John Donnelly & Sons, Inc. v. Outdoor Advertising Bd.

• Decision Date: 15 December 1975
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: , 8 ERC 1671, 6 Envtl. L. Rep. 20,123 JOHN DONNELLY & SONS, INC. v. OUTDOOR ADVERTISING BOARD et al. 1

Page 709

339 N.E.2d 709

369 Mass. 206, 8 ERC 1671, 6 Envtl.

L. Rep. 20,123

JOHN DONNELLY & SONS, INC.

v. OUTDOOR ADVERTISING BOARD et al. ¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 7, 1975.

Decided Dec. 15, 1975.

Joseph J. Hurley, Boston (Edward P. Leibensperger, Boston, with him), for petitioner.

Ellyn R. Weiss, Asst. Atty. Gen., for Outdoor Advertising Bd.

Donald L. Connors, Boston, for the Town of Brookline, intervener.

Phillip Tocker, Brownsville, Tax., for Outdoor Advertising Assn. of America, Inc., amicus curiae, submitted a brief.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER and WILKINS, JJ.

TAURO, Chief Justice.

The petitioner, John Donnelly & Sons, Inc. (Donnelly), appeals from a decree of the Superior Court affirming a decision of the Outdoor Advertising Board (the board) which denied renewal of twenty-two permits issued by the board for off-premise outdoor advertising signs maintained by Donnelly in business and industrial districts of the town of Brookline (the town). The board, in a decision dated April 5, 1973, found that the Donnelly signs were being maintained in violation of the town's zoning and sign by-laws. Donnelly petitioned for judicial review of the board's decision under G.L. c. 30A, § 14, and the town intervened. A judge of the Superior Court, after hearing argument, affirmed the decision of the board.

Donnelly has been engaged in the business of erecting and maintaining billboards, or what are often called off-premise or nonaccessory signs, since 1850. It owns, operates, and maintains twenty-two such billboards, all constructed prior to 1960 in nonresidential districts in Brookline. The billboards, which Donnelly leases for commercial advertising, ² have been operated under permits issued annually by the board or its predecessor.

On November 16, 1967, art. XXIII (the 'sign by-law') was unanimously adopted at a Brookline town meeting. The sign by-law was approved by the Attorney General on November 30, 1967, and became effective on December 7, 1967. Section 4 of the by-law, set forth in the margin, ³ imposes various restrictions, including limitations as to size and location, on nonaccessory (off-premise) signs. ⁴ Section 7(a) provides that the application of the sign by-law to off-premise signs is to be postponed for a period of five years from the effective date of the by-law. This five-year grace period for the removal of nonconforming signs expired on December 7, 1972. ⁵

At a town meeting on December 13, 1971, Brookline adopted an amendment to its zoning by-law prohibiting '(a)ny advertising sign or device, including off-premise signs and non-accessory signs as defined in this By-Law or the Sign By-Law of the Town of Brookline' in any residential, industrial or business zone. This provision was approved by the Attorney General on January 10, 1972, and became effective on January 22, 1972.

On August 16, 1971, the executive secretary of the town informed the board of the December, 1972, deadline and requested that no permits or renewals be granted beyond that date. An adjudicatory hearing was held by the board at which both Donnelly and the town, represented by counsel, presented evidence. The board found that the zoning by-law had the effect of excluding off-premise signs from the town and assumed, as we do on appeal, that the sign by-law, although not prohibitory in terms, was in effect a prohibition of off-premise signs in the town's business districts. It concluded that the town's by-laws were neither an unreasonable exercise of the police power under the due process clause of (1973). The only limit on this right of self-government of the United States nor a violation of the First Amendment, as applied to the States by the Fourteenth Amendment. Further, the board decided that the prohibition of off-premise signs in Brookline, assumed by the board to have been enacted primarily for reasons of aesthetics, was consistent with the Massachusetts Constitution. Having upheld the by-laws, the board ruled that since Donnelly's billboards were in violation thereof, under its regulation 9K, set forth below, ⁶ the permits for the twenty-two billboards should be denied. A Superior Court judge upheld the board decision, and we affirm.

1. The petitioner contends that the town's prohibitory zoning and sign by-laws are invalid because they are inconsistent with State policy as embodied in the State Constitution, art. 50 of the Amendments, the State statute, G.L. c. 93, §§ 29--33, and the board's rules and regulations. In light of our prior decisions in the area of billboard regulations, ⁷ we cannot agree with this contention.

The power to regulate and restrict '(a)dvertising on public ways, in public places and on private property within public view' was conferred explicitly on the Legislature by art. 50 of the Amendments to the Constitution, adopted and ratified on November 5, 1918. ⁸ This amendment was discussed extensively in General Outdoor Advertising Co. v. Department of Pub. Works, 289 Mass. 149, 193 N.E. 799 (1935), where this court said: 'The words used to confer that power are of broad import. Plainly, advertising of the kind there described has been designated by constitutional mandate as a subject of regulatory and restrictive legislation. No restraints on that power are expressed in the article. Every consideration for the promotion of the public interests which in view of its sweeping terms may reasonably be given weight by a lawmaking body may be taken into account and be a factor in framing regulations or restrictions.' Id. at 158--159, 193 N.E. at 804.

In the exercise of the power granted by art. 50, the Legislature enacted G.L. c. 93, §§ 29--33, which, in part, authorizes the board to adopt 'rules and regulations for the proper control and restriction of billboards . . . on public ways or on private property within public view of any highway, public park or reservation.' G.L. c. 93, § 29, as appearing in St.1955, c. 584, § 4. Excluded from the operation of the regulatory scheme are on-premise signs; 'signs . . . which advertise or indicate either the person occupying the premises in question or the business transacted thereon . . ..' G.L. c. 93, § 30, as appearing in St.1945, c. 233. Although primary responsibility for regulating outdoor advertising is entrusted to the board, the Legislature 'apparently recognized that the nature of the subject matter was such that it might not be adequately and appropriately controlled and supervised by general rules of state wide application, and that the physical characteristics of various cities and towns differ within such wide limits that it was deemed expedient to permit them to establish and enforce local regulations for the purpose of lessening the detrimental effect that the general welfare of the community might sustain by the erection and maintenance of billboards . . ..' Milton v. Donnelly, 306 Mass. 451, 455, 28 N.E.2d 438, 441 (1940). Accordingly, the Legislature in G.L. c. 93, § 29, provided that '(c)ities and towns may further regulate and restrict' off-premise signs not inconsistent with the State statute (G.L. c. 93, §§ 29--33) and board rules and regulations.

Our inquiry is whether Brookline's by-laws, found by the board to have the effect of prohibiting off-premise advertising in the town, come within the power delegated to the town. To be valid, the by-laws must comply with the enabling statute. Lanner v. Board of Appeal of Tewksbury, 348 Mass. 220, 228, 202 N.E.2d 777 (1964); Caires v. Building Comm'r of Hingham, 323 Mass. 589, 594, 83 N.E.2d 550 (1949). In the present case, the specific question is whether the local regulations are 'inconsistent with principles clearly established by comprehensive State legislation or by authorized regulations.' John Donnelly & Sons, Inc. v. Outdoor Advertising Bd., 361 Mass. 746, 754, 282 N.E.2d 661, 667 (1972) (hereinafter referred to as the 'Avon' case).

In determining whether a local regulation is inconsistent with State legislation, it was said in Commonwealth v. Baronas, 285 Mass. 321, 323, 189 N.E. 62, 63 (1934), that '(t)he mere existence of statutory provision for some matters within the purview of the by-law will not render it invalid as repugnant to law. . . .' See Commonwealth v. Goodnow, 117 Mass. 114 (1875). In Bloom v. Worcester, 363 Mass. 136, 154, 293 N.E.2d 268, 279 (1973) this court said: 'As a general proposition the cases dealing with the repugnancy or inconsistency of local regulations with State statutes have given considerable latitude to municipalities, requiring a sharp conflict between the local and State provisions before the local regulation has been held invalid.' Further, it was recognized in Milton v. Donnelly, supra, 306 Mass. at 458, 28 N.E.2d at 442, that the relation between the town and the State with regard to the billboard regulation is 'more or less analogous to the power of the State to make regulations for certain phases of interstate commerce, which are valid until they are displaced or abrogated by an Act of Congress . . .'

In deciding that the town's by-laws are not inconsistent with either the State statute or the board regulations, we note initially that the Legislature has provided explicitly for local regulation of billboards and that the board, in adopting § 9K, supra n. 6, has left wide latitude for local action. Avon, supra, 361 Mass. at 752, 282 N.E.2d 661. We do not agree, as argued by Donnelly, that since G.L. c. 93, § 29, provides that the board 'may require' billboards to be located in business, commercial or industrial districts, it is the State policy to permit off-premise signs in those specified areas. The word 'may' is commonly used to import discretion, Turnpike Amusement Park, Inc. v. Licensing Comm'n of Cambridge,343 Mass. 435, 437, 179 N.E.2d 322 (1962), and thus we interpret this provision as giving the board discretion to determine whether billboards should be...