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

• Decision Date: 04 January 1996
• Citation: 421 Mass. 570,659 N.E.2d 710
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: , 24 Media L. Rep. 1641 GLOBE NEWSPAPER COMPANY & others 1 v. BEACON HILL ARCHITECTURAL COMMISSION.

Page 710

659 N.E.2d 710

421 Mass. 570, 24 Media L. Rep. 1641

GLOBE NEWSPAPER COMPANY & others ¹ v. BEACON HILL ARCHITECTURAL COMMISSION.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Sept. 12, 1995.

Decided Jan. 4, 1996.

John R. Deveraux, Assistant Corporation Counsel, for defendant.

James C. Heigham, Boston, for plaintiffs.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH, O'CONNOR and GREANEY, JJ.

LIACOS, Chief Justice.

In 1991, the Beacon Hill Architectural Commission (commission) issued an amendment to its architectural guidelines prohibiting the placement of newsracks within the Historic Beacon Hill District (district) within Boston. The commission sent letters to various newspaper publishers, requesting that they remove their newsracks from the district. The plaintiff newspapers (newspapers) commenced litigation in the United States District Court for the District of Massachusetts. The newspapers contended that the commission's guidelines regarding newsracks violated the First Amendment to the United States Constitution, and, in the alternative, that the commission did not have the authority to issue the guidelines. The commission suspended its request to remove the newsracks until resolution of the litigation.

In 1993, with the litigation still pending, the commission promulgated another amendment to guideline 12, the "Street Furniture Guideline" (guideline), banning all "street furniture," and superseding the 1991 guidelines banning only newsracks. The new guideline provides:

"Street furniture, as defined below, shall not be permitted in the Historic Beacon Hill District with the exception of approved store-front merchandise stands and those structures erected or placed by authorized public agencies for public safety and/or public welfare purposes. Street furniture is defined as any structure erected or placed in the public or private ways on a temporary or permanent basis. Authorized public safety/public welfare street furniture includes, but is not limited to, such structures as street lights, traffic lights, mail boxes, fire hydrants, street trees, and trash receptacles. Any such authorized public safety/public welfare street furniture or approved storefront merchandise stands shall be subject to Commission review and shall be in keeping with the architectural and historic character of the District and the criteria for exterior architectural features as specified in [St.1955, c. 616, as amended]."

The parties agreed to allow the Federal District Court to consider the amended Street Furniture Guideline within the pending lawsuit. The court ruled that the Street Furniture Guideline violated the First Amendment and that, in any event, the commission did not have authority to issue it. Globe Newspaper Co. v. Beacon Hill Architectural Comm'n, 847 F.Supp. 178 (D.Mass.1994).

The commission appealed, and the United States Court of Appeals for the First Circuit (Federal court) certified to us the following question: "Did the Beacon Hill Architectural Commission have authority under 1955 Mass.Acts c. 616 (as amended) to adopt the 'Street Furniture Guideline'?" Globe Newspaper Co. v. Beacon Hill Architectural Comm'n, 40 F.3d 18, 25 (1st Cir.1994). We answer the certified question in the affirmative.

The opinion of the Federal court acknowledges three components within the question referred to us: (1) whether the commission has authority to regulate what is termed street furniture; (2) whether the commission may exercise any such authority by substantive rulemaking; and (3) whether a ban on an entire class of street furniture is inconsistent with the commission's enabling act. ²

The Act creating the commission states as its purpose: "The purpose of this act is 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 old Boston as it existed in the early days of the commonwealth." St.1955, c. 616, § 2. The Justices first outlined the 1955 scheme in the Opinion of the Justices, 333 Mass. 783, 784-787, 128 N.E.2d 563 (1955) (Beacon Hill Opinion ). In the Beacon Hill Opinion, the Justices referred to the purpose of St.1955, c. 616, creating the Beacon Hill Architectural District in these terms: "The announced purpose of the act is to preserve this historic section for the educational, cultural, and economic advantage of the public. If the General Court believes that this object would be attained by the restrictions which the act would place upon the introduction into the district of inappropriate forms of construction that would destroy its unique value and associations, a court can hardly take the view that such legislative determination is so arbitrary or unreasonable that it cannot be comprehended within the public welfare." Id. at 787, 128 N.E.2d 563.

I.

The commission's enabling statute provides that the commission shall review any construction, reconstruction, alteration, change in the exterior color, or demolition of any "exterior architectural feature" ³ of any "structure" within the district. The enabling act imports its definition of "structure" from the Boston building code, but the parties have agreed that the current State building code, G.L. c. 143 (1994 ed.), having superseded the Boston building code, should govern this case. A structure is therefore "a combination of materials assembled at a fixed location to give support or shelter, such as a building, framework, retaining wall, tent, reviewing stand, platform, bin, fence, sign, flagpole, recreational tramway, mast for radio antenna or the like. The word 'structure' shall be construed, where the context allows, as though followed by the words 'or part or parts thereof'." G.L. c. 143, § 1. The newspapers contend that the commission does not have the authority to regulate newsracks because their newsracks, located on the sidewalks in the district, do not fall within these definitions. We do not agree.

The newspapers would read the statutory definition to limit the commission's jurisdiction to the buildings on Beacon Hill, precluding control over objects on the sidewalk. However, the mere fact that a newsrack rests on the sidewalk does not exclude it from the definition of structure. ⁴ The term "structure" includes "building" but is not limited thereto. G.L. c. 143, § 1. The newspapers have stipulated to the fact that their newsracks are affixed on sidewalks in the district. There is no requirement that a structure be permanent, for the definition of building includes portable shelters, including, inter alia, signs, reviewing stands, and tents. Id. A newsrack is functionally a combination of a bin and a sign, both of which are structures as defined by the State building code, G.L. c. 143, § 1.

The difficulty of proper definition of a structure stems not so much from whether a newsrack is a structure, but whether it has exterior architectural features. The newspapers attempt to draw from the definition of "exterior architectural feature" an implication that only buildings have such. They point to examples given within the definition of exterior architectural features. While it is true that buildings are in contemplation when the statute speaks of windows and doors, St.1955, c. 616, § 3, lights and signs are not limited to buildings. In view of the general language of the definition, "general arrangement of such portion of the exterior of a structure," id., we cannot say that only buildings have exterior architectural features. Rather, any structure may have a portion open to view from a public way, and the commission has jurisdiction over the general arrangement and characteristics of the building materials thereof. ⁵ "Structures" that "support" may include bins, platforms, and reviewing stands.

The definition of "exterior architectural feature" provides also a list of "portions" of structures, including signs and "fixtures appurtenant." St.1955, c. 616, § 3. The painted sides of a newsrack, advertising its wares, make it a sign. That sign is in turn affixed to a structure along the sidewalk, making it an exterior architectural feature. "Fixtures appurtenant" is a more opaque term, its components meaning "personal property [affixed] to the realty" and "[being] by right used with the land." Black's Law Dictionary 103, 638 (6th ed. 1990). By claiming that they may sell papers from newsracks without commission interference, the newspapers impliedly assert that they have a legal right to hawk their publications, as an incident to their right to use public ways. They choose to exercise that right through the use of personalty affixed on sidewalks. A newsrack is a fixture appurtenant, and the commission may regulate a newsrack whose exterior is open to public view. ⁶

The newspapers raise several contrary arguments which we now take up in turn. As the Federal court noted, the guidelines in places suggest a jurisdiction limited to buildings. Those guidelines, it is stated, must to some extent reflect the commission's expert interpretation of its own enabling act. Globe Newspaper Co. v. Beacon Hill Architectural Comm'n, 40 F.3d 18, 21-22 (1st Cir.1994). The guidelines repeatedly tell readers that the commission reviews proposed changes to the exteriors of "buildings." In at least one place, however, the guidelines offer something to the contrary. Since their inception there has been a guideline that prohibits freestanding signs. Most of the commission's work may relate to buildings, but the very document that the newspapers characterize as longstanding agency interpretation itself includes structures that are not buildings.

We now turn to the related argument that a 1963 amendment to the commission's enabling act, governing signs, demonstrates that the commission believed that its jurisdiction did not extend outward from...