City’s urban nature, and the City’s larger land mass was fully

acknowledged in evaluating the percentage of available land. The

number of parcels available for sale is an economic consideration

that has no role in the constitutional analysis, and if the City

chooses to allow adult businesses in shopping centers but not in

factory districts, there is nothing obviously suspect in the

choice. In sum, the differences Lund identified between this case

and D.H.L. Associates fail to render the precedent inapt or the

district court’s analysis inadequate.

Lund’s remaining points touching on § 86-201 are

essentially policy differences with the City, which do not rise to

the level of First Amendment significance. Because the City has

provided Lund with a reasonable opportunity for conduct protected

by the First Amendment, we affirm the district court’s judgment.

It is so ordered.

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