Town of Milton v. Donnelly

• Decision Date: 03 July 1940
• Parties: TOWN OF MILTON v. DONNELLY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

306 Mass. 451

28 N.E.2d 438

TOWN OF MILTON

v.DONNELLY.

Supreme Judicial Court of Massachusetts, Suffolk.

July 3, 1940.

Case reserved from Supreme Judicial Court, Suffolk County.

Petition in equity by the Town of Milton against Mary J. Donnelly, trustee, to require respondent to remove a billboard on the ground that the erection and maintenance were in violation of a by-law of the town. The suit was reserved upon the petition and answer and a master's report.

Decree in accordance with opinion.

L. Bryant, of Boston, for petitioner.

R. S. Wilkins and T. Chase, both of Boston, for respondent.

RONAN, Justice.

In this petition in equity filed under G.L.(Ter.Ed.) c. 93, § 31, the town of Milton seeks a decree ordering the respondent to remove a billboard erected by her on June 5, 1935, and since maintained by her, on the ground that the erection and maintenance were in violation of a by-law of the town. The suit was reserved by a single justice upon the petition, answer and a master's report for the determination of the full court.

The town adopted a by-law which provided that no person should erect or maintain a billboard ‘within three hundred feet of any other public way and within public view from any portion of the same if such billboard, sign or device exceeds five feet in height or eight feet in length.’ This by-law after its approval by the division of highways of the department of public works, and by the Attorney General, became effective on May 26, 1923. The approval of the division of highways was given in accordance with G.L. c. 93, § 29, which in so far as is material provided that: ‘The division of highways of the department of public works, hereinafter called the division, shall make and may amend or repeal rules and regulations for the proper control and restriction of billboards, signs and other advertising devices, except as provided in section thirty-two, on public ways or on private property within public view of any highway, public park or reservation. Said rules and regulations may require that said billboards, signs or other devices be licensed in accordance therewith and with this section, may prescribe license fees, to be fixed with regard to the cost of administering this section, and need not be uniform throughout the commonwealth. * * * Subject to the approval of the division, towns may further regulate and restrict said billboards or other devices within their respective limits by ordinance or by-law not inconsistent with sections twenty-nine to thirty-three, inclusive, or with said rules and regulations.’ This section was amended by St.1924, c. 327, which struck out the sentence last quoted and substituted therefor the following: ‘Cities and towns may further regulate and restrict said billboards or other devices within their respective limits by ordinance or by-law not inconsistent with sections twenty-nine to thirty-three, inclusive, or with said rules and regulations.’ The division of highways was abolished by St.1927, c. 297, and its power was formally transferred to the department of public works. St.1931, c. 394, § 96.

A zoning by-law was adopted by the town on July 10, 1922, which divided the town into a residential district and two business districts. The billboard in question was located in one of these business districts. The business and industrial uses permitted in these two districts were governed by-laws adopted in 1934 and 1938, but no mention was made therein of billboards or advertising devices.

The respondent constructed in June, 1935, a billboard 50 feet long and 12 feet in height on the roof of a garage abutting upon Granite Avenue, a public highway. This billboard is within 300 feet of this highway and is within public view from said way. The billboard since its erection has been maintained by the respondent. It is used to advertise goods other than those sold in the garage. The department of public works first granted the respondent a permit for the construction of this billboard in 1930 and thereafter renewal permits have been annually granted. On June 1, 1934, the department wrote the chairman of the selectmen advising him that the respondent had applied for a renewal permit, and the board of selectmen on June 7, 1934, approved the renewal of this permit. A permit was issued by the department to expire June 30, 1935. The building inspector issued a permit for the construction of the billboard on May 23, or 24, 1935. Commencing in 1935, and continuing since, the board of selectment have objected to and disapproved the renewal of the permit when advised by the department that an application for renewal had been made.

The division of highways on January 24, 1924, in accordance with G.L. c. 93, § 29, adopted new rules and regulations for the control and restriction of billboards, signs and other advertising devices. Section 6, entitled ‘Restrictions,’ contained six paragraphs, each designated by a letter. Paragraph D provided that no billboard shall be located nearer than 50 feet to the street. It permitted billboards exceeding 32 square feet in area to be located not less than 100 feet from the street and billboards exceeding 25 feet in length or 12 feet in height to be located not less than 300 feet from the street. This paragraph contained the further provision: ‘Provided, however, that this paragraph shall not apply to districts which the Division may determine are of a business character.’ Section 8 of these rules and regulations set forth the form of an ordinance or by-law which the division stated it would approve. One section of this form of an ordinance or by-law, designated (f), provided that no billboard exceeding 25 feet in length or 12 feet in height should be located or maintained within 300 feet of the public way. Section 8 of these rules and regulations, however, stated that certain provisions including (f) ‘shall not apply to districts which the (Mayor and Aldermen or Selectmen) may determine are of a business character. (This limitation may be omitted from Ordinances or By-laws, if desired.)’ The master reports that the department of public works does not undertake to determine the limits or area of a business district but passes upon each individual application for a permit. He inferred from the grant of the permit to the respondent that the department of public works determined that the district in which the billboard was located was of a ‘business character,’ and he found upon all the evidence that the locus was of such a character.

The respondent contends that the by-law is invalid because it is inconsistent with the rules and regulations of the department of public works and, further, because it is unreasonable.

Power to regulate and restrict advertising in public ways and upon private property within public view was conferred upon the Legislature by art. 50 of the Amendments to the Constitution. In the exercise of the power, the Legislature has directed the department of public works to formulate and establish rules and regulations for the control and restriction of billboards, signs and other advertising devices on public ways or upon private property within public view of any highway, public park or reservation, and for the licensing of such structures and prescribing a fee for licenses, which shall be fixed with regard to the cost of administering the law. Such rules and regulations need not be uniform throughout the Commonwealth. G.L. (Ter.Ed.) c. 93, § 29. The general supervision and primary control of this subject are entrusted to a State department. The Legislature, however, 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, provided that such local regulations did not conflict with the statutes or the rules and regulations of the State department. It was said in Inspector of Buildings of Falmouth v. General Outdoor Advertising Co., Inc., 264 Mass. 85, 89, 161 N.E. 899, 900, that ‘The Legislature had conferred upon the division authority over the erection and maintenance of billboards with the subordinate right of cities and towns by ordinance or by-law to make further regulations or orders not inconsistent or at variance with the regulations promulgated by the division.’ Our inquiry is whether the by-law comes within the power delegated to the town. To be valid it must come within the scope of the enabling statute. Winthrop v. New England Chocolate Co., 180 Mass. 464, 62 N.E. 969;Commonwealth v. Hayden, 211 Mass. 296, 97 N.E. 783;Commonwealth v. Atlas, 244 Mass. 78, 138 N.E. 243. Rule 6 is the only one dealing with the size and setback of billboards and other advertising devices near highways and public places, and that requires a billboard of the dimensions of the respondent's to be located at least 300 feet from the public way. But this rule specifically provides that it shall not apply to a locus that the department has determined to be a...