Peter Malaguti of Massachusetts School of Law in Andover said if Florida businessman Dean Cohen challenges the town's nude-dancing ban, he expects the town would win.
Cohen, who has helped open 40 adult entertainment clubs, recently submitted plans to turn the Carr Landscaping building at 20 Rockingham Road (Route 28) into a high-end gentlemen's club and pub with dance stages and private booths featuring topless women.
Cohen told an Eagle-Tribune reporter he believes the town's ban on nude dancing, passed in a 1998 Special Town Meeting vote, would not stand up in court.
The Supreme Court has ruled that communities cannot institute outright bans against adult businesses, but can control them by limiting where they are allowed.
Windham, as well as Salem, Derry and Londonderry, adopted such zoning in the 1990s. In Windham, the regulations do allow for adult entertainment on the section of Route 28 where the club is proposed.
Malaguti, who teaches constitutional law, said it is unclear whether the Planning Board can use the townwide nude-dancing ban as part of its decision.
"I believe this ordinance is probably legal, that it would stand up if challenged in court," he said. "At least twice, the U.S. Supreme Court has ruled towns can totally ban nude dancing, once in 1991 and as recently as 2000."
Meanwhile, residents and members of the clergy are gearing up to fight the club, which they say will breed crime by attracting prostitutes, drug dealers and other criminal elements to the area.
Police have said they are worried such a club could draw more businesses like it to the area.
The Rev. Matthew Fagan of Heritage Baptist Church said he told parishioners about the plans for the club during last Sunday's services, urging them to fight it.
Heritage Baptist Church has plans to build a church on land it owns on Route 28 about 1 mile away from the proposed location for the club, which Cohen said would be named Goldfinger New Hampshire.
Acting Windham police Chief Patrick Yatsevich, Derry police Capt. Vern Thomas and state Rep. Mary Griffin, R-Windham, all say that such an establishment could bring prostitutes, drug dealers and other criminal elements to the area.
Thomas said he also is concerned about a rise in impaired drivers on the roads in his town, since customers would have to travel through Derry or Salem to get to the Windham club.
Salem Deputy Chief Bill Ganley said while he would not be happy about having a topless dance club in nearby Windham, if it's legal, it's legal. Still, he said, he hopes the building will be tastefully handled.
Cohen has said all he will have on the outside of his club is a sign with "Goldfinger" on it.
The nearest New Hampshire communities with similar clubs are Seabrook and Bedford.
Seabrook Deputy Chief Patrick Manthorn said despite their initial concerns, Leather and Lace, an adult club with nude dancers on Route 1 that opened 10 or 12 years ago, hasn't caused major problems.
A spokesman for the Bedford Police Department could not be reached for a comment about Mark's Showplace, a topless club in that town.
Manthorn, who has been with the Seabrook Police Department for 30 years, said, "Just like everything, people all get worried about what it will bring to the town. It's something you have to think about and deal with, but luckily for us, there has been no problem."
New Hampshire state law and the U.S. Supreme Court allow communities to ban businesses with a venue that includes any obscene activities, Malaguti said. While determining what is obscene sometimes can be very difficult, live performances involving sexual activity could constitute obscenity, he said.