RUSSELL T. FRY, MORRIS BLOOM, CLYDE BALBONI vs. TOWN OF PLYMOUTH

This matter comes before the Court on plaintiffs' petition under G. L. c. 240, §14A and c. 185, §1(j 1/2) for determination of the validity of §302.01 J of the Zoning By-Law of the Town of Plymouth as amended April 8, 1976. Section 302.01 comprehensively regulates signs while, subsection J thereof requires non-conforming signs to comply with the by-law by January 1, 1977. It is the retroactive aspects of this by-law which are the subject of this action.

By stipulation dated December 7, 1976, the Town agreed not to enforce §302.01 J until final judgment is rendered in this matter.

Both parties have moved for summary judgment. The plaintiffs submitted an affidavit in support of its motion for summary judgment and the defendant submitted the following documents and affidavits in support of its motion:

Exhibit A: Certified copy of Zoning By-Law of the Town of Plymouth dated November, 1972 amended through April 8, 1976 (including Section 302.01 entitled "Signs").

Exhibit B: Certified copy of Section 302.01 of Zoning By-Law of the Town of Plymouth entitled "Signs" as effective on March 27, 1973.

Exhibit C: Certified copy of Zoning By-Law of the Town of Plymouth as amended to and approved by Attorney General July 6, 1961.

Exhibit D: Deposition of Morris Bloom and Russell T. Fry, Jr. dated March 15, 1977 and accompanying exhibits.

Exhibit E: Certified copy of Notice of Variance granted by Board of Appeals of Town of Plymouth upon a petition concerning land owned by Sylvia E. Cortelli.

Exhibit F: Certified copy of the Deed of Sylvia E. Cortelli to Clyde P. Balboni, Jr.

Exhibit G: Certified copy of the Plymouth Official Zoning Map.

Exhibit H: Affidavit of Richard A. Manfredi, Zoning Agent for the Town of Plymouth.

The supporting materials are incorporated herein for the purpose of appeal. Both parties submitted briefs and reply briefs, and oral arguments on the motions for summary judgment were heard on December 20, 1977.

A review of Plymouth by-laws regulating signs is helpful to an understanding of the present controversy. By-laws regulating signs have been in force since July 6, 1961. Section V-E of the 1961 Zoning By-Law of the Town of Plymouth provided:

"No sign in excess of twelve square feet shall be displayed in any district unless deemed appropriate by the Board of Selectmen and permission therefor is granted by said Board."

The Zoning By-Law was amended effective March 27, 1973. Section 302.01 established a comprehensive regulation of signs within the Town of Plymouth. Subsection J(1) thereof provided:

"Non-conforming signs. Signs legally erected before the adoption of the Bylaw that do not conform to the provisions of this Bylaw must be made to so comply within three (3) years after the effective date of this Bylaw, except that all signs must be made to comply with the provisiony (sic) of D. Illumination within one (1) year after the effective date of this Bylaw, and proper notice, as prescribed in Section 307."

The sign by-law was again amended effective April 8, 1976 to extend the date for compliance to January 1, 1977. Various other changes in organization and content, not material to this action, were also made. It appears that any sign in violation of the 1976 by-law also violated the 1973 by-law. Thus, references henceforth are to the sign by-law as amended in 1976.

A sign is defined as:

"Any letter", word, symbol, drawing, picture, design, device, article, object, or billboard that advertises, calls attention to or indicates any persons, products, businesses or activities and which is visible to the general public, whatever the nature of the material and manner of composition or construction."

§302.01 B(2). A zoning permit is required to display any permanent sign over one square foot in area. §302.0l C(1); Table 302.01-1. Zoning permits are issued by the town building inspector who is charged with administering and enforcing the by-law. §200. Presumably, a further building permit may be needed before a sign can be constructed on the site. The by-law regulates the size (Table 302.01-2), height [§302.01 D (3)], lighting [§302.01 D (1)], location [§302.01 D (4)], number of signs [§302.01 E; (Table, 302.01-2)], and other characteristics of signs.

Subsection J(1), the provision which is at the heart of the present controversy, states:

"J. Non-Conformities

I. Non-Conforming Signs:

All signs legally erected before the adoption of Section 302.01 Signs, of the Zoning By-Law must comply with the provisions of Section 302.01, as amended, no later than January 1, 1977, all prior requirements imposed by previous versions, of this By-Law to the contrary notwithstanding, except that all signs must be made to comply with the provisions of Section 302.01, D-1, Illumination within one (1) year after the effective date of this By-Law."

The plaintiffs are owners freehold interests in properties located in Plymouth.

The following background relating to the specific signs allegedly violating the by-law is gathered from the materials supplied by the defendant, particularly the deposition of plaintiffs Fry and Bloom and the affidavit of the town zoning agent, Richard A. Manfredi. The parties have not agreed these materials are to constitute an agreed statement of facts. Hence the following is by way of background only to indicate the comprehensive nature of the operation of the sign by-law and does not constitute findings of facts by the Court as of course such a function is inappropriate on a motion for summary judgment. Specifically, there is no finding which of plaintiffs' signs were erected by permission of the Board of Selectmen pursuant to §V-E of the 1961 by-law.

Plaintiff Bloom is the treasurer and general manager of Parkview Supermarkets, Inc., doing business as IGA Foodliner located in Plymouth. There are three internally illuminated plastic signs mounted flat against the supermarket building. These signs have dimensions of 35 square feet, 36 square feet, and 24 square feet and were erected in 1966 pursuant to Selectmen's Permits. These signs violate the sign by-law in that they exceed by one the maximum number of signs allowable for a business located in that particular zone and violate the maximum height restrictions. (Manfredi affidavit, ¶ 11) Apparently the signs have been fully depreciated. (Bloom deposition, p. 7).

Plaintiff Fry is president and treasurer of Shiretown Motors, Inc. and as trustee of the Shiretown Realty Trust, holds title to the premises on which is located Shire town Motors, Inc. Fourteen signs are located on the Fry property including:

(a) a plastic sign, approximately 40 square feet mounted on a post and imprinted with the Ford symbol, lawfully erected in 1968 pursuant to a Selectmen's Permit.

(b) a plastic "rent a car" sign erected in 1971 pursuant to a selectmen's Permit.

(c) plastic fascia and dealer name signs erected in 1968 without a permit though one was required.

(d) plastic "service" and "A-1 Used Cars" signs erected in 1968 pursuant to permit.

(e) a free standing wooden sign erected in 1967 for which no permit was required.

(f) wooden "service" sign attached to the building for which no permit was required

(g) five smaller wooden signs bearing instructions such as "do not park", "exit", etc., erected in 1969 for which no permits were required.

(h) a fifteen letter sign "Shiretown Motors" erected in 1968 without permit though one was required.

Signs a, b, d, g violate size and height restrictions; sign e, height restrictions. In addition, the maximum number of signs allowed in the zone in which the Fry property is located, 4, is exceeded. (Manfredi affidavit, ¶ 10). Some of these signs cost less than $100, some much more.

Upon plaintiff Balboni's property is located Clyde's Bakery- Deli. There are three signs, one mounted upon a post pursuant to permit and two mounted flat against the building without permits though permits were required. The latter two violate the height restrictions of §302.01. (Manfredi affidavit, ¶ 12). All of these signs were erected in 1973 after the passage of the effective date of the 1973 by-law. As this action seeks to challenge only the retroactive aspects of the sign by-law, §302.01 J-1, plaintiff Balboni appears to lack standing for this challenge.

The basic dispute between the parties is whether G. L. c. 40A, §5 or c. 40A, §6 inserted by Chapter 808, §3 of the Acts of 1975, which ever is applicable, protects plaintiffs' signs as nonconforming structures against subsequent zoning amendments.

The first question is whether the "old" c. 40A, §5 or the "new" c. 40A, §6 is the applicable provision. The plaintiffs argue the "new" provisions are in force, whereas the defendant argues that while c. 808 governs procedural aspects, the old c. 40A substantive provisions control. In the opinion of the Court it makes no difference which section is in force.

Chapter 808, §7 of the Acts of 1975 provides: "This act shall take effect on January 1, 1976 as to zoning ordinances and by-laws and amendments, other than zoning map amendments, adopted after said date." The Court does not understand §7 to be limited to just the procedural aspects of adopting or amending zoning ordinances and concludes zoning ordinances, by-laws, and amendments adopted after January 1, 1976 must comply with the substantive provisions of the new c. 40A. The sign by-law, §302.01, was amended at the Town meeting on April 10, 1976. (Stipulation #2 of the Parties). While the Town of Plymouth specifically voted not to accept Chapter 808 of the Acts of 1975 (stipulation #1), its action in amending the sign by-law rendered it subject to c. 808. Hence the question to be addressed is whether c. 40A, §6 inserted by the Acts of 1975 protects plaintiffs' signs as non-conforming structures against subsequent zoning amendments though, as stated before, the result would be the same were the old c. 40A, §5 in force.

The defendant argues cities and towns have authority to regulate, restrict and prohibit signs both prospectively and retroactively under the provisions of G. L. c. 40A, §§2, 3; c. 93, §29; c. 43B, §13; §6 of the Home Rule Amendment, Art. 89 of the state constitution; and Art. 50 of the constitution. Though a town's authority to regulate signs prospectively under one or more of these provisions is great, General Outdoor Advertising Company v. Department of Public Works, 289 Mass. 149 , 197 (1935); Collura v. Arlington, 367 Mass. 881 , 885 n. 3; Strazzulla v. Building Inspector of Wellesley, 357 Mass. 694 (1970), and has not been called into question herein, both old c. 40A, §5 and new c. 40A, §6 impose a specific limitation on the retroactive exercise of this power.

The defendant disputes this interpretation of old c. 40A, § 5 and new c. 40A, §6 pointing to the numerous jurisdictions upholding the power of a municipality to amortize non-conforming structures and uses. See cases collected in 22 A.L.R. 3d 1134. Many of these cases address only the constitutional issue whether the termination of a non-conforming use or structure effects a taking of property without compensation. However, a second, superceding consideration is also important in these cases - whether the state legislature has denied municipalities the authority to terminate existing uses. A municipalities power in this regard is influenced by the state zoning enabling act under which it operates.

Enabling acts may be placed into one of four general categories:

1) Statutes granting the municipality the general power to enact zoning ordinances without reference to the power to terminate non-conforming uses or structures;

2) Statutes granting the municipality the power to direct the involuntary termination of non-conforming uses;

3) Statutes expressly prohibiting the municipality from enacting ordinances requiring the involuntary termination of non-conforming uses or structures;

4) Statutes recognizing non-conforming uses and structures and permitting them to continue without expressly prohibiting the municipality from terminating them.

J. Katarincic, "Elimination of Non-conforming Uses, Buildings, and Structures by Amortization - Concept Versus Law." 2 Duquesne U. L. Rev. 1, 6 (1963). Amortization presents the least problem under a category two type statute. It has also been upheld under category one type statutes, see, for example City of Los Angeles v. Gage, 127 Cal. App. 2d 442, 274 P. 2d 34 (1954); Grant v. Mayor and City Council of Baltimore, 212 Md. 301, 124 A. 2d 383 (1957); Harbison v. City of Buffalo, 4 N.Y. 2d 553, 152 N.E. 2d 42 (1958), cert. denied, 340 U.S. 892 (1952), and has been given limited approval under category three type statutes, Gates v. Jarvis, Cornette & Payton, 465 S.W. 2d 278 (Ky. 1971)

The Massachusetts provisions, old c. 40A, §5 and new c. 40A, §6, are of the third type. Chapter 40A, §6 provides in material part:

"[A] zoning ordinance or by-law shall not apply to structures or uses lawfully in existence..."

This constitutes an express prohibition against requiring the termination of lawful non-conforming structures. [Note 1] See Fletcher v. Woburn, Land Court Miscellaneous Case No. 71362 (1976); United Advertising Corporation v. Borough of Raritan, 11 N.J. 144, 93 A. 2d 362 (1952)

The fact that a municipality's power to zone may not stem exclusively from the zoning enabling act, c. 40A, but may also independently repose in the Home Rule Amendment, Art.89 of the constitution and the Home Rule Procedures Act, c. 43B, §13, John Donnelly & Sons, Inc. v. Outdoor Advertising Board, 369 Mass. 206 , 210 n. 8, does not avail the defendant. Under §6 of the, "Home Rule Amendment and the Home Rule Procedures Act, cities and towns may not adopt any ordinance or by-law inconsistent with a statute enacted by the General Court. The Court perceives a sharp conflict within the meaning of Bloom v. Worcester, 363 Mass. 136 (1973) between the Plymouth sign by-law, §302.01 J-1, to the extent it requires amortization of lawfully erected non-conforming structures and new c. 40A, §6 (or old c. 40A, §5) which protects structures lawfully in existence from the application of subsequent by-laws. Thus, to the extent §302.01 J-1 regulates lawful non-conforming structures it is void.

The defendant further disputes this interpretation pointing to John Donnelly & Sons, Inc. v. Outdoor Advertising Board, 369 Mass. 206 and John Donnelly & Sons, Inc. v. Outdoor Advertising Board, 361 Mass. 746 (1972). In both cases the towns passed zoning by-laws prohibiting certain billboards, and these by-laws were applied to pre-existing billboards resulting in the Outdoor Advertising Board's (OAB) denial of renewal permits for the billboards. The determinative factor distinguishing those cases from the present is that the retroactive application of municipal by-laws to those signs was authorized by state statute. G. L. c. 93, §§29-33 authorizes the O.A.B. to adopt rules and regulations for certain billboards (basically off-premises signs) on public ways or on private property within public view of a highway, public park or reservation. The O.A.B. adopted regulations under which a permit would be refused unless maintenance of the billboard was in accordance with town by-laws. Thus, ultimately, it was by virtue of state legislation, c. 93, §§29-33, that the towns were allowed to terminate existing non-conforming signs. This statute does not apply to plaintiffs' signs. Where this statutory authority is lacking, towns may not so act.

The billboards in the Donnelly cases were not protected as existing structures under G. L. c. 40A, §5. Under board regulations, permits are for a one year term and are revocable for cause. The original grant carried no implication it would be renewed. The Court ruled that this property interest in the nature of a "revocable, nonpermanent expiring permit" established under c. 93, §§29-33 did not qualify as "a vested right constituting a protected non-conforming use under G. L. c. 40A, §5 ..." Donnelly, 364 Mass. 746 , 756-757. This result has now been codified in new c. 40A, §6 which excludes those billboards, signs and advertising devises subject to the O.A.B's jurisdiction from the protection granted non-conforming structures and uses under §6.

Thus, it is clear not every use of land or object placed thereon is entitled to protection, as a non-conforming use or structure under old c .40A, ,§5 or new c. 40A, §6. The property interest in the structure or use may not rise to the dignity of a vested right entitled to protection. John Donnelly & Sons, Inc. v. Outdoor Advertising Board, 361 Mass. 746 , (1972). See also Northvale v. Blundo, 81 N.J. Super 201, 195 A. 2d 221 (1963). In that case, an ordinance prohibiting the overnight parking of commercial vehicles outside of a garage was applied to defendant's parking his car in his home driveway. The car had lettering upon it advertising defendant's business conducted elsewhere. The defendant had so parked his car prior to the passage of the ordinance and claimed a protected non-conforming use under R.S. 40: 55-48, N.J.S.A. which provides:

"Any non-conforming use or structure existing at the time of the passage of an ordinance may be continued upon the lot or in the building so occupied."

The defendant's practice was too insubstantial to constitute a use within the statute.

The defendant seeks to characterize the plaintiffs' interest in their signs, by reason of the 1961 sign by-law, as of the same fragile or insubstantial nature as the billboards in the Donnelly cases and hence not protected as non-conforming structures under c. 40A, §6. The 1961 by-law, earlier set forth, required permission from the Selectmen to display any sign in excess of twelve square feet. According to defendant's exhibit No. 1, Selectmen's permits stated "the permit ... may be revoked without a hearing." The defendant argues the purpose of such a provision was to a11ow for future town policy changes just as the one year expiring O.A.B. permits provide a means for allowing general changes in administrative policy to proceed without hindrance which would flow from permits of longer duration. Donnelly, 361 Mass. 746 , 755.

Assuming for the purpose of this decision without so deciding that a town could lawfully specifically provide for sign permits of one year duration carrying no implication the permit would be renewed, analogous to the O.A.B.'s system of regulation, the Court believes the 1961 by-law provision cannot be so categorized. Important are parties' justifiable expectations in regard to their property interests. See Lowell v. Archambault, 189 Mass. 70 , 72, 73 (1905). Given the system of regulation authorized by c. 93, §§29-33 and the O.A.B.'s specific limitation of permits to one year embodied in board regulation, the plaintiffs in the Donnelly cases were fairly appraised of the expiring nature of their interests. The same cannot be said of Plymouth permit holders. The mere fact the permit states it is revocable without a hearing does not reasonably apprise the permit holder his signs are in jeopardy should there be a change in municipal administrators and a differing of opinion on aesthetics; rather, the more reasonable interpretation is that the permit may be revoked for cause should the terms of the permit itself not be complied with, for example, in the case of exhibit H1, unsatisfactory construction, or should the sign fall into disrepair and pose a hazard to the public. E. McQuillin, Municipal Corporations §26.l0 (3rd ed. 1964).

Thus, the Court is of the opinion the 1961 by-law did not affect the status of signs as structures under old c. 40A, §5 or new c. 40A, §6. Therefore, the Court concludes those signs lawfully erected are entitled to protection as non-conforming structures under new c. 40A, §6. The Court makes no determination as to which of the plaintiffs' signs were lawfully erected as the Court perceives there may be factual dispute whether permission had or had not been granted under the 1961 by-law despite the absence of a written Selectmen' s permit, and such a dispute cannot be properly resolved under the present posture of the case.

Consequently, the plaintiffs' motion for summary judgment is granted and the defendant's motion for summary judgment is denied. A declaratory judgment is to be entered under c. 231A and c. 185, §1(j 1/2) that §302.01 J(1) of the Zoning By-Law of the Town of Plymouth as amended April 8, 1976 is invalid insofar as it applies to legally erected non-conforming structures within the meaning of G. L. c. 40A, §6 as inserted by the Acts of 1975, c. 808, §3.

Judgment accordingly.