Strip club loses bid to halt Gaiety's demise

A Massachusetts Land Court judge yesterday rejected a request by the Glass Slipper strip club to stop a developer from tearing down the defunct and dilapidated Gaiety Theatre nearby.

The theater's owner, Kensington Investment Co., said it will "shortly proceed with demolition of long-vacant buildings" it owns at 659-665 Washington St. near Chinatown. It declined to give a more specific timetable.

It was unclear last night whether the Glass Slipper would appeal the judge's decision. Calls to the Glass Slipper's attorney were not returned.

In denying the Glass Slipper's request for a preliminary injunction, Judge Keith Long wrote that the Glass Slipper had failed to demonstrate that it would be irreparably harmed by the Gaiety's demolition.

Long also wrote that the Glass Slipper had not shown that it's likely to prevail on the merits of its claim in an ongoing lawsuit that the Gaiety, as a theater in the city's theater district, can only be demolished under special circumstances.

Long, who toured the Gaiety recently, noted that the Gaiety has "not been used as a theater, equipped for use as a theater, or legally capable of being used as a theater under its certificate of occupancy since at least May 10, 1988."

Kensington wants to build an apartment tower called Kensington Place on land partly occupied by the Glass Slipper and the Gaiety. The Boston Redevelopment Authority has said it will seek to take the Glass Slipper by eminent domain if Kensington and the Glass Slipper cannot negotiate a sale.

In a statement yesterday, Kensington said, "We will shortly proceed with demolition of long-vacant buildings we own on this site in preparation for the construction of the project, which will bring 350 badly needed housing units to city, including 61 affordable units."

The Glass Slipper's lawyer had argued that the Glass Slipper would be harmed because Kensington's plans for abutting properties do not conform to the city's zoning code. The Glass Slipper also argued that it would be harmed because if the Gaiety were demolished, it could no longer advertise its business as "next to the historic Gaiety Theatre."

In his decision, Long wrote, "It is unclear how being next to 'the historic Gaiety Theatre' will affect the numbers or demographics of the Glass Slipper's customers."

The Kensington project would include a tower nearly 300 feet tall in a part of the city where height limits are far below that. However, large projects are sometimes granted special zoning status, called a planned development area, that allows developers to negotiate height and density for a project with the BRA and the community.

To qualify, a developer is supposed to have a project one acre or larger. Critics cried foul when Kensington sought to include city sidewalks and property owned by abutters to reach the one-acre threshold.

Nevertheless, the city granted the project the special zoning status. In response, the Glass Slipper, along with a group of city councilors and neighborhood activists, brought lawsuits in Land Court against the city, claiming that it had violated its own zoning code in giving Kensington the special status. Long ruled earlier that the councilors lacked standing and dismissed them from the suits.

The Glass Slipper's challenge remains, and Long could rule on its claim that Kensington's special zoning status is invalid, possibly in March. It was in the context of this lawsuit that the Glass Slipper asked for a preliminary injunction that would spare the Gaiety, at least temporarily, after the city issued a demolition permit earlier this month.

A group called the Gaiety Theatre Friends claims the theater, built in 1908, is worthy of preservation, but the Boston Landmarks Commission declined to give it landmark status.

Long wrote that he was not empowered to review the commission's decision. He noted that the demolition of the Gaiety "does not permit Kensington to construct the Kensington Place project in its stead. The legal validity of that project remains to be determined."

Long added, "My sympathies lie with the preservationists, but the facts and the law do not."

Chris Reidy can be reached at reidy@globe.com.