JOHN DONNELLY & SONS, INC. vs. OUTDOOR ADVERTISING BOARD & another.

CUTTER, J. The plaintiff (Donnelly) seeks judicial review (G. L. c. 30A) of a decision of the Outdoor Advertising Board (the board, sometimes called the division); see G. L. c. 16, Section 13 (as appearing in St. 1969, c. 704, Section 21) and Section 14 (as appearing in St. 1963, c. 821, Section 1); c. 93, Sections 29-33, as amended, denying the renewal of a permit to maintain a billboard on the roof of 145 Main Street, Avon (the locus), and ordering that the billboard be removed. The town of Avon was joined as a defendant. The board found that the billboard was being maintained in violation of an amendment of the town of Avon's zoning by-law. [Note 1] After hearing, a Superior Court judge made a careful report of material facts which stated (among other matters) that the board had found the billboard to be "within 500 feet of the Avon Fire and Police Station, the Avon Baptist Church, a Civil War Memorial and a building which . . . Avon intends for use as a historical museum." By final decree, the board's decision was affirmed. Donnelly appealed. The facts are stated on the basis of the report of material facts.

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Donnelly owns a large billboard on the locus which the record before the board shows to have been there at least since 1967, and probably since 1940. "The billboard is used to advertise various products and . . . not . . . merely to advertise a business conducted on the" locus. It has been maintained "for a number of years under a permit . . . issued . . . by the [b]oard." In 1967, the Avon selectmen objected to a renewal of the permit. The board, however, then voted to renew the permit. It notified the selectmen that the locus was still in a business area and that the location "complies in every way with" the applicable rules and regulations, [Note 2] but that "as soon as there is a change in the area," the board can "review the permit." [Note 3]

The regulations, apart from Section 9K (mentioned below), have protected billboards in business and industrial areas to a considerable extent (see fns. 2 and 3), although

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they have imposed restrictions upon billboards in other areas. [Note 4] In 1969, the board amended its regulations [Note 5] by adding a new section, Section 9K. That section reads: "K. No license or permit shall be granted for the location or

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maintenance of billboards . . . within a . . . town except where such location or maintenance is in conformity with applicable . . . by-laws enacted in accordance with . . . [G. L. c. 93, Section 29] and no . . . by-law shall be deemed inconsistent with the . . . [board's] rules and regulations . . . on the ground that such . . . by-law prohibits the location or maintenance of a billboard . . . which in the absence of . . . [the] by-law would be in conformity with the . . . rules and regulations" (emphasis supplied). This new section gives rise to questions now at issue.

At the 1970 town meeting in Avon, it was "unanimously voted to amend the . . . [z]oning [b]y-law" by adding to Section 6 a new provision, #8 (fn. 1). After the amendment (for convenience, hereafter sometimes called the by-law) was approved by the Attorney General, the town (by its town counsel) asked the board not to renew the permit for a billboard on the locus. At a public hearing on September 15, 1970, Donnelly and the town were represented by counsel. At the hearing (of which a transcript is before us as an exhibit), "there was substantial evidence . . . that the immediate area in which the . . . [locus] billboard is located is still of a business character . . . and is still zoned for business." The record before the board, however, also shows that, near the locus, a new and costly police station has been built since 1967, and an old building has been restored for a museum. As already indicated, the board found that the billboard was within 500 feet of public and religious structures of types specified in the by-law (fn. 1). The board concluded that the billboard was in violation of the by-law and therefore in violation of Section 9K of the regulations. It voted to deny renewal of the permit.

1. Prior to the 1969 amendment of the regulations (inserting Section 9K) the board appears to have reserved to itself the power finally to determine whether an existing or proposed billboard was in a business or industrial area. See Section 5 of the regulations, fn. 2, supra, especially at points [A], [B], and [C]. If a proposed location was

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determined by the board to be in a business or industrial area, nothing in the regulations compelled denial of the permit. The regulations then indicated little concern on the board's part about local objections to the original location of billboards in business areas. With respect to renewal applications (see e.g. the 1967 action with respect to the billboard at the locus) the regulations afforded substantially no encouragement to cities or towns to press objections to (and to obtain a hearing upon) the renewal of a permit for a business area billboard, unless the area had ceased to be such an area. See Section 6 (fn. 3, supra) especially at points [D] and [E].

The 1969 insertion of Section 9K in the regulations significantly and explicitly changed the board's policy and position, so as to give much greater weight to local considerations. This provision (that "no . . . permit" should be granted for a billboard "within a city or town" except where the location conforms to an applicable ordinance or town by-law) plainly was adopted pursuant to the final sentence of c. 93, Section 29, which permits "towns . . . further [to] regulate and restrict . . . billboards . . . within their respective limits by . . . by-law, not inconsistent with" c. 93, Sections 29-33 (fn. 5, supra), or with the regulations.

Section 29 gives the board wide authority to prescribe regulations "for the proper control and restriction of billboards," with due consideration of the "public interest." The section does not require that the regulations be expressed in any particular manner or in any rigidly defined terms. The scope of the "application . . . [of constitutional guaranties, and hence of the regulations, may] expand or contract to meet . . . new and different conditions." See General Outdoor Advertising Co. Inc. v. Department of Pub. Works, 289 Mass. 149, 188, quoting Euclid v. Ambler Realty Co. 272 U.S. 365, 387. We think (especially in view of the last sentence of Section 29) that the board, in framing regulations, appropriately may vary (in the light of current circumstances) the extent to which its regulations are to preclude further reasonable

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restrictions by local ordinance or by-law, or to give weight to local restrictions. The board, for example, may regard as important the increasing local public interest in environmental matters [Note 6] and the trend toward adopting principles of local "home rule." See art. 89 of the Amendments to the Constitution of the Commonwealth.

2. There is no inconsistency between the Avon by-law and Section 9K of the regulations, if Section 9K is to be interpreted as controlling other provisions of the regulations. Two aspects of Section 9K support such a result. (1) The first part of Section 9K is a flat mandate by the board that no permit (and we take this to apply to renewal permits as well as original permits; see Milton v. Donnelly, 306 Mass. 451, 453, 457-458) is to be granted for a billboard "except where . . . [the] location or maintenance is in conformity with applicable . . . town . . . by-laws." This we regard as a determination by the board that it proposes to be guided by reasonable local ordinances and by-laws with respect to permits. (2) The later part of Section 9K states that no local "by-law shall be deemed inconsistent with the . . . regulations" merely because it forbids a billboard "which in the absence of . . . [the] by-law would be in conformity with the . . . regulations." This declares in substance that it is of no importance that the board probably would grant a permit in the absence of a town by-law.

We conclude that the board has adopted a regulation (a) that the policy of Section 9K is to affect and modify other regulations, and (b) that such other provisions are not to prevent regulation by local ordinances and by-laws. The board, in effect, has decided no longer to preempt, by its regulations, the whole field of billboard control and has left wide scope for reasonable local regulation. See

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General Outdoor Advertising Co. Inc. v. Department of Pub. Works, 289 Mass. 149, 196-198; Milton v. Donnelly, 306 Mass. 451, 458-459.

We perceive nothing in c. 93, Section 29, which precludes the board from deciding to give (by adopting Section 9K) greater scope than heretofore to local decisions (expressed by the formal adoption of ordinances or by-laws) concerning billboards. The board in effect is merely carrying out its regulatory function by a different pattern than formerly but in a manner clearly contemplated by the provisions of the final sentence of Section 29, relating to ordinances and by-laws.

Donnelly points to various alleged inconsistencies between the Avon by-law (fn. 1) and the regulations (other than Section 9K). In the light of what has been said about the controlling effect of Section 9K, these inconsistencies, if they exist, [Note 7] no longer have significance. [Note 8]

3. We next consider whether the town acted properly in the 1970 amendment of its zoning by-law.

Donnelly, in arguing that the by-law (fn. 1) is invalid, places some reliance on a 1928 case, which arose under G. L. c. 40, Section 25 (as amended by St. 1925, c. 116, Section 1), a predecessor of what are now G. L. c. 40A, Sections 2, 3. In that case, this court expressed the view that the 1925

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amendment of G. L. c. 40, Section 25 (authorizing the regulation of "structures"), was not intended to repeal by implication G. L. c. 93, Section 29, as then in force. See Inspector of Bldgs. of Falmouth v. General Outdoor Advertising Co. Inc. 264 Mass. 85, 88-89. It was decided that a Falmouth zoning provision did not effectively prohibit the maintenance of a billboard in that town. The precise basis of the Falmouth decision is far from clear. The case was not mentioned in the important later decision, which upheld in comprehensive terms, not only the Commonwealth's legislative power to regulate billboards, but also the power of the municipalities to do so by ordinance or by-law under the last sentence of G. L. c. 93, Section 29 (fn. 5). General Outdoor Advertising Co. Inc. v. Department of Pub. Works, 289 Mass. 149, 196-198, app. dism. 296 U.S. 543, and 297 U.S. 725.

In Milton v. Donnelly, 306 Mass. 451, 458, it was said that a town may "further regulate and restrict billboards so long as its by-law . . . [does] not infringe upon the rules and regulations of the State agency" (here the board). In Selectmen of Truro v. Outdoor Advertising Bd. 346 Mass. 754, 758, we assumed "(without deciding) that the power [in a town], created by the last sentence of [c. 93,] Section 29 [fn. 5, supra], 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." In Strazzula v. Building Inspector of Wellesley, 357 Mass. 694, 697 (dealing with accessory signs to which c. 93, Section 30, does not apply, so that the case is not directly relevant) the legislative power to permit municipalities to regulate signs by a zoning ordinance or by-law was recognized. We think that the Falmouth case now stands for no more than that local billboard regulation (which may be placed in a zoning ordinance or by-law) must not be inconsistent with principles clearly established by comprehensive State legislation or by authorized regulations. [Note 9]

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4. The Avon by-law (fn. 1) is not arbitrary, capricious, or unreasonable. It merely forbids, on a nondiscriminatory basis, billboards within 500 feet of certain buildings or areas of local civic importance. If, as we have held, local regulation is not precluded by G. L. c. 93, Sections 29-33, and by the board's regulations, the by-law is well within the general power to zone or to regulate for the public welfare recognized by the authorities already cited (see fn. 9).

The refusal to renew this permit reflects, of course, a general change in administrative policy concerning the regulation of billboards in the public interest. An important reason for limiting billboard permits to one-year terms is to allow such general changes to take place without hindrance from specific permits of long duration. The situation is distinguishable from an unreasonable or arbitrary refusal to renew an individual permit or license to conduct a particular occupation, or a regulated business at a specific location, for reasons not reflecting a generally applied public policy.

5. Donnelly argues that, with respect to the billboard on the locus (which existed prior to the board's amendment of Section 9K of the regulations and the adoption of the 1970 by-law amendment, fn. 1), it cannot be denied a permit. The contention is that G. L. c. 40A, Section 5 (as

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amended through St. 1969, c. 572), gives this billboard protection as an existing "structure," actually used as a billboard at the time of the 1970 adoption of the zoning amendment. [Note 10]

Donnelly obviously accepted the original and each subsequent permit for this billboard with knowledge that the permit was for a term of one year and was revocable by the board for cause. See Section 9, par. J, of the regulations (fn. 4, supra). In the General Outdoor Advertising Co. Inc. case, 289 Mass. 149, 200, this court said, "This plaintiff accepted his permit . . . subject to all the infirmities inherent in it under the governing statute and rules and regulations. It was subject to expiration . . . and to the necessity for renewal. The original granting of the permit carried no implication . . . that it would be renewed. . . . He cannot now assert a permanent right to maintain the sign contrary to the conditions on which he was permitted to erect it." See the somewhat analogous situation discussed in Canton v. Bruno, ante, 598, 608-610. Because of the adoption of Section 9K, representing a change of board policy, the permit has not been renewed.

Donnelly's interest in maintaining the billboard thus is fragile. The company has at most only a revocable, nonpermanent expiring permit (see McQuillin, Municipal Corporations [3d ed. rev.], Sections 26.10-26.12) for the maintenance of the very structure to which the permit and the general by-law prohibition relate.

It may be pointed out also that, at least in the absence of a permit, a billboard (such as that on the locus) by statute would constitute a "nuisance," subject to removal. See G. L. c. 93, Section 30A (fn. 5, supra) and Section 31 (as appearing in St. 1955, c. 584, Section 7). See also Restatement 2d: Torts (Tent. draft No. 17, April 26, 1971) Section 821B. Where a billboard permit thus is essentially temporary,

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and where, in the absence of a required permit renewal, the billboard would constitute a public nuisance, we hold that it has not gained the status of a vested right constituting a protected nonconforming use under G. L. c. 40A, Section 5, as amended.

We have been referred to no Massachusetts case (apart from the General Outdoor Advertising Co. Inc. case, already cited) which contains any detailed discussion of the effect of reliance by a billboard company upon a terminable permit, limited in time (and hence subject to changes of policy), upon the establishment of a nonconforming use. [Note 11] Massachusetts, under our statutes and regulations, has no established principle of amortization of billboards for which permits are not renewed. [Note 12] The billboard on the locus, however (so the record before the

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board shows), has been in existence at least since 1967 (and probably since 1940), a period in general longer than many periods of amortization mentioned in cases already cited (fn. 12). In the circumstances (see the decisions cited in fn. 9) we perceive no constitutional obstacle to the result reached by the board.

Decree affirmed with costs of appeal.