Globe Newspaper Co. v. Beacon Hill Architectural Com'n

• Decision Date: 08 May 1996
• Docket Number: No. 94-1538,94-1538
• Citation: 100 F.3d 175
• Parties: , 24 Media L. Rep. 2537 GLOBE NEWSPAPER COMPANY, et al., Plaintiffs--Appellees, v. BEACON HILL ARCHITECTURAL COMMISSION, Defendant--Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 175

100 F.3d 175

65 USLW 2339, 24 Media L. Rep. 2537

GLOBE NEWSPAPER COMPANY, et al., Plaintiffs--Appellees, v. BEACON HILL ARCHITECTURAL COMMISSION, Defendant--Appellant.

No. 94-1538.

United States Court of Appeals, First Circuit.

Heard May 8, 1996.

Decided Nov. 12, 1996.

John R. Devereaux, with whom Merita A. Hopkins and Gerald Fabiano, Boston, MA, were on brief, for defendant-appellant.

Edward N. Costikyan, Michael S. Gruen and David Nissenbaum, New York City, on brief, for The National League of Cities, The United States Conference of Mayors and The Municipal Art Society of New York, amici curiae.

James C. Heigham, with whom Choate, Hall & Stewart, Boston, MA, and Alice Neff Lucan, Washington, DC, were on brief, for plaintiffs-appellees.

Before TORRUELLA, Chief Judge, CUMMINGS ^* and CYR, Circuit Judges.

TORRUELLA, Chief Judge.

We visit this controversy for the second time in as many years. See Globe Newspaper Co. v. Beacon Hill Architectural Comm'n, 40 F.3d 18 (1st Cir.1994). We are left to decide important issues that require a balancing between First Amendment rights and governmental interests.

Defendant-Appellant Beacon Hill Architectural Commission (the "Commission") enacted a regulation, the Street Furniture Guideline, which effectively bans newspaper distribution boxes from the public streets of the Historic Beacon Hill District in Boston, Massachusetts (the "District"). The validity of this regulation was challenged in a suit filed in district court by Plaintiffs-Appellees, a group of newspaper publishers (the "Newspapers"). The district court held that the Commission lacked the authority to adopt the regulation and also that it violated rights guaranteed by the First Amendment. See Globe Newspaper Co. v. Beacon Hill Architectural Comm'n, 847 F.Supp. 178 (D.Mass.1994).

In the ensuing appeal by the Commission, we concluded that the appropriate course of action was to certify the dispositive issue of state law to the Supreme Judicial Court of Massachusetts (the "SJC") and so proceeded. To the question

Did the Beacon Hill Architectural Commission have the authority under 1955 Massachusetts Act Chapter 616 (as amended) to adopt the "Street Furniture Guideline"?

the SJC answered in the affirmative. See Globe Newspaper Co. v. Beacon Hill Architectural Comm'n, 421 Mass. 570, 659 N.E.2d 710 (1996). In its response, the SJC held that the Commission had authority to regulate newsracks and other "street furniture" through rulemaking and to completely ban entire classes of structures such as newsracks. Id. at 590-91, 659 N.E.2d 710. Specifically, it said:

As to streets and sidewalks, the [C]ommission's jurisdiction is concurrent with appropriate municipal agencies. Regulation of the sidewalks is rationally related to the goal of preserving the Historic Beacon Hill District. Section 4 of the enabling [A]ct provides the [C]ommission with the authority to issue rules that govern private conduct within its particular geographic area of responsibility. We conclude that, apart from constitutional considerations, outright bans on certain classes of structures are merely a practical consequence of the [C]ommission's ability to proscribe inappropriate exterior architectural features within the [D]istrict.

Id. We thus focus our attention on the constitutional issue, which requires us to determine whether the Street Furniture Guideline violates rights guaranteed by the First Amendment to the Newspapers. We conclude that it does not and reverse the decision of the district court.

BACKGROUND

The Historic Beacon Hill District was created by an act of the Massachusetts General Court in 1955. See 1955 Mass. Acts ch. 616 ("the Act"), as amended by 1958 Mass. Acts ch. 314 & 315, 1963 Mass. Acts ch. 622, 1965 Mass. Acts ch. 429, 1975 Mass. Acts ch. 741, and 1982 Mass. Acts ch. 624. The Act is intended to

promote the educational, cultural, economic and general welfare of the public through the preservation of the historic Beacon Hill district, and to maintain said district as a landmark in the history of architecture and as a tangible reminder of 1955 Mass. Acts ch. 616, § 2. The District's historical significance can hardly be doubted. See Opinion of the Justices, 333 Mass. 783, 786-87, 128 N.E.2d 563 (1955). Indeed, it was listed in the National Register of Historic Places and designated a National Historic Landmark on October 15, 1966, pursuant to the National Historic Preservation Act of 1966, 16 U.S.C. § 470 et seq.

old Boston as it existed in the early days of the commonwealth.

The Commission was created to review proposed changes to the "exterior architectural feature[s]" of "structures" within the District. See 1955 Mass. Acts ch. 616, § 7; see also id. at § 3 (defining an "exterior architectural feature"); Mass. Gen. L. ch. 143, § 1 (providing definition of "structure"); Globe Newspaper, 40 F.3d at 20. Anyone wishing to construct, reconstruct or alter an exterior architectural feature is required to apply to the Commission for a certificate of appropriateness. The Commission, "[i]n passing upon appropriateness," shall consider, inter alia, "the historical and architectural value and significance, architectural style, general design, arrangement, texture, material and color of the exterior architectural feature involved and the relationship thereof to the exterior architectural features of other structures in the immediate neighborhood." 1955 Mass. Acts ch. 616, § 7. Furthermore, the Commission must "spread upon its records the reasons for [its] determination" that a certificate of appropriateness should not issue. Id. An aggrieved party may appeal the Commission's decision to the Superior Court for Suffolk County, which "shall annul the determination of the [C]ommission" if it is "unwarranted by the evidence" or "insufficient in law." Id. at § 10.

As previously noted it was not surprising that, "given the stream of applications for certificates of appropriateness, the Commission developed uniform policies toward certain recurring types of proposed alterations." Globe Newspaper, 40 F.3d at 20. Specifically, in 1981, it formally adopted the policies as "guidelines." These guidelines regulate exterior architectural features such as masonry, roofs, windows, sash and shutters, doors, trim, paint, and ironwork. One of the guidelines states that "[f]reestanding signs are not permitted."

In the District, the Newspapers distribute their publications via home delivery, mail, store sales, street vendors, and "newsracks." ¹ Newsracks, we explained, are newspaper distribution boxes painted in various colors and featuring the name of the newspaper and other advertising logos, which are commonly anchored to lampposts, signposts, or fixtures on the sidewalk. The plaintiffs maintain a total of thirty-nine newsracks in the district. ² Within the District, there are eleven stores that distribute, or are available to distribute, the Newspapers' publications.

                Outside the District, but within one block of the District's boundaries, the Newspapers' publications are sold through stores and newsracks. 3  It is undisputed that no point within the District is more than 1,000 feet (approximately 1/5 of a mile) from a source of the Newspapers' publications
                

Newsracks were first introduced to the District in the early 1980s, and by 1983, Beacon Hill residents had begun to complain of the "unsightliness, congestion and inconvenience associated with the vending machines." The Commission believed that the newsracks violated the guideline prohibiting free-standing signs. It took no enforcement action, however, because a city-wide regulation of newsracks was being discussed in the early 1980s.

In 1990, no regulation having been adopted, the Beacon Hill Civic Association petitioned the Commission for a guideline to exclude newsracks from the District. After holding a public meeting regarding the petition, ⁴ the Commission conducted a survey and completed, in January, 1991, a study entitled the "Publication Distribution Box Report" (the "Report"). See Exhibit H (in the record). Soon thereafter, on February 21, 1991, the Commission held a public hearing ⁵ on the proposal to adopt guidelines for newsracks and, ultimately, adopted the following guideline:

Publication distribution boxes (any boxes placed on the sidewalks to distribute publications, whether for charge or not) visible from a public way are not allowed within the District.

In its decision, the Commission indicated that the publication distribution guideline ("PDG") was consistent with its guideline banning freestanding signs and the Commission's decisions denying the installation of traffic signal control boxes on the sidewalks, and the regulation of the installation of a cable television system in the District.

A few months later, on April 1, 1991, the Commission notified the Newspapers of the new guideline. One month later, it requested that the Newspapers remove their newsracks by June 1, 1991. Then, after the Newspapers requested that the Commission reconsider its decision to adopt its regulation, the Commission heard testimony from the Newspapers in July, 1991. After voting to deny reconsideration, the Commission extended the removal deadline until October 1, 1991. Within a month, the Newspapers brought suit in district court seeking declaratory relief, damages, and preliminary and permanent injunctive relief from the regulation, on the grounds that it violated their First Amendment right to distribute newspapers in the District.

After a bench trial on stipulated facts, the court ruled from the bench that the regulation offended the First Amendment ..., "instead of being narrowly tailored with respect to the limitation on speech[, the PDG] is narrowly tailored to focus only on speech. It applies to no form of visual clutter other than public[ation] distribution boxes...." Significantly, the trial judge was "troubled whether there is statutory authority for...