ACKERLEY COM. OF MASS., INC. v. City of Somerville

• Court: U.S. District Court — District of Massachusetts
• Writing for the Court: WOODLOCK
• Citation: ACKERLEY COM. OF MASS., INC. v. City of Somerville, 692 F.Supp. 1 (D. Mass. 1988)
• Decision Date: 08 July 1988
• Docket Number: Civ. A. No. 86-3222-WD.
• Parties: ACKERLEY COMMUNICATIONS OF MASSACHUSETTS, INC., Plaintiff, v. CITY OF SOMERVILLE, Defendant.

692 F. Supp. 1

ACKERLEY COMMUNICATIONS OF MASSACHUSETTS, INC., Plaintiff, v. CITY OF SOMERVILLE, Defendant.

Civ. A. No. 86-3222-WD.

United States District Court, D. Massachusetts.

July 8, 1988.

George A. Berman, Posternak, Blankstein & Lund, Boston, Mass., for plaintiff.

Peter L. Koff, Weston, Patrick, Willard & Redding, Boston, Mass., Anthony P. Sullivan, City of Somerville Law Dept., Somerville, Mass., for defendant.

MEMORANDUM

WOODLOCK, District Judge.

For more than ten years the City of Somerville, Massachusetts, has sought to regulate billboard signs through zoning regulation. One such effort was found constitutionally defective in 1985. Now before me is a challenge to Somerville's 1986 revision of its regulatory scheme.

In this action, the plaintiff, Ackerley Communications of Massachusetts, Inc. ("Ackerley"), challenges the constitutionality of revised Article 10¹ of Somerville's zoning ordinance. Revised Article 10 regulates the size and location of all signs in the City, and prohibits the erection or maintenance of signs that fail to conform to its requirements.

Section 10.7,² which is denominated "Nonconforming Signs," constitutes the exemptive section of revised Article 10. It contains two subsections especially important to analysis of the claims in this matter. Subsection 10.7.1 is a retrospective provision which looks to the period beginning one year before the effective date of the revised Article to provide the operative time for evaluating nonconforming signs. Subsection 10.7.2 is a grandfather provision for certain existing nonconforming signs erected before the effective date of the revised Article.

The exemptive section is convoluted and works obliquely. Under Section 10.7.1, a nonconforming sign is expressly prohibited if — at any time after the operative date of the provision, July 28, 1985 — that sign advertised or promoted the sale of goods, products and services not sold, provided or manufactured upon the premises where the sign is located. The unarticulated negative pregnant of this formulation is, as the parties agree, that an otherwise nonconforming sign, e.g. a billboard, has grandfather protection under Section 10.7.2 and is exempted from prohibition by Article 10 if it has been used since July 28, 1985 exclusively to deliver either: (a) on-premise³ commercial advertising or promotions, or (b) noncommercial messages of any kind, or both. Otherwise, the sign is deemed an off-premise commercial sign unprotected by any exemption.

Thus, as constructed, Section 10.7 functions in two dimensions, the substantive and the temporal. In the substantive dimension, a typology of nonconforming signs is established. One class consists of off-premise commercial signs; these are expressly prohibited. The second class consists of the remaining signs — on-premise commercial signs and noncommercial signs of any kind; these may be exempt from prohibition. Whether a given sign in the second class is, in fact, exempt depends upon the temporal dimension.

In the temporal dimension, the operative date of July 28, 1985, establishes an additional test of consistency of use to determine whether a potentially exempt nonconforming sign may remain undisturbed by revised Article 10. A sign, otherwise exempted on substantive grounds, becomes tainted — and subject to removal — if at any time after July 28, 1985, it has been used for the prohibited purpose of delivering an off-premise commercial message.

The interplay between the substantive and temporal dimensions of the exemptive section defines the battleground where the constitutional dispute in this case is fought.

Ackerley's constitutional challenge to Article 10 is mounted on four fronts. Ackerley contends:

— That revised Article 10, by choosing an operative date in its exemptive section which does not permit those using nonconforming signs on the effective date to change the content and satisfy the noncommercial exception prospectively, violates the First Amendment by impermissibly favoring commercial over noncommercial messages;

— That revised Article 10 violates the First Amendment by impermissibly favoring on-premise commercial advertising over off-premise commercial advertising;

— That revised Article 10 violates the constitutional prohibition against ex post facto laws as well as the constitutional guarantee of due process because, by choosing an operative date well before the effective date, it has — without fair warning — exposed the plaintiff to penalties for conduct that was legal at the time it occurred; and

— That revised Article 10 constitutes an unconstitutional taking of private property without just compensation.

Somerville has responded with what it contends is a compulsory counterclaim. This counterclaim seeks enforcement of Article 10 under state zoning law if Ackerley's federal constitutional challenges are rejected.

With the cooperation of the parties, discovery was expedited to permit an advanced trial on the merits. In addition, the parties cooperated in reopening the evidence to provide an adequate basis for findings concerning the actual impact of full enforcement of Article 10. By agreement of the parties, interim enforcement of the ordinance has not been undertaken pending resolution of the constitutional issues.

The constitutional issues will be disposed of in accordance with this Memorandum by a declaratory judgment upholding revised Article 10 against plaintiff's challenge.

I decline, however, to resolve the problems of enforcement raised by the counterclaim because those problems involve essentially state law questions and concerns. The counterclaim will, accordingly, be dismissed.

This Memorandum sets forth the findings of fact and conclusions of law required for resolution of this non-jury matter. Fed.R.Civ.P. 52.

I. FINDINGS OF FACT

The City of Somerville, Massachusetts, is a compact and densely populated older urban locality with limited open space. It is the third most populous city in the Boston metropolitan area. Somerville's development predated the enactment of its first comprehensive zoning ordinance in 1925. As a result, commercial, industrial and residential uses — while ostensibly ordered by zoning — exist side by side in Somerville through the continuation of prior nonconforming uses.

As part of the Boston metropolitan area, Somerville has a wide variety of communication media available to its citizens. These include network affiliated, local and cable television channels and radio stations from throughout metropolitan Boston, together with national, regional and local newspapers and signs which conform to revised Article 10.

For some period of time the residents of the City, its political leaders and its planners have been concerned with revitalizing the City economically and, in a related as well as independent sense, aesthetically. The problems of signs generally — and billboards in particular — have been a focus of these concerns. Article 10 is a regulatory expression of that concern.

A. Ackerley's Business

Ackerley is a company engaged in the outdoor advertising business. It leases property on which it erects sign structures and then makes the space on such structures available to the public for commercial, political, charitable and social messages. Those signs are generally known as billboards.

The erection and maintenance of Ackerley's billboards in Massachusetts is subject to the permit authority of the state's Outdoor Advertising Board ("OAB"). Mass. Gen.L. ch. 93, §§ 29-33 and ch. 93D. Each of Ackerley's current billboards was issued a permit prior to erection. Until 1982, the permits were subject to annual renewal. After 1982, the Commonwealth began to issue five-year permits.

Permits granted by the OAB are subject, under Massachusetts law, to municipal zoning amendments. 311 Code of Massachusetts Regulations ("C.M.R.") 3.01(2). See also 311 C.M.R. 3.04(7) ("No permit shall be granted or renewed for the location or maintenance of a Sign within a city or town except where such location or maintenance is in conformity with applicable city and town ordinances"). Ackerley maintains approximately 3,000 signs subject to this regulatory regime in 64 cities and towns in Massachusetts.

In Somerville, it maintains 81 sign faces at 43 separate locations.⁴ All of Ackerley's Somerville signs have been standing for at least 10 years, and a substantial majority have been standing for over 30 years. All of Ackerley's Somerville billboards are maintained pursuant to leases with the owners of the various properties upon which the billboards are located. Under the leases, Ackerley typically erects its billboards on a roof or a parking lot of the leased premises. Ackerley's current Somerville leases have varying expiration dates: leases for 24 of the billboards at issue here will not expire until after 1990, and leases for eleven of the billboards will not expire until after 1995. The leases generally contain clauses that provide a basis for Ackerley to reduce payments if government regulations restrict billboards.

Ackerley's signs have historically been used to display both commercial and noncommercial messages. Prior to July 28, 1986, the effective date of the challenged ordinance, Ackerley's signs were used primarily for off-premise commercial messages. However, even during that time Ackerley devoted a substantial amount of advertising space to noncommercial messages, occasionally donating advertising space on its Somerville billboards to public service organizations or using its billboards to carry editorial messages expressive of its own views.⁵ Before passage of revised Article 10, Ackerley on average donated 15% of its advertising space at any given time to noncommercial organizations. Ackerley has also leased space on its billboards to political candidates.⁶

Ackerley's billboard rates are not modest. A 12 by 25 foot billboard rents for an average of $400 per month and a 14 by...