Massachusetts Outdoor Advertising Council v. Outdoor Advertising Bd.

• Decision Date: 29 May 1980
• Citation: Massachusetts Outdoor Advertising Council v. Outdoor Advertising Bd., 405 N.E.2d 151, 9 Mass.App.Ct. 775 (Mass. App. 1980)
• Parties: MASSACHUSETTS OUTDOOR ADVERTISING COUNCIL et al. 1 v. OUTDOOR ADVERTISING BOARD.
• Court: Appeals Court of Massachusetts

Page 151

405 N.E.2d 151

9 Mass.App.Ct. 775

MASSACHUSETTS OUTDOOR ADVERTISING COUNCIL et al.¹ v.OUTDOOR ADVERTISING BOARD.

Appeals Court of Massachusetts, Suffolk.

Argued Feb. 19, 1980.

Decided May 29, 1980.

Wm. Gerald McElroy, Jr., Boston, for plaintiffs.

Francis S. Wright, Asst. Atty. Gen., for defendant.

Before BROWN, DREBEN and KASS, JJ.

KASS, Justice.

In an effort to cull from its hearing list those billboard license applications fated for refusal, the Outdoor Advertising Board(the Board)² promulgated regulations which enable it to deny without a hearing any application which discloses on its face that the sign sought to be erected or maintained fails to comply with the laws of the host municipality or with the provisions of G.L. c. 93D, § 2.The plaintiffs(the advertisers) urge that the Board's regulations unlawfully deprive them of rights to a hearing to which statute(G.L. c. 30A, § 13), the Constitution of the Commonwealth (arts. 11 and 12 of the Declaration of Rights), and the Constitution of the United States (Fourteenth Amendment) entitle them.We conclude that the Board's regulations which pertain to renewals of sign permits are lawful, and that those which pertain to initial permits are not.

These issues were presented by a complaint seeking declaratory and injunctive relief.A judge of the Superior Court declared the rights of the parties and granted partial injunctive relief.Both parties appealed.Although no final judgment was entered, the parties were entitled under the second paragraph of G.L. c. 231, § 118, to appeal from the grant of a preliminary injunction.See, as to the procedure to be followed, Demoulas Super Mkts., Inc. v. Peter's Mkt. Basket, Inc., 5 Mass.App. 750, 370 N.E.2d 719(1977).See, for a discussion of the availability of appellate review from orders granting or denying preliminary injunctions, Packaging Industries Group, Inc. v. Cheney, --- Mass. ---, --- - ---^a, 405 N.E.2d 106(1980).While appeals from interlocutory injunctions frequently fractionate disposition of a case in a way which is burdensome to the courts and unproductive for the parties, in this case it does not appear that there was any further fact finding to be done and the parties have properly regarded the order for a preliminary injunction as the practical equivalent of a final one.We shall not describe the manner in which the judge found the Board's regulations wanting because after his order, and while this appeal was pending, the Board significantly altered those regulations so as to eliminate those provisions which the judge determined legally deficient.Both parties have argued this appeal on the basis of the revised regulations, published April 12, 1979, and appearing as 311 Code Mass. Regs. 3.00(1979).It is appropriate that we consider the regulations in effect at the time we render our decision.Thorpe v. Housing Authy. of Durham, 386 U.S. 670, 673-674, 87 S.Ct. 1244, 1246, 18 L.Ed.2d 394(1967);Bradley v. School Bd. of Richmond, 416 U.S. 696, 711-716, 94 S.Ct. 2006, 2016-2018, 40 L.Ed.2d 476(1974).This is particularly apt when a request for a declaratory judgment is involved since it is a function of declaratory proceedings to guide the future conduct of parties.

As so amended, the regulations which the advertisers attack provide, in 311 Code Mass. Regs. 3.03, that each initial application (as opposed to a renewal application) for an annual permit or for a temporary permit shall include a certification by an authorized city or town official that the proposed sign is, or is not, in conformity with applicable local zoning law or authorized by a special permit or variance.A like certification is required on the application from an official of the State Department of Public Works as to compliance, not only with applicable municipal ordinances or by-laws, but also with the provisions of G.L. c. 93D(which relates to control of outdoor advertising adjacent to the interstate and primary highway systems).³

"I hereby certify that the proposed sign is (check applicable box)

[ ] not in conformity with

[ ] in conformity with

[ ] authorized by a special permit or variance from the applicable Ordinances/By-Laws of the City/Town (strike one) of _____________.The proposed location of the sign is in an area zoned _______________."

Name and title of duly authorized

City/Town official

------Date

"I hereby certify that the proposed sign is (check applicable box)

violation citation:

[ ] not in conformity with

[ ] in conformity with

[ ] not subject to

the provisions of Chapter 93D of the General Laws.If subject to Chapter 93D, the subject sign is

[ ] not in conformity with applicable municipal ordinances or by-laws.

[ ] in conformity with applicable municipal ordinances or by-laws."

Name and title of duly authorized

MDPW official

------Date Reacting to a criticism made of the earlier version of 311 Code Mass.Reg. 3.03, that it failed to consider the possibility that a local building inspector might refuse to certify anything at all, sub-paragraph (4) permits the applicant to submit an affidavit stating that the applicant had made a timely effort to obtain certification.By the terms of the next sub-paragraph (5), the executive director of the Board, or the Board itself, may, at discretion, disapprove an application without a hearing if an application contains a certification to the effect that the sign for which a permit is sought violates local law.It is this reservation of right by the Board to dispose of an application summarily without a hearing which the advertisers say bears the taint of illegality.

The provisions of 311 Code Mass.Reg. 3.06, relating to renewal and revocation of permits, are similar in design, ⁴ with the significant difference that (notwithstanding certification of non-compliance), a permit applicant may under sub-paragraphs (9) through (11), inclusive, request a hearing if the request is accompanied by materials which support the contention that the certification of non-compliance was in error.

"I hereby certify that the subject sign is (check applicable box)

[ ] not in conformity with

[ ] in conformity with

[ ] not subject to

[ ] authorized by a special permit or variance from

[ ] protected by specific provisions which 'grandfathers' off-premises signs in

the applicable Ordinances/By-Laws of the City/Town (strike one) of: _____________.The location of the sign is in an area zoned._____________

The subject sign is as of this date standing at the location stated in the application._______________ (yes or no)."

Name and title of duly authorized

City/Town official

------Date

"I hereby certify that the subject sign is: (check applicable box)

violation citation:

[ ] not in conformity with

[ ] in conformity with

[ ] not subject to

the provisions of Chapter 93D of the General Laws.If subject to Chapter 93D, the subject is

[ ] in conformity with applicable municipal ordinances or by-laws.

[ ] not in conformity with applicable municipal ordinances or by-laws.It has been maintained in violation since _____________ (date)."

Name and title of duly authorized

MDPW official

------Date

Whether a sign complies with local law is significant because under 311 Code Mass.Reg. 3.04(7) no permit "shall be granted or renewed for the location or maintenance of a (s)ign within a city or town except where such location or maintenance is in conformity with applicable city and town ordinances and by-laws . . . " This deference by the Board to local regulation was approved in John Donnelly & Sons, Inc. v. Outdoor Advertising Bd., 361 Mass. 746, 751-753, 282 N.E.2d 661(1972), and underscored in John Donnelly & Sons, Inc. v. Outdoor Advertising Bd., 369 Mass. 206, 211-215, 339 N.E.2d 709(1975), in which the court decided that the Board might properly defer to a by-law of Brookline prohibiting outdoor advertising entirely in that town, except for signs announcing businesses conducted on the premises on which the outdoor display was located.If, therefore, no genuine dispute exists as to compliance with local law, ⁵ a hearing before the Board is an exercise in futility (except to stave off the evil day of permit revocation, a strategem we do not endorse as an end of the administrative process).The purpose of the Board's regulations 3.03 and 3.06 is to enable it to screen a permit application at the threshold for whether there is anything to be heard, or whether the application is doomed.

1.Applications for license renewals.Neither side to the controversy disputes that an applicant for a permit renewal is, as a matter of first principle, entitled to a hearing before his application is denied.General Laws c. 30A, § 13, expressly provides that "no agency shall revoke or refuse to renew any license unless it has first afforded the licensee an opportunity for a hearing . . .."⁶ What the Board's regulations establish is an administrative summary judgment procedure which enables the Board to determine whether there exist any material disputes concerning facts which would have the effect of conclusively requiring refusal of a permit application.For example, a town official certifies to the board that a sign for which a renewal permit is sought does not comply with local law.The applicant, in accordance with the Board's regulations 3.06(9), (10), and (11), requests a hearing and files the information required under those sub-paragraphs.This information discloses on its face that a sign of the size in issue is unconditionally forbidden in the zoning district in which it is located.On such facts an evidentiary hearing would serve no useful purpose since the Board under its regulation, supported by the authority of John Donnelly & Sons, Inc. v. Outdoor Advertising Bd., 361 Mass. at 751-752, 282 N.E.2d 661, is bound to refuse a permit for such a sign.

Three decisions of the United States Supreme Court have considered and approved the device of summary...