MISC 135904

July 1, 1992

Essex, ss.



Plaintiff seeks a declaration, pursuant to G.L. c. 240, §14A, that Section 25.7.12 of the Danvers Zoning By-Law ("the By-Law"), to the extent that it regulates the text and content of Plaintiff's commercial speech, i.e. an advertising sign, is unlawful under relevant Constitutional provisions; a declaration that a decision of the Danvers Zoning Board of Appeals ("the Board"), to the extent that it requires a variance to change Plaintiff's commercial message, is unlawful under relevant Constitutional provisions; a declaration that Plaintiff may change certain sign panels without relief from the Board; and a declaration that, if Board relief is necessary, it is in the nature of a "finding" pursuant to G.L. c. 40A, §6, par. 1, and not in the nature of a variance or modification to variance. [Note 1]

Plaintiff moved for Summary Judgment with respect to Count IV of its Complaint, seeking the above declarations. Counsel argued the motion on December 12, 1991. Plaintiff filed Affidavits of Reginald Barron, Phillip Carleton, the Danvers Town Clerk and an Affidavit of Counsel as to the history of sign construction and use on Plaintiff's property. On the basis of the uncontested facts, I find and rule that there is no genuine issue as to any material facts as to the motion, and I find and rule for Plaintiff as follows:

1. Plaintiff, Barron Chevrolet, Inc., engages in the retail sale of new and used cars, vans and light trucks; the servicing and repair of vehicles; the sale of automotive parts; and the leasing of vehicles. Plaintiff's business is conducted on approximately five acres of land located on Andover Street (Massachusetts Route 114) in Danvers.

2. Plaintiff's business is located within the Route 114 Corridor Zone A Zoning District and none of the exterior boundaries of the premises abut any other zoning district established by the By-Law.

3. In this zoning district, by by-law, made applicable to the premises in August, 1987, only one "identifying" sign is allowed as of right for the property; the area of any free-standing sign is limited to 100 square feet; the street setback is 25 feet; and the maximum sign height is 20 feet.

4. In August, 1987, when the By-Law became effective, three free-standing signs, and several other building mounted signs, were in place on the premises. The free-standing signs included a products sign, a used car sign and a leasing and rental sign. All three of these signs were erected pursuant to setback variances granted by the Board in 1969 and 1972. The 1969 variance permitted erection of two signs closer than 50 feet to the street line, and the 1972 variance permitted the erection of a third sign not less than 30 feet from the street line. Other than their location on the premises, the signs complied with all other relevant aspects of the 1969 and 1972 By-Laws. In addition, use of the property for signage was permitted as of right and neither the 1969 nor the 1972 version of the By-Law contained any restriction on the number of signs.

5. Collectively and individually, the three signs do not conform with relevant provisions of the present Zoning By-Law. As stated previously, the present By-Law permits only one sign as of right and Plaintiff has at least three. Additionally, a height limitation of 20 feet is imposed and two of Plaintiff's pre­existing signs exceed that height limitation. Moreover, sign area is limited to 100 square feet and at least two of the signs exceed that limitation.

6. All three of the free-standing signs have been used and maintained continuously from the date on which they were erected and were each erected within six months of the 1969 and 1972 Board decisions granting the variances.

7. In May of 1989, Plaintiff filed with the Board an application for relief to permit replacement of sign panels on two of the three signs. This request was generated because of Plaintiff's selection by General Motors to serve as a dealer of the new "Geo" vehicle line of cars.

8. In substance, the "leasing and rental" panels were to be removed and replaced with panels of exactly the same size advertising "used cars". The "OK Used Cars Barron" panels were to be removed from another sign and replaced with new panels of exactly the same size containing the "Geo" emblem and the Barron name as required by General Motors. The undisputed facts state, and I thereby find, that, other than changing the sign panels, no other changes were proposed to any of the three signs. Their location was not to be changed; the lighting was not to be altered; their height would remain constant; and they were not to be moved.

9. By its May, 1989 application, Plaintiff sought a "special permit" to change the sign panels. The application was heard by the Board which denied the application for special permit and ruled that a variance was necessary. The Board's decision reflected an earlier decision by the Board permitting relettering of a sign in the same zoning district but in which only a "finding" pursuant to G.L. c. 40A, §6, par. 1 was required. The substance of the Board's decision was that, since Plaintiff's signs were erected pursuant to variances, they did not acquire pre-existing, non-conforming structure status and hence changes thereto were not governed by the less rigorous standard of review pursuant to G.L. c. 40A, §6, par. 1.

10. Subsequent to the Board's decision requiring an application for variance, Plaintiff did file an application for such relief and the Board ultimately granted Plaintiff permission to effect the requested modifications permitting the sign panels to be changed as described above.

11. The critical portion of the By-Law is Section 25.7, which provides, in pertinent part, as follows

1. A maximum of one (1) identifying sign shall be allowed for each lot, unless the lot fronts on two (2) or more streets, in which case one sign facing each street may be used up to a maximum of two (2) signs per lot . . .

4. The area of a free-standing sign shall not exceed one hundred (100) square feet, and shall be set back twenty-five (25) feet from the street line. Maximum sign height is twenty (20) feet. Minimum sign height is six (6) feet . . .

12. Non-conforming signs erected prior to the adoption of this By-Law may continue to be maintained, provided that no such sign is enlarged, redesigned, or altered in any way, including repainting in a different color, except to conform to the requirements of this By-Law.

12. Plaintiff's signs are all located on a single lot.

13. The Town argues that changing the sign panels is an "alteration" within the meaning of Section 25.7.12. Accordingly, the Town urges, such a change would require either: (1) elimination of all but one sign and modification of the remaining sign to bring it into compliance with the Section 25.7 dimensional requirements; or (2) a variance from the Board. At oral argument, counsel for the Town stated that any change to the sign's message (even in the absence of any other change to the structure) required either compliance with the By-Law provisions or request for variance relief from the Board.

14. I conclude that the Town's requirement that Plaintiff's change of commercial message, without any change to the location, area, height, method of illumination or any other physical change to the sign structure is based on a legally untenable ground.

15. When constructed in 1969 and 1972, the signs conformed to applicable zoning by-laws except for their location. The use of the premises for the number of signs maintained by Plaintiff was permitted as of right. As such, only variances affecting the location of the signs were sought and granted. Consequently, use variances were neither required, applied for nor granted.

16. Accordingly, I rule that the changes proposed by Plaintiff were neither incident to nor related to the 1969 and 1972 location variances and, as such, the proposed changes of the sign panels did not require a modification to previously granted variances.

17. Plaintiff's use of the premises for three free-standing signs constitutes a lawful, pre-existing, non-conforming use. The changes proposed by Plaintiff consist only of changing the commercial message conveyed by each sign and entail no reconstruction, extension, structural change or alteration of the use or structures to provide for a use for a substantially different purpose or for the same purpose in a substantially different manner or to a substantially greater extent . See, G.L. c. 40A, §6, par. 1, 1st sentence. Accordingly, Section 25.7.12 of the By-Law cannot be applied in these circumstances because the use of the premises for singage as maintained by Plaintiff was grandfathered. Moreover, because the proposed changes do not cross the substantiality thresholds of G.L. c. 40A, §6, par. 1, first sentence, a special permit or "finding" under the second sentence was not required.

18. Plaintiff's signs propose a commercial transaction and, accordingly, are commercial speech under the First Amendment. See, Posadas dde Puerto Rico Assoc. v. Tours & Company of Puerto Rico, 478 U.S. 328 (1986); Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976). Plaintiff's advertising is not misleading and, as such, it is protected by the First Amendment. See, Central Hudson Gas & Electric Corp. v. Public Service Commissioner of New York, 447 U.S. 557; 100 S.Ct. 2343 (1980).

19. Section 25.7.12 by its requirement that even a change in the content of Plaintiff's commercial speech must result in the elimination of other signs carrying the same or different messages or a variance from the Board, constitutes governmental interference with Plaintiff's protected speech and must be tested against the following factors:

1. Whether the asserted governmental interest is substantial;

2. Whether the regulation directly advances the governmental interest asserted; and,

3. Whether the regulation is not more extensive than is necessary to serve that interest.

Central Hudson at 566.

20. I find and rule that, to the extent that Section 25.7.12 requires a variance to change sign panels only, without any other change to the sign structure, its application under these circumstances is legally untenable.

21. Fairly construed, Section 25.7 of the By-Law seeks to further the legitimate governmental interests of traffic safety and aesthetics. See, MetroMedia v. City of San Diego, 453 U.S. 490 (1981). However, the Section 25.7.12 provision that no conforming sign may be "altered in any way" except to conform to the requirements of that Section is far more extensive, on these facts, than necessary to serve the governmental interest in safety and aesthetics.

22. Under Section 25.7, the Town has rendered a determination that pre-existing, non-conforming signs may continue without nullification of the legitimate governmental interests in safety and aesthetics. It is hard to conceive, therefore, how the mere change of the speech content (in an otherwise legislatively grandfathered sign), is any more intrusive of aesthetic and safety concerns than another grandfathered sign, identical in all respects except its message, in which no change is sought. One cannot but wonder at the implications of the Board's position, on theater marquees and supermarket window signs.

23. Accordingly, I find and rule that, to the extent that Section 25.7.12 requires a variance to merely change a sign's message, it is not a reasonable time, place or manner control on otherwise protected commercial speech.

24. On all the evidence, therefore, I find and rule that Section 25.7.12 cannot be lawfully construed so as to require a variance from the Board in the event that Plaintiff desires to change the message of a sign only, where no other changes are proposed to the sign.

By the Court.


[Note 1] Plaintiff's Complaint also contained Counts I and II which asserted that the Board failed to properly notice the public hearing on Plaintiff's application and that the Board improperly ruled, in denying Plaintiff's application, that a variance was necessary to change the sign panels in two free-standing signs constructed nearly 20 years ago. Since the Board ultimately granted Plaintiff a modification to previous variances allowing it to change the sign panels, Counts I and II, predicated upon G.L. c. 40A, §17, have been waived by Plaintiff.