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

• Decision Date: 05 May 1972
• Citation: 282 N.E.2d 661,361 Mass. 746
• Parties: JOHN DONNELLY & SONS, INC. v. OUTDOOR ADVERTISING BOARD et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 661

282 N.E.2d 661

361 Mass. 746

JOHN DONNELLY & SONS, INC. v. OUTDOOR ADVERTISING BOARD et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 10, 1972.

Decided May 5, 1972.

Robert W. Meserve, Boston (Kenneth L. Grinnell, Boston, with him), for plaintiff.

Timothy F. O'Leary, Asst. Atty. Gen., for Outdoor Advertising Board.

James T. Grady, Town Counsel, for the Town of Avon.

Andrew F. Lane, Boston, and James P. Whitters, III, Taunton, for Conservation Law Foundation of New England, Inc., amicus curiae, submitted a brief.

Before TAURO, C.J., and CUTTER, SPIEGEL, REARDON and HENNESSEY, JJ.

CUTTER, Justice.

The plaintiff (Donnelly) seeks judicial review (G.L. c. 30A) of a decision of the Outdoor Advertising Board (the board, sometimes called the division); see G.L. c. 16, § 13 (as appearing in St.1969, c. 704, § 21) and § 14 (as appearing in St.1963, c. 821, § 1); c. 93, §§ 29--33, as amended, denying the renewal of a permit to maintain a billboard on the roof of 145 Main Street, Avon (the locus), and ordering that the billboard be removed. The town of Avon was joined as a defendant. The board found that the billboard was being maintained in violation of an amendment of the town of Avon's zoning by-law. ¹ After hearing, a Superior Court judge made a careful report of material facts which stated (among other matters) that the board had found the billboard to be 'within 500 feet of the Avon Fire and Police Station, the Avon Baptist Church, a Civil War Memorial and a building which . . . Avon intends for use as a historical museum.' By final decree, the board's decision was affirmed. Donnelly appealed. The facts are stated on the basis of the report of material facts.

Donnelly owns a large billboard on the locus which the record before the board shows to have been there at least since 1967, and probably since 1940. 'The billboard is used to advertise various products and . . . not . . . merely to advertise a business conducted on the' locus. It has been maintained 'for a number of years under a permit . . . issued . . . by the (b)oard.' In 1967, the Avon selectmen objected to a renewal of the permit. The board, however, then voted to renew the permit. It notified the selectmen that the locus was still in a business area and that the location 'complies in every way with' the applicable rules and regulations, ² but that 'as soon as there is a change in the area,' the board can 'review the permit.' ³

The regulations, apart from § 9K (mentioned below), have protected billboards in business and industrial areas to a considerable extent (see fns. 2 and 3), although they have imposed restrictions upon billboards in other areas. ⁴ In 1969, the board amended its regulations ⁵ by adding a new section, § 9K. That section reads: 'K. No license or permit shall be granted for the location or maintenance of billboards . . . within a . . . town except where such location or maintenance is in conformity with applicable . . . by-laws enacted in accordance with . . . (G.L. c. 93, § 29) and no . . . by-law shall be deemed inconsistent with the . . . (Board's) rules and regulations . . . on the ground that such . . . by-law prohibits the location or maintenance of a billboard . . . which in the absence of . . . (the) by-law would be in conformity with the . . . rules and regulations' (emphasis supplied). This new section gives rise to questions now at issue.

At the 1970 town meeting in Avon, it was 'unanimously voted to amend the . . . (z)oning (b)y-law' by adding to § 6 a new provision, #8 (fn. 1). After the amendment (for convenience, hereafter sometimes called the by-law) was approved by the Attorney General, the town (by its town counsel) asked the board not to renew the permit for a billboard on the locus. At a public hearing on September 15, 1970, Donnelly and the town were represented by counsel. At the hearing (of which a transcript is before us as an exhibit), 'there was substantial evidence . . . that the immediate area in which the . . . (locus) billboard is located is still of a business character . . . and is still zoned for business.' The record before the board, however, also shows that, near the locus, a new and costly police station has been built since 1967, and an old building has been restored for a museum. As already indicated, the board found that the billboard was within 500 feet of public and religious structures of types specified in the by-law (fn. 1). The board concluded that the billboard was in violation of the by-law and therefore in violation of § 9K of the regulations. It voted to deny renewal of the permit.

1. Prior to the 1969 amendment of the regulations (inserting § 9K) the board appears to have reserved to itself the power finally to determine whether an existing or proposed billboard was in a business or industrial area. See § 5 of the regulations, fn. 2, supra, especially at points (A), (B), and (C). If a proposed location was determined by the board to be in a business or industrial area, nothing in the regulations compelled denial of the permit. The regulations then indicated little concern on the board's part about local objections to the original location of billboards in business areas. With respect to renewal applications (see e.g. the 1967 action with respect to the billboard at the locus) the regulations afforded substantially no encouragement to cities or towns to press objections to (and to obtain a hearing upon) the renewal of a permit for a business area billboard, unless the area had ceased to be such an area. See § 6 (fn. 3, supra) especially at points (D) and (E).

The 1969 insertion of § 9K in the regulations significantly and explicitly changed the board's policy and position, so as to give much greater weight to local considerations. This provision (that 'no . . . permit' should be granted for a billboard 'within a city or town' except where the location conforms to an applicable ordinance or town by-law) plainly was adopted pursuant to the final sentence of c. 93, § 29, which permits 'towns . . . further (to) regulate and restrict . . . billboards . . . within their respective limits by . . . by-law, not inconsistent with' c. 93, §§ 29--33 (fn. 5, supra), or with the regulations.

Section 29 gives the board wide authority to prescribe regulations 'for the proper control and restriction of billboards,' with due consideration of the 'public interest.' The section does not require that the regulations be expressed in any particular manner or in any rigidly defined terms. The scope of the 'application . . . (of constitutional guaranties, and hence of the regulations, may) expand or contract to meet . . . new and different conditions.' See General Outdoor Advertising Co. Inc. v. Department of Pub. Works, 289 Mass. 149, 188, 193 N.E. 799, 817, quoting Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 387, 47 S.Ct. 114, 71 L.Ed. 303. We think (especially in view of the last sentence of § 29) that the board, in framing regulations, appropriately may vary (in the light of current circumstances) the extent to which its regulations are to preclude further reasonable restrictions by local ordinance or by-law, or to give weight to local restrictions. The board, for example, may regard as important the increasing local public interest in environmental matters ⁶ and the trend toward adopting principles of local 'home rule.' See art. 89 of the Amendments to the Constitution of the Commonwealth.

2. There is no inconsistency between the Avon by-law and § 9K of the regulations, if § 9K is to be interpreted as controlling other provisions of the regulations. Two aspects of § 9K support such a result. (1) The first part of § 9K is a flat mandate by the board that no permit (and we take this to apply to renewal permits as well as original permits; see Milton v. Donnelly, 306 Mass. 451, 453, 457--458, 28 N.E.2d 438) is to be granted for a billboard 'except where . . . (the) location or maintenance is in conformity with applicable . . . town . . . by-laws.' This we regard as a determination by the board that it proposes to be guided by reasonable local ordinances and by-laws with respect to permits. (2) The later part of § 9K states that no local 'by-law shall be deemed inconsistent with the . . . regulations' merely because it forbids a billboard 'which in the absence of . . . (the) by-law would be in conformity with the . . . regulations.' This declares in substance that it is of no importance that the board probably would grant a permit in the absence of a town by-law.

We conclude that the board has adopted a regulation (a) that the policy of § 9K is to affect and modify other regulations, and (b) that such other provisions are not to prevent regulation by local ordinances and by-laws. The board, in effect, has decided no longer to preempt, by its regulations, the whole field of billboard control and has left wide scope for reasonable local regulation. See General Outdoor Advertising Co. Inc. v. Department of Pub. Works, 289 Mass. 149, 196--198, 193 N.E. 799; Milton v. Donnelly, 306 Mass. 451, 458--459, 28 N.E.2d 438.

We perceive nothing in c. 93, § 29, which precludes the board from deciding to give (by adopting § 9K) greater scope than heretofore to local decisions (expressed by the formal adoption of ordinances or by-laws) concerning billboards. The board in effect is merely carrying out its regulatory function by a different pattern than formerly but in a manner clearly contemplated by the provisions of the final sentence of § 29, relating to ordinances and by-laws.

Donnelly points to various alleged inconsistencies between the Avon by-law (fn. 1) and the regulations (other than § 9K). In the light of what has been said about the controlling effect of § 9K, these inconsistencies, if they exist, ⁷ no longer have significance. ⁸

3. We next consider whether the town acted properly in the 1970 amendment of its zoning by-law.

Donnelly, in arguing...