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The Zoning Act's Surprising Non-Treatment of Billboards

On June 29, 2015, the Appeals Court issued an unpublished 1:28 Decision in the matter of Lamar Whiteco Outdoor Corp. v. Zoning Bd. of Appeals of Webster, 2015 WL 3938606 (Mass. App. Ct. 2015). Even though a 1:28 Decision is merely persuasive authority (not binding), the decision rests upon a couple of relatively under the radar yet interesting cases that hold that billboards, in and of themselves, are not "structures" as that term is used in the Massachusetts Zoning Act (see G.L. c. 40A).

In Lamar, the Town of Webster Building Inspector ordered the plaintiffs to reduce the height of their existing billboard from 85 feet to 40 feet, in order to comply with the Webster Zoning Bylaw, which limits the height of "structures" to a maximum of 40 feet. The plaintiffs appealed to the Webster Zoning Board of Appeals, which, through a statutory peculiarity effectively denied the appeal on a 3-2 vote (3 voted to reverse the Building Inspector and 2 to uphold). See G.L. c. 40A, §15. On appeal to the Superior Court, on cross-motions for summary judgment, the judge found that the billboard did exceed the height limitations of the Bylaw, upholding the decision of the Board, but refused to order it reduced in height unless and until there was a change in circumstances (i.e. change in ownership, damage from weather or other force majeure).

The Appeals Court reversed the Superior Court's decision. It based its reversal, primarily, on the reasoning found in Inspector of Bldgs. of Falmouth v. General Outdoor Advertising Co., 264 Mass. 85 (1928). In General Outdoor the SJC was faced with the question of whether the word "structure", as recently added to the then applicable Massachusetts Zoning Act (see St. 1925, c. 116) encompassed billboards (there was no discussion about whether the Falmouth zoning bylaw defined "structure", or regulated billboards). The SJC determined that G.L. c. 93, §§ 29, 30, which created the Massachusetts Office of Outdoor Advertising (a division of the Department of Transportation), was the operable and primary statute governing billboards within the Commonwealth. As such, while acknowledging a municipality's authority to "further regulate and restrict said billboards...by ordinance or bylaw", if billboards were "structures" under the operable Zoning Act, then c. 93 would be, "by implication...supersede[d] and repeal[ed]", in violation of the interpretive principal that a statute is not to be deemed superseded in whole or in part by a later statute without express words or intention to that effect. Id. at 89, citing Brown v. Lowell, 8 Metc. 172, 174 (1844). Accordingly, the billboard at issue was allowed to remain unchanged. Then, in 1977 the SJC, relying on General Outdoor but operating under a new Zoning Enabling Act, again concluded that billboards were not "structures" for the purposes of the new statute, and that the Millbury Zoning Bylaw did not afford any grandfathered protections for billboards as pre-existing nonconforming "structures". See Town of Millbury v. Galligon, 371 Mass. 737, 739-740 (1977). This, ultimately, resulted in the billboard being removed.

This line of cases is interesting because it can easily work for or against a municipality or an owner of a billboard. If a town zoning bylaw does not define "structure" to include billboards, or fails to otherwise regulate them, then, as seen in Lamar and General Outdoor, billboards will be subject only to the regulations of the Mass. Office of Outdoor Advertising, and only if the billboard at issue falls under that division's purview. Thus, concerns relative to height, overall size, siting, illumination, etc., cannot be regulated by the town. Conversely, a town may choose to bring billboards within the purview of zoning by defining them as structures, or otherwise specifically regulating them. However, the grandfathered provisions of G.L. c. 40A, §6, will not convey protected status if there is a change in the local bylaw, unless the bylaw itself affords such protections.

As such, both towns and billboard owners have high potential risks when the local bylaw does not regulate billboards. Careful review of local zoning with competent counsel will assist in avoiding these pitfalls.

Written by Robert K. Hopkins, Esq.on behalf of Jeffrey T. Angley, P.C.

Copyright (c) 2011-2015 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.

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