Facts: This is an
appeal from the Superior Court ruling that the defendants failed to show that
the area, which their new billboard was located in, was not predominantly
residential, thus warranting removal.
In 2009 the defendants replaced an existing billboard that
had stood for about forty years. The entire area at issue is zoned to be
residential. As the new billboard would be different from the old one (in terms
of size, shape, less surface area, changing display feature, and the new board
is lit with LED lights, rather than floodlights), the new billboard has no
grandfather status.
The Defendant filed two applications with the Massachusetts
Office of Outdoor Advertising (MOOA). MOOA permit decisions are made solely by
the MOOA director. In this case, the director did not visit the site, but
approved the permit. The director relies on information provided by the
application and field inspectors. In this case, the field inspector indicated
that the area was not residential in character. Furthermore, the MOOA director
relies on information provided by the building inspector. In this case, the
inspector certified that the billboard was grandfathered under the zoning
by-law. MOOA approved the application on March 11, 2010.
Plaintiff, who lives in at a property directly abutting the
location of the billboard, first complained to the building inspector. The
inspector visited the site, saw the sign exceeded the specified height, and
delivered a stop work order. The order was lifted after the inspector received
revised documentation of the sign height. Plaintiff next sought relief from the
director of MOOA on the grounds that the sign was placed in a residential area.
Plaintiff also sought relief from the town. The building inspector informed her
that the sign did not require zoning relief. The inspector informed the
plaintiff could seek relief under the Westport board of appeals and the State
Building Code of Appeals Board. The plaintiff did not pursue either avenue.
Plaintiff filed this action in Superior Court seeking
injunctive relief. At issue is 711 Code Mass. Regs. § 3.07, which states
“(3) No permit shall be granted or renewed for a sign that
is not located in an area of business character. An area shall be deemed to be
of business character only if, when viewed from the principal highway upon
which the sign is to face, both of the following requirements are met:
(a) At least two separate business, industrial or commercial
actives are being conducted within a distance of 500 feet from the proposed
location of the sign, measuring from such proposed location to the buildings or
parking lots or other places of actual business, industrial or commercial
activity…
(b) The area in which the sign is located is not
predominantly residential, agricultural or open space or natural area.”
Issue #1: Did the
Plaintiff’s failure to exhaust their administrative remedies remove the
Superior Court’s jurisdiction? No, the
only available means for challenging the MOOA’s decision was to bring equitable
action. Administrative remedies are not available to abutters or other
interested parties, which was made evident in the Plaintiff’s attempt to ask
the MOOA to review its permitting decision.
Issue #2: Did the
absence of the MOOA as a party deprive the Superior Court of jurisdiction?
No, the MOOA was a party in the amended complaint and moved
to be dismissed on the grounds of immunity without defense objection. As such,
the claim of indispensible party is effectively waived.
Issue #3: Did the
judge err in finding that the billboard was in a predominantly residential
area? No, the new billboard as a matter for law did not satisfy the
requirements first in terms of the characteristic of the neighborhood as viewed
from the highway and secondly the failure to satisfy both requirements under
711 Mass. Regs. § 3.07(a) and (b).
Judgment: Superior
Court judgment affirmed.
Note: Though Superior Court applied a standard of review pursuant
to G.L. c. 30A (appeal from administrative decisions), this court declined to
determine the correct standard to be employed in actions brought under G.L. c.
93, 31 (review by interested persons), as the new billboard did not satisfy the
requirements for 711 Code Mass. Regs. § 3.07. (KL)
