JOHN BRUNI, INDIVIDUALLY, and as TRUSTEE OF SOUTHERN CROSS REALTY TRUST v. BOB GAMBALE, DANA JORDAN, ROGER LEBLANC, KEVIN LOMBARD, BENJAMIN FIERRO, TIMOTHTY PERKINS, and ROBERT BODWELL, as they are members of the ZONING BOARD OF APPEALS FOR THE TOWN OF IPSWICH

This action was commenced on September 19, 2005 by John Bruni, individually and as trustee of the Southern Cross Realty Trust (the “Plaintiff), appealing a decision of the Zoning Board of Appeals (“ZBA” or “Defendant”) of the Town of Ipswich, Massachusetts (the “Town”) pursuant to G.L. c. 40A, § 17 in which the ZBA upheld a zoning enforcement order which required the Plaintiff to limit the display on an electronic message center only to displays of time and temperature. Before the court today is Plaintiff’s motion for summary judgment, in which he claims that (1) the Town’s Bylaw impermissibly infringes upon his exercise of commercial speech, (2) his sign is exempt from the Town’s Zoning Bylaw Section VIII (the “Sign Bylaw”) pursuant to the agricultural exemption set forth in G.L. c. 40A, § 3, and (3) the ZBA’s decision was arbitrary and capricious because it fails to state a legally tenable reason for denying his appeal.

This case arises out of Plaintiff’s continued use of an electronic sign which is displayed in front of Plaintiff’s business, Bruni’s Market, located on Essex Road in Ipswich. In the early 1990’s, the Plaintiff erected two commercial signs on two separate lots after obtaining valid building permits for both. In 2004, the Town’s Building Inspector issued Plaintiff a permit to modify one of the signs to include an electronic message center so that he may display information related to his business. On or about July 5, 2005, Plaintiff received an enforcement letter from the Town’s Zoning Enforcement Officer (the “Building Inspector”), stating that the sign did not comply with the Town’s Bylaw. Upon the ZBA’s August 31, 2005 denial of Plaintiff’s appeal from the Building Inspector’s enforcement letter, the Plaintiff timely appealed the ZBA’s decision to this court on September 9, 2005.

After several continuances, the parties appeared before the court (Trombly, J.) for a case management conference on March 2, 2006 and returned for a status conference on December 10, 2007. Shortly thereafter, on February 22, 2008, Plaintiff filed a Motion for Summary Judgment and a supporting memorandum, along with an affidavit of the Plaintiff John Bruni. Defendants filed an Opposition to Plaintiff’s Motion for Summary Judgment on March 24, 2008 and requested an entry of judgment pursuant to Mass. R. Civ. P. 56(c). In support thereof, they filed a response to Plaintiff’s Statement of Material Facts and a Statement of Additional Material Facts, as well as a memorandum in support of their opposition and an affidavit of James Sperber. On March 28, 2008, Defendant ZBA filed an Answer to Plaintiff’s Complaint. The motion for summary judgment was argued before the court on April 17, 2008, at which time the matter was taken under advisement. Based on the record before it, the court finds that the following facts are not in dispute and are established for the purpose of any trial or further proceedings which may become necessary in this matter. Mass. R. Civ. P. 56(d).

1. Plaintiff John Bruni, in his capacity as Trustee of the Southern Cross Realty Trust, owns property in Ipswich, Massachusetts, located at 36-40 Essex Road (the “property”). The property contains a retail grocery store, a residential structure, an office building and a building formerly used as a restaurant.

2. The retail grocery store is owned and operated by the Plaintiff and is known as Bruni’s Market Inc. (“Bruni’s Market”), a business of retail food, produce and sundry items. The Plaintiff also leases farm acreage to Marini Farms, which in turn uses the land for growing a variety of crops.

3. At least seven (7) acres of the subject property are available for agricultural use each season.

4. According to the Plaintiff, approximately fifteen (15) tons of butternut squash were harvested from his land in 2007 and sold at Bruni’s Market and wholesaled to other vendors in the Massachusetts area.

5. In the early 1990’s, Plaintiff erected two commercial signs on two separate lots of his business after obtaining building permits for the erection of both.

6. On July 23, 2004, the Town of Ipswich Building Department received an application for a building permit from the Plaintiff to “[a]lter existing permitted billboard sign with time/temperature message center” on the property.

7. Prior to the issuance of the requested building permit on August 3, 2004, James Sperber, the Town’s Building Inspector, spoke to the Plaintiff and informed him that illumination of the sign was limited to time and temperature, as set forth in Section VIII of the Town’s Zoning Bylaw.

8. Upon obtaining the requested building permit on August 3, 2004, the Plaintiff installed an electronic message center on his sign which conveys advertisements related to products for sale at Bruni’s Market. The electronic messaging center displays such advertisements through various messages, designs and texts.

9. On July 5, 2005, the Building Inspector hand delivered a “Violation Notice and Order” to Plaintiff for allegedly violating the building permit issued on August 3, 2004. In this notice, the Building Inspector informed the Plaintiff that illumination on the sign was limited to time and temperature under the Bylaw and that he had to remove one of his previously erected free-standing signs and obtain a certificate of use in order to lawfully operate the electronically illuminated sign.

10. The Plaintiff filed an appeal of the Building Inspector’s Violation Notice and Order with the ZBA, after which the ZBA conducted a public hearing on the matter on August 18, 2005.

11. On August 31, 2005, the ZBA issued a decision in which it “overturned the Building Inspector’s decision with respect to removing the second sign on the property” and “affirmed the Building Inspector’s decision and found that the message center shall illuminate time and temperature only, during business operation as required by the Bylaw.”

12. The Town’s Zoning Bylaw, Section VIII, governs the use of signs in the Town of Ipswich (the “Sign Bylaw”). Section VIII(B), entitled “Application,” states in pertinent part:

A sign, whether temporary or permanent, shall require a building permit and shall comply with the Massachusetts State Building Code, as amended. Flags and temporary signs for political or charitable purposes, for public organizations, for state and political subdivisions thereof, and international and national flags are exempt from the provisions of this section, as are interpretative signs, provided that said signs, in the opinion of the building inspector, do not create an undue safety or traffic hazard by reason of impeding minimum sight distance requirements as established by the American Association of State Highway Transportation Officials (AASHTO).

13. Section VIII(C) of the Bylaw sets forth “[d]efinitions” relating to signs, their use and installation requirements. The Bylaw provides the following definition for the term “[i]llumination:

The act of supplying or brightening a sign with light. Lighted signs shall be illuminated only by a steady, stationary light without causing harmful glare for motorists, pedestrians or neighboring premises. Sign illumination is permitted only between the hours of seven o’clock in the morning and eleven o’clock in the evening, except that signs may be illuminated during any hours establishments are open to the public. The sources of artificial light shall include: enclosed or protected neon (exposed illuminated neon shall not be allowed); and lighting from an exterior source(s) and/or internal lighting; but all flashing, changing, or intermittent illumination is prohibited, except for time/temperature signs and holiday decorations (emphasis added).

14. G.L. c. 40A, § 3 states in relevant part:

No zoning ordinance or by law shall regulate or restrict the use of materials, or methods of construction of structures…or…prohibit, unreasonably regulate, or require a special permit for the use of land for the primary purpose of commercial agriculture…nor prohibit, unreasonably regulate or require a special permit for the use, expansion, reconstruction or construction of structures thereon for the primary purpose of commercial agriculture…provided that either during the months of June, July, August and September of each year or during the harvest season of the primary crop raised on land of the owner or lessee, 25 per cent of such products for sale…have been produced by the owner or lessee of the land on which the facility is located, or at least 25 per cent of such products for sale…have been produced by the owner or lessee of the land…and at least an additional 50 per cent of such products for sale…have been produced in Massachusetts on land other than that on which the facility is located… (emphasis added).

******************************

“Summary Judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law.” Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638 , 643–44 (2002); Mass. R. Civ. P. 56(c). Whether a fact is material or not is determined by the substantive law, and “[a]n adverse party may not manufacture disputes by conclusory factual assertions.” Ng Bros., 436 Mass. at 648; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). With respect to any claim on which the party moving for summary judgment does not have the burden of proof at trial, it may demonstrate the absence of a triable issue either by submitting affirmative evidence that negates an essential element of the opponent’s case, or “by demonstrating that proof of that element is unlikely to be forthcoming at trial.” Flesner v. Technical Communications Corp., 410 Mass. 805 , 809 (1991). However, the party opposing summary judgment “cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment.” LaLonde v. Eissner, 405 Mass. 207 , 209 (1976). Summary judgment may be granted to the non-moving party. Mass. R. Civ. P. 56(c).

Discussion

In the instant action, I find that there are no issues of genuine material fact and the matter is therefore ripe for summary judgment. [Note 1] The Plaintiff frames two major arguments in support of his motion for summary judgment. First, he contends that the Sign Bylaw impermissibly restricts his exercise of commercial speech because the Bylaw restricts the sign’s content and because the Town has failed to demonstrate that prohibiting Plaintiff from using such a sign promotes a substantial government interest. Second, Plaintiff avers that he is exempt from the provisions of the Sign Bylaw pursuant to G.L. c. 40A, § 3 because he contends that his property is used, at least in part, for an agricultural use, and that he need not demonstrate an “agricultural use” for the sign itself, but only for the property, in order to benefit from the protections of the statute. Finally, Plaintiff contends that he is entitled to the same protections as are afforded to the Ipswich Middle-High School’s electronic message display, and that in prohibiting him from displaying messages on his sign, the ZBA is arbitrarily and capriciously enforcing the Bylaw against him.

The Defendant, on the other hand, contends that it acted within its lawful authority in restricting the content of Plaintiff’s electronic message display because said sign is in plain violation of the Bylaw. Contrary to Plaintiff’s argument that the Town is selectively enforcing its Bylaw, the Defendant argues that the electronic sign at the Ipswich Middle-High School is lawfully displayed because “public organizations” are exempt from the provisions of the Sign Bylaw. Defendant also argues that Plaintiff has failed to establish that his sign is entitled to the agricultural exemption pursuant to G.L. c. 40A, § 3, averring that the sign is not “for the primary purpose of commercial agriculture” and that Plaintiff has not shown that his market is a farm stand that meets the criteria specified in G.L. c. 40A, § 3. In the event the court finds that the agricultural exemption applies to Plaintiff’s property and the sign at issue, Defendant avers that the Town should not be precluded from applying a reasonable zoning regulation which takes into account factors such as public health, safety and welfare and that the Town has a substantial governmental interest in regulating signs in order to promote both safety and aesthetics. Finally, Defendant asserts that the court lacks subject matter jurisdiction over Plaintiff’s constitutional challenge to the Bylaw and that in any event, the Town’s Bylaw is a valid restriction on commercial speech.

Is the Sign Bylaw an Impermissible Restriction on Plaintiff’s Exercise of Commercial Speech?

Before addressing the merits of Plaintiff’s constitutional claim that the Town’s Sign Bylaw violates his exercise of commercial speech, the court must first determine whether it has proper subject matter jurisdiction over such a challenge. Relevant to the court’s inquiry into this matter is the language of G.L. c. 231A, § 8, which states in pertinent part:

[w]hen declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding which involves the validity of a municipal ordinance or by-law…the municipality…shall be made a party and shall be entitled to be heard. If a question of constitutionality is involved in any proceedings under this chapter, the attorney general shall also be notified of the proceeding and be entitled to be heard (emphasis added).

Defendant is correct in its observation that Plaintiff’s complaint seeks relief pursuant to G.L. c. 40A, § 17 in asking the court to annul the decision of the ZBA and enter an order approving his appeal of the Building Inspector’s decision. Absent from the complaint, however, is a request for declaratory relief with respect to the validity of the Bylaw. Rather, Plaintiff sets forth his constitutional challenge to the Bylaw for the first time in his summary judgment motion.

In Plaintiff’s motion, it is unclear to the court whether his challenge is brought under G.L. c. 231A or G.L. c. 240, § 14A, both of which are proper avenues for relief where a landowner seeks to challenge the validity of a zoning by-law. See Woods v. Newton, 349 Mass. 373 , 376-377 (1965). Where a party seeks a declaratory judgment pursuant to G.L. c. 231A and the claim concerns the validity of a municipal ordinance and/or a question of constitutionality, “the municipality…shall be made a party…,” and if “a question of constitutionality is involved…the attorney general shall also be notified.” G.L. c. 231A, § 8; see Gamache v. Acushnet, 14 Mass. App. Ct. 215 , 223 (1982). Similarly, a claim under G.L. c. 240, § 14A requires that the municipality be named as a party. See Babin v. Duke, 1991 WL 11259394 (Mass. Land Court, 1991). The notification requirement with respect to the Attorney General, however, is not required where a constitutional challenge is brought pursuant to G.L. c. 240, § 14A. Mantoni v. Bd. of Appeals of Harwich, 34 Mass. App. Ct. 273 , 275 (1993) (finding there is no requirement that the Attorney General be given notice of a proceeding under G.L c. 240, § 14A).

As previously stated, it is unclear to the court whether Plaintiff’s constitutional challenge was intended to be brought under G.L. c. 231A or G.L. c. 240, § 14A. Regardless, it cannot be disputed that Plaintiff did not raise a claim concerning the validity of the Bylaw in his complaint. Under both statutes, therefore, Plaintiff has failed to satisfy the jurisdictional requirement of naming the subject municipality, in this case the Town of Ipswich, as a party to the action. In addition, because his challenge to the Bylaw’s validity involves a question of constitutionality, the Plaintiff failed to notify the Attorney General of his claim as required pursuant to G.L. c. 231A. This court therefore, lacks subject matter jurisdiction over Plaintiff’s constitutional claim because he has failed to satisfy the jurisdictional requirements pursuant to both G.L. c. 231A and G.L. c. 240, § 14A. The court, therefore, need not inquire any further into Plaintiff’s constitutional challenge to the Bylaw’s validity.

Is Plaintiff’s Property Exempt from the Provisions of the Sign Bylaw Pursuant to G.L. c. 40A, § 3?

It is undisputed that the sign at issue in this case falls within the definition of “sign” as set forth in the Bylaw, Section VIII(C). The Sign Bylaw also makes clear that its provisions apply to all signs except for those categorized as “flags and temporary signs for political or charitable purposes, for public organizations, for states and political subdivisions thereof, and international and national flags…” Plaintiff’s sign is displayed on private property and does not serve a political, charitable or public purpose. Its presence is therefore governed by Section VIII of the Bylaw lest it qualifies for another exemption. Particularly pertinent to the court’s inquiry into this matter is the Bylaw’s definition of “illumination” with respect to signs. Section VIII(C) defines sign “illumination” as “[t]he act of supplying or brightening a sign with light.” It goes on to state in relevant part that “[l]ighted signs shall be illuminated only by a steady stationary light without causing harmful glare for motorists, pedestrians or neighboring premises…all flashing, changing, or intermittent illumination is prohibited, except for time/temperature signs and holiday decorations” (emphasis added).

While Plaintiff acknowledges that his sign displays changing messages that convey information beyond mere time/temperature and holiday decorations as set forth in the Bylaw, he contends that he is exempt from these provisions pursuant to G.L. c. 40A, § 3 which excepts agricultural uses, among other things, from zoning regulations. Specifically, G.L. c. 40A, § 3 exempts agricultural uses from zoning regulations that “prohibit, unreasonably regulate, or require a special permit for the use of land for the primary purpose of commercial agriculture” or that “prohibit, unreasonably regulate or require a special permit for the use, expansion, reconstruction or construction of structures thereon for the primary purpose of commercial agriculture…” To claim the benefits of the exemption, however, it must be shown that “during the months of June, July, August and September of each year or during the harvest season of the primary crop raised on the land of the owner or lessee, 25 per cent of such products for sale…have been produced by the owner or lessee of the land on which the facility is located…” Alternatively, it may be shown that “at least 25 per cent of such products for sale…have been produced by the owner or lessee of the land on which the facility is located and at least an additional 50 per cent of such products for sale…have been produced in Massachusetts on land other than that on which the facility is located…”

Massachusetts courts have rejected the argument that a “retail” operation is inconsistent with the agricultural use of land and therefore outside the protections of G.L. c. 40A, § 3. To the contrary, “[a]ll agriculture conducted for profit is commercial in some degree.” Prime v. Zoning Bd. of Appeals of Norwell, 42 Mass. App. Ct. 796 , 800 (1997), quoting Cumberland Farms of Conn., Inc. v. Zoning Bd. of Appeal of N. Attleborough, 359 Mass. 68 , 76 (1971). Land, therefore, may still fall into the category of an “agricultural use” even where a retail business exists on the property. In determining whether the land or structure at issue has an agricultural use, the “focus must be placed on the use of the structure rather than on the structure itself.” Worcester City Christian Comm. v. Bd. of Appeals of Spencer, 22 Mass. App. Ct. 83 , 87 (1986) (in determining whether a radio tower was for religious or educational purposes under G.L. c. 40A, § 3, the court focused on the “use” of the structure at issue). Likewise, “the statute directs the inquiry to the use of ‘land’ or a ‘structure,’ not the use of an element or part of a structure.” Martin v. The Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, 434 Mass. 141 , 149 (2001) (finding G.L. c. 40A, § 3 applicable where a structure “as a whole” was to be used for religious purposes).

In the instant action, the fact that the Plaintiff runs a commercial enterprise on the property does not take it outside of the protections of G.L. c. 40A, § 3. Nevertheless, the court’s analysis is guided by the aforementioned principle that the use of a structure at issue, and not the use of the land as a whole, is the determining factor in deciding whether a particular use is exempt from zoning regulations. With respect to the sign at issue, the court is not convinced that the electronic message center itself is a structure used “for the primary purpose of commercial agriculture,” as required by the statute. While the facts indicate that Bruni’s Market sells produce harvested from land which the Plaintiff leases to Marini Farms, it is in the business of selling “retail food, produce and sundry items” and Plaintiff has never contended that he sells primarily produce harvested from his land. It is clear that the electronic message display’s purpose is commercial in nature in that it promotes the sale of products available at Bruni’s Market. It is undisputed, however, that Bruni’s Market is dedicated to selling a wide range of products and is not by any means a farm stand committed primarily to the sale of agricultural goods. It follows that the sign itself is not dedicated primarily to furthering or promoting an agricultural use. Therefore in analyzing the use of the electronic message center, and not the land as a whole, the court does not find that it has a “primary purpose of commercial agriculture.”

Even assuming, arguendo, that Plaintiff’s electronic message center was indeed used for the primary purpose of commercial agricultural, the court does not find that Plaintiff’s retail business meets the strict requirements set forth in G.L. c. 40A, § 3. At a minimum, G.L. c. 40A, § 3 requires that at least 25 percent of the products for sale in Plaintiff’s store have been produced by the owner or lessee of the land on which the facility is located. In an affidavit submitted with his motion for summary judgment, the Plaintiff states that in 2007, approximately fifteen (15) tons of butternut squash were harvested from his land, some of which was made available for sale at Bruni’s Market, and some of which was wholesaled to other vendors in Massachusetts. While 15 tons is an impressive amount of squash, this fact does not enlighten the court as to whether or not 25 percent of the products for sale at Bruni’s Market were harvested from his land. Nor does this fact inform the court as to what was sold at Bruni’s Market in other years since the sign’s erection. The court, therefore, finds that even if the electronic message center was used for a primary purpose of commercial agriculture, Plaintiff does not qualify for the exemption under G.L. c. 40A, § 3 because he cannot meet the criteria specified in the statute.

Was the ZBA’s Decision Arbitrary and Capricious?

The standard of review in a judicial challenge to a zoning board’s decision is well settled. The court will review the ZBA decision based on facts found by the court de novo to determine whether the decision of the ZBA is legally supportable. The court cannot reverse the decision of the zoning board unless that decision was “based on a legally untenable ground, or [was] unreasonable, whimsical, capricious or arbitrary.” Briton v. Zoning Board of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003); MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970). When the issue involves the interpretation of a zoning bylaw, the ZBA’s interpretation is entitled to a “measure of deference” if it is based on any legally tenable ground. Britton, 59 Mass. App. Ct. at 73, ATP Asset Mgmt. Inc. v. Bd of Appeals of Melrose, 50 Mass. App. Ct. 133 , 138 (2000).

Plaintiff contends that the ZBA’s decision was arbitrary and capricious because he has been denied the benefits of the exemption while the Ipswich Middle-High School is allowed to display a very similar sign that uses flashing, changing messages. The ZBA, however, has not arbitrarily enforced its Bylaw against the Plaintiff because it is clear to the court that Plaintiff’s property is not entitled to the G.L. c. 40A, § 3 exemption. Plaintiff’s comparison between his sign and the sign displayed outside of the Ipswich Middle-High School is misplaced. Plaintiff’s land and retail business and a public school are two very different entities and are subject to different regulations and exemptions. The court, therefore, finds no merit to this argument and finds that the ZBA’s decision was based on legally tenable grounds.

Conclusion

Based on the foregoing analysis, this court finds and rules that Plaintiff did not meet the proper jurisdictional requirements in order to bring a constitutional claim before this court. Additionally, Plaintiff’s property is not entitled to an exemption from the Town’s Bylaw under G.L. c. 40A, § 3 both because the sign at issue is not a structure used for the “primary purpose of commercial agriculture” and because Plaintiff has not met the strict requirements set forth in the statute in order to qualify for the exemption. Finally, the ZBA acted within its authority in denying Plaintiff’s appeal of the Building Inspector’s decision. For these reasons, the court denies Plaintiff’s summary judgment motion and grants summary judgment in favor of the defendant.

Judgment to issue accordingly.

Charles W. Trombly, Jr.

Justice

Dated: August 4, 2008