OA VW LLC v. Mass. Dep't of Transp.
| Citation | 76 F.Supp.3d 374 |
| Decision Date | 06 January 2015 |
| Docket Number | Civil Action No. 13–11028–NMG. |
| Parties | OA VW LLC and Outfront Media Boston LLC, Plaintiffs, v. MASSACHUSETTS DEPARTMENT OF TRANSPORTATION, Massachusetts Office of Outdoor Advertising, Richard A. Davey and Edward J. Farley, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Elizabeth Abimbola Thomas, Henry C. Dinger, Katherine Connolly Sadeck, Michael K. Murray, Goodwin Procter LLP, Boston, MA, for Plaintiffs.
Sookyoung Shin, Office of the Attorney General, Boston, MA, for Defendants.
Plaintiffs OA VW LLC and Outfront Media Boston LLC (collectively “Outfront”) bring this action challenging the enforceability of 700 C.M.R. § 3.07 et seq., which are regulations of outdoor advertising promulgated in 2012 by defendant Massachusetts Department of Transportation (“MassDOT”).1 Their complaint also names as defendants the Massachusetts Office of Outdoor Advertising (“OOA”), which is a subdivision of the Highway Division of MassDOT, Richard Davey, the Secretary of Transportation and Edward Farley, the Director of the OOA in their official capacities.
In 1946 the Massachusetts legislature amended M.G.L. c. 93 to vest exclusive authority to regulate outdoor advertising in the Outdoor Advertising Authority (“OAA”). The OAA was controlled by a three-member board, appointed by the governor. In 1955 the OAA was renamed the Outdoor Advertising Board (“OAB”).
In 1965 Congress enacted the Federal Highway Beautification Act (“FHBA”) which provides for the regulation and control of “outdoor advertising signs, displays, and devices in areas adjacent to” interstate and federal-aid primary highways. 23 U.S.C. § 131(a). Under the FHBA, in order to receive full allotment of federal highway funds, each state must ensure that outdoor advertising near federal highways in the state conform to “size, lighting and spacing” requirements “to be determined by agreement” with the U.S. Department of Transportation.
In 2009 the Massachusetts legislature enacted M.G.L. c. 6C (“the 2009 Transportation Act”), which repealed the statutes that created OAB and consolidated several state agencies into MassDOT. The Act authorizes MassDOT to “exercise any powers necessary for the commonwealth to be in compliance with” its obligation under FHBA. Early drafts of the legislation expressly delegated the OAB's broader authority to a new entity but none of those was enacted. The Commonwealth maintains that OAB was “integrated” into MassDOT while plaintiffs contend that the Act eliminated the OAB without conveying its powers to MassDOT or to any other entity.
In November, 2009, MassDOT adopted temporary regulations which essentially mirrored those that had been in place under OAB but also created defendant Massachusetts Office of Outdoor Advertising (“OOA”) to replace the OAB. The OOA is administered by a single Director with permit granting authority. In June, 2012, MassDOT proposed further regulatory changes which went into effect in December, 2012 (“New Regulations”).
Plaintiffs assert that the New Regulations impose numerous restrictions on off-premise signs that were not explicitly authorized by the Massachusetts legislature. In particular, plaintiffs contend that the 2009 Transportation Act did not create an entity to succeed the OAB and authorized MassDOT to regulate outdoor advertising only to the extent necessary to ensure compliance with the FHBA and the Federal/State Agreement. Plaintiffs claim that the New Regulations do far more than that, including that they regulate outdoor advertising everywhere in the Commonwealth rather than just advertising near an Interstate Highway.
Plaintiffs object specifically to the language of 700 C.M.R. § 3.07(4) which states:
No permit shall be granted for a sign which the Director, in its discretion, determines would not be in harmony with or suitable for the surrounding area or would do significant damage to the visual environment. In making this determination, the Director may consider, among other factors, the health, safety and general welfare of the public; the scenic beauty of the area; the physical, environmental, cultural, historical or architectural characteristics of the location and the area; the structure, height and size of the sign; the illumination and brightness of the sign; and the number of signs, including on premise and accessory use signs, which are in the area wherein the sign is to be located. The existence of any sign or signs in an area shall not require a finding that the erection of another sign will be in harmony with the area.
Plaintiffs further protest that the subject provision of the New Regulations gives the Director “unbridled discretion” over permitting decisions and that such standardless discretion constitutes an unconstitutional prior restraint on their First Amendment right of free speech.
In April, 2013, plaintiffs filed a complaint seeking declaratory judgments that 1) MassDOT lacks authority to impose the New Regulations (Count I), 2) the New Regulations violate plaintiffs' First Amendment rights (Count II), 3) by promulgating and enforcing the New Regulations defendants have a) deprived plaintiffs of rights secured by the First and Fourteenth Amendments and § 1983 (Count III) and b) deprived plaintiffs of their right to free speech under Article 16 of the Massachusetts Constitution (Count IV) and 4) defendants violated the Massachusetts Administrative Procedures Act when they adopted substantive changes to the proposed regulations without holding a public hearing (Count V). Plaintiffs also filed a motion for preliminary injunction to enjoin defendants from enforcing the New Regulations. Defendants, in response, moved to dismiss the case.
Oral argument on plaintiffs' motion for preliminary injunction and defendants' motion to dismiss was held in June, 2013. The following month, this Court allowed the defendants' motion to dismiss after concluding that the plaintiffs lacked standing to raise their First Amendment challenge because they have not identified any injury in fact as a result of 700 C.M.R. § 3.07(4). Plaintiffs appealed the dismissal of Counts I, III, IV and V to the First Circuit Court of Appeals.
In October, 2014, the First Circuit reversed this Court's holding on the standing issue, reinstated the pendant state law claims and remanded the case. It expressed no opinion on the merits of plaintiffs' claims.
In November, 2014, defendants filed a renewed motion to dismiss Counts I, IV and V and to stay Count III. For the reasons that follow, defendants' motion will be denied without prejudice.
Defendants contend that plaintiffs' state law claims are barred by the Eleventh Amendment under Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). They argue that the Court lacks subject matter jurisdiction over those claims because the Eleventh Amendment to the United States Constitution bars federal courts from instructing state officials on how to conform their conduct to state law. Id. at 103–106, 121, 104 S.Ct. 900.
Plaintiffs respond that Pennhurst does not apply to claims that state officials are acting in a manner that is ultra vires their authority. They contend that MassDOT has not been delegated general regulatory power over outdoor advertising and that the only authority that the Massachusetts legislature gave to MassDOT is the power to take steps “necessary” to comply with the “size, lighting and spacing” requirements in the Federal/State Agreement.
Plaintiffs rely on Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949), which ruled that the doctrine of sovereign immunity does not apply to a claim challenging the actions of government officials that exceed the scope of the officials' legal authority:
The Court in Pennhurst rejected a broader version of the ultra vires doctrine advanced by the dissent but nevertheless recognized that the exception applies where a state officer “acts without any authority whatever.” Pennhurst, 465 U.S. at 102 n. 11, 104 S.Ct. 900 (quoting Florida Dep't of State v. Treasure Salvors, Inc., 458 U.S. 670, 697, 102 S.Ct. 3304, 73 L.Ed.2d 1057 (1982) ). The Eleventh Amendment therefore does not prevent federal courts from enjoining state officials from engaging in acts that the officials have no authority to take. Pennhurst re-affirmed the Larson Court's holding that the ultra vires exception rests on “the officer's lack of delegated power.”Id. (quoting Larson, 337 U.S. at 690, 69 S.Ct. 1457 ). The test for determining the applicability of such exception is “whether the [officer's] action, even if legally erroneous, was beyond...
To continue reading
Request your trial