BOARD OF SELECTMEN OF TRURO vs. OUTDOOR ADVERTISING BOARD.

CUTTER, J. The selectmen bring this bill for declaratory and other relief concerning a sign in Truro for which the defendant (the board, see G. L. c. 16, Sections 5C, 5D, both inserted

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by St. 1955, c. 584, Section 3) has purported to issue a permit to one Medeiros pursuant to G. L. c. 93, Sections 29, 29A, and 31 (see amendments by St. 1955, c. 584, Sections 4, 5, and 7). The selectmen's principal contention is that the board issued the permit in violation of the town's zoning by-law as amended [Note 1] and also of a "protective regulation" concerning so called "off premises" signs. [Note 2] This "protective regulation" is not shown to have been approved by the Attorney General, under G. L. c. 40, Section 32 (as amended through St. 1952, c. 337). It also was alleged that the board issued the permit "without notice to" the selectmen "or hearing of any kind."

The prayers of the bill ask that the board be ordered not to issue a permit for the sign in violation of the Truro by-law and that Medeiros be ordered to remove the sign. They also seek a declaration that the board has no authority to issue permits in conflict with the Truro by-law.

The evidence is meager. The chairman of the selectmen testified that the selectmen on August 17, 1960, had refused

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to give Medeiros an "off premise" sign permit for the sign, which is seven feet by three feet three inches (and thus larger than even the eighteen square feet signs permitted by the zoning by-law [fn. 1, supra] in general business districts). Counsel stated that, apart from certain definitions, Section V (limited business district) and Section IV-A (9) of the zoning by-law were the relevant sections. This statement suggests that the sign was in a limited business district, but there is no direct testimony to that effect. A photograph of the sign and its immediate surroundings is the only proof of the general character of the neighborhood.

The chairman of the selectmen stated that he had received notice from the board that Medeiros had applied for a permit and that "[w]e turned it back to them putting a note on the bottom that we had disapproved it" because not "in the best interests of the town." He never made demand on the board for an opportunity to be heard. The rules and regulations of the board were in evidence. [Note 3]

The trial judge justifiably found on this evidence that the board gave notice to the selectmen of Medeiros's application and that the selectmen "did not file any written objections to the allowance of that application, nor request an opportunity to be heard at the hearing." He also justifiably found that, when the selectmen learned that a permit had been granted on August 23, 1960, they "did not appeal

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from the decision of the . . . [b]oard." The judge concluded that the board granted the permit in the absence of written objections or a request for hearing from the selectmen and that, as the selectmen "offered no evidence tending to show that the . . . [b]oard did not comply with the procedural requirements of notice and hearing . . . it is to be presumed that the . . . [b]oard acted legally and in good faith." A final decree was entered declaring that board's approval of the permit was a valid exercise of the board's statutory authority and that the selectmen are not entitled to the equitable remedies sought. The selectmen appealed. The evidence is reported.

1. Billboard and sign regulation now takes place under G. L. c. 93, Sections 29-33 (as amended by St. 1955, c. 584 [Note 4]). Section 29 gives the board authority to "make, amend or repeal . . . regulations for the proper control and restriction of . . . signs . . . on public ways." [Note 5] The last sentence of Section 29 (see fn. 5) gives to towns the right further to restrict

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signs within their limits. See Milton v. Donnelly, 306 Mass. 451, 458. We assume (without deciding) that the power, created by the last sentence of Section 29, to pass such a by-law may be exercised by including an apt provision in a zoning by-law as well as by a wholly separate by-law. Cf. Inspector of Bldgs. of Falmouth v. General Outdoor Advertising Co. Inc. 264 Mass. 85, 88-89, holding that an amendment of the then existing zoning enabling act to permit the regulation of "structures" did not supersede the then existing provisions of G. L. c. 93, Section 29. Cf. also General Outdoor Advertising Co. Inc. v. Department of Pub. Works, 289 Mass. 149, 196-197.

2. The selectmen have not pursued their administrative remedies before the board, nor have they sought review under G. L. c. 30A, Section 14 (1), from the board's action granting the permit. Such a proceeding would have brought before us the evidence and record before the board, and would have permitted review of whether the board's decision involved error of law and whether it was supported by substantial evidence.

Instead, the selectmen have sought equitable relief, in part under G. L. c. 231A, and in part, apparently, under G. L. c. 93, Section 31 (as amended through St. 1955, c. 584, Section 7) which gives to this court and to the Superior Court "jurisdiction in equity upon petition of the attorney general, of any . . . town or any officer thereof, or of any interested party, to restrain the . . . maintenance of any . . . sign . . . maintained in violation of any . . . regulation, adopted by the board . . . and to order the removal . . . of such . . . sign . . . as a nuisance." In Milton v. Donnelly, 306 Mass. 451, under an earlier form of Section 31, which also provided similar jurisdiction with respect to signs maintained in violation of town by-laws, this court ordered the removal of a sign so maintained. Section 31 thereafter was revised by St. 1955, c. 584, Section 7, to exclude the reference to by-law violations, although without explanation of the reasons for the change. See 1955 House Bills Nos. 750, 1478, 1734, 2557. The change indicates that review of the

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board's action should take place under c. 30A, Section 14 (1), and that affirmative equitable relief for violation of a town by-law concerning signs cannot now be obtained under Section 31, as amended. In view of the 1955 amendment of Section 31, we think that G. L. c. 40A, Section 22, should not be applied to enforce the zoning by-law with respect to a sign maintained under an outstanding permit from the board, at least until the enforcing officials' administrative remedies and remedies under c. 30A, Section 14 (1), have been adequately pursued.

3. We next consider whether declaratory relief alone should be granted. Although c. 231A, Section 8, provides that declaratory relief is to be broadly construed and administered, c. 231A, Section 3, permits a court to refuse to grant such relief where it would not terminate the controversy (as in Harvey Payne, Inc. v. Slate Co. 342 Mass. 368, 370, where all appropriate parties were not before the court) or for other sufficient reasons. Certain such reasons exist in this case.

(a) The failure of the selectmen to present to the board their objections to the permit and to seek review under G. L. c. 30A, Section 14 (1), requires caution in granting declaratory relief, without having before us all the evidence that should have been before the board (in addition to any that the applicant may have submitted). If the selectmen had presented a complete case to the board, the board's action with respect to the permit might have been different. [Note 6]

(b) The selectmen have not presented to the Superior Court evidence concerning important matters necessary to intelligent declaratory relief. Except by vague implication they have not shown in what zoning district the sign in controversy is placed. Apart from one photograph there is no evidence concerning the character of the neighborhood.

(c) If the sign is, as we suspect, in a limited business district (in which only certain tourist accommodations are allowed in addition to uses permitted in a residential district,

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see fn. 1), evidence of the character of the neighborhood may be pertinent in determining whether there is in fact any conflict between Sections IV-A (9) and V of the by-law, on the one hand, and Section 4A of the regulations, on the other hand. This evidence also might be appropriate in determining whether the board had or could have had substantial evidence before it to justify it in determining (in accordance with a fair application of the standard contained in Section 4A) that the sign was in a "business area." See General Outdoor Advertising Co. Inc. v. Department of Pub. Works, 289 Mass. 149, 192-193, 196-198. Some evidence also might be appropriate with respect to the background of Section 6E of the board's regulations, which purports to reserve to the board the determination of the size of signs in particular instances. Whether this regulation contains a standard for the board's action, "sufficiently definite in description" (see the General Outdoor Advertising Co. Inc. case, at p. 192), may be pertinent in determining whether the regulation is valid as to this sign which is not a billboard (see fn. 3), and thus whether there is any real conflict between the by-law and Section 6E. See Milton v. Donnelly, 306 Mass. 451, 458.

For these reasons and because a declaration will deal with issues which should not be decided upon an inadequate record, we think that declaratory relief should be denied as matter of discretion.

4. Because they may not now receive the affirmative relief which they seek and because declaratory relief should be denied as matter of discretion, the final decree is to be modified to provide merely that the bill be dismissed. As so modified it is affirmed.

So ordered.