STEPHEN J. BOGGESS vs. TOWN OF HARWICH, DAVID THYNG

This is a petition brought by Stephen J. Boggess, an owner of land in the Town of Harwich, against the Town of Harwich and David Thyng, as he is its Building Inspector, pursuant to the provisions of G. L. c. 240 § 14A and c. 185 § 1 (j 1/2 ) for a determination of the plaintiff's right to erect and maintain two signs at the plaintiff's place of business on Route 28 in South Harwich. The plaintiff sought a preliminary injunction to restrain the Building Inspector from criminally prosecuting the plaintiff should he place such signs on his property. The injunction was denied by the Judge of the Land Court after hearing.

The plaintiff's contention is that his predecessor in title lawfully had erected two signs on the premises and that he was entitled to reletter the signs without losing the protection afforded by the Harwich by-law to signs pre-existing the adoption of this pertinent section. In their answer the defendants alleged that the signs erected by the plaintiff's predecessor were in violation of the by-law and that the predecessor's signs were so changed by the plaintiff as not to be deemed pre-existing within the meaning of the by-law.

The case was tried on June 28, 1977 at which time the parties submitted an Agreed Statement of Facts. At this time counsel made oral arguments and subsequently submitted written briefs.

The Agreed Statement of Facts reads as follows:

1. Plaintiff, Stephen J. Boggess, is a resident of Fairhaven, Bristol County, Massachusetts, mailing address P.O. Box 231, Fairhaven.

2. The Plaintiff, Stephen J. Boggess, is the owner in fee simple of land together with buildings thereon situate in Harwich, Barnstable County, Massachusetts located on Route 28 and shown as Lot 120 on Land Court Plan 14179-Q (Sheet 1) dated June 23, 1969, drawn by S. R. Sweetser, Surveyor, filed in the Land Registration Office at Boston, a copy of which is filed at the Barnstable County Registry of Deeds in Land Registration Book 355, Page 19 with Certificate of Title No. 44689.

3. The Plaintiff acquired title to said land by a deed of Cape Lobster, Inc., dated December 27, 1976, and recorded with the Barnstable County Registry of Deeds, Land Registration Section with Certificate of Title No. 69413 as Document No. 215,711.

4. Said land is located within a Commercial-Highway 1 (CH-1) Zoning District as defined in Section III of the Harwich Protective By-Laws, a copy of which is submitted as Exhibit A together with a copy of the relevant portion of the town zoning map. This is the by-law in effect at the present time.

5. On July 3, 1972, Cape Lobster, Inc. received a permit from the Town of Harwich to place two signs on the property now owned by the Plaintiff. One sign measured approximately 4' X 6' and was a double-faced sign and was placed near Route 28. The other sign measured approximately 4' x 20' and was placed on the roof of the building located on the premises. There is attached hereto as Exhibit B an advertisement for Cape Lobster, Inc. on which appears photographs of each sign.

6. At the time the signs were erected by Cape Lobster, Inc. there was in effect in the Town of Harwich a zoning by-law regulating signs which had been adopted by vote of a Special Town Meeting, October 27, 1971, and which had been approved by the Attorney General November 4, 1971, a copy of which is attached as Exhibit C.

7. After Plaintiff purchased the business, he caused both of the signs advertising the business of his predecessor in title (which signs are shown on Exhibit B) to be taken down, repainted and reworded. The reworded road sign is as shown in Exhibit D, and the reworded roof sign is as shown in Exhibit E.

8. On March 30, 1977, the Defendant, Building Inspector, refused to issue a sign permit for Plaintiff's repainted and reworded roof sign. The Building Inspector issued a sign permit for the repainted and reworded road sign.

9. In denying a permit for the roof sign, the Building Inspector took the position that when the Plaintiff took down the old signs, repainted them and reworded them, he had in effect made new signs essentially different from the signs formerly on the premises and, therefore, the new signs were required to conform to the applicable provisions of the sign code which in his opinion the roof sign did not.

10. Section E of the sign code provides, "Any lawful signs existing at the time this by-law is adopted may be continued even though such sign does not conform to the provisions of this by-law."

Attached to the Agreed Statement as Exhibit "A" is the present Harwich Zoning By-Law and Map; as Exhibit "B", an advertisement of the plaintiff's predecessor showing both the roof and road signs as then displayed; as Exhibit "C", the amendments to the Harwich Zoning By-Law approved by the Attorney General on November 4, 1971 and as Exhibits "D" and "E", photographs of the plaintiff's road sign and proposed roof sign respectively. Said exhibits have been admitted in evidence and are incorporated herein for the purpose of any appeal.

The parties thereafter filed the following Supplemental Agreed Statement of Facts:

1. Petitioner, Stephen J. Boggess, applied to the Harwich Board of Appeals for a variance to allow him to maintain on his business premises one sign larger than 64 square feet and two signs in excess of 84 square feet. The Board of Appeals held a hearing on that matter on May 5, 1977. On May 13, 1977, the Board of Appeals rendered a decision in the matter in which it denied the variance, copy of petition and decision are attached.

2. Petitioner's business located on Lot 120 on Subdivision Plan 14179-Q, dated June 23, 1969, drawn by S. R. Sweetser, surveyor, filed in the Land Registration Office at Boston, a copy of which is filed at Barnstable County Registry of Deeds in Land Registration Book 355, Page 19, with Certificate of Title No. 44689, was submitted to the Harwich Planning Board for endorsement prior to registration in the Land Court. The Harwich Planning Board endorsed their approval on said subdivision plan on October 10, 1969. There have been no changes in the plan since that endorsement of approval. An attested copy of that plan will be submitted to the court under separate cover.

3. As of October 10, 1969, the date of Harwich Planning Board endorsement of approval on petitioner's subdivision plan, the by-law of the Town of Harwich which regulated signs was:

Not more than one (l) sign, other than those which are attached to and are part of the architectural design of a building or structure, shall be permitted on each of these premises.

There are several substantive issues to be decided in order to decide the ultimate question as to whether the plaintiff may maintain both signs as "lawful signs existing at the time the by-law [was] adopted" or alternatively whether the sign provisions now in effect are applicable to his premises. If the by-law is applicable, then the roof sign admittedly would violate it and cannot be displayed. A permit has been issued for the other sign which is now in place near the Route 28 boundary of the plaintiff's land. The first issue presented is whether the signs erected by the plaintiff's predecessor were in fact "lawful signs". Secondly, if the answer to the preceding question is in the affirmative, then the meaning of the grandfather clause in the Harwich by-law must be weighed. And finally, there is the question of the conformity of the by-law to the enabling statute to be considered.

Before the substantive issues are reached, however, there is a procedural question to be faced. The plaintiff applied to the Building Inspector for a permit covering both of the signs which he wished to erect and requested a variance from the Board of Appeals when his application for a permit was refused. The Board denied the variance on the ground that the plaintiff had not shown hardship, the size of the sign would derogate from the intent of the by-law and the plaintiff had not made full use of the provisions of the by-law as to permitted signs. This decision was not appealed to the Superior Court. See G. L. c. 40A § 21. The defendants now argue that the plaintiff is barred from bringing the present proceeding and that his proper remedy was by an appeal pursuant to said section 21 which has been lost by failure to file his petition within twenty-one days. The mechanics provided by statute for determining a) the validity of a by-law which purports to limit the future use of land or b) the extent to which it affects a proposed use are in Section 14A of Chapter 240. This is a different procedure from the opportunity afforded the landowner to apply for a variance under Chapter 40A and involves the resolution of completely different questions. Unless it clearly appears that the party so intended, this Court would be reluctant to hold that any litigant has waived his Chapter 240 rights by pursuing the administrative remedies granted by Chapter 40A. See Sisters of the Holy Cross of Massachusetts v. Brookline, 347 Mass. 486 (1964). Nothing appears in the record to lead to the conclusion that the plaintiff is now barred from contending that the 1971 amendment is inapplicable to his land, and I find and rule that this complaint may be maintained.

When the Cape Lobster, Inc., the p1aintiff's predecessor, was granted a permit to erect the two signs depicted on Exhibit "C" on July 3, 1972, the provisions of the zoning by-law regulating signs were the same as at present, the amendments to the applicable sections having taken effect several months previously. The sign close to Route 28 measured four feet by six feet and was doublefaced; it presumably has forty-eight square feet of surface area as defined by the by-law. [Note 1] The roof sign was four feet by twenty feet or a total of eighty square feet of surface area which clearly exceeds the now permissible maximum area of sixty-four square feet for any one sign. The two signs together also exceed the stated maximum for signs for any one business. Section VII of the by-law provided then, as now, that "there will be allowed one sign for each building and one sign for each business or enterprise contained therein provided that:

1. The total surface area for signs for any one business does not exceed 81 square feet.

2. The largest sign located on the premises does not exceed 64 square feet."

The defendants therefore argue that inasmuch as Cape Lobster's signs did not comply with the sign provisions in force when they were erected, they cannot be considered "lawful signs existing" at the time the by-law was adopted for purposes of the grandfather clause. Superficially this argument would appear to have merit as the Cape Lobster signs were not erected until some months after the by-law was adopted. Yet this action was taken pursuant to a permit from the appropriate town officer, and this action appears to have been authorized by G. L. c. 40A § 7A [Note 2] as in force in 1972 which provided as follows:

When a preliminary plan referred to in section eighty-one S of chapter forty-one has been submitted to a planning board, and written notice of the submission of such plan has been given to the city or town clerk, the land shown on such preliminary plan and on the definitive plan evolved therefrom, or in the absence of a preliminary plan, the land shown on a definitive plan submitted under the provisions of the subdivision control law, shall be governed by applicable provisions of the zoning ordinance or by-law in effect at the time of submission of the plan first submitted while such plan or plans are being processed under said subdivision control law; and, if said definitive plan becomes approved, or is disapproved and thereafter amended and duly approved, said provisions of the ordinance or by-law in effect at the time of the submission of the first submitted plan shall govern the land shown on such approved definite plan, for a period of seven years from the date of endorsement of such approval notwithstanding any other provision of law; provided, that if a preliminary plan is submitted, the definitive plan is duly submitted within seven months from the date on which the preliminary plan was submitted. Disapproval of a plan shall not serve to terminate any rights which shall have accrued under the provisions of this section, provided an appeal from the decision disapproving said plan is made under applicable provisions of the subdivision control law. Such appeal shall stay, pending an order or decree of a court of final jurisdiction, the applicability to land shown on said plan of the provisions of any zoning ordinance or by-law which became effective after the date of submission of the plan first submitted.

The land on which the signs which are the subject of this controversy are located is shown on Land Court Subdivision Plan No. 14179-Q. The plan was approved by the Harwich Planning Board on October 30, 1969, and therefore the zoning provisions applicable to such land for a period of seven years from the date of endorsement were those in effect on the date of such approval. McCarthy v. Board of Appeals of Ashland, 354 Mass. 660 (1968). Chira v. P1anning Board of Tisbury, 3 Mass. App. Ct. 433 (1975) [Note 3]. M. DeMatteo Construction Co. v. Board of Appeals of Hingham, 3 Mass. App. Ct. 446 (1975) [Note 4]. As appears from paragraph three of the Supplemental Agreed Statement of Facts set forth above, there was no limitation in 1969 on the size of the signs which might be erected. Apparently the Cape Lobster roof sign must have been deemed by the Building Inspector to be a part of the architectural design of the building when the 1972 permit was issued. So far as appears no appeal from this determination was taken, and the Court therefore concludes that the Cape Lobster signs were lawful. [Note 5]

The wording of the Harwich sign grandfather clause, if narrowly construed, would be inapplicable to the present case, for the signs admittedly were not physically in existence on the date on which the amendments to the by-law became operative. This would lead to the anomalous result that pre-existing signs would have the benefit of the grandfather clause whereas those which the General Court has deemed should be treated in the same fashion by virtue of said section 7A would not. In order to avoid such an incongruous result I rule that the phrase "lawful signs" existing at the date of the adoption of the by-law was intended also to include those thereafter lawfully erected in accordance with the provisions of the prior by-law. While there does not as yet appear to be a reported decision treating of this point it would seem that a like result would follow after the expiration of seven years (now five) in the case of land having the benefit of the protection afforded approved subdivision plans by section 7A (or section 6, as the case may be). Such land in this analysis would be classified as nonconforming after the expiration of the statutory grace period even though the nonconforming use did not commence until after the new ordinance went into effect. While on the surface, therefore, it may seem unusual to describe as "lawful signs existing" at the time of adoption of the by-law, signs which thereafter were erected, the reasons for the enactment of the town and state saving clauses require this result. Moreover, as is hereafter discussed, there does not seem to be any substantive difference in the result which would be reached whether the grandfather clause of the Harwich by-law or the provisions of G. L. c. 40A § 5 are applied.

The question decisive of this dispute is the true meaning of a sign as used in the Harwich zoning legislation, i.e. is a sign merely a blank piece of material albeit wood, plastic, paper or the like or is it the finished product with the name of the establishment or the advertising message thereon. The by-law defines "sign" in Section II as "any device designed to inform or attract the attention of persons" which town counsel argues must be the lettered sign, because otherwise a mere blank board would not result in informing or attracting attention. However, it is more likely that the definition is so phrased to encompass as signs other advertising devices not normally considered to fall into this category. Nonetheless one of Webster's definitions of signs is a "lettered signboard", and all things considered, general usage would lead to the conclusion that a sign is not the blank medium but the completed product. I proceed then to the factual consideration as to whether the changes made by the plaintiff in the signs which he acquired when he took title to Lot 120 are so material as to deprive them of their characterization as pre-existing. The previous roof sign (Exhibit "B") sets forth the name of the proprietor of the business "Cape Lobster" in large block letters followed by a painted block on the sign in which appear two words which seem to be "Fresh Fish". The roof sign which the plaintiff proposes to attach to the building is shown on Exhibit "E". It reads "LOBSTERS & FISH" in large block letters beneath which appears "WHOLESALE WAREHOUSE OUTLET" in smaller capital letters. There is a small square thereon to the right of the lettering which states "Public Welcome" and gives the telephone number of the plaintiff. The original sign's basic function was to identify the proprietor whereas the plaintiff's sign principally is an advertising device. These changes in the lettering and legend are so material as to compel the conclusion that the plaintiff's sign is a new sign. A comparison of Exhibits "B" and "D" leads to the same conclusion as to the smaller sign. However, it can be maintained under the present by-law even as a new sign, and its legend is relevant here only as to the question of the total permissible sign surface area. The finding that I have made as to the roof sign disposes of this aspect of the case. I find and rule that the changes which the plaintiff wishes to make in the pre-existing signs are so substantial as to constitute them new signs no longer protected as pre-existing by the grandfather clause of the Harwich by-law.

This result follows that in Strazzulla v. Building Inspector of Wellesley, 357 Mass. 694 (1970) where the factual situation is very similar to that in the present case. The principal difference between the two is found in the language of the by-law. In the Strazzulla case the Wellesley by-law specifically provided that a nonconforming sign legally erected prior to the adoption of the section regulating signs "may be continued to be maintained but shall not be....reworded....redesigned or altered in any way unless it is brought into conformity...." (at page 696). The draftsman of the Harwich by-law did not include any express prohibition on rewording, redesign or alteration in the grandfather clause which is now before the Court. It seems apparent, however, that the intention of the amendments under consideration was to limit the number and size of signs in the town of Harwich. If the Court were to interpret the language of the by-law in accordance with the plaintiff's contention, this end could not be met so long as the physical existence of the signboard continued. On the other hand, if the town's interpretation of the grandfather clause prevails, any substantial change in a sign will require that it be brought into conformity. This approach should serve gradually to achieve the purpose of the amended by-law without undue hardship to any property owner.

Strazzulla also stands for the proposition that so long as the by-law permits nonconforming signs to continue, there is no conflict with Chapter 40A. If the laundry in Strazzulla had no right protected by the General Laws to reletter its sign, it follows that the same is true of the plaintiff. The proposed lettering, the design and the logo on the plaintiff's signs differ materially from that of the plaintiff's predecessor and would constitute such an alteration as not to be protected under section 5 of Chapter 40A under the principles set forth in the Wellesley decision. Cf. Town of Millbury v. Galligon, 371 Mass. 737 (1977) [Note 6].

On all the evidence I find and rule that the provisions of the Harwich zoning by-law prior to the 1971 sign amendments apply to the signs erected by the plaintiff's predecessor by reason of G. L. c.40A § 7A; that such signs were protected by the grandfather clause of the by-law (Section VII E) after the expiration of seven years from the approval of Land Court Subdivision Plan No. l4l79-Q by the Harwich Planning Board; that the changes made by the plaintiff are so substantial as to remove the signs from the category of preexisting signs; and that the relettered signs also fall without the protection afforded by G. L. c. 40A § 5.

Decree accordingly.