YANKEE ADVERTISING CO., INC. vs. OUTDOOR ADVERTISING BOARD.

GRANT, J. On October 3, 1978, the Outdoor Advertising Board (board) (G. L. c. 16, Section 14; c. 93, Sections 29-33) rendered a summary decision (see Maurice Callahan & Sons v. Outdoor Advertising Bd., 12 Mass. App. Ct. 536, 537 [1981]) by which it revoked the permit for and ordered the removal of a 600 square foot billboard which Yankee Advertising Co., Inc. (Yankee), had maintained along Route 20 in Oxford since 1961. The basis of the board's decision was that the billboard was being maintained in violation of Section 8A of the Oxford zoning

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by-law and was thus in contravention of Section 4(g) of the board's rules and regulations, 311 Code Mass. Regs. 3.04(7) (1978). [Note 1]

Yankee sought review in the Superior Court under G. L. c. 30A, Section 14. The case appears to have languished there for more than four years until, on January 10, 1983, a report was filed by a special master who had been appointed for the purpose of considering and making recommendations with respect to cases arising under Section 14. The master recommended that the board's decision be declared "contrary to applicable law and not supported by substantial evidence" and that judgment be ordered for Yankee. On the very day the master's report was filed, a judge of the Superior Court, without explanation and seemingly without any opportunity for hearing by the parties, endorsed his approval (see Mass.R.Civ.P. 58[a] [2], 365 Mass. 826 [1974]) on a form of judgment which tracked the language just quoted, vacated the decision of the board, and concluded with "Judgment for the Plaintiff." [Note 2] The judgment was entered on the docket two days later. The board appealed.

1. The parties have concentrated their respective arguments before us in the two areas in which the master found fault with the board's decision. We consider first the master's observation that the board failed to take any evidence or make any finding of fact (see G. L. c. 30A, Section 11 [4] and [8]) from which it could

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be inferred that the billboard in question was an off-premises sign which was subject to regulation by the board under G. L. c. 93, Sections 29-30A. Most of the evidence before the board has not been put before us, [Note 3] but we can and do note the absence from the board's decision of any express finding that the particular billboard is an off-premises one. We are hard put to imagine a more innocuous deficiency. Yankee would not have applied to the board for a permit in 1961 and would not have resisted the board's efforts to revoke the permit in 1978 and thereafter if its billboard had been an on-premises sign expressly exempted from the board's jurisdiction under the first branch of the proviso of G. L. c. 93, Section 30. We think the master's observation was directed to a non-issue.

2. It has been clear ever since 1972 that the provisions of what is now Section 4(g) of the board's rules and regulations operate to forbid the erection or maintenance of an off-premises sign which would be or is in violation of the provisions of a local zoning ordinance or by-law. See note 1, supra, and the cases cited therein. As already mentioned, the basis of the board's decision was its conclusion that the billboard in question was being maintained in violation of Section 8A ("Signs") of the Oxford zoning by-law, which is set out in the margin. [Note 4] The master (and

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presumably the judge) concluded that the by-law does not cover off-premises signs.

Section 8A does not stand alone. Section 3 ("Establishment of Districts") provides for five separate classes of zoning district in the town. Sections 4 through 7A of the by-law enumerate all the uses permitted as of right or by special permit in each class of district. None of the enumerations includes a billboard or sign of any sort, and each enumeration is prefaced by the legend "Any uses not so permitted are excluded unless otherwise permitted by law or by the terms of this by-law." Section 8A is the only part of the by-law which contains any reference to any kind of sign. That section commences with the all-encompassing words "In all districts advertising signs and devices which are visible from outside any building or other structure shall be permitted only as follows" (emphasis supplied). [Note 5]

The various subsections of Section 8A which list what is "permitted" are revealing. Thus, subsection (a) permits a sign "identifying a home profession," which is defined in Section 2 ("Definitions") as "[u]se of a portion of a single family dwelling or accessory building as a workroom of a resident of the premises

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engaged in a customary home profession or occupation . . ." (emphasis supplied). Subsection (b) permits a "For Sale" or a "For Rent" sign advertising only the premises on which the sign is located" (emphasis supplied). Subsection (c) permits "[o]ne bulletin or announcement board, sign or device for each business establishment on the premises" (emphasis supplied). No other type of sign is permitted. It will be noted that each type of sign which is permitted must be located on the premises to which its message relates. We also think it significant that no sign larger than thirty-two square feet in area can be erected or maintained without a special permit from the board of appeals.

When those facts are considered in light of the preamble of Section 8A ("permitted only as follows") and the prohibitory legend which prefaces each of the five enumerations of permitted uses set out in Sections 4 through 7A, we have no doubt that Section 8A was intended to prohibit all off-premises signs such as the one of 600 square feet involved in this case.

We have not overlooked the master's views or the arguments advanced by Yankee. We think both the master and Yankee have failed to grasp the significance of the "permitted only as follows" language of the preamble of Section 8A when that language is considered alongside the other provisions of the by-law which have already been delineated in this opinion. We think it not without significance that at some unidentified point following the decision in John Donnelly & Sons v. Outdoor Advertising Bd., 361 Mass. 746, 748-753 (1972), possibly in 1977 but in any event prior to the commencement of the present proceedings in 1978, subsection (c) of the by-law was amended to contain the explicit requirement already noted that signs of the type subject to that subsection identify only a "business establishment on the premises" (emphasis supplied).

The judgment is reversed, and a new judgment is to be entered which affirms the decision of the board and orders the removal of the billboard. So ordered.